PART 1 Department of Public Service and Public Utility Commission

CHAPTER 1. APPOINTMENT, GENERAL POWERS, AND DUTIES

Sec.

§ 1. Composition of Department.

  1. The Department of Public Service shall consist of the Commissioner of Public Service, a Director for Regulated Utility Planning, a Director for Public Advocacy, a Director for Energy Efficiency, a Director for Telecommunications and Connectivity, and such other persons as the Commissioner considers necessary to conduct the business of the Department.
  2. The Commissioner shall be appointed by the Governor with the advice and consent of the Senate. The Commissioner shall serve for a term of two years beginning on February 1 of the year in which the appointment is made. The Commissioner shall serve at the pleasure of the Governor. The Directors for Regulated Utility Planning, for Public Advocacy, and for Energy Efficiency shall be appointed by the Commissioner. The Director for Telecommunications and Connectivity shall be appointed by the Commissioner in consultation with the Secretary of Administration.
  3. The Directors for Public Advocacy and for Telecommunications and Connectivity may employ, with the approval of the Commissioner, legal counsel and other experts, and clerical assistance, and the Directors for Regulated Utility Planning and for Energy Efficiency may employ, with the approval of the Commissioner, experts and clerical assistance.

    Amended 1959, No. 329 (Adj. Sess.), §§ 38, 39(b), eff. March 1, 1961; 1979, No. 204 (Adj. Sess.), § 1, eff. Feb. 1, 1981; 1989, No. 238 (Adj. Sess.), § 1, eff. June 4, 1990; 2015, No. 41 , § 2.

History

Source. V.S. 1947, § 507. P.L. § 476. 1923, No. 8 , § 7.

Amendments--2015. In subsec. (a), added "a Director for Telecommunications and Connectivity"; in subsec. (b), added the fifth sentence; and in subsec. (c), substituted "Directors for Public Advocacy and for Telecommunications and Connectivity" for "director for public advocacy".

Amendments--1989 (Adj. Sess.). Subsec. (a): Inserted "a director for energy efficiency" following "advocacy".

Subsec. (b): Inserted "for energy efficiency" following "planning" in the fourth sentence.

Subsec. (c): Substituted "directors" for "director" preceding "of regulated" and inserted "and energy efficiency" following "planning".

Amendments--1979 (Adj. Sess.). Catchline: Deleted "chairman as commissioner" following "department".

Subsec. (a): Substituted "a director for regulated utility planning, a director for public advocacy, and such other persons as the commissioner considers necessary to conduct the business of the department" for "the public service board, and the Vermont state natural gas and oil resources board".

Subsec. (b): Amended generally.

Subsec. (c): Added.

Amendments--1959 (Adj. Sess.). Rewrote the catchline, designated existing provisions of section as subsec. (b), substituted "board" for "commission" wherever it appeared in that subsec., and added subsec. (a).

Transfer of functions, duties, etc. of conservation and renewable energy unit to energy efficiency division. 1989, No. 238 (Adj. Sess.), § 2(b), eff. June 4, 1990, provided: "All duties, responsibilities and functions of the conservation and renewable energy unit of the department of public service are transferred to the energy efficiency division, as are all authorized positions and equipment."

Creation of positions; transfer of vacant positions; reemployment rights; transitional provisions. 2015, No. 41 , § 6 provides: "(a) Up to three additional exempt full-time positions are created within the Division for Telecommunications and Connectivity, as deemed necessary by the Secretary of Administration.

"(b) The positions created under subsection (a) of this section shall only be filled to the extent there are existing vacant positions in the Executive Branch available to be transferred and converted to the new positions in the Division for Telecommunications and Connectivity, as determined by the Secretary of Administration and the Commissioner of Human Resources, so that the total number of authorized positions in the State shall not be increased by this act.

"(c) All full-time personnel of the Vermont Telecommunications Authority (VTA) employed by the VTA on the day immediately preceding the effective date of this act who do not obtain a position in the Division for Telecommunications and Connectivity pursuant to subsection (a) of this section shall be entitled to the same reemployment or recall rights available to nonmanagement State employees under the existing collective bargaining agreement entered into between the State and the Vermont State Employees' Association.

"(d) The Department of Public Service shall assume possession and responsibility for all assets and liabilities of the VTA.

"(e) The VTA shall not enter into any new contracts without the approval of the Commissioner of Public Service."

ANNOTATIONS

Cited. In re Green Mountain Power Corp., 147 Vt. 509, 519 A.2d 595 (1986).

§ 2. Department powers.

  1. The Department of Public Service shall supervise and direct the execution of all laws relating to public service corporations and firms and individuals engaged in such business, including the:
    1. formation, organization, ownership, and acquisition of facilities of public service corporations under chapter 3 of this title;
    2. participation in planning for proper utility service as provided in section 202 of this title through the Director for Regulated Utility Planning;
    3. supervision and evaluation under chapters 5 and 77 of this title of the quality of service of public utility companies;
    4. interconnection and interchange of facilities of electric companies under sections 210, 213, and 214 of this title;
    5. representation of the State in the negotiations and proceedings for the procurement of electric energy from any source outside this State and from any generation facility inside the State under sections 211 and 212 of this title;
    6. review of proposed changes in rate schedules and petition to the Public Utility Commission, and representation of the interests of the consuming public in proceedings to change rate schedules of public service companies under chapter 5 of this title;
    7. siting of electric generation and transmission facilities under section 248 of this title;
    8. consolidations and mergers of public service corporations under chapter 7 of this title;
    9. supervision and regulation of cable television systems under chapter 13 of this title;
    10. supervision and regulation of telegraph and telephone companies under chapters 71, 73, and 75 of this title;
    11. supervision and regulation of the organization and operation of municipal plants under chapter 79 of this title; and
    12. supervision and regulation of the organization and operation of electric cooperatives under chapter 81 of this title.
  2. In cases requiring hearings by the Commission, the Department, through the Director for Public Advocacy, shall represent the interests of the people of the State, unless otherwise specified by law. In any hearing, the Commission may, if it determines that the public interest would be served, request the Attorney General or a member of the Vermont bar to represent the public or the State. In addition, the Department may intervene, appear, and participate in Federal Energy Regulatory Commission proceedings, Federal Communications Commission proceedings, or other federal administrative proceedings on behalf of the Vermont public.
  3. The Department may bring proceedings on its own motion before the Public Utility Commission, with respect to any matter within the jurisdiction of the Public Utility Commission, and may initiate rulemaking proceedings before that Commission. The Public Utility Commission, with respect to any matter within its jurisdiction, may issue orders on its own motion and may initiate rulemaking proceedings.
  4. In any proceeding where the decommissioning fund for the Vermont Yankee Nuclear Facility is involved, the Department shall represent the consuming public in a manner that acknowledges that the general public interest requires that the consuming public, rather than either the State's future consumers who never obtain benefits from the facility or the State's taxpayers, ought to provide for all costs of decommissioning.  The Department shall seek to have the decommissioning fund be based on all reasonably expected costs.
  5. The Commissioner of Public Service (the Commissioner) will work with the Director of the Office of Economic Opportunity (the Director), the Commissioner of Housing and Community Development, the Vermont Housing and Conservation Board (VHCB), the Vermont Housing Finance Agency (VHFA), the Vermont Community Action Partnership, and the efficiency entity or entities appointed under subdivision 209(d)(2) of this title and such other affected persons or entities as the Commissioner considers relevant to improve the energy efficiency of both single- and multi-family affordable housing units, including multi-family housing units previously funded by VHCB and VHFA and subject to the Multifamily Energy Design Standards adopted by the VHCB and VHFA. In consultation with the other entities identified in this subsection, the Commissioner and the Director together shall report twice to the House Committee on Energy and Technology and the Senate Committee on Natural Resources and Energy, on or before January 31, 2015 and 2017, respectively, on their joint efforts to improve energy savings of affordable housing units and increase the number of units assisted, including their efforts to:
    1. simplify access to funding and other resources for energy efficiency and renewable energy available for single- and multi-family affordable housing. For the purpose of this subsection, "renewable energy" shall have the same meaning as under section 8002 of this title;
    2. ensure the delivery of energy services in a manner that is timely, comprehensive, and cost-effective;
    3. implement the energy efficiency standards applicable to single- and multi-family affordable housing;
    4. measure the results and performance of energy improvements;
    5. develop guidance for the owners and residents of affordable housing to maximize energy savings from improvements; and
    6. determine how to enhance energy efficiency resources for the affordable housing sector in a manner that avoids or reduces the need for assistance under 33 V.S.A. chapter 26 (home heating fuel assistance).
  6. In performing its duties under this section, the Department shall give heightened consideration to the interests of ratepayer classes who are not independently represented parties in proceedings before the Commission, including residential, low-income, and small business consumers, as well as other consumers whose interests might otherwise not be adequately represented but for the Department's advocacy.
  7. In all forums affecting policy and decision making for the New England region's electric system, including matters before the Federal Energy Regulatory Commission and the Independent System Operator of New England, the Department of Public Service shall advance positions that are consistent with the statutory policies and goals set forth in 10 V.S.A. §§ 578 , 580, and 581 and sections 202a, 8001, 8004, and 8005 of this title. In those forums, the Department also shall advance positions that avoid or minimize adverse consequences to Vermont and its ratepayers from regional and inter-regional cost allocation for transmission projects. This subsection shall not compel the Department to initiate or participate in litigation and shall not preclude the Department from entering into agreements that represent a reasonable advance to these statutory policies and goals.
  8. The Department shall investigate when it receives a complaint that there has been noncompliance with section 246, 248, 248a, or 8010 of this title, any rule adopted pursuant to those sections, or any certificate of public good issued pursuant to those sections, including a complaint of such noncompliance received pursuant to section 208 of this title or the complaint protocol established under 2016 Acts and Resolves No. 130, Sec. 5c.

    Amended 1979, No. 204 (Adj. Sess.), § 2, eff. Feb. 1, 1981; 1989, No. 296 (Adj. Sess.), § 5, eff. June 29, 1990; 2013, No. 89 , § 12a; 2013, No. 91 (Adj. Sess.), §§ 1, 5, eff. Feb. 4, 2014; 2013, No. 99 (Adj. Sess.), § 9a, eff. April 1, 2014; 2015, No. 11 , § 31; 2015, No. 56 , § 22; 2017, No. 53 , § 7; 2017, No. 113 (Adj. Sess.), § 173.

History

Source. V.S. 1947, § 508. 1939, No. 11 , § 3. 1937, No. 197 , § 2. P.L. § 477. 1933, No. 157 , § 418. 1923, No. 8 , § 8.

2016. Deleted "of Public Service" from section heading.

- 2013 (Adj. Sess.) Subsec. (f), as added by 2013, No. 99 , § 9a, eff. April 1, 2014, was redesignated as subsec. (g) to avoid conflict with subdiv. (f) as added by 2013, No. 91 (Adj. Sess.), § 1, eff. April 1, 2014.

Amendments--2017 (Adj. Sess.). Subsec. (e): Substituted "House Committee on Energy and Technology and the Senate Committee on Natural Resources and Energy" for "House and Senate Committees on Natural Resources and Energy" in the last sentence.

Amendments--2017. Subsec. (h): Added.

Amendments--2015. Subdiv. (e)(4): Act No. 11 substituted "results" for "outcomes" following "measure the".

Subsec. (g): Act No. 56 inserted "8004" in the first sentence.

Amendments--2013 (Adj. Sess.). Subsec. (b): Act No. 91 added the present third sentence.

Subsec. (f): Added by Act No. 91.

Subsec. (g): Added by Act No. 99.

Amendments--2013. Subsec. (e): Added.

Amendments--1989 (Adj. Sess.). Subsec. (d): Added.

Amendments--1979 (Adj. Sess.). Section amended generally.

Rules; name change. 2017, No. 53 , § 13 provides: "(a) The rules of the Public Service Board in effect on July 1, 2017 shall become rules of the Vermont Public Utility Commission (the Commission).

"(b) In those rules, the Commission is authorized to change all references to the Public Service Board so that they refer to the Commission. Unless accompanied by one or more other revisions to the rules, such a change need not be made through the rulemaking process under the Administrative Procedure Act."

Cross References

Cross references. Authority of Public Utility Commission to regulate and adopt rules pertaining to pay-per-call services, see 9 V.S.A. § 2514.

Procedure for adoption of administrative rules, see 3 V.S.A. § 801 et seq.

ANNOTATIONS

Cited. In re Bloch, 133 Vt. 326, 340 A.2d 51 (1975); City of South Burlington v. Vermont Electric Power Co., 133 Vt. 438, 344 A.2d 19 (1975); In re Green Mountain Power Corp., 142 Vt. 373, 455 A.2d 823 (1983); In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983); In re Green Mountain Power Corp., 147 Vt. 509, 519 A.2d 595 (1986); Vermont Department of Public Service v. Massachusetts Municipal Wholesale Electric Co., 151 Vt. 73, 558 A.2d 215 (1988); Washington Electric Coop. v. Massachusetts Municipal Wholesale Electric Co.,, 922 F.2d 92 (2d Cir. 1990).

§ 3. Public Utility Commission.

  1. The Vermont Public Utility Commission shall consist of a chair and two members. The Chair and each member shall not be required to be admitted to the practice of law in this State.
  2. The Chair shall be nominated, appointed, and confirmed in the manner of a Superior judge.
  3. Members of the Commission other than the Chair shall be appointed in accordance with this subsection. Whenever a vacancy occurs, public announcement of the vacancy shall be made. The Governor shall submit at least five names of potential nominees to the Judicial Nominating Board for review. The Judicial Nominating Board shall review the candidates in respect to judicial criteria and standards only and shall recommend to the Governor those candidates the Board considers qualified. The Governor shall make the appointment from the list of qualified candidates. The appointment shall be subject to the advice and consent of the Senate.
    1. The term of each member shall be six years. (d) (1)  The term of each member shall be six years.
    2. Any appointment to fill a vacancy shall be for the unexpired portion of the term vacated.
      1. A chair wishing to succeed himself or herself in office may seek reappointment under the terms of subsection (b) of this section. (3) (A) A chair wishing to succeed himself or herself in office may seek reappointment under the terms of subsection (b) of this section.
      2. The Governor may reappoint a member of the Commission other than the Chair at the expiration of that member's term, subject to the advice and consent of the Senate.
  4. Notwithstanding 3 V.S.A. § 2004 , or any other provision of law, members of the Commission may be removed only for cause. When a Commission member who hears all or a substantial part of a case retires from office before such case is completed, he or she shall remain a member of the Commission for the purpose of concluding and deciding such case, and signing the findings, orders, decrees, and judgments therein. A retiring chair shall also remain a member for the purpose of certifying questions of law if appeal is taken. For such service, he or she shall receive a reasonable compensation to be fixed by the remaining members of the Commission and necessary expenses while on official business.
  5. A case shall be deemed completed when the Commission enters a final order therein even though such order is appealed to the Supreme Court and the case remanded by that Court to the Commission. Upon remand the Commission then in office may in its discretion consider relevant evidence including any part of the transcript of testimony in the proceedings prior to appeal.
  6. The Chair shall have general charge of the offices and employees of the Commission.
  7. The Clerk may appoint and assign a former Commission member to sit on specific Commission cases when some or all of the regular members are disqualified or otherwise unable to serve. In making assignments, the Clerk shall begin with the former Commissioner who left service most recently and then, as needed, proceed to the next most recently serving former Commissioner. Former Commissioners shall receive pay in accordance with subsection (e) of this section.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), (c), eff. March 1, 1961; 1979, No. 204 (Adj. Sess.), § 3, eff. Feb. 1, 1981; 1985, No. 108 (Adj. Sess.), § 3, eff. March 25, 1986; 1993, No. 21 , § 1, eff. May 12, 1993; 2017, No. 53 , § 9; 2019, No. 128 (Adj. Sess.), § 13; 2021, No. 42 , § 3.

History

Source. 1949, No. 220 , § 1. V.S. 1947, § 9287. P.L. § 6054. 1923, No. 90 , § 1. G.L. §§ 5026, 5027. 1915, No. 1 , §§ 143, 144. 1908, No. 116 , § 1. P.S. §§ 4591, 4592, 4595. 1906, No. 126 , §§ 2, 3, 6. 1902, No. 68 , § 1. V.S. §§ 3977, 3978, etc. 1886, No. 23 , § 1. R.L. § 3481. 1871, No. 14 . G.S. 28, § 19. 1856, No. 30 , § 1. 1855, No. 6 , § 1.

Amendments--2021. Subsec. (h): Added.

Amendments--2019 (Adj. Sess.). Subsec. (c): Inserted "advice and" in the last sentence.

Subsec. (d): Added subdiv. (d)(1), (d)(2) and (d)(3)(A) designations; in subdiv. (d)(3)(A), substituted "chair" for "member" and inserted "subsection (b) of"; and added subdiv. (d)(3)(B).

Amendments--2017. Section heading: Substituted "Utility Commission" for "Service Board".

Subsec. (a): Substituted "Vermont Public Utility Commission" for "Public Service Board" at the beginning of the first sentence.

Subsecs. (c) and (e)-(g): Substituted "Commission" for "Board".

Amendments--1993. Rewrote the section catchline and added subsec. (g).

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1979 (Adj. Sess.). Subsec. (a): Amended generally.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" and "board member" for "commissioner".

ANNOTATIONS

1. Authority of retired member.

Since a certificate of public good is a final order, former member of Public Service Commission has no authority to act under the retirement provision of this section. Nelson v. Public Service Commissioners, 117 Vt. 1, 83 A.2d 505 (1951).

Cited. Moore & Thompson Paper Co. v. Bellows Falls Hydro-Electric Corp., 111 Vt. 222, 13 A.2d 190 (1940); McFeeters v. Parker, 113 Vt. 139, 30 A.2d 300, 1950-52 Op. Atty. Gen. 103 (1943); In re New England Telephone & Telegraph Co., 139 Vt. 578, 433 A.2d 263 (1981); In re Village of Hardwick Electric Department, 143 Vt. 437, 466 A.2d 1180 (1983).

§ 4. Qualifications of members, commissioners, and clerk.

A person in the employ of or holding any official relation to any company subject to the supervision of the Commission, or engaged in the management of such company, or owning stock, bonds, or other securities thereof, or who is, in any manner, connected with the operation of such company in this State, shall not be a member or clerk of the Commission or Commissioner of Public Service; nor shall any person holding the office of member, clerk of the Commission, or Commissioner of Public Service personally or in connection with a partner or agent, render professional service for or against or make or perform any business contract with any company subject to such supervision, relating to the business of such company, except contracts made with them as common carriers or in regular course of public service; nor shall such person, directly or indirectly, receive from any such company any commission, present, or reward.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1979, No. 204 (Adj. Sess.), § 4, eff. Feb. 1, 1981.

History

Source. V.S. 1947, § 9288. P.L. § 6055. G.L. § 5028. 1917, No. 254 , § 4907. 1908, No. 116 , § 22. P.S. § 4593. 1906, No. 126 , § 4. 1902, No. 68 , § 3. V.S. § 3980. 1894, No. 88 , § 4. 1886, No. 23 , § 1. R.L. § 3481. 1870, No. 1 , § 14. G.S. 128, § 119. 1856, No. 30 , § 1. 1855, No. 26 , § 1.

Amendments--1979 (Adj. Sess.). Inserted "commissioners" following "members" in the catchline and "or commissioner of public service" following "clerk of the board" wherever it appeared in the text.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "supervision of the" and "clerk of the".

Cross References

Cross references. Acceptance of bribes or neglect of service by Public Utility Commission members or clerk, see 13 V.S.A. § 1105.

§ 5. Clerk; oath.

The Commission shall appoint a clerk, who shall serve during its pleasure. The Commission members and clerk shall be sworn to the faithful discharge of the duties of their offices and, before entering upon the same, shall file a certificate of their oaths for record in the Office of the Secretary of State.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), (c), eff. March 1, 1961.

History

Source. V.S. 1947, § 9289. P.L. § 6056. G.L. § 5029. P.S. § 4594. 1906, No. 126 , § 5. 1902, No. 68 , §§ 2, 11. V.S. § 3978. V.S. § 5332, etc. 1894, No. 88 , § 2. 1886, No. 23 , § 1.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" in the first sentence and "board members" for "commissioners" in the second sentence.

Cross References

Cross references. Oaths of allegiance and office, see § 56 of Chapter II of Vermont Constitution.

§ 6. Powers and duties of clerk.

The clerk shall have the custody of the seal of the Commission, keep a full record of its proceedings, file and preserve at its office all documents and papers entrusted to his or her care, prepare such papers and notices as may be required by the Commission, and perform such other duties as it may prescribe. The clerk shall have power, under the direction of the Commission, to issue subpoenas for witnesses and to administer oaths in all cases before the Commission or pertaining to the duties of the office.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1993, No. 21 , § 2, eff. May 12, 1993.

History

Source. V.S. 1947, § 9290. P.L. § 6057. 1933, No. 157 , § 5732. G.L. § 5030. 1917, No. 254 , § 4909. P.S. § 4595. 1906, No. 126 , § 6. V.S. § 3978, etc.

Amendments--1993. Deleted "have general charge of the office" preceding "keep a full", inserted "or her" following "entrusted to his" and deleted "of him" following "required" in the first sentence, and substituted "the" for "such" preceding "clerk" and for "his" following "duties of" in the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

ANNOTATIONS

1. Employment status.

This section appears to put the clerk in a position of principal assistant to the Public Service Commission; if the commission itself determines that the clerk serves as its principal assistant, then the position is exempt from the classified service pursuant to 3 V.S.A. § 311(a)(3). 1956-58 Op. Atty. Gen. 204.

§ 7. Quorum; meetings.

Two Commission members shall constitute a quorum for the transaction of any business. Meetings of the Commission may be held at any time or place within the State upon call of the Chair or the other two members, after a reasonable notice to the other members, and shall be held at such times and places as in the judgment of the Commission will best serve the convenience of all parties in interest.

Amended 1959, No. 329 (Adj. Sess.), § 39(a), (b), eff. March 1, 1961; 1993, No. 21 , § 3, eff. May 12, 1993.

History

Source. V.S. 1947, § 9291. P.L. § 6058. G.L. § 5032. 1910, No. 155 . P.S. § 4596. 1906, No. 126 , § 7. V.S. § 3981. 1886, No. 23 , § 2.

Amendments--1993. Substituted "the chair or the other two members" for "any member" preceding "after a reasonable notice" and deleted "by mail or telegraph" thereafter in the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board members" for "commissioners" in the first sentence and "board" for "commission" in the second sentence.

ANNOTATIONS

Cited. Colonial Power & Light Co. v. Creaser, 87 Vt. 457, 89 A. 472 (1914); Moore & Thompson Paper Co. v. Bellows Falls Hydro-Electric Corp., 111 Vt. 222, 13 A.2d 190 (1940); In re Burlington Electric Dept., 141 Vt. 540, 450 A.2d 1131 (1982).

§ 8. Powers of single Commission member or other officer or employee.

  1. One Commission member or any officer or employee of the Commission duly appointed by the Chair of the Commission may inquire into and examine any matter within the jurisdiction of the Commission.
  2. A hearing officer may administer oaths in all cases, so far as the exercise of that power is properly incidental to the performance of his or her duty or that of the Commission. A hearing officer may hold any hearing in any matter within the jurisdiction of the Commission to hear.
  3. A hearing officer shall report his or her findings of fact in writing to the Commission in the form of a proposal for decision. A copy shall be served upon the parties pursuant to 3 V.S.A. § 811 . However, judgment on such findings shall be rendered only by a majority of the Commission.
  4. At least 12 days prior to a hearing before the Commission or a hearing officer, the Commission shall give written notice of the time and place of the hearing to all parties to the case and shall indicate the name and title of the person designated to conduct the hearing.
  5. Upon written request to the Commission at least five days prior to the hearing by all parties to the case, the Chair shall appoint at least a majority of the Commission to conduct the hearing.
  6. Notwithstanding subsection (c) of this section, the Chair may appoint a hearing officer to hear and finally determine any consumer complaint where the amount in controversy does not exceed $2,000.00. Upon petition of a party, filed within 30 days of issuance of the hearing officer's decision and order, or on its own motion, the Commission may determine that the hearing officer's decision and order should be treated as a proposal for decision and order as provided in subsection (c) of this section. The Commission may grant such request for good cause, including apparent error of fact, or procedural or substantive law, and may conduct additional evidentiary hearings or hear oral argument from the parties. If such request is not timely made, or is not granted by the Commission, the decision and order of the hearing officer shall become the final decision and order of the Commission.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), (c), eff. March 1, 1961; 1971, No. 180 (Adj. Sess.), § 1, eff. March 28, 1972; 1973, No. 96 ; 1993, No. 21 , § 4, eff. May 12, 1993.

History

Source. 1953, No. 223 , § 1. V.S. 1947, § 9292. P.L. § 6059. G.L. § 5033. 1910, No. 155 .

2016. In subsec. (f), deleted "but not limited to" following "including" in accordance with 2013, No. 5 , § 4.

Revision note - References to "chairman" of the Board in the first and last sentences changed to "Chair" to conform references to § 3 of this title.

Amendments--1993. Section amended generally.

Amendments--1973. Rewrote the third sentence and added the fourth, sixth and seventh sentences.

Amendments--1971 (Adj. Sess.). Added "or other officer or employee" following "member" at the end of the catchline, inserted "or any officer or employee of the board" following "member" in the first sentence and inserted the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board member" for "commissioner" in the catchline and first sentence and "board" for "commission" in the first, second and third sentences.

ANNOTATIONS

Analysis

1. Findings.

Although a hearing examiner appointed by the Public Service Board is required by this section to report his or her findings to the Board, his or her recommended disposition is not binding, since this section also provides that it is for a majority of the Board to render final judgment on those findings. In re Telesystems, Corp., 143 Vt. 504, 469 A.2d 1169 (1983).

2. Procedural requirements.

Failure of Public Service Board, in hearings to determine issuance of a certificate of public good for construction of an electric generating plant, to conform to procedural requirements mandated by this section affected process, not subject matter jurisdiction. In re Burlington Electric Dept., 141 Vt. 540, 450 A.2d 1131 (1982).

Cited. In re Residents of Shaftsbury, 117 Vt. 502, 95 A.2d 41 (1953); Vermont Electric Power Co. v. Bandel, 135 Vt. 141, 375 A.2d 975 (1977); Noble v. Delaware & Hudson Railway, 139 Vt. 47, 421 A.2d 1301 (1980); In re EMCO CATV, Inc., 141 Vt. 385, 449 A.2d 949 (1982).

§ 9. Court of record; seal.

The Commission shall have the powers of a court of record in the determination and adjudication of all matters over which it is given jurisdiction. It may render judgments, make orders and decrees, and enforce the same by any suitable process issuable by courts in this State. The Commission shall have an official seal on which shall be the words, "State of Vermont. Public Utility Commission. Official Seal."

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. V.S. 1947, § 9293. 1947, No. 202 , § 9424. P.L. § 6060. G.L. § 5034. P.S. § 4597. 1906, No. 126 , § 8. V.S. § 3979. 1894, No. 88 , § 3. 1886, No. 23 , § 1.

Revision note. Deleted "both at law and in equity" following "court of record" in the first sentence and "of law and equity" following "courts" in the second sentence pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under 4 V.S.A. § 219.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" in the first and third sentences.

ANNOTATIONS

Analysis

1. Generally.

Legislature has granted the Public Utility Commission the powers of a court of record in the determination and adjudication of all matters over which it is given jurisdiction, including the power to render judgments, make orders and decrees, and enforce the same by any suitable process issuable by courts in the State. The statutory grant of power does include the authority to order the Agency of Natural Resources, as a party to a certificate of public good proceeding, to refund some or all of the fee allocated the Agency. In re Swanton Wind LLC, 209 Vt. 224, 204 A.3d 635 (2018).

The Public Service Board operates as a hearing body under the general authority of this section. Vermont Electric Power Co. v. Bandel, 135 Vt. 141, 375 A.2d 975 (1977).

2. Jurisdiction.

The powers of a court of record given to the Commission by this section relate only to those matters within its jurisdiction, and such jurisdiction appears to be of a supervisory nature, to be exercised in the interest and for the welfare of the general public. Trybulski v. Bellows Falls Hydro-Electric Corp., 112 Vt. 1, 20 A.2d 117 (1941).

3. Counsel.

Because the Board has all the powers of a trial court in the determination and adjudication of matters over which it has jurisdiction, a motion to disqualify counsel is a matter that rests within the Board's sound discretion, and its ruling will not be disturbed on appeal absent a showing of an abuse of discretion. In re Vermont Electric Power Producers, Inc., 165 Vt. 282, 683 A.2d 716 (1996).

Cited. In re Burlington Electric Dept., 141 Vt. 540, 450 A.2d 1131 (1982); In re General Order 45, 149 Vt. 285, 542 A.2d 288 (1988); Barnet Hydro Co. v. Public Service Board, 174 Vt. 464, 807 A.2d 347 (mem.) (2002).

§ 10. Service of process; notice of hearings; temporary restraining orders.

  1. All processes issued by the Commission shall state the time and place of return, in those cases where return is to be made to the Commission. Orders, notices, and other processes issued by the Commission shall be served personally or by first class mail, except that the Commission may direct that service be made by registered or certified mail. If the whereabouts of a person are unknown, or if the number of respondents is so great that personal service or service by mail is impracticable, service may be made by publication.
  2. Except as provided in subsections (c), (d), and (e) of this section, the Commission shall give 12 days' notice of all hearings.
  3. A scheduling or procedural conference may be held upon any reasonable notice.
  4. An evidentiary hearing, once commenced upon proper notice, may be continued to a subsequent date upon any reasonable notice.
  5. Notwithstanding any other provision in this section, the Commission or a single member may grant temporary restraining orders in the manner provided by and subject to limitations prescribed by the Vermont Rules of Civil Procedure.
  6. The provisions of sections 110-124 of this title relating to process and notice in condemnation cases shall not be affected by this section.

    Amended 1959, No. 186 , § 1, eff. May 20, 1959; 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1975, No. 59 , § 1, eff. April 18, 1975; 1975, No. 212 (Adj. Sess.), § 1; 1985, No. 103 (Adj. Sess.); 1993, No. 21 , § 5, eff. May 12, 1993; 2019, No. 31 , § 22.

History

Source. V.S. 1947, § 9294. P.L. § 6061. 1931, No. 97 , § 1. 1929, No. 82 , § 1. G.L. § 5035. 1910, No. 155 . P.S. §§ 4596, 4611. 1906, No. 126 , §§ 7, 23. 1902, No. 68 , § 6. V.S. §§ 3981, 3989, 3991. 1886, No. 23 , §§ 2, 8, 10.

Amendments--2019. Subsec. (c): Substituted "scheduling" for "prehearing".

Amendments--1993. Subsec. (a): Amended generally.

Subsec. (e): Inserted "or a single member" preceding "may grant", substituted "the manner provided by and subject to limitations prescribed by" for "accordance with" preceding "the Vermont Rules of Civil Procedure" and deleted "or any successor rules" thereafter.

Subsec. (f): Substituted "sections 110-124" for "sections 110-126" following "provisions of".

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1975 (Adj. Sess.). Designated existing provisions of section as subsec. (a), inserted "unless a shorter period is ordered by the board as provided in subsec. (b) of this section" following "publication" in that subsec. and added subsec. (b).

Amendments--1975. Inserted "Vermont" preceding "legislative board of the" and substituted "United Transportation Union" for "brotherhood of railroad trainmen" thereafter.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Amendments--1959. Section amended generally.

ANNOTATIONS

1. Notice.

In looking at adequacy of notice, Supreme Court examines whether or not parties were given adequate opportunity to prepare and respond to issues raised in proceeding. In re Twenty-Four Vermont Utilities, 159 Vt. 363, 618 A.2d 1309 (1992).

Intervenors in Public Service Board hearing concerning waiver and release provision of electric power agreement were aware that Board had to act by specific date, intended to proceed with evidence as soon as Supreme Court ruled on remand request, and were fully aware of the issues, offering expert testimony on them; as such, reasonable notice requirements were not violated. In re Twenty-Four Vermont Utilities, 159 Vt. 363, 618 A.2d 1309 (1992).

Waiver and release provision of electric power agreement between Vermont utilities and Canadian power company was a modification of an earlier agreement amendment; as such, because Public Service Board hearing on that amendment was properly noticed, new twelve-day notice period was not required for additional hearing on waiver and release. In re Twenty-Four Vermont Utilities, 159 Vt. 363, 618 A.2d 1309 (1992).

Cited. In re Central Vermont Public Service Corp., 144 Vt. 46, 473 A.2d 1155 (1984).

§ 11. Pleadings; rules of practice; hearings; findings of fact.

  1. The forms, pleadings, and rules of practice and procedure before the Commission shall be prescribed by it. The Commission shall adopt rules that include, among other things, provisions that:
    1. A utility whose rates are suspended under the provisions of section 226 of this title shall, within 30 days from the date of the suspension order, file with the Commission all exhibits it intends to use in the hearing thereon together with the names of witnesses it intends to produce in its direct case and a short statement of the purposes of the testimony of each witness. Except in the discretion of the Commission, a utility shall not be permitted to introduce into evidence in its direct case exhibits which are not filed in accordance with this rule.
    2. A scheduling conference shall be ordered in every contested rate case. At such conference the Commission may require the State or any person opposing such rate increase to specify what items shown by the filed exhibits are conceded. Further proof of conceded items shall not be required.
  2. The Commission shall allow all members of the public to attend each of its hearings unless the hearing is for the sole purpose of considering information to be treated as confidential pursuant to a protective order duly adopted by the Commission.
    1. The Commission shall make all reasonable efforts to ensure that the location of each hearing is sufficient to accommodate all members of the public seeking to attend.
    2. The Commission shall ensure that the public may safely attend the hearing, including obtaining such resources as may be necessary to fulfill this obligation.
  3. The Commission shall hear all matters within its jurisdiction and make its findings of fact. It shall state its rulings of law when they are excepted to. Upon appeal to the Supreme Court, its findings of fact shall be accepted unless clearly erroneous.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1971, No. 185 (Adj. Sess.), § 211, eff. March 29, 1972; 2013, No. 91 (Adj. Sess.), § 3; 2015, No. 23 , § 134; 2017, No. 53 , § 13a; 2019, No. 31 , § 21.

History

Source. 1953, No. 223 , § 2. V.S. 1947, § 9295. 1947, No. 202 , § 9426. P.L. § 6062. G.L. § 5036. P.S. § 4598. 1906, No. 126 , § 9.

Revision note. Undesignated paragraphs were designated as subsecs. (a) and (b) to conform section to V.S.A. style.

Reference to "section 224" of this title changed to "section 226" to conform reference to renumbering of such section.

Amendments--2019. Subsec. (a): Substituted "that" for "which" following "rules" in the second sentence of the introductory language.

Subdiv. (a)(2): Substituted "scheduling" for "prehearing" preceding "conference" in the first sentence.

Amendments--2017. Inserted "Hearings;" following "Practice" in the section heading; added new subsec. (b) and redesignated former subsec. (b) as subsec. (c).

Amendments--2015 Subsec. (a): Deleted "promulgate and" preceding "adopt rules".

Amendments--2013 (Adj. Sess.). Subdiv. (a)(1): Substituted "Board" for "board 10 copies of".

Amendments--1971 (Adj. Sess.). Subsec. (b): Amended generally.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Adoption of rules regarding statewide 911 standards and service protocols. 1993, No. 83 , § 2, eff. June 11, 1993, provided: "The department of public service may establish, by rule, uniform, statewide, non-mandatory standards and procedures for the creation of any 911 data base, and for the maintenance and security of, and protocols to be used for 911 services."

1993, No. 197 (Adj. Sess.), § 8(b), provided: "Any rule adopted by the department of public service pursuant to Public Act No. 83 (62nd Biennial Session) [sections 2 and 5 of which are set out in this note above and as a note under section 22 of this title, respectively] shall be the responsibility of the E-911 board which may amend or repeal any such rules."

Cross References

Cross references. Procedure for adoption of administrative rules, see 3 V.S.A. § 801 et seq.

ANNOTATIONS

Analysis

1. Prehearing.

Prehearing procedure prescribed by this section contemplates elimination of supporting proof of filed exhibits on concession of items specified in exhibits filed before hearing. In re New England Telephone & Telegraph Co., 120 Vt. 181, 136 A.2d 357 (1957).

2. Findings of fact .

Requirement of this section that the Commission make findings of fact imposes upon it the duty to sift the evidence and state the facts. In re New England Telephone & Telegraph Co., 115 Vt. 494, 66 A.2d 135 (1949).

Where the Commission has ample evidence upon which to make findings of fact, it is error to fail to make a finding as to any essential issue. In re New England Telephone & Telegraph Co., 115 Vt. 494, 66 A.2d 135 (1949).

*3. Basis.

Where the Public Service Board granted a certificate of public good to provide cable television service to an applicant other than appellant, based on its findings applying its criteria for granting such a certificate, since the matters addressed were entirely within the scope of its expertise and the record disclosed that the findings and conclusions were adequately supported by the evidence, its decision was not clearly erroneous. In re Telesystems, Corp., 143 Vt. 504, 469 A.2d 1169 (1983).

Public Service Board findings of fact must be based exclusively on the evidence and matters officially noticed by the Board. In re Green Mountain Power Corp., 131 Vt. 284, 305 A.2d 571 (1973).

*4. Review.

Findings of fact adopted by Public Service Board will be accepted on appeal unless they are clearly erroneous. In re East Georgia Cogeneration Limited Partnership, 158 Vt. 525, 614 A.2d 799 (1992).

Findings of fact of Public Service Board must be upheld unless clearly erroneous. In re Vermont Power Exchange, 159 Vt. 168, 617 A.2d 418 (1992).

Supreme Court must accept the Public Service Board's findings of fact, unless they are clearly erroneous, and, in reviewing findings, will give great deference to the Board's particular expertise and informed judgment. In re Twenty-Four Vermont Utilities, 159 Vt. 339, 618 A.2d 1295 (1992).

In reviewing findings of fact adopted by Public Service Board, great deference is given to particular expertise and informed judgment of Board. In re East Georgia Cogeneration Limited Partnership, 158 Vt. 525, 614 A.2d 799 (1992).

In reviewing findings of fact made by the Public Service Board, the Supreme Court must accord proper deference to the expert and informed judgment of the Board. In re Green Mountain Power Corp., 131 Vt. 284, 305 A.2d 571 (1973); In re EMCO CATV, Inc., 141 Vt. 385, 449 A.2d 949 (1982).

A finding of the Public Service Board will be held clearly erroneous only when the Supreme Court has reviewed the entire record and been left with the firm conviction that a mistake has been made. In re Vermont Electric Power Co., 131 Vt. 427, 306 A.2d 687 (1973).

Since under this section findings of the Commission are conclusive, where an order of the Commission is not supported by its findings, it must be reversed. Carpenter v. Home Telephone Co., 122 Vt. 50, 163 A.2d 838 (1960).

5. Rulings of law.

Requirement of this section that the Commission shall state its rulings of law when such rulings are excepted to is satisfied by reference to an official record of the commission where such method is agreed to by the parties and the Commission. Vermont Electric Power Co. v. Boynton, 121 Vt. 86, 147 A.2d 884 (1959).

6. Burden on appeal.

The burden of proving the Public Service Board's findings and order to be clearly erroneous falls on the appealing party. In re Village of Lyndonville Electric Dept., 149 Vt. 660, 543 A.2d 1319 (mem.) (1988).

The burden of proving that orders of the Public Service Board are clearly erroneous is placed on the appealing party. In re Green Mountain Power Corp., 142 Vt. 373, 455 A.2d 823 (1983).

Burden of proving that findings and conclusions of Public Service Board are clearly erroneous falls to appealing party. In re East Georgia Cogeneration Limited Partnership, 158 Vt. 525, 614 A.2d 799 (1992).

Cited. Western Union Telegraph Co. v. Burlington Traction Co., 90 Vt. 506, 99 A. 4 (1916); In re Hathorn's Transportation Co., 121 Vt. 349, 158 A.2d 464 (1960); In re Dixon, 123 Vt. 111, 183 A.2d 522 (1962); North v. City of Burlington Electric Light Dept., 125 Vt. 240, 214 A.2d 82 (1965); In re Weyerhaeuser Co., 132 Vt. 121, 315 A.2d 446 (1974); In re Vermont Welfare Rights Organization, 132 Vt. 622, 326 A.2d 828 (1974); In re Green Mountain Power Corp., 133 Vt. 107, 329 A.2d 372 (1974); In re Allied Power & Light Co., 133 Vt. 586, 350 A.2d 360 (1976); Vermont Electric Power Co. v. Bandel, 135 Vt. 141, 375 A.2d 975 (1977); In re Green Mountain Power Corp., 138 Vt. 213, 414 A.2d 1159 (1980); In re Green Mountain Power Corp., 139 Vt. 368, 428 A.2d 1134 (1981); In re Central Vermont Public Service Corp., 141 Vt. 284, 449 A.2d 904 (1982); In re Burlington Electric Dept., 141 Vt. 540, 450 A.2d 1131 (1982); In re Village of Hardwick Electric Dept., 143 Vt. 437, 466 A.2d 1180 (1983); In re Vermont Electric Generation & Transmission Cooperative, Inc., 146 Vt. 235, 502 A.2d 841 (1985); In re Quechee Water Co., 159 Vt. 122, 615 A.2d 1026 (1992); In re Central Vermont Public Service Corp., 167 Vt. 626, 711 A.2d 1158 (mem.) (1998).

§ 11a. Electronic filing and issuance.

  1. As used in this section:
    1. "Confidential document" means a document containing information for which confidentiality has been asserted and that has been filed with the Commission and parties in a proceeding subject to a protective order duly issued by the Commission.
    2. "Document" means information inscribed on a tangible medium or stored in an electronic or other medium and retrievable in perceivable form.
    3. "Electronic filing" means the transmission of documents to the Commission by electronic means.
    4. "Electronic filing system" means a Commission-designated system that provides for the electronic filing of documents with the Commission and for the electronic issuance of documents by the Commission. If the system provides for the filing or issuance of confidential documents, it shall be capable of maintaining the confidentiality of confidential documents and of limiting access to confidential documents to individuals explicitly authorized to access such confidential documents.
    5. "Electronic issuance" means:
      1. the transmission by electronic means of a document that the Commission has issued, including an order, proposal for decision, or notice; or
      2. the transmission of a message from the Commission by electronic means informing the recipients that the Commission has issued a document, including an order, proposal for decision, or notice, and that it is available for viewing and retrieval from an electronic filing system.
    6. "Electronic means" means any Commission-authorized method of electronic transmission of a document.
  2. The Commission by order, rule, procedure, or practice may:
    1. provide for electronic issuance of any notice, order, proposal for decision, or other process issued by the Commission, notwithstanding any other service requirements set forth in this title or in 10 V.S.A. chapter 43;
    2. require electronic filing of documents with the Commission;
    3. for any filing or submittal to the Commission for which the filing or submitting entity is required to provide notice or a copy to another State agency under this title or under 10 V.S.A. chapter 43, waive such requirement if the State agency will receive notice of and access to the filing or submittal through an electronic filing system; and
    4. for any filing, order, proposal for decision, notice, or other process required to be served or delivered by first-class mail or personal delivery under this title or under 10 V.S.A. chapter 43, waive such requirement to the extent the required recipients will receive the filing, order, proposal of decision, notice, or other process by electronic means or will receive notice of and access to the filing, order, proposal of decision, notice, or other process through an electronic filing system.
  3. Any order, rule, procedure, or practice issued under subsection (b) of this section shall include exceptions to accommodate parties and other participants who are unable to file or receive documents by electronic means.
  4. Subsection (b) of this section shall not apply to the requirements for service of citations and notices in writing as set forth in sections 111(b), 111a(i), and 2804 of this title.

    Added 2013, No. 91 (Adj. Sess.), § 4, eff. Feb. 4, 2014.

§ 12. Review by Supreme Court.

A party to a cause who feels aggrieved by the final order, judgment, or decree of the Commission may appeal to the Supreme Court. However, the Commission, in its discretion and before final judgment, may permit an appeal to be taken by any party to the Supreme Court for determination of questions of law in such manner as the Supreme Court may by rule provide for appeals before final judgment from a Superior Court. Notwithstanding the provisions of the Vermont Rules of Civil Procedure or the Vermont Rules of Appellate Procedure, neither the time for filing a notice of appeal nor the filing of a notice of appeal, as provided herein, shall operate as a stay of enforcement of an order of the Commission unless the Commission or the Supreme Court grants a stay under the provisions of section 14 of this title.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1967, No. 205 , § 1; 1971, No. 242 (Adj. Sess.); 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 188.

History

Source. V.S. 1947, § 9296. 1947, No. 202 , § 9427. 1939, No. 177 , § 1. P.L. § 6063. G.L. § 5037. 1908, No. 116 , § 12. P.S. § 4599. 1906, No. 126 , § 10.

Amendments--2009 (Adj. Sess.) Deleted "himself or herself" preceding "aggrieved" in the first sentence and "or the district court" following "superior court" in the first sentence, and made minor stylistic changes in the second sentence.

Amendments--1973 (Adj. Sess.). Substituted "superior court" for "county court" in the second sentence.

Amendments--1971 (Adj. Sess.). Section amended generally.

Amendments--1967. Section amended generally.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

ANNOTATIONS

Analysis

1. Federal court.

Railway company was free to bring suit in federal district court to restrain Public Service Commission from enforcing order as violating federal constitution, although appeal was not taken to state Supreme Court, since law relating to appeal did not attempt to confer legislative authority on court but only provided an alternative and more expeditious way of doing what might be done by bill in equity. Bacon v. Rutland Railroad, 232 U.S. 134, 34 S. Ct. 283, 58 L. Ed. 538 (1914).

2. Direct appeal.

Public utility's request that Public Service Board order, governing when, how and for what reasons service can be disconnected, be stayed, was properly taken directly to the Supreme Court without first going to a lower court, for the order had its crucial impact as a rate regulation, appeals from which go directly to the Supreme Court. In re Vermont Welfare Rights Organization, 132 Vt. 622, 326 A.2d 828 (1974).

3. Interlocutory appeal.

Issue whether Public Service Board could grant a second temporary electricity rate increase when the first was still in effect could be considered on appeal to the Supreme Court under 3 V.S.A. § 815, allowing appeal of otherwise interlocutory orders if "review of the final decision would not provide an adequate remedy, and the filing of the appeal does not itself stay enforcement of the agency decision." In re Green Mountain Power Corp., 133 Vt. 107, 329 A.2d 372 (1974).

4. Stay.

Unless and until there is a stay of an order of the Public Service Board, the order remains in effect as issued. In re Village of Hardwick Electric Dept., 143 Vt. 437, 466 A.2d 1180 (1983).

Grant of injunction by lower court restraining implementation of purchase power and fuel adjustment clause the court had found invalid had the effect of accomplishing a stay of a Public Service Board order allowing the clause and could not stand where there was emphatic legislative policy under this section and section 14 of this title restricting suspension of such orders to the Board, or the State Supreme Court or a Justice thereof on appeal. Moore v. Gilbert, 132 Vt. 365, 321 A.2d 13 (1974).

5. Scope of review.

On appeal from an order of the Public Service Commission, the Supreme Court sits only for correction of errors in rulings of the Commission which are duly excepted to, or of errors appearing from facts found and reported by the Commission. Bacon v. Boston & Maine Railroad, 83 Vt. 528, 77 A. 858 (1910).

6. Right to appeal.

Under both statutes regarding appeals from Public Service Board [now Public Utility Commission] orders, appellant, which tried unsuccessfully to intervene in the action, had no right to appeal the merits of the certificate-of-public-good order. In re GMPSolar-Richmond, LLC, 206 Vt. 220, 179 A.3d 1232 (2017).

Cited. Western Union Telegraph Co. v. Burlington Traction Co., 90 Vt. 506, 99 A. 4 (1916); In re New England Telephone & Telegraph Co., 115 Vt. 494, 66 A.2d 135 (1949); Vermont Electric Power Co. v. Anderson, 121 Vt. 72, 147 A.2d 875 (1959); In re New England Telephone & Telegraph Co., 131 Vt. 310, 305 A.2d 598 (1973); In re New England Telephone & Telegraph Co., 131 Vt. 470, 307 A.2d 783 (1973); In re Allied Power & Light Co., 132 Vt. 554, 326 A.2d 160 (1974); Auclair v. Vermont Electric Power Co., 133 Vt. 22, 329 A.2d 641 (1974); City of South Burlington v. Vermont Electric Power Co., 133 Vt. 438, 344 A.2d 19 (1975); In re New England Telephone & Telegraph Co., 139 Vt. 578, 433 A.2d 263 (1981); Town of Springfield v. McCarren, 549 F. Supp. 1134 (D. Vt. 1982), aff'd, 722 F.2d 728 (2d Cir. 1983), cert. denied, 464 U.S. 942, 104 S. Ct. 360, 78 L. Ed. 2d 322 (1983); In re Burlington Electric Dept., 141 Vt. 540, 450 A.2d 1131 (1982); West v. Village of Morrisville, 728 F.2d 130 (2d Cir. 1984); Barnet Hydro Co. v. Public Service Board, 174 Vt. 464, 807 A.2d 347 (mem.) (2002).

§ 13. Repealed. 1967, No. 205, § 3.

History

Former § 13. Former § 13, relating to transfer of certified copies of original files, was derived from V.S. 1947, § 9297; 1947, No. 202 , § 9428; P.L. § 6064; G.L. § 5038; 1917, No. 149 ; 1908, No. 116 , § 12; P.S. § 4600; 1906, No. 126 , § 11; 1902, No. 68 , §§ 7, 8; V.S. § 3990; 1886, No. 23 , § 10.

§ 14. Powers of Supreme Court.

The Supreme Court may reverse or affirm the judgments, orders, or decrees of the Commission and may remand a cause to it with such mandates, as law or equity shall require; and the Commission shall enter judgment, order, or decree in accordance with such mandates. The transfer of the cause to the Supreme Court shall not vacate any judgment, order, or decree of the Commission, but the Supreme Court or, when not in session, a Justice thereof upon notice to interested parties, may suspend execution of the same as justice and equity require, unless otherwise specifically provided by law; provided, however, that the execution of rate orders shall not be suspended at the request of a utility unless the utility files with the Commission a bond running to the members of the Commission and their successors in office in an amount and with sureties approved by the Court or a Justice thereof conditioned that within 30 days after the termination of the proceedings the company shall repay to the persons from whom collected and after the effective date of the Commission's final order all sums in excess of the rates finally determined to be just and reasonable.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 263 , § 4(c), eff. July 31, 1961.

History

Source. V.S. 1947, § 9298. 1947, No. 202 , § 9429. P.L. § 6064. G.L. § 5038. 1917, No. 149 . 1908, No. 116 , § 12. P.S. § 4600. 1906, No. 126 , § 11. 1902, No. 68 , §§ 7, 8. V.S. § 3990. 1886, No. 23 , § 10.

Revision note. Inserted "with" following "cause to it" in the first sentence to correct an apparent omission.

Amendments--1961. Rewrote the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

ANNOTATIONS

Analysis

1. Construction.

This section is a measure of the relief available in the Supreme Court on issues properly there, not a jurisdictional statute. In re New England Telephone & Telegraph Co., 131 Vt. 310, 305 A.2d 598 (1973).

Since this section provides that an order of the Commission shall not be vacated by an appeal, appeals from its orders stand in the Supreme Court like cases there on exceptions, and appeal by one party does not take up the other party's assignments of error. Essex Storage Electric Co. v. Victory Lumber Co., 93 Vt. 437, 108 A. 426 (1919).

On appeal from an order of the Commission the Supreme Court is not an appellate Public Service Commission, with all the power of commissioners. Bacon v. Boston & Maine Railroad, 83 Vt. 421, 76 A. 128 (1910).

2. Stay.

The function of the Supreme Court, or a justice of it, in passing upon a motion for a stay of a Public Service Board order pending appeal, is not to second-guess the Board, but to act in opposition only when the action of the Board cannot be supported. In re New England Telephone & Telegraph Co., 145 Vt. 309, 488 A.2d 746 (1985).

In considering whether to stay a Public Service Board order pending appeal, the Supreme Court looks at the likelihood of success of the appealing party on the merits, whether the party seeking the stay will suffer irreparable injury if the stay is not granted, whether the issuance of a stay will substantially harm other parties, and the location of the best interests of the public. In re New England Telephone & Telegraph Co., 145 Vt. 309, 488 A.2d 746 (1985).

Ratepayers would not suffer irreparable injury if a stay of a utility rate increase were not to be granted, since the Public Service Board could insure that the utility, through payments or credits to its customers, repaid all excess revenues it had collected if such measures became necessary. In re New England Telephone & Telegraph Co., 145 Vt. 309, 488 A.2d 746 (1985).

Since motion involved stay of a Public Service Board order, the primary authority for hearing on the motion was this section's provision calling for a decision on suspension of the order "as justice and equity require," which would be construed to mean that the responsibility for deciding upon the advisability of a stay is principally, as well as initially, in the Board. In re Allied Power & Light Co., 132 Vt. 554, 326 A.2d 160 (1974).

The function of the Supreme Court, or a Justice of it, in passing upon a motion for a stay of a Public Service Board order, is not to second-guess the Board, but to act in opposition only when the action of the Board cannot be supported, or in cases where intervening events call into question the advisability of a stay under the changed circumstances, in which case, better practice might dictate that the matter of a stay be remanded to the Board for reconsideration. In re Allied Power & Light Co., 132 Vt. 554, 326 A.2d 160 (1974).

Alleged strain on welfare recipients resulting from utility rate increase allowed by Public Service Board was not a factor to be considered by Supreme Court on motion to stay, pending appeal, order allowing the increase. In re Allied Power & Light Co., 132 Vt. 554, 326 A.2d 160 (1974).

Grant of injunction by lower court restraining implementation of purchase power and fuel adjustment clause the court had found invalid had the effect of accomplishing a stay of a Public Service Board order allowing the clause and could not stand where there was emphatic legislative policy under this section and section 12 of this title restricting suspension of such orders to the Board, or the Supreme Court or a Justice thereof on appeal. Moore v. Gilbert, 132 Vt. 365, 321 A.2d 13 (1974).

3. Findings.

Where on appeal from an order of the Commission it appears that essential findings have not been made, the order will be reversed and the case remanded that such findings may be had. In re New England Telephone & Telegraph Co., 115 Vt. 494, 66 A.2d 135 (1949).

Cited. In re Allied Power & Light Co., 132 Vt. 354, 321 A.2d 7 (1974); In re Green Mountain Power Corp., 138 Vt. 213, 414 A.2d 1159 (1980); In re New England Telephone & Telegraph Co., 139 Vt. 578, 433 A.2d 263 (1981); Town of Springfield v. McCarren, 549 F. Supp. 1134 (D. Vt. 1982), aff'd, 722 F.2d 728 (2d Cir. 1983), cert. denied, 464 U.S. 942, 104 S. Ct. 360, 78 L. Ed. 2d 322 (1983); West v. Village of Morrisville, 728 F.2d 130 (2d Cir. 1984).

§ 15. Decree of Commission; enforcement.

A party to an order or decree of the Public Utility Commission or the Commission itself, or both, may complain to the Supreme Court for relief against any disobedience of or noncompliance with such order or decree. In such proceedings and upon such notice thereof to the parties as it shall direct, the Supreme Court shall hear and consider such petition and make such order and decree in the premises by way of writ of mandamus, writ of prohibition, injunction, or otherwise, concerning the enforcement of such order and decree of the Public Utility Commission as to law and equity shall appertain.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. V.S. 1947, § 9299. 1947, No. 202 , § 9430. P.L. § 6065. 1923, No. 92 , § 3.

Reference in text. References to "writ of mandamus" and "writ of prohibition" in the last sentence are obsolete. See V.R.A.P. 21.

2016. Deleted "Public Service" from section heading.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

ANNOTATIONS

Cited. McFeeters v. Parker, 113 Vt. 139, 30 A.2d 300 (1943); First National Bank of White River Junction v. Reed, 306 F.2d 481 (2d Cir. 1962); Town of Springfield v. McCarren, 549 F. Supp. 1134 (D. Vt. 1982), aff'd, 722 F.2d 728 (2d Cir. 1983), cert. denied, 464 U.S. 942, 104 S. Ct. 360, 78 L. Ed. 2d 322 (1983).

§ 16. Repealed. 1959, No. 186, § 2, eff. May 20, 1959.

History

Former § 16. Former § 16, relating to security for and recovery of costs, was derived from V.S. 1947, § 9300; P.L. § 6066; G.L. § 5039; P.S. § 4601; 1906, No. 126 , § 12.

§ 17. Fees of witnesses; duties of clerk.

The fees of witnesses before the Commission shall be the same as in the Superior Court. In all causes in behalf of or for the convenience or safety of the public, and in the investigation of accidents, the fees of witnesses and the expense of summoning them shall be paid by the clerk of the Commission. From time to time, the clerk shall make requisition on the Commissioner of Finance and Management for money to pay such fees and expenses, and the Commissioner of Finance and Management shall issue warrants therefor. The clerk shall quarterly, on February, May, August, and November 1, render to the Commissioner of Finance and Management an account of his or her receipts and disbursements under this section, and pay any unexpended balance into the State Treasury.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1983, No. 195 (Adj. Sess.), § 5(b).

History

Source. V.S. 1947, § 9301. P.L. § 6067. G.L. § 5040. 1917, No. 254 , § 4919. P.S. §§ 4595, 4604. 1906, No. 126 , §§ 6, 15. 1902, No. 68 , § 4. V.S. §§ 3978, 3984. 1886, No. 23 , § 1.

Revision note. Substituted "commissioner of finance and management" for "commissioner of finance and information support" throughout section in light of Executive Order No. 35-87.

References to "auditor of accounts" and "auditor" in the third and fourth sentences changed to "finance director" pursuant to 1959, No. 328 (Adj. Sess.), § 8(b). See note set out under 32 V.S.A. § 182.

References to "finance director" in the third and fourth sentences changed to "commissioner of finance" to conform references to new title and reorganization of State government pursuant to 1971, No. 92 . See 3 V.S.A. chapter 45.

Amendments--1983 (Adj. Sess.). Inserted "and information support" following "commissioner of finance" in the third and fourth sentences.

Amendments--1973 (Adj. Sess.). Substituted "superior" for "county" preceding "court" at the end of the first sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" in the first and second sentences.

Cross References

Cross references. Witness fees generally, see 32 V.S.A. § 1551 et seq.

§ 18. Production and examination of books; witnesses.

So far as is necessary for the performance of its duties, the Public Utility Commission or the Commissioner of Public Service, the Directors for Public Advocacy and Regulated Utility Planning, and any other employee of the Department authorized by the Commissioner shall have power to examine the books, accounts, and papers of any company, receiver, trustee, or lessee owning or operating any line, plant, or property, subject to the Commission's or the Department's jurisdiction that in any way relate to or contain entries, data, or memoranda concerning any transaction substantially affecting the interests of the State of Vermont or consumers of utility services within the State, to subpoena witnesses, to administer oaths to them, and to examine them on all matters of which the Commission or Department has jurisdiction.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 183 , § 1; 1971, No. 180 (Adj. Sess.), § 2, eff. March 28, 1972; 1979, No. 204 (Adj. Sess.), § 5, eff. Feb. 1, 1981; 1983, No. 230 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 9302. P.L. § 6068. G.L. § 5041. 1917, No. 150 , § 1. 1908, No. 116 , § 3. P.S. § 4603. 1906, No. 126 , § 14. V.S. § 3983. 1886, No. 23 , § 3. R.L. § 3487. G.S. 28, § 124. 1855, No. 26 , § 6. 1849, No. 41 , § 41.

Amendments--1983 (Adj. Sess.). Rewrote the first sentence and deleted the former second sentence.

Amendments--1979 (Adj. Sess.). Rewrote the first sentence.

Amendments--1971 (Adj. Sess.). Inserted "or any officer or employee of the board duly appointed by the chairman" preceding "shall have power" in the first sentence.

Amendments--1961. Substituted "substantially affecting the interests of the state of vermont or consumers of utility services within the" for "within this state or with any person residing or having a place of business within this" following "transaction" in two places in the first sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Cross References

Cross references. Enforcement of administrative subpoenas, see 3 V.S.A. § 809a.

Modification of administrative subpoenas or discovery orders, see 3 V.S.A. § 809b.

§ 19. Experts.

With the approval of the Governor, the Commission may appoint and employ, at the expense of the State, engineers, accountants, legal counsel, and such number of clerks, stenographers, experts, and temporary employees as it deems necessary in the performance of its duties and in the investigation of matters within its jurisdiction.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1971, No. 191 (Adj. Sess.), § 13.

History

Source. 1949, No. 221 , § 1. V.S. 1947, § 9303. 1939, No. 178 , § 1. P.L. § 6069. G.L. § 5042. 1917, No. 155 , § 2. 1908, No. 116 , § 20. P.S. § 4605. 1906, No. 126 , § 16. V.S. § 3984. 1886, No. 23 , § 3.

Amendments--1971 (Adj. Sess.). Deleted "and shall fix their pay" following "jurisdiction" at the end of the section.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "may appoint".

Law review commentaries

Law review. In re New England Telephone and Telegraph Company: The Scope of Authority of Counsel for the Public in Utility Rate Cases, see 4 Vt. L. Rev. 141 (1979).

§ 20. Particular proceedings and activities; personnel.

    1. The Commission or the Department of Public Service may authorize or retain legal counsel, official stenographers, expert witnesses, advisors, temporary employees, and other research, scientific, or engineering services: (a) (1)  The Commission or the Department of Public Service may authorize or retain legal counsel, official stenographers, expert witnesses, advisors, temporary employees, and other research, scientific, or engineering services:
      1. To assist the Commission or Department in any proceeding listed in subsection (b) of this section.
      2. To monitor compliance with any formal opinion or order of the Commission.
      3. In proceedings under section 248 of this title, to assist other State agencies that are named parties to the proceeding where the Commission or Department determines that they are essential to a full consideration of the petition, or for the purpose of monitoring compliance with an order resulting from such a petition.
      4. In addition to the services in subdivisions (1)(A)-(C) of this subsection (a), in proceedings under subsection 248(h) of this title, by contract with the regional planning commission of the region or regions affected by a proposed facility, to assist in determining conformance with local and regional plans and to obtain the commission's data, analysis, and recommendations on the economic, environmental, historic, or other impact of the proposed facility in the region.
      5. To assist in monitoring the ongoing and future reliability and the postclosure activities of any nuclear generating plant within the State. In this section, "postclosure activities" includes planning for and implementation of any action within the State's jurisdiction that shall or will occur when the plant permanently ceases generating electricity.
    2. The Agency of Natural Resources may authorize or retain legal counsel, official stenographers, expert witnesses, advisors, temporary employees, and other research, scientific, or engineering services to:
      1. Assist the Agency of Natural Resources in any proceeding under section 248 of this title.
      2. Monitor compliance with an order issued under section 248 of this title.
      3. Assist the Commission or the Department of Public Service in any proceedings described in subdivisions (b)(9)(Federal Energy Regulatory Commission) and (11)(Nuclear Regulatory Commission) of this section. Allocation of Agency of Natural Resources costs under this subdivision (C) shall be in the same manner as provided under subdivisions (b)(9) and (11) of this section. The Agency of Natural Resources shall report annually to the Joint Fiscal Committee all costs incurred and expenditures charged under the authority of this subsection (a) with respect to proceedings under subdivision (b)(9) of this section and the purpose for which such costs were incurred and expenditures made.
      4. Assist in monitoring the postclosure activities of any nuclear generating plant within the State.
    3. The Department of Health may authorize or retain legal counsel, official stenographers, expert witnesses, advisors, temporary employees, and other research, scientific, or engineering services to assist in monitoring the postclosure activities of any nuclear generating plant within the State.
    4. The Department of Public Safety, Division of Emergency Management and Homeland Security may authorize or retain legal counsel, official stenographers, expert witnesses, advisors, employees, and other research, scientific, or engineering services, or other planning expenses to assist in monitoring the postclosure activities of any nuclear generating plant within the State.
    5. The Agency of Agriculture, Food and Markets may authorize or retain legal counsel, official stenographers, expert witnesses, advisors, temporary employees, and other research, scientific, or engineering services to:
      1. assist the Agency of Agriculture, Food and Markets in any proceeding under section 248 of this title; or
      2. monitor compliance with an order issued under section 248 of this title.
    6. The personnel authorized by this section shall be in addition to the regular personnel of the Commission or the Department of Public Service or other State agencies; and in the case of the Department of Public Service or other State agencies may be retained only with the approval of the Governor and after notice to the applicant or the company or companies involved. The Commission or the Department of Public Service shall fix the amount of compensation and expenses to be paid such additional personnel, except that the Agency of Natural Resources, the Department of Health, the Department of Public Safety, Division of Emergency Management and Homeland Security, or the Agency of Agriculture, Food and Markets, respectively, shall fix the amount of compensation and expenses to be paid to additional personnel that it retains under subdivision (2), (3), (4), or (5) of this subsection.
  1. Proceedings, including appeals therefrom, for which additional personnel may be retained are:
    1. Hearings resulting from a utility request to seek an increase in its rates, tolls, or charges, including hearings resulting from complaints against the proposed increase.
    2. Hearings resulting from a petition by a utility or a person operating a utility to issue stock, bonds, notes, or other evidences of indebtedness for which the approval of the Commission is required by law.
    3. Hearings resulting from a petition for a merger, consolidation, or acquisition for which the approval of the Commission is required by law.
    4. Hearings resulting from a petition for a certificate of public good.
    5. Hearings resulting from a petition to acquire property through the exercise of eminent domain under section 110 et seq. of this title.
    6. Hearings resulting from an investigation initiated by the Commission or resulting from a petition brought by the Department.
    7. Proceedings under chapter 13 of this title relating to regulation of cable television systems, provided that due regard shall be taken of a cable television company's size and gross operating revenues.
    8. Hearings resulting from opinions requested under subsection 248(h) of this title.
    9. Proceedings at the Federal Energy Regulatory Commission which involve Vermont utilities or which may affect the interests of the State of Vermont. Costs under this subdivision shall be charged to the involved electric or natural gas companies pursuant to subsection 21(a) of this title. In cases where the proceeding is generic in nature, the costs shall be allocated to electric or natural gas companies in proportion to the benefits sought for the customers of such companies from such advocacy. The Public Utility Commission and the Department of Public Service shall report quarterly to the Joint Fiscal Committee all costs incurred and expenditures charged under the authority of this subsection, and the purpose for which such costs were incurred and expenditures made.
    10. Proceedings under the federal Telecommunications Act of 1996.
    11. Proceedings at the Nuclear Regulatory Commission which involve Vermont utilities or which may affect the interests of the State of Vermont. Costs under this subdivision shall be charged to the involved electric companies pursuant to subsection 21(a) of this title. In cases where the proceeding is generic in nature, the costs shall be allocated to electric companies in proportion to the benefits sought for the customers of such companies from such advocacy.
    12. Proceedings at the U.S. Bankruptcy Court which involve Vermont utilities or which may affect the interests of the State of Vermont. Costs under this subdivision shall be charged to the involved utilities pursuant to subsection 21(a) of this title. In cases where the proceeding is generic in nature, the costs shall be allocated to utilities in proportion to the benefits sought for the customers of such companies from such advocacy.
    13. Proceedings before the Federal Communications Commission or related forums which involve Vermont utilities or which may affect the interests of the State of Vermont. Costs under this subdivision shall be charged, pursuant to subsection 21(a) of this title, to the companies providing telecommunications services on a common carrier basis. In cases where the proceeding is generic in nature, the costs shall be allocated to companies in proportion to the benefits sought for their customers from such advocacy.
    14. Proceedings before the Federal Communications Commission or related forums which involve a company that owns a cable television system holding a certificate of public good and delivering services in Vermont or which may affect the interests of the State of Vermont. Costs under this subdivision shall be charged to the company pursuant to subsection 21(a) of this title. In cases where the proceeding is generic in nature, the costs shall be allocated to companies in proportion to the benefits sought for their customers from such advocacy.
    15. Proceedings before any State or federal court concerning a company holding or a facility subject to a certificate issued under this title if the proceedings may affect the interests of the State of Vermont. Costs under this subdivision (15) shall be charged to the involved company pursuant to subsection 21(a) of this title. In cases where the proceeding is generic in nature, the costs shall be allocated to companies in proportion to the benefits sought for their customers from such advocacy.
  2. Persons employed by the State are competent to be designated to act for the same purposes and in lieu of or in conjunction with additional personnel retained under this section. However, when so acting, they shall not receive compensation in addition to their regular pay.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 258 , § 1, eff. July 31, 1961; 1975, No. 254 (Adj. Sess.), § 154; 1979, No. 204 (Adj. Sess.), § 6, eff. Feb. 1, 1981; 1987, No. 65 , § 7, eff. May 28, 1987; 1987, No. 271 (Adj. Sess.), § 16, eff. June 21, 1988; 1987, No. 273 (Adj. Sess.), § 4, eff. June 21, 1988; 1989, No. 63 , § 1, eff. May 22, 1989; 1995, No. 182 (Adj. Sess.), § 12, eff. May 22, 1996; 1997, No. 135 (Adj. Sess.), § 1; 1999, No. 49 , § 150; 1999, No. 155 (Adj. Sess.), § 12h; 2001, No. 143 (Adj. Sess.), §§ 47, 48; 2003, No. 98 (Adj. Sess.), § 1; 2009, No. 146 (Adj. Sess.), § F25; 2011, No. 47 , § 20n, eff. May 25, 2011; 2015, No. 172 (Adj. Sess.), § E.233.

History

Source. 1949, No. 221 , § 2. V.S. 1947, § 9304. 1941, No. 144 , § 3. 1939, No. 178 , § 2. P.L. § 6070. 1931, No. 98 , § 1. 1925, No. 85 , § 1.

Reference in text. The Federal Energy Regulatory Commission, referred to in subdiv. (b)(9), is codified as 42 U.S.C. § 7171 et seq.

The Nuclear Regulatory Commission, referred to in subdiv. (b)(11), is codified as 42 U.S.C. § 5841 et seq.

The federal Telecommunications Act of 1996 and the Federal Communications Commission, referred to in subdivs. (b)(10), (13), and (14) of this section, is Pub. L. No. 104-104, 110 Stat. 56, and amended sections throughout the federal Communications Act, 47 U.S.C. § 151 et seq.

2008. Redesignated subdivs. in subsec. (a) to comply with V.S.A. style.

Revision note - In subdiv. (b)(11) and (12), substituted "subsection 21(a)" for "section 21(a)" to conform reference to V.S.A. style.

Substituted "chapter 13 of this title" for "chapter 13" in subdiv. (b)(7), to conform reference to V.S.A. style.

Subdiv. (b)(7) as added by 1987, No. 273 (Adj. Sess.), was redesignated as subdiv. (b)(8) to avoid conflict with subdiv. (b)(7) as previously added by 1987, No. 271 (Adj. Sess.).

Deleted "and" at the end of subdiv. (7) and substituted a semi-colon for the period at the end of subdiv. (8) and added "and" thereafter to conform to V.S.A. style.

Reference to "sections 110 et al. of this title" in subdiv. (b)(5) changed to "section 110 et seq. of this title" to conform reference to V.S.A. style.

Amendments--2015 (Adj. Sess.). Subsec. (a): Rewrote subdiv. (1), inserted "and" preceding "other research" in the introductory language of subdiv. (2), substituted "or Department of Public Service in" for "or Department in" in subdiv. (2)(C), added subdiv. (2)(D) and new subdivs. (3) through (5), and redesignated former subdiv. (3) as subdiv. (6).

Amendments--2011. Subdiv. (a)(1)(v): Added.

Subdiv. (b)(12): Substituted "utilities" for "electric companies" in two places.

Subdiv. (b)(15): Added.

Amendments--2009 (Adj. Sess.) Subsec. (a): Added new subdiv. (2) and redesignated former subdiv. (2) as subdiv. (3), and added "except that the agency of natural resources shall fix the amount of compensation and expenses to be paid to additional personnel that it retains under subdiv. (2) of this subsection" in the last sentence of subdiv. (3).

Amendments--2003 (Adj. Sess.). Subsec. (b): Made minor punctuation changes and in subdivs. (b)(13) and (14) deleted "occurring prior to July 1, 2004" following "state of Vermont" in the first sentence.

Amendments--2001 (Adj. Sess.) Subdiv. (b)(13): Substituted "July 1, 2004" for "July 1, 2002" at the end of the first sentence; and "pursuant to subsection 21(a) of this title to the companies providing telecommunications services on a common carrier basis" for "to the telephone companies pursuant to section 21(a) of this title" in the second sentence, and deleted "telephone" preceding "companies" in two places.

Subsec. (b)(14): Substituted "July 1, 2004" for "July 1, 2002" at the end of the first sentence, and "subsection 21(a)" for "section 21(a)" in the second sentence, and deleted "cable" preceding "company" and "companies".

Amendments--1999 (Adj. Sess.) Subdiv. (b)(14): Added.

Amendments--1999. Subsec. (b): Inserted "including appeals therefrom" following "proceedings" in the introductory paragraph and added subdivs. (11) through (13).

Amendments--1997 (Adj. Sess.). Subsec. (b): Added subdiv. (10).

Amendments--1995 (Adj. Sess.) Subdiv. (b)(9): Added.

Amendments--1989. Subsec. (a): Amended generally.

Subdiv. (b)(3): Deleted "or" preceding "consolidation" and inserted "or acquisition" thereafter.

Subdiv. (b)(4): Deleted "under section 248 of this title" following "good".

Amendments--1987 (Adj. Sess.). Subdiv. (b)(5): Act No. 273 deleted "and" following "title".

Subdiv. (b)(6): Act No. 273 made minor stylistic changes.

Subdiv. (b)(7): Added by Act Nos. 271 and 273.

Amendments--1987. Subdiv. (b)(4): Deleted "and" following "title".

Subdiv. (b)(5): Added "and" following "title".

Subdiv. (b)(6): Added.

Amendments--1979 (Adj. Sess.). Section amended generally.

Amendments--1975 (Adj. Sess.). Subsec. (a): Rewrote the former second sentence as the second and third sentences.

Amendments--1961. Designated existing provisions of section as subsec. (a) and added subsec. (b).

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared in the first sentence.

Applicability--1987 amendment. 1987, No. 273 (Adj. Sess.), § 5, eff. June 21, 1988 provided that subdiv. (b)(8) of this section shall not apply to any natural gas facility with respect to which a natural gas company has applied for a certificate under the provisions of the Natural Gas Act, 15 U.S.C. § 717(a) et seq., prior to June 21, 1988.

Prospective repeal of subdiv. (b)(9). 1995 (Adj. Sess.), No. 182, § 13, as amended by 1999, No. 49 , § 152, and by 2001, No. 143 (Adj. Sess.), § 48, provides that subdiv. (b)(9) shall be repealed on July 1, 2004.

Repeal of sunset of subdiv. (b)(9). 2003, No. 98 (Adj. Sess.), § 5, provides: "Section 13 of No. 182 of the Acts of the 1995 Adj. Sess. (1996), Sec. 152 of No. 49 of the Acts of 1999, and Sec. 48 of No. 143 of the Acts of the 2001 Adj. Sess. (2002) are repealed, and 30 V.S.A. § 20(9) (FERC billback authority) shall remain in effect as originally enacted in Sec. 12 of No. 182 of the Acts of the 1995 Adj. Sess. (1996)."

Law review commentaries

Law review. In re New England Telephone and Telegraph Company: The Scope of Authority of Counsel for the Public in Utility Rate Cases, see 4 Vt. L. Rev. 141 (1979).

ANNOTATIONS

Analysis

1. Construction.

The provisions of this section authorizing employment of counsel and experts in rate case includes hearings on collateral issues involving the question of such rates and all interim or final appeal procedures until a final determination in law has been had. 1950-52 Op. Atty. Gen. 256.

2. Creation of public franchise.

The powers of the Board's general counsel are expressly defined by statute and do not include the power to create public franchises on behalf of the Board. Such an action cannot create a binding commitment on behalf of the Board, as actions taken by an employee of a public agency that are beyond the power and authority of that employee will not bind the agency. In re Vermont Electric Power Producers, Inc., 165 Vt. 282, 683 A.2d 716 (1996).

Cited. In re New England Power Corp., 103 Vt. 453, 156 A. 390 (1931); In re New England Telephone & Telegraph Co., 135 Vt. 527, 382 A.2d 826 (1977).

§ 21. Particular proceedings and activities; assessment of costs.

  1. An agency may allocate the portion of the expense incurred or authorized by it in retaining additional personnel pursuant to section 20 of this title to the applicant or the company or companies involved. As used in this section, "agency" means an agency, board, commission, or department of the State enabled to authorize or retain personnel under section 20 of this title.
    1. The Commission shall upon petition of an applicant or company to which costs are proposed to be allocated, review and determine, after opportunity for hearing, having due regard for the size and complexity of the project, the necessity and reasonableness of such costs, and may amend or revise such allocations. Nothing in this section shall confer authority on the Commission to select or decide the personnel, the expenses of whom are being allocated, unless such personnel are retained by the Commission. Prior to allocating costs, the Commission shall make a determination of the purpose and use of the funds to be raised hereunder, identify the recipient of the funds, provide for allocation of costs among companies to be assessed, indicate an estimated duration of the retention of personnel whose costs are being allocated, and estimate the total costs to be imposed. With the approval of the Commission, such estimates may be revised as necessary. From time to time during the progress of the work of such additional personnel, the agency retaining the personnel shall render to the company detailed statements showing the amount of money expended or contracted for in the work of such personnel, which statements shall be paid by the applicant or the company into the State Treasury at such time and in such manner as the agency may reasonably direct.
    2. In any proceeding under section 248 of this title, the Agency of Natural Resources may allocate the portion of the expense incurred in retaining additional staff authorized in subsection (a) of this section only if the following apply:
      1. the Agency of Natural Resources does not have the expertise, and the retention of such expertise is required to fulfill its statutory obligations in the proceeding; and
      2. the Agency of Natural Resources allocates only that portion of the cost for such expertise that exceeds the fee paid by the applicant under section 248b of this title.
  2. When regular employees of an agency are employed in the particular proceedings and activities described in section 20 of this title, the agency may also allocate the portion of its costs and expenses to the applicant or the company or companies involved. The costs of regular employees shall be computed on the basis of working days within the salary period, except that the Department of Public Safety, Division of Emergency Management and Homeland Security may allocate the full cost of the regular employee. The manner of assessment and of making payments shall otherwise be as provided for additional personnel in subsection (a) of this section. However, with respect to proceedings under section 248 of this title, the Agency of Natural Resources shall not allocate the costs of regular employees.
  3. With the approval of the Governor, the Department of Public Service may also allocate such portion of expense incurred by it in administering the purchase of electric energy or power or natural gas from outside the State, to the electric or gas distribution companies, cooperative, municipal or privately owned, to which such energy, power, or gas is sold, in proportion to the purchases thereof to such companies. When regular employees are employed on such work, their cost shall be computed on the basis of working days within the salary period.  The manner of assessment and making payments shall otherwise be as provided for additional personnel in subsection (a) of this section.
  4. The Agency of Natural Resources may allocate expenses under this section only for costs in excess of the amount specified in 3 V.S.A. § 2809(d)(1)(A) .
  5. Annually, on or before January 15, each agency shall report to the Senate Committee on Natural Resources and Energy and the House Committees on Energy and Technology and on Natural Resources, Fish, and Wildlife the total amount of expenses allocated under this section during the previous fiscal year. The report shall include the name of each applicant or company to whom expenses were allocated and the amount allocated to each applicant or company. The Agency of Agriculture, Food and Markets also shall submit a copy of its report to the Senate Committee on Agriculture and the House Committee on Agriculture and Forestry.
  6. With the approval of the Governor, the Department of Public Service may allocate the expense incurred under 10 V.S.A. § 7063 in compensating members and alternate members of the Commission among the generators of low-level radioactive waste in the State. Any such allocation shall be in proportion to the volume of waste generated by each such generator.
  7. An agency may allocate such portion of expense incurred or authorized by it in compensating persons retained in the monitoring of postclosure activities of a nuclear generating plant pursuant to subsection 20(a) of this title to the plant whose activities are being monitored. Except for the Commission, the agency shall obtain the approval of the Governor before making such an allocation.
  8. Under subsections (f) and (g) of this section, the manner of assessment and making payments shall be as provided in subsection (a) of this section. A generator or plant to which expense is allocated under subsection (f) or (g) of this section may petition the Commission in accordance with the procedures of subsection (a) of this section.
  9. If an invoice for expenses incurred under subsection (a) of this section is not paid within 45 days after the date of mailing:
    1. the Commission may withhold the issuance of or revoke any related certificate of public good, provided the applicant is given an opportunity for hearing after reasonable notice;
    2. an agency may charge simple interest of one percent per month on the unpaid amount of the invoice for the period from 45 days after the date of mailing to the date of full payment of the amount due; and
    3. an agency may either contract with private collection agencies to collect principal and interest due or use setoff debt collection, as provided in 32 V.S.A. §§ 5931-5940 .

      Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1979, No. 204 (Adj. Sess.), § 7, eff. Feb. 1, 1981; 1989, No. 63 , § 2, eff. May 22, 1989; 1999, No. 49 , § 151; 1999, No. 157 (Adj. Sess.), § 1; 2009, No. 146 (Adj. Sess.), § F26; 2011, No. 47 , § 20o, eff. May 25, 2011; 2011, No. 139 (Adj. Sess.), § 27, eff. May 14, 2012; 2015, No. 57 , § 17a; 2015, No. 172 (Adj. Sess.), § E.233.1; 2017, No. 113 (Adj. Sess.), § 173a; 2019, No. 175 (Adj. Sess.), § 23, eff. Oct. 8, 2020.

History

Source. 1949, No. 221 , § 3. V.S. 1947, § 9305. 1939, No. 178 , § 3. P.L. § 6071. 1925, No. 85 , § 2.

Amendments--2019 (Adj. Sess.). Subsec. (a): Substituted "As used in" for "In" and inserted "commission" following "board,".

Subsec. (i): Added.

Amendments--2017 (Adj. Sess.). Subsec. (e): Substituted "Senate Committee on Natural Resources and Energy and the House Committees on Energy and Technology and on Natural Resources, Fish, and Wildlife" for "Senate and House Committees on Natural Resources and Energy" in the first sentence.

Amendments--2015 (Adj. Sess.). Subsec. (a): Rewrote the introductory language, deleted "public service" preceding "company" in the first sentence and substituted "retention of personnel whose costs are being allocated" for "proceedings" following "duration of the" in the third sentence of subdiv. (1), and "its" for "the Agency's" preceding "statutory obligations" in subdiv. (2)(A).

Subsec. (b): Amended generally.

Subsec. (e): Substituted "Annually, on or before January 15, each agency" for "On or before January 15, 2011, and annually thereafter, the Agency of Natural Resources" in the first sentence and added the third sentence.

Subsec. (g): Amended generally.

Amendments--2015. In subsec. (a), redesignated the existing text as subdiv. (1) and added subdiv. (2); added the last sentence in subsec. (b); and substituted "3 V.S.A. § 2809(d)(1)(A)" for "3 V.S.A. § 2809(d)(2)" in subsec. (d).

Amendments--2011 (Adj. Sess.). Subsec. (e): Deleted ", the senate committee on finance, and the house committee on ways and means" following "resources and energy" in the first sentence.

Amendments--2011. Subsec. (a): Added the present third sentence.

Subsecs. (f)-(h): Added.

Amendments--2009 (Adj. Sess.) Subsec. (a): Inserted "or the agency of natural resources" wherever it occurs and made related changes.

Subsec. (b): Inserted "or the agency of natural resources" and "the department, or the agency of natural resources" and made related changes.

Subsecs. (d) and (e): Added.

Amendments--1999 (Adj. Sess.) Subsec. (a): Inserted "opportunity for" preceding "hearing, having due" in the second sentence.

Amendments--1999. Subsec. (b): Inserted "and expenses" following "their costs" in the first sentence.

Amendments--1989. Subsec. (a): Inserted "or authorized" following "incurred" and "applicant or the" preceding "public" in the first sentence, added the second through fourth sentences, and inserted "applicant or the" preceding "public" and "reasonably" preceding "direct" in the fifth sentence.

Subsec. (b): Inserted "the applicant or" preceding "the public" in the first sentence.

Amendments--1979 (Adj. Sess.). Section amended generally.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared in the first sentence.

Application of 1989 amendment. 1989, No. 63 , § 3, eff. May 22, 1989, provided that section 2 of the act, which amended subsecs. (a) and (b) of this section, shall apply to costs incurred after May 22, 1989.

§ 22. Tax to finance Department and Commission.

  1. For the purpose of maintaining the Department of Public Service and Public Utility Commission, including expenses related to maintaining an adequate engineering, legal, and administrative force in the Department of Public Service and paying all the expenses incident thereof, including rents, each person, partnership, association, or private or municipal corporation conducting a business subject to the supervision of the Department of Public Service and Public Utility Commission, including electric cooperatives, shall pay into the State Treasury on or before April 15 annually, in addition to the taxes now required by law to be paid, a tax, at the rate hereinafter named, according to the nature of the public service business engaged in by such person, partnership, association, or private or municipal corporation, based on the gross operating revenue received by such person, partnership, association, or private or municipal corporation in the conduct of such business in the State during the year next preceding, as shown by the annual report filed on or before such date with the Department of Public Service on the form prescribed by it and containing such information as may be necessary to enable the Department to determine the amount of the tax payable.
    1. The rate of tax for each type of public service company, for the purpose of maintaining the Department of Public Service, shall be the following:
      1. for companies, cooperative, municipal or privately owned, generating, distributing, selling, or transmitting electric energy, 0.00320 of gross operating revenue;
      2. for telephone companies, 0.003 of gross operating revenue or $300.00, whichever is greater;
      3. for gas companies, 0.00320 of gross operating revenue;
      4. for water companies, 0.0006 of gross operating revenue or $3.00, whichever is greater;
      5. for companies owning or operating a cable television system, 0.003 of gross operating revenue or $15.00, whichever is greater, $25,000.00 of which shall be used each year by the Department for special planning functions relating to cable television systems;
      6. for companies whose sole telephone business consists of owning customer-owned, coin-operated telephones with total annual revenues of less than $5,000.00, the choice of either 0.003 of gross operating revenue from telephone revenues or the amount of $12.00; and
      7. for all other companies named in section 203 of this title, 0.0006 of gross operating revenues.
    2. The rate of tax for each type of public service company, for the purpose of maintaining the Public Utility Commission, shall be the following:
      1. for companies, cooperative, municipal or privately owned, generating, distributing, selling, or transmitting electric energy, 0.00205 of gross operating revenue;
      2. for telephone companies, 0.002 of gross operating revenue or $200.00, whichever is greater;
      3. for gas companies, 0.00205 of gross operating revenue;
      4. for water companies, 0.0004 of gross operating revenue or $2.00, whichever is greater;
      5. for companies owning or operating a cable television system, 0.002 of gross operating revenue or $10.00, whichever is greater;
      6. for companies whose sole telephone business consists of owning customer-owned, coin-operated telephones with total annual revenues of less than $5,000.00, the choice of either 0.002 of gross operating revenue from telephone revenues or the amount of $8.00; and
      7. for all other companies named in section 203 of this title, 0.0004 of gross operating revenues.
  2. The taxes levied under this section shall not apply to sales of electrical power for resale.
  3. [Repealed.]
    1. On June 30 of each year, any balance in the amount received by the Public Utility Commission from the special fund for the maintenance of engineering and accounting forces, after accounting for expenditures and encumbrances, in excess of 20 percent of the funds received by the Commission for that year shall be used in the manner provided by subdivision (3) of this subsection. (d) (1)  On June 30 of each year, any balance in the amount received by the Public Utility Commission from the special fund for the maintenance of engineering and accounting forces, after accounting for expenditures and encumbrances, in excess of 20 percent of the funds received by the Commission for that year shall be used in the manner provided by subdivision (3) of this subsection.
    2. On June 30 of each year, any balance in the amount received by the Department of Public Service from the special fund for the maintenance of engineering and accounting forces, after accounting for expenditures and encumbrances, in excess of 20 percent of the funds received by the Department for that year shall be used in the manner provided by subdivision (3) of this subsection.
    3. The excess balances determined under subdivisions (1) and (2) of this subsection shall be used in the next succeeding year to directly reduce the rates otherwise collected from the ratepayers of this State for the costs of the telephone Lifeline program authorized by subsection 218(c) of this title.

      Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 258 , § 2, eff. July 31, 1961; 1973, No. 247 (Adj. Sess.), § 1; 1979, No. 204 (Adj. Sess.), § 8, eff. Feb. 1, 1981; 1985, No. 115 (Adj. Sess.), § 1; 1985, No. 224 (Adj. Sess.), § 8; 1987, No. 272 (Adj. Sess.), § 1; 1989, No. 254 (Adj. Sess.), §§ 1, 2; 1991, No. 154 (Adj. Sess.), §§ 1, 2; 1995, No. 182 (Adj. Sess.), § 24; 1995, No. 182 (Adj. Sess.), § 24a, eff. July 1, 1998; 1995, No. 182 (Adj. Sess.), § 25, eff. May 22, 1996; 1997, No. 155 (Adj. Sess.), § 10; 2009, No. 33 , § 58; 2019, No. 70 , § 9.

History

Source. 1951, No. 194 . V.S. 1947, § 9306. 1939, No. 178 , § 4.

2016. In section heading, deleted "of Public Service" after "Department" and "Public Service" before "Board".

2013. In subsec. (a), "but not limited to" following "including" was deleted in accordance with No. 5, § 4 of 2013.

Revision note - In subdiv. (a)(6), substituted "section 203 of this title" for "section 203(a) of this title" to conform reference to revision of that section.

Amendments--2019. Subsec. (a): Amended generally.

Subsec. (b): Substituted "taxes" for "tax" preceding "levied".

Subsec. (c): Repealed.

Subdiv. (d)(1) : Substituted "received by" for "allocated to" preceding "the Public Utility" and substituted "funds received by the Commission" for "Commission's allocation" following "20 percent of the".

Subdiv. (d)(2): Substituted "received by" for "allocated to" preceding "the Department" and substituted "funds received by the Department" for "Department's allocation" following "20 percent of the".

Amendments--2009. Deleted former subsec. (c) and redesignated former subsecs. (d) and (e) as present subsecs. (c) and (d).

Amendments--1997 (Adj. Sess.) Subdiv. (a)(2): Substituted "$500.00" for "$100.00".

Amendments--1995 (Adj. Sess.) Subsec. (a): Act No. 182, § 24, substituted ".0050" for ".0045" in subdivs. (1), (2), and (6), and added "or $100.00, whichever is greater" following "revenue" in subdiv. (2).

Act No. 182, § 24a, substituted ".0045" for ".0050" in subdivs. (1), (2) and (6). However, this amendment was repealed. See note below.

Subsec. (c): Act No. 182, § 25, added the third sentence.

Amendments--1991 (Adj. Sess.). Subsec. (a): Substituted ".0050" for ".0045" in subdivs. (1), (2) and (6).

Subsec. (c): Substituted "January" for "December" following "before" and inserted "including receipts authorized in sections 20 and 21 of this title" preceding "during" in the first sentence and added the last sentence.

Amendments--1989 (Adj. Sess.). Subsec. (a): Substituted ".0045" for ".0050" in subdivs. (1), (2), and (6).

Subsec. (c): Amended generally.

Subsec. (d): Added.

Subsec. (e): Added.

Amendments--1987 (Adj. Sess.). Subsec. (a): Substituted ".0050" for ".0045" in subdiv. (1), ".0050" for ".0045" in subdiv. (2), ".0030" for ".0015" in subdiv. (3) and "$25,000.00" for "$5,000.00" in subdiv. (5), added present subdiv. (6), and redesignated former subdiv. (6) as present subdiv. (7).

Subsec. (c): Added.

Amendments--1985 (Adj. Sess.). Subsec. (a): Amended generally by Act No. 115.

Act No. 224 purported to repeal former subdivs. (a)(3) and (6), which had previously been deleted by Act No. 115.

Amendments--1979 (Adj. Sess.). Catchline: Inserted "department of public service and" following "finance".

Subsec. (a): In the first sentence of the introductory paragraph, inserted "department of public service and" following "maintaining the" and "supervision of the", substituted "department of public service" for "public service board" preceding "on the form" and "department" for "board" preceding "to determine the amount" and made minor stylistic changes.

Subdiv. (a)(1): Substituted ".0040" for ".0050" preceding "of gross".

Subdiv. (a)(2): Substituted ".0040" for ".0050" preceding "of gross".

Subdiv. (a)(4): Substituted ".0010" for ".002" preceding "of gross".

Subdiv. (a)(7): Substituted "department" for "board" preceding "special planning".

Amendments--1973 (Adj. Sess.). Section amended generally.

Amendments--1961. Section amended generally.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Effective date of amendments--1989 (Adj. Sess.). 1989, No. 254 (Adj. Sess.), § 3(a), provided that section 1 of the act, which amended subsec. (c) and added subsecs. (d) and (e) of this section, was to take effect on July 1, 1990. Pursuant to 1989, No. 254 (Adj. Sess.), § 3(b), the amendment to subsec. (a) of this section by section 2 of the act shall take effect on July 1, 1992.

1985, No. 115 (Adj. Sess.). 1985, No. 115 (Adj. Sess.), § 2, provided in part: "This act shall . . . affect taxes assessed on gross revenues received on and after July 1, 1986. The tax increases imposed by this act shall expire for taxes assessed on gross revenues received on and after July 1, 1989 at which time the rate of tax imposed by 30 V.S.A. § 22(a)(1) and (2) shall be .0040 of gross operating revenue, and by 30 V.S.A. § 22(a)(3) shall be .0010 of gross revenue."

Duration of 1991 (Adj. Sess.) amendment to subsec. (a)(1), (2) and (6); revival of pre-amendment text. 1991, No. 154 (Adj. Sess.), § 3(a), provided: "Sec. 1 of this act [which amended subsec. (a)(1), (2) and (6) of this section] shall take effect from July 1, 1992 through June 30, 1994. Thereafter, unless otherwise provided by law, the previous text shall be revived, thereby taxing the affected entities at the rate of .0045." Pursuant to 1993, No. 159 (Adj. Sess.), § 1, the amendments to subsec. (a)(1), (2) and (6) of this section, by 1991, No. 154 (Adj. Sess.), § 1, shall continue in effect through June 30, 1996. Thereafter, unless otherwise provided by law, the previous text, in effect immediately before July 1, 1988, shall be revived, thereby taxing the affected entities at the rate of 0.0045.

Legislative purpose and findings. 1987, No. 272 (Adj. Sess.), § 3(a) provided: "It is the intent of the general assembly in passing this act to provide for temporary adjustments in the rates and amounts of the gross operating revenue tax on public utilities imposed by 30 V.S.A. § 22 pending further review of the appropriateness of such rates and amounts based on information not currently available to the 1988 general assembly, but which shall be supplied under 30 V.S.A. § 22(c). The general assembly also finds that the expansion of gas utility service due to the proposed interstate gas pipeline will impact on the amount and allocation of the regulatory activities of the board and department, and should be re-examined specifically in establishing appropriate rates and amounts of taxation under 30 V.S.A. § 22."

Addition of surcharge to tax imposed on telephone companies for period from Jan. 1, 1993 - Dec. 31, 1993; use of revenues raised therefrom. 1993, No. 83 , § 5, eff. June 11, 1993, provided: "From January 1, 1993 until December 31, 1993, a surcharge of .0010 of gross operating revenue shall be added to the tax imposed on telephone companies by 30 V.S.A. § 22(a)(2). Such surcharge shall be paid, deposited, and accounted for in the same manner as the gross revenue tax under 30 V.S.A. § 22(a)(2), except that the entire amount of revenue raised by such surcharge shall be allocated to the department of public service, subject to the appropriation made under Sec. 6 of this act, and except further that on June 30, 1994 the entire balance of the revenue raised by such surcharge, after accounting for expenditures and encumbrances, shall be used in the next succeeding year to directly reduce the rates that would otherwise be collected from the ratepayers of this state for the costs of the telephone lifeline program authorized by 30 V.S.A. § 218(c) and the telecommunications relay service under 30 V.S.A. § 218a."

Repeal of 1995, No. 182 (Adj. Sess.), § 24a. 1995, No. 182 (Adj. Sess.), § 28, had provided that the amendment to this section by § 24a of the act would take effect on July 1, 1998. However, 1997, No. 155 (Adj. Sess.), § 9, repealed 1995, No. 182 (Adj. Sess.), § 24a.

ANNOTATIONS

1. Taxable revenue.

Tax imposed under this section should be confined to revenue derived from intrastate business of any given taxpayer. 1954-56 Op. Atty. Gen. 254.

§ 22a. Use of gross operating revenues tax.

Expenses incurred by the Department for the support of activities relating to wholesale and retail sales of electricity shall be paid from revenues received by the Department from such sales.

Added 1987, No. 272 (Adj. Sess.), § 2.

§ 23. Public Service Reserve Fund.

There is hereby created a fund to be known as the Public Service Reserve Fund for the purpose of providing the financial means for the Public Utility Commission and the Department of Public Service to employ legal counsel, official stenographers, and disinterested competent persons to examine into and testify in any matter involved in a hearing under sections 218, 225, 226, and 227 of this title other than the hearings referred to in sections 20 and 21 of this title. Payments into the Public Service Reserve Fund shall be made as follows: All electric distribution companies, cooperative, municipal, and privately owned, which have been allocated a share of St. Lawrence power by the Department, shall pay into the State Treasury for such reserve on or before September 15, 1961 and September 15, 1962, in addition to the taxes now required by law to be paid, a tax to produce a total of $37,500.00 in the aggregate for each such payment to be paid by each such company in proportion to its purchase of St. Lawrence power, during the calendar years 1959 and 1960. Thereafter, on June 30 of each year, there shall be deducted from the balance in the special fund for the maintenance of the Department's engineering and accounting force and personnel employed by the Commission the tax revenues payable under section 22 of this title in that year, and the balance thus determined shall be transferred from the special fund for the maintenance of the engineering and accounting force to the Public Service Reserve Fund; provided, however, that, if at June 30 of any year the balance in such public service reserve fund shall be in excess of $100,000.00, the amount of such excess shall forthwith be transferred to the General Fund.

Added 1961, No. 258 , § 2, eff. July 31, 1961; amended 1979, No. 204 (Adj. Sess.), § 9, eff. Feb. 1, 1981.

History

Revision note. References to "sections 216, 223, 224 and 225 of this title" in the first sentence changed to "sections 218, 225, 226 and 227 of this title" to conform references to renumbering of such sections.

Amendments--1979 (Adj. Sess.). Substituted "and the Department of Public Service" for "with the approval of the governor" preceding "to employ" in the first sentence, "Department" for "board" preceding "shall pay" in the second sentence, "Department's" for "board's" preceding the first reference to the "engineering and accounting force" in the third sentence and inserted "and personnel employed by the Board" thereafter.

Prior law. 30 V.S.A. § 22a.

§ 24. Payments from special funds; biennial report.

All payments from the special fund for the maintenance of the engineering and accounting forces and from the Public Service Reserve Fund shall be dispensed from the State Treasury only upon warrants issued by the Commissioner of Finance and Management after receipt of proper statements describing services rendered and expenses incurred. A complete, detailed, and full accounting of all receipts from the taxes assessed in sections 22 and 23 of this title and all disbursements from the special fund for the maintenance of the engineering and accounting forces and from the Public Service Reserve Fund shall be contained in the Department's biennial report to the General Assembly. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this section.

Added 1961, No. 258 , § 2, eff. July 31, 1961; amended 1979, No. 204 (Adj. Sess.), § 10, eff. Feb. 1, 1981; 1983, No. 195 (Adj. Sess.), § 5; 2011, No. 139 (Adj. Sess.), § 28, eff. May 14, 2012.

History

Amendments--2011 (Adj. Sess.). Made a grammatical change in the second sentence, and added the last sentence.

Amendments--1983 (Adj. Sess.). Inserted "and information support" following "commissioner of finance" in the first sentence.

Amendments--1979 (Adj. Sess.). Substituted "department's" for "board's" preceding "biennial report" in the second sentence.

Prior law. 30 V.S.A. § 22b.

§ 25. Assessment.

When the Department of Public Service discovers from the examination of the return or otherwise that the revenue of any company, or any portion thereof, has not been assessed, it may at any time within two years after the time when the return was due, assess the same and give notice to the company of such assessment, and within 30 days such company shall thereupon have an opportunity to confer with the Department as to the proposed assessment. The limitation of two years to the assessment of such tax or additional tax shall not apply to the assessment of additional taxes upon fraudulent returns. After the expiration of 30 days from such notification, the Department shall reassess the revenue of such company or any portion thereof which it finds has not theretofore been assessed and shall give notice to the company so reassessed, of the amount of the tax and interest and penalties, if any, and the amount thereof shall be due and payable within 10 days from the date of such notice. No additional tax amounting to less than $1.00 shall be assessed.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1979, No. 204 (Adj. Sess.), § 11, eff. Feb. 1, 1981.

History

Source. V.S. 1947, § 9307. 1939, No. 178 , § 5.

Amendments--1979 (Adj. Sess.). Substituted "department of public service" for "board" preceding "discovers" in the first sentence, "department" for "board" wherever it appeared thereafter and "it finds" for "they find" preceding "has not theretofore" in the third sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Prior law. 30 V.S.A. § 23.

§ 26. Penalty.

When such annual report for any year is not rendered to the Department of Public Service and the tax due thereon is not paid on or before April 15 next following, there shall be added to the tax an additional amount equal to five percent thereof or $1.00, whichever is greater, if such return is made and tax paid within 15 days after becoming due, and 25 percent of the tax or $10.00, whichever is greater, if such return is not made and tax paid within 15 days after becoming due. When a company, which has failed to file such return or has filed an incorrect or insufficient return and has been notified by the Department of its delinquency refuses or neglects within 20 days after such notice to file a proper return, or files a fraudulent return, the Department shall determine the tax due according to its best information and belief and shall increase the amount of the tax so determined by 50 percent or $20.00, whichever is greater. No assessment shall be made under this section unless made within two years from the date on which a correct return should have been filed but the limitation of two years to the assessment of such tax or additional tax shall not apply to the assessment of additional taxes upon fraudulent returns. In its discretion, the Department may waive the penalties mentioned in this section if it is satisfied that the default was for any justifiable cause, and it may extend the time for filing returns or paying such tax, not to exceed two months.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1979, No. 204 (Adj. Sess.), § 12, eff. Feb. 1, 1981.

History

Source. V.S. 1947, § 9308. 1939, No. 178 , § 6.

Amendments--1979 (Adj. Sess.). Substituted "department of public service" for "public service board" following "rendered to the" in the first sentence and "department" for "board" wherever it appeared thereafter.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Prior law. 30 V.S.A. § 24.

§ 27. Review.

The assessment by the Commission or Department of Public Service of any tax or penalty under the provisions of sections 20-25 of this title may be appealed to the Washington Superior Court. The appeal shall be filed within 90 days after the receipt by the company or its agent of written notice by the Commission or Department of its assessment. Thereupon, appropriate proceedings shall be had and the relief, if any, to which the company may be found entitled may be granted and any taxes, interest, or penalties paid, found by the Court to be illegally assessed, shall be ordered refunded to the company with interest at six percent per annum from the time of payment, with costs, and judgment entered accordingly.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1979, No. 204 (Adj. Sess.), § 13, eff. Feb. 1, 1981; 1997, No. 161 (Adj. Sess.), § 20, eff. Jan. 1, 1998.

History

Source. V.S. 1947, § 9309. 1947, No. 202 , § 9440. 1939, No. 178 , § 7.

Amendments--1997 (Adj. Sess.). Rewrote the section, substituting "appealed" for "reviewed" and "appeal" for "petition" and deleting procedural details of petitioning for review.

Amendments--1979 (Adj. Sess.). Section amended generally.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Retroactive effective date--1997 (Adj. Sess.) amendment. 1997, No. 161 (Adj. Sess.), § 26, provided in part that the amendment to this section shall be retroactive to January 1, 1998.

Prior law. 30 V.S.A. § 25.

§ 28. Hearings.

For the purpose of ascertaining the correctness of any return or for the purpose of making an estimate of the taxes due from any company, the Department of Public Service shall have power to examine or cause to be examined by any agent or representative designated by it for that purpose any books, papers, records, or memoranda of the company or of any person or corporation in the State bearing upon the matters required to be included in the return, and may require the attendance of any person having knowledge in the premises, at any place in the county where such person resides, and may take testimony and require proof material for its information, with power to administer an oath to such person.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1979, No. 204 (Adj. Sess.), § 14, eff. Feb. 1, 1981.

History

Source. V.S. 1947, § 9310. 1939, No. 178 , § 8.

Revision note. Substituted "its" for "their" preceding "information" to conform reference to change made by 1979 (Adj. Sess.) amendment.

Amendments--1979 (Adj. Sess.). Substituted "department of public service" for "board" preceding "shall have power".

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "shall have power".

Prior law. 28 V.S.A. § 26.

§ 29. Right of inspection.

The Public Utility Commission or the Commissioner of Public Service, the Directors for Public Advocacy and Regulated Utility Planning, and other employees of the Department authorized by the Commissioner may, during business hours, enter the offices, plants, exchanges, and stations or upon the land or lines of any company subject to supervision by the Department.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1979, No. 204 (Adj. Sess.), § 15, eff. Feb. 1, 1981.

History

Source. V.S. 1947, § 9311. P.L. § 6072. G.L. § 5043. 1917, No. 155 , § 2. 1908, No. 116 , § 4. P.S. § 4605. 1906, No. 126 , § 16. V.S. § 3984. 1886, No. 23 , § 3.

Amendments--1979 (Adj. Sess.). Section amended generally.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Prior law. 30 V.S.A. § 29.

§ 30. Penalties; affidavit of compliance.

    1. A person, company, or corporation subject to the supervision of the Commission or the Department of Public Service, who refuses the Commission or the Department of Public Service access to the books, accounts, or papers of such person, company, or corporation within this State, so far as may be necessary under the provisions of this title, or who fails, other than through negligence, to furnish any returns, reports, or information lawfully required by it, or who willfully hinders, delays, or obstructs it in the discharge of the duties imposed upon it, or who fails within a reasonable time to obey a final order or decree of the Commission, or who violates a provision of chapter 2, 7, 75, or 89 of this title, or a provision of section 231 or 248 of this title, or a rule of the Commission, shall be required to pay a civil penalty as provided in subsection (b) of this section after notice and opportunity for hearing. (a) (1)  A person, company, or corporation subject to the supervision of the Commission or the Department of Public Service, who refuses the Commission or the Department of Public Service access to the books, accounts, or papers of such person, company, or corporation within this State, so far as may be necessary under the provisions of this title, or who fails, other than through negligence, to furnish any returns, reports, or information lawfully required by it, or who willfully hinders, delays, or obstructs it in the discharge of the duties imposed upon it, or who fails within a reasonable time to obey a final order or decree of the Commission, or who violates a provision of chapter 2, 7, 75, or 89 of this title, or a provision of section 231 or 248 of this title, or a rule of the Commission, shall be required to pay a civil penalty as provided in subsection (b) of this section after notice and opportunity for hearing.
    2. A person who violates a provision of chapter 3 or 5 of this title, except for the provisions of section 231 or 248 of this title, shall be required to pay a civil penalty after notice and opportunity for hearing. If the Commission determines that the violation substantially harmed or might have substantially harmed the public health, safety, or welfare; the interests of utility customers; the environment; the reliability of utility service; or the financial stability of the company, the Commission may impose a civil penalty as provided in subsection (b) of this section. If the Commission determines that the violation did not cause or was not likely to cause such harm, the Commission may impose a civil penalty of not more than $42,500.00, in addition to any financial benefit to the violator resulting from the violation.
  1. The Commission may impose a civil penalty under subsection (a) of this section of not more than $85,000.00, in addition to any financial benefit to the violator resulting from the violation. In the case of a continuing violation, an additional fine of not more than $42,500.00 per day may be imposed. In no event shall the total fine exceed the larger of:
    1. $170,000.00, in addition to any financial benefit to the violator resulting from a violation; or
    2. in the case of a company that pays gross receipt taxes under section 22 of this title, one-tenth of one percent of the gross Vermont revenues from regulated activity of the person, company, or corporation in the preceding year, in addition to any financial benefit to the violator resulting from a violation.
  2. In determining the amount of a fine under subsection (a) of this section, the Commission may consider any of the following factors:
    1. the extent that the violation harmed or might have harmed the public health, safety, or welfare, the environment, the reliability of utility service, or the other interests of utility customers;
    2. whether the respondent knew or had reason to know the violation existed and whether the violation was intentional;
    3. the economic benefit, if any, that could have been anticipated from an intentional or knowing violation;
    4. the length of time that the violation existed;
    5. the deterrent effect of the penalty;
    6. the economic resources of the respondent;
    7. the respondent's record of compliance; and
    8. any other aggravating or mitigating circumstance.
  3. After notice and an opportunity to be heard, the Commission may order any person, company, or corporation subject to the supervision of the Commission or the Department of Public Service who negligently fails to furnish any returns, reports, or information lawfully required by it to pay a civil penalty of not more than $42,500.00, in addition to any financial benefit to the violator resulting from a violation.
  4. A person who knowingly, under oath, makes a false return or statement or who knowingly, under oath, when required by law, gives false information to the Commission, or the Department of Public Service, or who knowingly testifies falsely in any material matter before either of them, shall be deemed to have committed perjury and shall be punished accordingly.
  5. Violations of the rules of procedure for the determination of cases heard by the Public Utility Commission shall not be subject to the provisions of subsection (a), (b), or (c) of this section.
  6. At any time, the Commission may require a person, company, or corporation to file an affidavit under oath or affirmation that the person, company, or corporation or any facility or plant thereof is in compliance with the terms and conditions of an order, approval, certificate, or authorization issued under this title or rules adopted under this title. A request for an affidavit of compliance under this subdivision may be delivered by hand or by certified mail. Failure to file such an affidavit within the period prescribed by the Commission or the material misrepresentation of a fact in an affidavit shall be a violation subject to civil penalty under subdivision (a)(1) of this section and shall also be grounds for revocation or rescission of the order, approval, certificate, or authorization as to which the Commission required the affidavit.
  7. In accordance with the process set forth in this subsection, the Department may issue an administrative citation to a person the Department believes after investigation violated section 246, 248, 248a, or 8010 of this title, any rule adopted pursuant to those sections, or any certificate of public good issued pursuant to those sections.
    1. An administrative citation, whether draft or final, shall:
      1. state each provision of statute and rule and each condition of a certificate of public good alleged to have been violated;
      2. include a concise statement of the facts giving rise to the alleged violation and the evidence supporting the existence of those facts;
      3. request that the person take the remedial action specified in the notice or pay a civil penalty of not more than $5,000.00 for the violation, or both; and
      4. if remedial action is requested, state the reasons for seeking the action.
    2. The Department shall initiate the process by issuing a draft administrative citation to the person and sending a copy to each municipality in which the person's facility is located, each adjoining property owner to the facility, the complainant if any, and, for alleged violations of the facility's certificate of public good, each party to the proceeding in which the certificate was issued.
      1. At the time the draft citation is issued, the Department shall file a copy with the Commission and post the draft citation on its website.
      2. Commencing with the date of issuance, the Department shall provide an opportunity of 30 days for public comment on the draft citation. The Department shall include information on this opportunity in the draft citation.
      3. Once the public comment period closes, the Department:
      4. The Commission may on its own initiative open a proceeding to investigate the violation alleged in the draft citation. The Commission shall take any such action within 25 days of the close of the public comment period, or the filing of a revised draft citation, whichever is later. Such a Commission proceeding shall supersede the draft citation.
    3. If the Commission has not opened a proceeding pursuant to subdivision (2)(D) of this subsection, the Department may issue a final administrative citation to the person. Within 30 days of receipt of a final administrative citation, the person shall respond in one of the following ways:
      1. Request a hearing before the Commission on the existence of the alleged violation, the proposed penalty, and the proposed remedial action.
      2. Pay any civil penalty set forth in the notice and agree to undertake such remedial action as is set forth in the notice and submit to the Department for its approval a plan for compliance. In such a case, the final administrative citation shall be enforceable in the same manner as an order of the Commission.
      3. Decline to contest the existence of the alleged violation and request a hearing on either the proposed penalty or remedial action, or both. When exercising this option, a person may agree to either the proposed penalty or remedial action and seek a hearing only on the penalty or action with which the person disagrees.
    4. When a person requests a hearing under subdivision (3) of this subsection, the Commission shall open a proceeding and conduct a hearing in accordance with the provisions of this section on the alleged violation and such remedial action and penalty as are set forth in the notice. Notwithstanding any contrary provision of this section, a penalty under this subdivision (4) shall not exceed $5,000.00.
    5. If a person pays the civil penalty set forth in a final administrative citation, then the Department shall be precluded from seeking and the Commission from imposing additional civil penalties for the same alleged violation unless the violation is continuing or is repeated.
    6. If a person agrees to undertake the remedial action set forth in a final administrative citation, failure to undertake the action or comply with a compliance plan approved by the Department shall constitute a separate violation.
    7. The Commission may approve disposition of a final administrative citation by stipulation or agreed settlement submitted before entry of a final order.
    8. Penalties assessed under this subsection shall be deposited in the General Fund except for any amounts the Commission directs to be used for the benefit of ratepayers generally.

      Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1979, No. 204 (Adj. Sess.), § 16, eff. Feb. 1, 1981; 1995, No. 99 (Adj. Sess.), § 1; 2009, No. 146 (Adj. Sess.), § F29; 2011, No. 47 , § 10, eff. May 25, 2011; 2013, No. 89 , § 13; 2017, No. 53 , § 8; 2021, No. 42 , § 4.

History

Source. V.S. 1947, § 9312. 1947, No. 202 , § 9443. P.L. § 6073. G.L. § 5044. 1917, No. 254 , § 4923. 1908, No. 116 , § 6. P.S. § 4607. 1906, No. 126 , § 18. 1902, No. 68 , § 5. V.S. § 3986. 1886, No. 23 , § 4. R.L. § 3486. G.S. 28, § 124. 1855, No. 26 , § 6. 1849, No. 41 , § 41.

Amendments--2021. Subdiv. (a)(2): Substituted "$42,500.00, in addition to any financial benefit to the violator resulting from the violation" for "$10,000,00" at the end.

Subsec. (b): Amended generally.

Subsec. (d): Substituted "$42,500.00, in addition to any financial benefit to the violator resulting from a violation" for "$10,000,00" at the end.

Subdiv. (h)(8): Inserted "except for any amounts the Commission directs to be used for the benefit of ratepayers generally" following "General Fund".

Amendments--2017. Subsec. (h): Added.

Amendments--2013. Subdiv. (a)(1): Inserted "2" following "chapter" near the end of the subdiv.

Amendments--2011. Subdiv. (a)(1): Substituted "chapter" for "chapters" preceding "7"; deleted "or" following "7" and inserted ", or 89" following "75".

Amendments--2009 (Adj. Sess.) Catchline: Added "affidavit of compliance" following "penalties".

Subsec. (g): Added.

Amendments--1995 (Adj. Sess.) Section amended generally.

Amendments--1979 (Adj. Sess.). Inserted "or the department of public service" preceding "who refuses" and "access" in the first sentence and "or who knowingly testifies" in the second sentence and substituted "either of them" for "it" preceding "shall be deemed" in that sentence.

Amendments--1959 (Adj. Sess.). Substituted 'board" for "commission" wherever it appeared.

Prior law. 30 V.S.A. § 28.

Cross References

Cross references. Punishment for perjury, see 13 V.S.A. § 2901.

ANNOTATIONS

Analysis

1. Authority of board.

Where the Public Service Board found numerous management deficiencies and statutory violations on the part of a utility, it did not exceed its authority by imposing a return-on-equity penalty in addition to separate statutory fines for the same offenses. In re Citizens Utils. Co., 171 Vt. 447, 769 A.2d 19 (2000).

2. Applicability.

Establishment of a temporary meteorological tower without obtaining a certificate of public good is a violation of the statute governing temporary siting of meteorological stations; therefore, section (a)(2) of the penalty statute, not section (a)(1), provides the appropriate civil penalty. In re Constr. & Operation of a Meteorological Tower, 210 Vt. 27, 210 A.3d 1230 (2019).

3. Particular cases.

The only way an applicant could start the streamlined certificate of public good approval process was by filing a registration form with the Public Utility Commission. Here, petitioner stipulated that it had installed at least 134 systems without first filing the appropriate registration forms; by failing to do so, petitioner failed to take advantage of the net-metering approval process and failed to obtain the necessary certificates of public good prior to beginning construction, in violation of the statute that prohibited any corporation from constructing a new electric-generation facility without first obtaining a certificate of public good, and a civil penalty was appropriate. In re Investigation into Solarcity Corp., 210 Vt. 51, 210 A.3d 1255 (2019).

§ 31. Depositions.

The Commission or the Department of Public Service, their representatives, or any party in any investigation or hearing conducted by virtue of this title may cause the depositions of witnesses, wherever residing, to be taken in such manner and used for such purposes as the Supreme Court may by rule provide for taking depositions in civil actions in the Superior Court.

Added 1961, No. 263 , § 10, eff. July 31, 1961; amended 1971, No. 185 (Adj. Sess.), § 212, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1979, No. 204 (Adj. Sess.), § 17, eff. Feb. 1, 1981.

History

Amendments--1979 (Adj. Sess.). Substituted "or the department of public service, their" for "its" preceding "representatives".

Amendments--1973 (Adj. Sess.). Substituted "superior" for "county" preceding "courts" at the end of the section.

Amendments--1971 (Adj. Sess.). Substituted "such purposes as the supreme court may by rule provide" for "the purposes prescribed by law" following "and used for" and made minor stylistic changes.

Prior law. 30 V.S.A. § 29.

Cross References

Cross references. Depositions and discovery generally, see V.R.C.P. 26-37.

§ 32. Injunction proceedings.

Whenever the Department of Public Service is of the opinion that a company subject to its supervision is failing or omitting or is about to fail or omit to do anything required of it by law or by order of the Commission or is doing anything or permitting anything or is about to do anything or to permit anything to be done contrary to or in violation of law or of any order of the Commission, the Department of Public Service may commence an action or proceeding in the Superior Court for the purpose of having such violations or threatened violations stopped and prevented by injunction. Such action or proceeding shall begin by a petition alleging the violation complained of and praying for appropriate relief by way of injunction. It shall thereupon be the duty of the court to specify the time, not exceeding 21 days after service of a copy of the petition, within which the company complained of must answer the petition, and the court may grant a temporary injunction in accordance with the laws of the State and rules in such case made and provided. The obtaining of a temporary injunction shall constitute a waiver by the State of its sovereign immunity to pay the person enjoined damages as such person may sustain by reason for such injunction if the court shall eventually decide that the State was not equitably entitled thereto and the State shall be liable to pay to the person enjoined such sums as would be payable by any other person in the premises. In case of default in answer, or after answer, the court shall immediately inquire into the facts and circumstances in such manner as the court directs without other or formal pleadings and without respect to any technical requirement. Such other persons or corporations as it shall seem to the court necessary or proper to join as parties in order to make its order, judgment, or writs effective may be joined as parties upon application of counsel to the Department. The final judgment in any such action or proceeding shall either dismiss the action or proceeding or direct that an injunction be issued as prayed for in the petition or in such modified form as the court may determine will afford appropriate relief.

Added 1961, No. 263 , § 11, eff. July 31, 1961; amended 1979, No. 204 (Adj. Sess.), § 18, eff. Feb. 1, 1981.

History

Amendments--1979 (Adj. Sess.). Section amended generally.

Prior law. 30 V.S.A. § 30.

ANNOTATIONS

Cited. First National Bank of White River Junction v. Reed, 306 F.2d 481 (2d Cir. 1962); Washington Electric Coop. v. Massachusetts Municipal Wholesale Electric Co., 922 F.2d 92 (2d Cir. 1990).

§ 33. Joint hearings and investigations.

The Commission shall have full authority to make joint investigations, hold joint hearings within or outside the State of Vermont, and issue joint or concurrent orders in conjunction or concurrence with any official, board, commission, or agency of any state or of the United States, whether, in the holding of such investigations or hearings or in the making of such orders, the Commission shall function under agreements or compacts between states or under the concurrent power of states to regulate interstate commerce, or as an agency of the federal government, or otherwise.

Added 1969, No. 39 .

History

Prior law. 30 V.S.A. § 31.

§ 34. Public education on propane tank safety.

The General Assembly finds that there is a need for a coordinated public safety message on the normal storage and handling of propane tanks and fuel oil tanks, and for the recovery of propane tanks and fuel oil tanks that are displaced by a natural disaster, such as flooding. The Department of Public Service, the Division of Fire Safety, and the Agency of Natural Resources shall cooperate with relevant municipal, professional, and industry organizations to develop a variety of educational materials for distribution to the public to provide information on any special treatment of propane tanks that might be required in the event of a natural disaster, such as flooding.

Added 2011, No. 138 (Adj. Sess.), § 37, eff. May 14, 2012.

CHAPTER 2. BUILDING ENERGY

History

2013 statutory revision. 2013, No. 89 , § 11 provides: "(a) 21 V.S.A. §§ 266, 267, 268, and 269 are recodified respectively as 30 V.S.A. §§ 51, 52, 53, and 54. During statutory revision, the Office of Legislative Council shall revise accordingly any references to these statutes contained in the Vermont Statutes Annotated. Any references in session law and adopted rules to these statutes as previously codified shall be deemed to refer to the statutes as recodified by this act."

Subchapter 1. Building Energy Standards

§ 51. Residential building energy standards; stretch code.

  1. Definitions.  In this subchapter, the following definitions apply:
    1. "Builder" means the general contractor or other person in charge of construction, who has the power to direct others with respect to the details to be observed in construction.
    2. "Residential buildings" means one-family dwellings, two-family dwellings, and multi-family housing three stories or less in height.
      1. With respect to a structure that is three stories or less in height and is a mixed-use building that shares residential and commercial users, the term "residential building" shall include the living spaces in the structure and the nonliving spaces in the structure that serve only the residential users such as common hallways, laundry facilities, residential management offices, community rooms, storage rooms, and foyers.
      2. "Residential buildings" shall not include hunting camps.
    3. "Residential construction" means new construction of residential buildings, and the construction of additions, alterations, renovations, or repairs to an existing residential building.
    4. "IECC" means the International Energy Conservation Code of the International Code Council.
    5. "Stretch code" means a building energy code for residential buildings that achieves greater energy savings than the RBES and is adopted in accordance with subsection (d) of this section.
  2. Adoption of Residential Building Energy Standards (RBES).  Residential construction shall be in compliance with the standards adopted by the Commissioner of Public Service in accordance with subsection (c) of this section.
  3. Revision and interpretation of energy standards.  The Commissioner of Public Service shall amend and update the RBES by means of administrative rules adopted in accordance with 3 V.S.A. chapter 25. On or before January 1, 2011, the Commissioner shall complete rulemaking to amend the energy standards to ensure that, to comply with the standards, residential construction must be designed and constructed in a manner that complies with the 2009 edition of the IECC. After January 1, 2011, the Commissioner shall ensure that appropriate revisions are made promptly after the issuance of updated standards for residential construction under the IECC. The Department of Public Service shall provide technical assistance and expert advice to the Commissioner in the interpretation of the RBES and in the formulation of specific proposals for amending the RBES. Prior to final adoption of each required revision of the RBES, the Department of Public Service shall convene an Advisory Committee to include one or more mortgage lenders, builders, building designers, utility representatives, and other persons with experience and expertise, such as consumer advocates and energy conservation experts. The Advisory Committee may provide the Commissioner with additional recommendations for revision of the RBES.
    1. Any amendments to the RBES shall be:
      1. consistent with duly adopted State energy policy, as specified in section 202a of this title, and consistent with duly adopted State housing policy;
      2. evaluated relative to their technical applicability and reliability; and
      3. cost-effective and affordable from the consumer's perspective.
    2. Each time the RBES are amended by the Commissioner, the amended RBES shall become effective upon a date specified in the adopted rule, a date that shall not be less than three months after the date of adoption. Persons commencing residential construction before the effective date of the amended RBES shall have the option of complying with the applicable provisions of the earlier or the amended RBES. After the effective date of the original or the amended RBES, any person commencing residential construction shall comply with the most recent version of the RBES.
    3. In the first cycle of revision of the RBES, the Commissioner shall establish standards for ventilation and shall consider revisions, including:
      1. a requirement for sealed combustion, induced or forced draft combustion equipment when exhaust-only ventilation systems are installed; and
      2. a requirement for adequate replacement air ducted directly to the combustion area of wood and pellet stoves and fireplaces.
      1. As the Model Energy Code is primarily a performance-based code, the Department of Public Service shall develop and disseminate criteria that builders may use in lieu of any computer software, calculations and trade-off worksheets, or systems analysis to comply with the Code. An example package which complies with the Code shall be included in the rules and updated as appropriate. (4) (A) As the Model Energy Code is primarily a performance-based code, the Department of Public Service shall develop and disseminate criteria that builders may use in lieu of any computer software, calculations and trade-off worksheets, or systems analysis to comply with the Code. An example package which complies with the Code shall be included in the rules and updated as appropriate.
      2. To provide for flexibility, additional packages which are equivalent to the example package under chapter 9 of the Model Energy Code and which satisfy the performance approach shall be developed by July 1, 1997 and disseminated by the Department of Public Service. Each time the RBES are amended by the Commissioner, the Department of Public Service shall develop modified compliance packages which will become available to the public by the date that the amendment becomes effective.
    4. A home energy rating conducted at the time of construction by a Vermont-accredited home energy rating organization shall be an acceptable means of demonstrating compliance if the rating indicates energy performance equivalent to the RBES.
    5. The Advisory Committee convened under this subsection, in preparing for the RBES update required on or about January 1, 1999, shall advise the Commissioner of Public Service with respect to the coordination of the RBES amendments with existing and proposed demand-side management programs offered in the State.
  4. Stretch code.  The Commissioner may adopt a stretch code by rule. This stretch code shall meet the requirements of subdivision (c)(1) of this section. The stretch code shall be available for adoption by municipalities under 24 V.S.A. chapter 117 and, on final adoption by the Commissioner, shall apply in proceedings under 10 V.S.A. chapter 151 (Act 250) in accordance with subsection (e) of this section.
  5. Role of RBES and stretch code in Act 250.  Substantial and reliable evidence of compliance with the RBES and, when adopted, the stretch code established and updated under this section shall serve as a presumption of compliance with 10 V.S.A. § 6086(a)(9)(F) , except no presumption shall be created insofar as compliance with subdivision (a)(9)(F) involves the role of electric resistance space heating. In attempting to rebut a presumption of compliance created under this subsection, a challenge may only focus on the question of whether or not there will be compliance with the RBES and stretch code established and updated under this subsection. A presumption under this subsection may not be overcome by evidence that the RBES and stretch code adopted and updated under this section fail to comply with 10 V.S.A. § 6086(a)(9)(F) .
  6. Certification.
    1. Issuance; recording.  A certification may be issued by a builder, a licensed professional engineer, a licensed architect, or an accredited home energy rating organization. If certification is not issued by a licensed professional engineer, a licensed architect, or an accredited home energy rating organization, it shall be issued by the builder. Any certification shall certify that residential construction meets the RBES. The Department of Public Service will develop and make available to the public a certificate that lists key features of the RBES. Any person certifying shall use this certificate or one substantially like it to certify compliance with RBES. Certification shall be issued by completing and signing a certificate and permanently affixing it to the outside of the heating or cooling equipment, to the electrical service panel located inside the building, or in a visible location in the vicinity of one of these three areas. The certificate shall certify that the residential building has been constructed in compliance with the requirements of the RBES. The person certifying under this subsection shall provide a copy of each certificate to the Department of Public Service and shall assure that a certificate is recorded and indexed in the town land records. A builder may contract with a licensed professional engineer, a licensed architect, or an accredited home energy rating organization to issue certification and to indemnify the builder from any liability to the owner of the residential construction caused by noncompliance with the RBES.
    2. Condition precedent.  Provision of a certificate as required by subdivision (1) of this subsection shall be a condition precedent to:
      1. issuance by the Commissioner of Public Safety or a municipal official acting under 20 V.S.A. § 2736 of any final occupancy permit required by the rules of the Commissioner of Public Safety for use or occupancy of residential construction commencing on or after July 1, 2013 that is also a public building as defined in 20 V.S.A. § 2730(a) ; and
      2. issuance by a municipality of a certificate of occupancy for residential construction commencing on or after July 1, 2013, if the municipality requires such a certificate under 24 V.S.A. chapter 117.
  7. Action for damages.
    1. Except as otherwise provided in this subsection, a person aggrieved by noncompliance with this section may bring a civil action against a person who has the obligation of certifying compliance under subsection (e) of this section. This action may seek injunctive relief, damages, court costs, and attorney's fees. As used in this subdivision, "damages" means:
      1. costs incidental to increased energy consumption; and
      2. labor, materials, and other expenses associated with bringing the structure into compliance with RBES in effect on the date construction was commenced.
    2. A person's failure to affix the certification as required by this section shall not be an affirmative defense in such an action against the person.
    3. The rights and remedies created by this section shall not be construed to limit any rights and remedies otherwise provided by law.
  8. Applicability and exemptions.  The construction of a residential addition to a building shall not create a requirement that the entire building comply with this subchapter. The following residential construction shall not be subject to the requirements of this subchapter:
    1. Buildings or additions whose peak energy use design rate for all purposes is less than 3.4 BTUs per hour, per square foot, or less than one watt per square foot of floor area.
    2. Homes subject to Title VI of the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. §§ 5401-5426).
    3. Buildings or additions that are neither heated nor cooled.
    4. Residential construction by an owner, if all of the following apply:
      1. The owner of the residential construction is the builder, as defined under this section.
      2. The residential construction is used as a dwelling by the owner.
      3. The owner in fact directs the details of construction with regard to the installation of materials not in compliance with RBES.
      4. The owner discloses in writing to a prospective buyer, before entering into a binding purchase and sales agreement, with respect to the nature and extent of any noncompliance with RBES. Any statement or certificate given to a prospective buyer shall itemize how the home does not comply with RBES and shall itemize which measures do not meet the RBES standards in effect at the time construction commenced. Any certificate given under this subsection (h) shall be recorded in the land records where the property is located and sent to the Department of Public Service within 30 days following sale of the property by the owner.
        1. Title validity not affected.  A defect in marketable title shall not be created by a failure to issue certification or a certificate, as required under subsection (f) or subdivision (h)(4) of this section, or by a failure under that subsection to: affix a certificate; to provide a copy of a certificate to the Department of Public Service; or to record and index a certificate in the town records.

          Added 1997, No. 20 , § 1; amended 2005, No. 208 (Adj. Sess.), § 7; 2007, No. 92 (Adj. Sess.), § 8; 2009, No. 45 , § 11, eff. May 27, 2009; 2009, No. 159 (Adj. Sess.), § 18b, eff. June 4, 2010; 2011, No. 47 , § 20t, eff. May 25, 2011; 2013, No. 89 , §§ 6, 11; 2017, No. 74 , § 121.

History

Recodification. Former § 21 V.S.A. § 266, relating to residential building energy standards, was derived from 1997, No. 20 , § 1; amended by 2005, No. 208 (Adj. Sess.), § 7; 2007, No. 92 (Adj. Sess.), § 8; 2009, No. 45 , § 11; 2009, No. 159 (Adj. Sess.), § 18b; and 2011, No. 47 , § 20t and recodified as § 51 of this title pursuant to 2013, No. 89 , § 11.

Amendments--2017. Subsec. (c): Substituted "On or before" for "No later than" preceding "January 1, 2011" in the second sentence, and deleted the former third sentence.

Subdiv. (c)(2): Deleted "Except for the amendments required by this subsection to be adopted by January 1, 2011" preceding "each time" in the first sentence and "persons commencing" in the second sentence.

Amendments--2013. Catchline: Inserted "stretch code" following "standards".

Subsec. (a): Substituted "In" for "For purposes of" preceding "this".

Subdiv. (a)(2): Added subdiv. (A) and the subdiv. (B) designation.

Subdiv. (a)(5): Added.

Subsec. (d): Added and redesignated former subsecs. (d) through (h) as present subsecs. (e) through (i).

Subsec. (e): Amended generally.

Subdiv. (f)(2): Added.

Amendments--2011. Subsec. (c): Substituted "three months after" for "on" preceding "final" and inserted "and shall apply to construction commenced on and after the date they become effective" following "adoption".

Amendments--2009 (Adj. Sess.) Rewrote subdivs. (a)(3) and subsec. (b), made a minor stylistic change in the introductory paragraph of subsec. (c), and in subdiv. (c)(5), substituted "conducted at the time of construction by" for "from", deleted "that is determined to indicate energy performance equivalent to the RBES" following "rating organization" and added "if the rating indicates energy performance equivalent to the RBES" following "compliance".

Amendments--2009. Subdiv. (a)(4): Added

Subsec. (c): Amended generally.

Subdiv. (c)(2): Amended generally.

Amendments--2007 (Adj. Sess.). Subsec. (c): Substituted "The" for "On or about January 1, 1999, and at least every three years thereafter, the" at the beginning of the first sentence and added the present second sentence.

Amendments--2005 (Adj. Sess.) Subsec. (c): Substituted "commissioner of public service" for "commissioner of labor and industry" in the first sentence of the introductory paragraph.

Subdiv. (c)(6): Substituted "the commissioner of public service with" for "the department of public service and the commissioner of labor and industry with" and "in the state" for "by utilities" following "offered".

§ 52. Home energy rating organization accreditation.

  1. The Department of Public Service shall carry out an accreditation process for home energy rating organizations, in consultation with representatives of interested parties, including builders, building designers, mortgage lenders, real estate licensees, home appraisers, utilities, nonutility fuel suppliers, the Vermont Housing Finance Agency, and contractors who provide home energy rating services. As part of the accreditation process, the Department of Public Service shall consider any national home energy rating system guidelines and shall determine whether each provider of home energy ratings in the State of Vermont complies with the accreditation criteria adopted pursuant to this section.
  2. Once the Department of Public Service carries out an accreditation process pursuant to subsection (a) of this section, no organization may provide home energy rating services in the State unless the organization has been accredited by the Department.
  3. The Department shall consult with the organizations described in subsection (a) of this section to facilitate a public information program to inform homeowners, renters, sellers, and others regarding the accreditation process and of the statewide home energy rating organizations accredited by the Department.

    Added 1997, No. 20 , § 1; recodified 2013, No. 89 , § 11.

History

Recodification. Former § 21 V.S.A. § 267, relating to home energy rating organization accreditation, was derived from 1997, No. 20 , § 1 and recodified as § 52 of this title pursuant to 2013, No. 89 , § 11.

Prior law. 21 V.S.A. § 267.

Cross References

Cross references. Office of Home Energy Assistance, see 33 V.S.A. § 2602a et seq.

§ 53. Commercial building energy standards.

  1. Definitions.  In this subchapter, "commercial buildings" means all buildings that are not residential buildings as defined in subdivision 51(a)(2) of this title or farm structures as defined in 24 V.S.A. § 4413 .
    1. The following commercial buildings, or portions of those buildings, separated from the remainder of the building by thermal envelope assemblies complying with this section shall be exempt from the building thermal envelope provisions of the standards:
      1. those that do not contain conditioned space; and
      2. those with a peak design rate of energy usage less than an amount specified in the commercial building energy standards (CBES) adopted under subsection (b) of this section.
    2. These standards shall not apply to equipment or portions of building energy systems that use energy primarily to provide for industrial or manufacturing processes.
    3. With respect to a structure that is a mixed-use building that shares residential and commercial users:
      1. if the structure is three stories or fewer in height, the term "commercial building" shall include all commercial uses within the structure and all common areas and facilities that serve both residential and commercial uses; and
      2. if the structure is four stories or more in height, the term "commercial building" shall include all uses and areas within the structure.
  2. Adoption of commercial building energy standards.  Commercial building construction with respect to which any local building permit application or application for construction plan approval by the Commissioner of Public Safety pursuant to 20 V.S.A. chapter 173 has been submitted on or after January 1, 2007 shall be designed and constructed in substantial compliance with the standards contained in the 2005 Vermont Guidelines for Energy Efficient Commercial Construction, as those standards may be amended by administrative rule adopted by the Commissioner of Public Service.
  3. Revision and interpretation of energy standards.  On or before January 1, 2011, the Commissioner shall complete rulemaking to amend the commercial building energy standards to ensure that commercial building construction must be designed and constructed in a manner that complies with ANSI/ASHRAE/IESNA standard 90.1-2007 or the 2009 edition of the IECC, whichever provides the greatest level of energy savings. At least every three years after January 1, 2011, the Commissioner of Public Service shall amend and update the CBES by means of administrative rules adopted in accordance with 3 V.S.A. chapter 25. The Commissioner shall ensure that appropriate revisions are made promptly after the issuance of updated standards for commercial construction under the IECC or ASHRAE/ANSI/IESNA standard 90.1, whichever provides the greatest level of energy savings. Prior to final adoption of each required revision of the CBES, the Department of Public Service shall convene an Advisory Committee to include one or more mortgage lenders; builders; building designers; architects; civil, mechanical, and electrical engineers; utility representatives; and other persons with experience and expertise, such as consumer advocates and energy conservation experts. The Advisory Committee may provide the Commissioner of Public Service with additional recommendations for revision of the CBES.
    1. Any amendments to the CBES shall be:
      1. consistent with duly adopted State energy policy, as specified in 30 V.S.A. § 202a ; and
      2. evaluated relative to their technical applicability and reliability.
    2. Each time the CBES are amended by the Commissioner of Public Service, the amended CBES shall become effective upon a date specified in the adopted rule, a date that shall not be less than three months after the date of adoption. Persons submitting an application for any local permit authorizing commercial construction, or an application for construction plan approval by the Commissioner of Public Safety pursuant to 20 V.S.A. chapter 173, before the effective date of the amended CBES shall have the option of complying with the applicable provisions of the earlier or the amended CBES. After the effective date of the original or the amended CBES, any person submitting such an application for commercial construction in an area subject to the CBES shall comply with the most recent version of the CBES.
    3. The Advisory Committee convened under this subsection, in preparing for the CBES updates, shall advise the Department of Public Service with respect to the coordination of the CBES amendments with existing and proposed demand-side management programs offered in the State.
    4. The Commissioner of Public Service is authorized to adopt rules interpreting and implementing the CBES.
    5. The Commissioner of Public Service may grant written variances or exemptions from the CBES or rules adopted under this section where strict compliance would entail practical difficulty or unnecessary hardship, or is otherwise found unwarranted, provided that:
      1. Any such variance or exemption shall be consistent with State energy policy, as specified in section 202a of this title.
      2. Any petitioner for such a variance or exemption can demonstrate that the methods, means, or practices proposed to be taken in lieu of compliance with the rule or rules provide, in the opinion of the Commissioner, equal energy efficiency to that attained by compliance with the rule or rules.
      3. A copy of any such variance or exemption shall be recorded by the petitioner in the land records of the city or town in which the building is located.
      4. A record of each variance or exemption shall be maintained by the Commissioner, together with the certifications received by the Commissioner.
  4. Certification requirement.
    1. The design of commercial buildings shall be certified by the primary designer as compliant with CBES in accordance with this subsection, except as compliance is excused by a variance or exemption issued under subdivision (c)(5) of this section. If applicable law requires that the primary designer be a licensed professional engineer, licensed architect, or other licensed professional, a member of a pertinent licensed profession shall issue this certification. If one or more licensed professional engineers or licensed architects is involved in the design of the project, one of these licensees shall issue this certificate. If a licensed professional engineer or a licensed architect is not involved in designing the project, certification shall be issued by the builder. Any certification shall be accompanied by an affidavit and shall certify that the designer acted in accordance with the designer's professional duty of care in designing the building, and that the commercial building was designed in substantial compliance with the requirements of the CBES. The Department of Public Service will develop and make available to the public a certificate that lists key requirements of the CBES, sets forth certifying language in accordance with this subdivision, and requires disclosure of persons relied upon by the primary designer who have contracted to indemnify the primary designer for damages arising out of that reliance. Any person certifying under this subdivision shall use this certificate or one substantially like it to satisfy these certification obligations. Certification shall be issued by completing and signing a certificate and permanently affixing it to the outside of the heating or cooling equipment, to the electrical service panel located inside the building, or in a visible location in the vicinity of one of these three areas. In certifying under this subsection, the certifying person may reasonably rely on one or more supporting affidavits received from other persons that contributed to the design affirming that the portions of the design produced by them were properly certifiable under this subsection. The certifying person may contract for indemnification from those on which the person relies pursuant to this subdivision (1) against damages arising out of that reliance. This indemnification shall not limit any rights of action of an aggrieved party.
    2. The construction of a commercial building shall be certified as compliant with CBES in accordance with this subsection, except as compliance is excused by a variance or exemption issued under subdivision (c)(5) of this section. This certification shall be issued by the general contractor, construction manager, or other party having primary responsibility for coordinating the construction of the subject building, or in the absence of such a person, by the owner of the building. Any certification shall be accompanied by an affidavit and shall certify that the subject commercial building was constructed in accordance with the ordinary standard of care applicable to the participating construction trades, and that the subject commercial building was constructed substantially in accordance with the construction documents including the plans and specifications certified under subdivision (1) of this subsection for that building. The Department of Public Service will develop and make available to the public a certificate that sets forth certifying language in accordance with this subdivision, and that requires disclosure of persons who have been relied upon by the person with primary responsibility for coordinating the construction of the building and who have contracted to indemnify that person for damages arising out of that reliance. The person certifying under this subdivision shall use that certificate or one substantially like it to satisfy these certification obligations. Certification shall be issued by completing and signing a certificate and permanently affixing it to the outside of the heating or cooling equipment, to the electrical service panel located inside the building, or in a visible location in the vicinity of one of these three areas. In certifying under this subdivision, the certifying person may reasonably rely on one or more supporting affidavits received from subcontractors or others engaged in the construction of the subject commercial building affirming that the portions of the building constructed by them were properly certifiable under this subdivision (2). The certifying person may contract for indemnification from those on which the person relies pursuant to this subdivision (2) against damages arising out of that reliance. This indemnification shall not limit any rights of action of an aggrieved party.
    3. Any person certifying under this subsection shall provide a copy of the person's certificate and any accompanying affidavit to the Department of Public Service.
    4. Provision of a certificate as required by subdivision (1) of this subsection and of a certificate as required by subdivision (2) of this subsection shall be conditions precedent to:
      1. issuance by the Commissioner of Public Safety (or a municipal official acting under 20 V.S.A. § 2736 ) of any final occupancy permit required by the rules of the Commissioner of Public Safety for use or occupancy of a commercial building that is also a public building as defined in 20 V.S.A. § 2730(a) ; and
      2. issuance by a municipality of a certificate of occupancy for commercial construction commencing on or after July 1, 2013, if the municipality requires such a certificate under 24 V.S.A. chapter 117.
  5. Private right of action for damages against a certifier.
    1. Except as otherwise provided in this subsection, a person aggrieved by another person's breach of that other person's representations contained in a certification or supporting affidavit issued or received as provided under subsection (d) of this section, within 10 years after the earlier of completion of construction or occupancy of the affected commercial building or portion of that building, may bring a civil action in Superior Court against a person who has an obligation of certifying compliance under subsection (d) of this section alleging breach of the representations contained in that person's certification. This action may seek injunctive relief, damages arising from the aggrieved party's reliance on the accuracy of those representations, court costs, and reasonable attorney's fees in an amount to be determined by the court. As used in this subdivision, "damages" includes costs incidental to increased energy consumption.
    2. A person's failure to affix the certification as required by this section shall not be an affirmative defense in such an action against the person.
    3. The rights and remedies created by this section shall not be construed to limit any rights and remedies otherwise provided by law.
    4. The right of action established in this subsection may not be waived by contract or other agreement.
    5. It shall be a defense to an action under this subsection that either at the time of completion or at any time thereafter, the commercial building or portion of building covered by a certificate under subsection (d) of this section, as actually constructed, met or exceeded the overall performance standards established in the CBES in effect on the date construction was commenced.
  6. State or local enforcement.  Any person who knowingly makes a false certification under subsection (d) of this section, or any party who fails to certify under subsection (d) of this section when required to do so, shall be subject to a civil penalty of not more than $250.00 per day, up to $10,000.00 for each year the violation continues.
  7. Title validity not affected.  A defect in marketable title shall not be created by a failure to record a variance or exemption pursuant to subdivision (c)(5) of this section, by a failure to issue certification or a certificate, as required under subsection (d) of this section, or by a failure under that subsection to affix a certificate or provide a copy of a certificate to the Department of Public Service.

    Added 2005, No. 208 (Adj. Sess.), § 8; amended 2007, No. 92 (Adj. Sess.), § 9; 2009, No. 45 , § 12, eff. May 27, 2009; 2011, No. 47 , § 20u, eff. May 25, 2011; 2013, No. 89 , §§ 7, 11; 2015, No. 23 , § 150; 2017, No. 74 , § 122.

History

Recodification. Former § 21 V.S.A. § 268, relating to commercial building energy standards, was derived from 2005, No. 208 (Adj. Sess.), § 8; amended by 2007, No. 92 (Adj. Sess.), § 9, 2009, No. 45 , § 12, and 2011, No. 47 , § 20u; and recodified as § 53 of this title pursuant to 2013, No. 89 , § 11.

Amendments--2017. Subsec. (c): Substituted "On or before" for "No later than" preceding "January 1, 2011" in the second sentence; and deleted the former third sentence.

Subdiv. (c)(2): Deleted "Except for the amendments required by this subsection to be adopted by January 1, 2011" preceding "each time" in the first sentence and "persons submitting" in the second sentence.

Amendments--2015. Subdiv. (d)(4)(B): Substituted "commercial construction" for "residential construction" preceding "commencing".

Amendments--2013. Added subsec. (a) and amended subdiv. (d)(4) generally.

Amendments--2011. Subsec. (c): Substituted "three months after" for "on" preceding "final" and inserted "and shall apply to construction commenced on and after the date they become effective" following "adoption".

Amendments--2009. Subsec. (c): Amended generally.

Amendments--2007 (Adj. Sess.). Subsec. (a): Inserted "as defined in subdivision 266(a)(2) of this title" following "buildings".

Subdiv. (a)(1): Inserted "commercial" preceding "buildings".

Subdiv. (a)(1)(B): Inserted "adopted under subsection (b) of this section" following "(CBES)".

Subdiv. (a)(2): Deleted "or commercial" following "manufacturing".

Subsec. (b): Substituted "any" for "no state or"; inserted "building" following "local", "or application for construction plan approval by the commissioner of public safety pursuant to 20 V.S.A. chapter 173" following "permit application", "designed and constructed" following "shall be" and "substantial" preceding "compliance".

Subsec. (c): Inserted the present second sentence; deleted ";" following "lenders" and "builders" and inserted "architects; civil, mechanical, and electrical engineers" preceding "utility".

Subdiv. (c)(2): Deleted "state or" preceding "local"; inserted "or an application for construction plan approval by the commissioner of public safety pursuant to 20 V.S.A. chapter 173" following "construction" and "such" following "submitting" and deleted "any state or local permit authorizing" preceding "commercial".

Subdivs. (c)(4), (5): Added.

Subsec. (d): Substituted "Certification requirement" for "Commercial".

Subdiv. (d)(1): Added the subdiv. designation and amended subdiv. generally.

Subdivs. (d)(2)-(4): Added.

Subsec. (e): Substituted "Private right of action" for "Action" and inserted "against a certifier" following "damages".

Subdiv. (e)(1): Amended generally.

Subdiv. (e)(5): Added.

Subsec. (f): Substituted "State or local enforcement" for "Violation of section" and "knowingly makes a false certification" for "falsely certifies"; inserted "subsection (d) of" preceding "this section" in two places; substituted "party" for "builder"; inserted "per day, up to $10,000.00 for each year the violation continues" following "$250.00" and deleted the former last sentence.

Subsec. (g): Inserted "to record a variance or exemption pursuant to subdiv. (c)(5) of this section, by a failure" following "failure" and deleted "or record and index a certificate in the town records" following "public service".

Prior law. 21 V.S.A. § 268.

§ 54. Compliance plan.

The Commissioner of Public Service:

  1. Shall issue a plan for achieving compliance with the energy standards adopted under this subchapter no later than February 1, 2017 in at least 90 percent of new and renovated residential and commercial building space. In preparing this plan, the Department shall review enforcement mechanisms for building energy codes that have been adopted in other jurisdictions and shall solicit the comments and recommendations of one or more mortgage lenders; builders; building designers; architects; civil, mechanical, and electrical engineers; utility representatives; environmental organizations; consumer advocates; energy efficiency experts; the Attorney General; and other persons who are potentially affected or have relevant expertise.
  2. May:
    1. Establish active training and enforcement programs to meet the energy standards adopted under this subchapter.
    2. Establish a system for measuring the rate of compliance each year with the energy standards adopted under this chapter. If such a system is established, the Commissioner also shall provide for such annual measurement.
    3. Adopt administrative rules pursuant to 3 V.S.A. chapter 25 to implement this subdivision (2). To the extent the implementation of this subdivision (2) places obligations on persons outside the Department of Public Service, such obligations shall be by means of administrative rules.

      Added 2009, No. 45 , § 13, eff. May 27, 2009; amended 2013, No. 89 , §§ 8, 11.

History

Recodification. Former § 21 V.S.A. § 269, relating to the compliance plan, was derived from 2009, No. 45 (Adj. Sess.), § 13 and recodified as § 54 of this title pursuant to 2013, No. 89 , § 11.

Amendments--2013. Section amended generally.

§ 55. Priority housing projects; stretch code.

A priority housing project as defined in 10 V.S.A. § 6001 shall meet or exceed the stretch codes established under this subchapter by the Department of Public Service.

Added 2017, No. 69 , § H.6, eff. June 28, 2017.

History

Effective date of 2017 amendment. 2017, No. 69 , § N.1(b) provides that the amendments to this section shall take effect on the date of enactment of the fiscal year 2018 annual budget bill, which occurred on June 28, 2017.

Subchapter 2. Building Energy Labeling and Benchmarking

§ 61. Definitions.

As used in this subchapter:

  1. "Benchmarking" means measuring the energy performance of a single building or portfolio of buildings over time in comparison to other similar buildings or to modeled simulations of a reference building built to a specific standard such as an energy code.
  2. "Commercial Working Group" means the Commercial and Multiunit Building Energy Labeling Working Group established by subsection 62(b) of this title.
  3. "Commission" means the Public Utility Commission.
  4. "Department" means the Department of Public Service.
  5. "Distribution company" means a company under the jurisdiction of the Commission that distributes electricity or natural gas for consumption by end users.
  6. "Energy efficiency utility" means an energy efficiency entity appointed under subdivision 209(d)(2) of this title.
  7. "Energy label" means the visual presentation in a consistent format of an energy rating for a building and any other supporting and comparative information. The label may be provided as a paper certificate or made available online, or both.
  8. "Energy rating" means a simplified mechanism to convey a building's energy performance. The rating may be based on the operation of the building or modeled based on the building's assets.
  9. "Home energy assessor" means an individual who assigns buildings a home energy performance score using a scoring system based on the energy rating.
  10. "Multiunit building" means a building that contains more than one independent dwelling unit or separate space for independent commercial use, or both.
  11. "Residential Working Group" means the Residential Building Energy Labeling Working Group established by subsection 62(a) of this title.
  12. "Unit holder" means the tenant or owner of an independent dwelling unit or separate space for independent commercial use within a multiunit building.

    Added 2019, No. 62 , § 12.

§ 62. Repealed. 2019, No. 62, § 15(c), effective June 30, 2021.

History

Former § 62. Former § 62, relating to building energy working groups, was derived from 2019, No. 62 , § 12.

§ 63. Multiunit buildings; access to aggregated data.

  1. Obligation; aggregation and release of data.  On request of the owner of a multiunit building or the owner's designated agent, each distribution company and energy efficiency utility shall aggregate monthly energy usage data in its possession for the unit holders in the building and release the aggregated data to the owner or agent. The aggregated data shall be anonymized.
    1. Under this section, the obligation to aggregate and release data shall accrue when the owner or agent:
      1. Certifies that the request is made for the purpose of benchmarking or preparing an energy label for the building.
      2. With respect to a multiunit building that has at least four unit holders, provides documentation certifying that, at least 14 days prior to submission of the request, each unit holder was notified that the energy usage data of the holder was to be requested and that this notice gave each unit holder an opportunity to opt out of the energy use aggregation. The owner or agent shall identify to the distribution company or energy efficiency utility requesting the data each unit holder that opted out.
      3. With respect to a multiunit building that has fewer than four unit holders, provides an energy usage data release authorization from each unit holder.
    2. A unit holder may authorize release of the holder's energy usage data by signature on a release authorization form or clause in a lease signed by the unit holder. The provisions of 9 V.S.A. § 276 (recognition of electronic records and signatures) shall apply to release authorization forms under this subsection.
    3. After consultation with the Commercial Working Group, the Commissioner of Public Service shall prescribe forms for requests and release authorizations under this subsection. The request form shall include the required certification.
  2. Response period.  A distribution company or energy efficiency utility shall release the aggregated energy use data to the building owner or designated agent within 30 days of its receipt of a request that meets the requirements of subsection (a) of this section.
    1. The aggregation shall exclude energy usage data for each unit holder who opted out or, in the case of a multiunit building with fewer than four unit holders, each unit holder for which a signed release authorization was not received.
    2. A distribution company may refer a complete request under subsection (a) of this section to an energy efficiency utility that possesses the requisite data, unless the data is to be used for a benchmarking program to be conducted by the company.

      Added 2019, No. 62 , § 12.

CHAPTER 3. PUBLIC SERVICE CORPORATIONS, OTHER THAN RAILROADS; FORMATION, FINANCING, EMINENT DOMAIN

Sec.

History

2008. Substituted "articles of incorporation" for "articles of association" throughout this chapter to conform to the provision of Title 11A.

Cross References

Cross references. Agency of Transportation and Transportation Board generally, see 19 V.S.A. § 1 et seq.

Powers, duties, and procedures of Transportation Board generally, see 5 V.S.A. § 1601 et seq.

Regulation of surface transportation of persons and goods generally, see 5 V.S.A. § 1601 et seq.

§ 101. Corporations subject to Commission; formation.

Subject to the additional or varied requirements of this chapter, a corporation may be formed pursuant to the provisions of the general corporation law for the sole purpose of conducting any one or more of the kinds of business, other than a railroad business, which are subject to regulation by the Public Utility Commission.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. V.S. 1947, § 9323. P.L. § 5947. G.L. § 4975. 1915, No. 163 , § 1.

Editor's note. In the matters relating to transportation, the Public Service Board has been succeeded by the Transportation Board. See 19 V.S.A. § 6.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "public service" at the end of the section.

Cross References

Cross references. Businesses subject to jurisdiction of Public Utility Commission, see § 203 of this title.

§ 102. Petition; hearing; certificate.

  1. Before the articles of incorporation are transmitted to the Secretary of State, the incorporators shall petition the Public Utility Commission to determine whether the establishment and maintenance of such corporation will promote the general good of the State and shall at that time file a copy of any such petition with the Department.  The Department, within 12 days, shall review the petition and file a recommendation regarding the petition in the same manner as is set forth in subsection 225(b) of this title.  Such recommendation shall set forth reasons why the petition shall be accepted without hearing or shall request that a hearing on the petition be scheduled.  If the Department requests a hearing on the petition, or, if the Commission deems a hearing necessary, it shall appoint a time and place in the county where the proposed corporation is to have its principal office for hearing the petition, and shall make an order for the publication of the substance thereof and of the time and place of hearing two weeks successively in a newspaper of general circulation in the county to be served by the corporation, the last publication to be at least 12 days before the day appointed for the hearing.  The Department of Public Service, through the Director for Public Advocacy, shall represent the public at the hearing.
  2. If the Commission finds that the establishment and maintenance of the proposed corporation will promote the general good of the State, it shall give the incorporators a certificate to that effect under its seal.
  3. For good cause, after an opportunity for hearing, the Commission may amend or revoke any certificate awarded under the provisions of this section. If any such certificate is revoked, the corporation shall no longer have authority to conduct any business which is subject to the jurisdiction of the Commission whether or not regulation thereunder has been reduced or suspended under section 226a or 227a of this title.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1979, No. 204 (Adj. Sess.), § 19, eff. Feb. 1, 1981; 1987, No. 87 , § 4; 1995, No. 99 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 9324. 1937, No. 166 , § 1. P.L. § 5948. G.L. § 4976. 1915, No. 163 , § 1.

Amendments--1995 (Adj. Sess.) Subsec. (c): Substituted "an opportunity for" for "a" preceding "hearing" in the first sentence.

Amendments--1987. Section amended generally.

Amendments--1979 (Adj. Sess.). Substituted "department of public service, through the director for public advocacy" for "attorney general or state's attorney of the county" preceding "shall represent the" in the third sentence and "public at the" for "state at such" thereafter.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Cross References

Cross references. Certificate of public good for new generation and transmission facilities, see § 248 of this title.

ANNOTATIONS

1. Notice.

The purpose of the requirement in this section, that the published notice state the substance of an applicant's petition, is to ensure that all potential customers and other interested persons are adequately informed of the nature of the proceedings. In re EMCO CATV, Inc., 141 Vt. 385, 449 A.2d 949 (1982).

Notice published by Public Service Board with regard to applicant's petition for both establishment as a public service corporation and award of a certificate of public good to provide cable television services under section 503 of this title was not inadequate under this section for failure to state expressly that one of the issues to be resolved at the hearing would be whether the proposed incorporation would contribute to the general good of the State, since establishment as a public service corporation was sought solely for the purpose of securing a certificate of public good for provision of cable television service, both applications involved identical factual issues, and the notice referred directly to the sections involved. In re EMCO CATV, Inc., 141 Vt. 385, 449 A.2d 949 (1982).

Cited. In re Vermont Electric Power Producers, Inc., 165 Vt. 282, 683 A.2d 716 (1996).

§ 103. Transmission to Secretary of State; record; effect.

The articles of incorporation, the certificate of the Public Utility Commission, and the organization fee shall be transmitted to the Secretary of State. When such articles are recorded, such certificate shall be recorded therewith.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1995, No. 99 (Adj. Sess.), § 3.

History

Source. V.S. 1947, § 9325. P.L. § 5949. G.L. § 4977. 1915, No. 163 , § 1.

Amendments--1995 (Adj. Sess.) Deleted "who shall thereupon proceed according to the provisions of section 45 of Title 11" following "state" at the end of the first sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "public service" in the first sentence.

Cross References

Cross references. Filing with Department of Public Service, see § 204 of this title.

§ 104. Amendment of articles, certificate by Commission.

Such a corporation or company shall not amend its articles of incorporation unless and until the Public Utility Commission, on petition and after such hearing and notice thereof as the Commission directs, certifies that such amendment will promote the general good of the State. Its certificate shall be recorded with the certificate of amendment.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1985, No. 244 (Adj. Sess.), § 2; 1995, No. 99 (Adj. Sess.), § 4.

History

Source. 1951, No. 118 , § 5. V.S. 1947, § 9326. P.L. § 5950. 1925, No. 82 . G.L. § 4978. 1915, No. 163 , § 4.

2016. In section header, replaced "of Public Service" with "by".

Amendments--1995 (Adj. Sess.) Deleted "pursuant to sections 191, 192, and 270 of Title 11" following "association" in the first sentence.

Amendments--1985 (Adj. Sess.). Deleted "a transportation" preceding "company" in the first sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

§ 105. Payment for stock with property; approved by Commission.

When stock is issued for property other than cash, the value of the property fixed by the incorporators or stockholders must receive the approval of the Public Utility Commission.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1995, No. 99 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 9327. P.L. § 5951. G.L. § 4979. 1915, No. 163 , § 3. 1908, No. 116 , § 16.

2016. In section header, deleted "Public Service".

Amendments--1995 (Adj. Sess.) Deleted "under the provisions of sections 266-268 of Title 11" following "when" at the beginning of the sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "public service" at the end of the section.

§ 106. Ownership of stock in other corporations.

When a corporation subject to the regulation of the Public Service Commission, prior to April 2, 1915, was authorized by its charter or otherwise to hold stock in another corporation, such public service corporation may petition the Public Utility Commission for authority to increase the amount of stock of such other corporation which may be owned by the petitioning corporation. If the Commission finds and adjudges that such increase will promote the general good of the State, it may issue its certificate and order authorizing the same, and thereupon the charter or articles of incorporation shall be amended to conform to such order.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1985, No. 224 (Adj. Sess.), § 3.

History

Source. V.S. 1947, § 9328. P.L. § 5952. G.L. § 4980. 1915, No. 163 , § 2.

Editor's note. Although 1959, No. 329 (Adj. Sess.), § 39(b) amended each section of the law containing the words "public service commission" by substituting "board" for "commission", the first reference to the commission in this section was not changed to board in view of the context of that reference.

Amendments--1985 (Adj. Sess.). Deleted "or a transportation company" preceding "prior to" and "or transportation company" preceding "may petition" in the first sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

§ 107. Acquisition of control of one utility company by another; supervision.

  1. No company shall directly or indirectly acquire a controlling interest in any company subject to the jurisdiction of the Public Utility Commission, or in any company that directly or indirectly has a controlling interest in such a company, without the approval of the Public Utility Commission. Nothing in this section shall be deemed to affect the direct or indirect acquisition of a controlling interest in a company as defined in subdivision 501(3) of this title.  The direct acquisition of the voting securities of a company defined in subdivision 501(3) shall continue to be regulated pursuant to section 515 of this title.
  2. Any company seeking to acquire such a controlling interest shall file a petition with the Public Utility Commission that describes the acquisition and sets forth the reasons why such an acquisition should be approved. The Public Utility Commission shall give notice of the petition to the Department of Public Service and other interested persons, and may conduct a hearing. The Commission may grant such approval only after due notice and opportunity for hearing and upon finding that such an acquisition will promote the public good.
  3. If any company acquires such a controlling interest without the prior approval of the Public Utility Commission, the Commission may then, after due notice and opportunity for hearing:
    1. approve the acquisition; or
    2. modify any existing certificates or orders authorizing either or both companies to own or operate a public utility business under the provisions of this title; or
    3. revoke any such existing certificates or orders, or revoke any orders approving the articles of incorporation of such companies; or
    4. declare the acquisition null and void, all as necessary to promote the public good.
  4. The Commission may by rule specify terms and conditions upon which companies shall give prior notice of acquisitions regulated by this section.  Any such rule may specify categories of acquisitions that may be deemed to be approved if timely notice has been filed and an investigation has not been initiated by the Commission.
  5. For the purposes of this section:
    1. "Controlling interest" means 10 percent or more of the outstanding voting securities of a company; or such other interest as the Public Utility Commission determines, upon notice and opportunity for hearing following its own investigation or a petition filed by the Department of Public Service or other interested party, to constitute the means to direct or cause the direction of the management or policies of a company. The presumption that ten percent or more of the outstanding voting securities of a company constitutes a controlling interest may be rebutted by a company under procedures established by the Commission by rule.
    2. "Voting security" means any stock or security presently entitling the owner or holder thereof to vote in the direction or management of the affairs of a company or any security issued under or pursuant to any agreement, trust, or arrangement whereby a trustee or trustees or agent or agents for the owner or holder of such a security are presently entitled to vote in the direction or management of the affairs of a company.
    3. A specified per centum of the "outstanding voting securities of a company" means such amount of outstanding voting securities of such company as entitles the holder or holders thereof to cast that specified per centum of the aggregate votes which the holders of all the outstanding voting securities of such company are entitled to cast in the direction or management of the affairs of such company.

      1961, No. 183 , § 7; amended 1971, No. 50 , eff. April 14, 1971; 1989, No. 96 , § 2, eff. June 14, 1989; 1993, No. 21 , § 6, eff. May 12, 1993; 1999, No. 157 (Adj. Sess.), § 2.

History

Amendments--1999 (Adj. Sess.) Inserted "opportunity for" preceding "hearing" in the introductory paragraph of subsec. (c) and in subdiv. (e)(1).

Amendments--1993 Subsec. (b): Rewrote the former second sentence as the second and third sentences.

Amendments--1989 Section amended generally.

Amendments--1971. Section amended generally.

Prior law. 30 V.S.A. § 106a.

§ 108. Issue of bonds or other securities.

  1. A domestic corporation subject to the jurisdiction of the Public Utility Commission shall not mortgage nor pledge any of its corporate property nor issue any stocks, bonds, notes, or other evidences of indebtedness without the consent of the Public Utility Commission given on petition and after opportunity for hearing of the corporation or its incorporators and a finding of the Commission that the proposed action will be consistent with the general good of the State. Notice of the hearing shall be given as the Commission directs.
    1. The corporation may issue evidences of indebtedness payable within one year from the date of issue without such consent provided such borrowing is necessary as an emergency to restore service immediately after damage by disaster or provided its total evidences of indebtedness so payable within one year from the date of issue do not exceed 20 percent of its total assets. If such evidences of indebtedness would cause its total evidences of indebtedness so payable within one year to exceed 20 percent of its total assets, then it shall give the Commission notice in writing of its intention so to do at least 10 days before the date of the proposed issue and an itemization in such detailed form as the Commission may prescribe. If the Commission determines after considering the notice and the said corporation's report to the Commission that further inquiry is warranted, it shall order such corporation not to issue such evidences of indebtedness under this subdivision without the consent of the Commission given after opportunity for hearing; provided, however, that if the Commission does not make such an order within 10 days from the time it receives such notice under this subdivision, then such corporation may issue such evidences of indebtedness without the consent of the Public Utility Commission, and the Commission upon request shall so notify such corporation in writing; provided, however, that the failure of the Commission to so notify such corporation shall not affect the right of such corporation to issue the evidences of indebtedness described in its notice.
    2. Nothing in this section shall restrict the right of a common carrier by motor vehicle to issue evidences of indebtedness payable within one year from the date of issue without prior notice to or consent by the Commission.
  2. The provisions of this section shall not apply to the Vermont Public Power Supply Authority or to a public utility that meets each and all of the following four conditions:
    1. is incorporated in some state other than Vermont;
    2. is conducting an interstate and intrastate telephone business that is subject to regulation by the Federal Communications Commission in some respects;
    3. is conducting telephone operations in four or more states; and
    4. has less than 10 percent of its total investment in property used or useful in rendering service located within this State to the extent that such public utility may issue stock, bonds, notes, debentures, or other evidences of indebtedness not directly or indirectly constituting or creating a lien on any property used or useful in rendering service that is located within this State.
    1. A municipality shall not issue bonds or notes or pledge its net revenues under 24 V.S.A. chapter 53, respecting the ownership or operation of a gas or electric utility, unless the Public Utility Commission first finds, upon petition of the municipality and after notice and an opportunity for hearing, that the proposed action will be consistent with the general good of the State. (c) (1)  A municipality shall not issue bonds or notes or pledge its net revenues under 24 V.S.A. chapter 53, respecting the ownership or operation of a gas or electric utility, unless the Public Utility Commission first finds, upon petition of the municipality and after notice and an opportunity for hearing, that the proposed action will be consistent with the general good of the State.
    2. If the Public Utility Commission does not issue its ruling within 90 days of the filing of the petition, as may be extended by consent of the municipality, the issuance of the proposed bonds or notes or pledge of net revenues shall be deemed to be consistent with the general good of the State.
    3. If the Public Utility Commission issues a ruling in accordance with subdivision (1) of this subsection, or does not rule within the period specified in subdivision (2) of this subsection, a municipality must also have obtained voter approval in accordance with 24 V.S.A. chapter 53, if required, prior to issuing bonds or notes or pledging its net revenues.
  3. Notwithstanding the provisions of subsection (c) of this section, a municipality may:
    1. issue bonds or notes or pledge its net revenues payable within three years from the date of issue without such consent, provided such borrowing is necessary in an emergency to restore service immediately after damage by disaster;
    2. issue bonds or notes or pledge its net revenues payable within one year of the date of issuance without the consent otherwise required by this subdivision, provided its total bonds, notes, or evidences of indebtedness so payable within one year do not exceed 20 percent of its total assets; or
    3. issue bonds or notes without the consent otherwise required by this subdivision, provided:
      1. the amount of the issuance plus the amount of any bond or note issuances during the previous 12 calendar months does not exceed 20 percent of the municipality's total assets; and
      2. after the proposed issuance, the total amount of the municipality's outstanding bonds, notes, or evidences of indebtedness would not exceed 50 percent of its total assets.

        Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 183 , § 2; 1971, No. 66 , eff. April 15, 1971; 1989, No. 111 , § 12, eff. June 22, 1989; 1993, No. 21 , § 7, eff. May 12, 1993; 1995, No. 99 (Adj. Sess.), § 6; 2019, No. 81 , § 2.

History

Source. 1951, No. 118 , § 6. 1949, No. 137 , § 2. V.S. 1947, § 9329. P.L. § 5953. 1925, No. 83 . G.L. § 4981. 1915, No. 163 , § 6. 1908, No. 116 , § 16.

Reference in text. The Federal Communications Commission, referred to in subdiv. (b)(2), is codified as 47 U.S.C. § 151 et seq.

Revision note. Undesignated paragraphs were designated as subsecs. (a) and (b) to conform section to V.S.A. style.

Amendments--2019. Subsec. (b): Substituted "that" for "which" in the introductory language, subdiv. (b)(2), and near the end of subdiv. (b)(4); and inserted "the Vermont Public Power Supply Authority or to" in the introductory language.

Subdiv. (c)(3): Substituted "also have obtained" for "subsequently obtain," and added "if required, prior to issuing bonds or notes or pledging its net revenues".

Subsec. (d): Added subdiv. (d)(3).

Amendments--1995 (Adj. Sess.) Subsec. (a): Deleted "or change its shares as provided in section 270 of Title 11" following "indebtedness" in the first sentence.

Amendments--1993. Subsec. (a): Amended generally.

Subdiv. (c)(1): Substituted "notice and an opportunity for" for "duly noticed" preceding "hearing".

Amendments--1989. Subsec. (c): Added.

Subsec. (d): Added.

Amendments--1971. Subsec. (a): Substituted "twenty" for "twelve" preceding "percent" in the third and fourth sentences.

Amendments--1961. Section amended generally.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Prior law. 30 V.S.A. § 107.

Application of subsec. (c). 1989, No. 111 , § 13(c), eff. June 22, 1989, provided: "The requirements of section 108(c) of Title 30 shall not apply to an issuance of indebtedness for either:

"(1) a municipality utility project that has been found in the general good of the state in an advisory opinion of the public service board issued at the request of the Vermont municipal bond bank pursuant to 24 V.S.A. § 4556, and has been approved by the legal voters of the municipal corporation at a duly warned meeting held for such purpose, both prior to the effective date of this act [June 22, 1989]; or

"(2) a municipal utility project involving upgrade of distribution facilities which has been approved by the legal voters of the municipal corporation at a duly warned meeting held for such purpose prior to the effective date of this act [June 22, 1989]."

Cross References

Cross references. Jurisdiction of transportation board over common carriers, see 5 V.S.A. § 1822.

ANNOTATIONS

Cited. First National Bank v. Reed, 306 F.2d 481 (2d Cir. 1962); In re Vermont Public Power Supply Authority, 140 Vt. 424, 440 A.2d 140 (1981); Town of Cavendish v. Vermont Public Power Supply Authority, 141 Vt. 144, 446 A.2d 792 (1982); In re Green Mountain Power Corp., 142 Vt. 373, 455 A.2d 823 (1983); In re Vermont Electric Generation & Transmission Cooperative, Inc., 146 Vt. 235, 502 A.2d 841 (1985); In re Green Mountain Power Corp., 148 Vt. 333, 532 A.2d 582 (1987).

§ 109. Sales and leases; hearings.

  1. Except in connection with replacement or exchange, a corporation or a foreign corporation subject to the jurisdiction of the Public Utility Commission shall not make a sale or lease or series of sales or leases in any one calendar year constituting 10 percent or more of the company's property located within this State and actually used in or required for public service operations nor merge nor consolidate pursuant to the provisions of sections 301-307 of this title, nor after any such sale, lease, consolidation, or merger shall any subsequent like action be taken, except after opportunity for hearing by the Public Utility Commission and a finding by the Commission that the same will promote the general good of the State. Such notice of the hearing shall be given as the Commission directs. A certificate of consent of the Public Utility Commission shall be filed with the Secretary of State.
  2. No company owning or operating an electric generating plant in this State with a capacity of 80 megawatts, or greater, may sell or lease any real property or transmission facilities located at that plant that are required or may be required to generate electricity, interconnect generation facilities with electric transmission facilities, or transmit electricity from the plant, without first obtaining a certificate of consent from the Public Utility Commission.
  3. No company owning or operating an electric transmission facility located in this State that is capable of operating at 100 kilovolts or greater may sell or lease any real property or equipment that is required or may be required to transmit electricity using that facility without first obtaining a certificate of consent from the Public Utility Commission.
  4. To obtain a certificate of consent pursuant to subsection (b) or (c) of this section, the company shall notify the Commission and Department in writing of its intention to enter into such a sale or lease at least 45 days before the effective date of the proposed transaction. Within 30 days of receiving this notice, the Department shall file a written recommendation with the Commission as to whether it should consent to the proposed sale or lease, and whether further inquiry or hearing is warranted. Within 15 days of receiving the Department's recommendation, and after considering the company's notice and the Department's recommendation, the Commission shall determine whether further inquiry into the proposed sale or lease is warranted and, if so, shall so proceed. If the Department recommends approval of the proposed transaction without further inquiry or opportunity for hearing, and if the Commission takes no further action within 15 days after the Department has filed such a recommendation, then the proposed transaction shall be deemed approved as consistent with the general good of the State.
  5. The Public Utility Commission shall issue a certificate of consent under this section only if it determines that the proposed transaction shall promote the general good of the State.
  6. Any notice provided by a company pursuant to subsection (d) of this section shall be accompanied by a statement containing the material terms of the proposed transaction and such further explanation of the proposed transaction as the Commission may prescribe. The Commission may adopt such rules as it deems appropriate for determining the necessity for and scope of any inquiry or hearing concerning a request for Commission consent to a sale or lease under subsection (b) or (c) of this section. In developing these rules, the Commission shall ensure that due consideration is given to issues such as potential ratepayer impacts of the transactions to be reviewed and least-cost integrated planning principles as defined in subdivision 218c(a)(1) of this title. The Commission's rulemaking authority under this section shall include the discretion to:
    1. decrease to no less than 50 megawatts the threshold for review under subsection (b) of this section;
    2. establish a minimum value threshold to trigger review under subsection (b) or (c) of this section; and
    3. adopt or amend other rules appropriately to minimize duplicative regulatory review under this title.

      Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1993, No. 21 , § 8, eff. May 12, 1993; 2007, No. 93 (Adj. Sess.), § 1, eff. March 21, 2008.

History

Source. 1949, No. 137 , § 3. V.S. 1947, § 9330. 1941, No. 144 , § 1. 1935, No. 158 . P.L. § 5954. 1933, No. 157 , § 5629. G.L. § 4982. 1917, No. 143 . 1915, No. 163 , § 5.

Reference in text. Sections 301-307 of this title, referred to in the first sentence of subsec. (a), have been omitted in view of 1969, No. 236 (Adj. Sess.), § 4, as amended by 1971, No. 51 , § 15, which provided that after July 1, 1971, sections 301-307 would not apply to any corporation then or thereafter organized or doing business under the laws of this state.

Amendments--2007 (Adj. Sess.). Designated the existing provisions of the section as subsec. (a) and added subsecs. (b)-(f).

Amendments--1993. Inserted "opportunity for" preceding "hearing" in the first sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Prior law. 30 V.S.A. § 108.

Cross References

Cross references. Sales and leases by individuals, partnerships, or unincorporated associations subject to the jurisdiction of the Public Utility Commission, see § 232 of this title.

ANNOTATIONS

1. Application.

Property under the jurisdiction of the Public Service Commission cannot be conveyed with a clear and marketable title without the consent of the Commission. Krulee v. F. C. Huyck & Sons, 121 Vt. 299, 156 A.2d 74 (1959).

Cited. First National Bank v. Reed, 306 F.2d 481 (2d Cir. 1962).

§ 110. Eminent domain; companies authorized.

When it is necessary for a corporation formed under this chapter or a foreign corporation under the jurisdiction of the Public Utility Commission to acquire property within this State, or some easement or other limited right in such property in order that it may render adequate service to the public in the conduct of its business, it may condemn such property or right, as provided in sections 111-124 of this title. All other companies, as defined in sections 201 and 501 of this title, which are within the scope of sections 203 and 501 of this title, shall have the same power of condemnation and be subject to the same procedure as hereinafter provided for condemnation by corporations subject to the jurisdiction of the Public Utility Commission.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1969, No. 61 , eff. April 15, 1969; 1987, No. 271 (Adj. Sess.), § 17, eff. June 21, 1988.

History

Source. V.S. 1947, § 9331. 1935, No. 159 . P.L. § 5955. G.L. § 4983. 1915, No. 163 , § 7.

Revision note. Reference to "sections 110-123 of this title" at the end of the first sentence changed to "sections 111-124 of this title" to conform reference to renumbering of such sections.

Amendments--1987 (Adj. Sess.). In the second sentence, substituted "sections" for "section" preceding "201" and inserted "and 501" thereafter, substituted "sections" for "section" preceding "203" and inserted "and 501" thereafter, and substituted "corporations subject to the jurisdiction of the public service board" for "corporate public utilities" following "provided for condemnation by".

Amendments--1969. Substituted "commission" for "board" following "public service" and "provided in sections 110-123 of this title" for "hereinafter provided" following "property or right, as" and added the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "public service".

Prior law. 30 V.S.A. § 109.

ANNOTATIONS

Analysis

1. Construction with other laws.

Section 248 of this title, governing new electric generation and transmission facilities, effectively prohibits an electric utility from exercising the power of eminent domain conferred by this section until it secures a certificate of public good. Auclair v. Vermont Electric Power Co., 133 Vt. 22, 329 A.2d 641 (1974).

2. Jurisdiction.

Whether the Public Service Commission had jurisdiction of a petition for condemnation was a matter for determination by the Commission in the first instance subject to review. Prouty v. Citizens Utilities Co., 257 F.2d 692 (2d Cir. 1958), cert. denied, 358 U.S. 867, 79 S. Ct. 98, 3 L. Ed. 2d 99 (1958).

3. Limitations.

Gas company could not, by its powers of eminent domain, acquire a property interest in streets which were already dedicated to a public use. Vermont Gas Systems, Inc. v. City of Burlington, 130 Vt. 75, 286 A.2d 275 (1971).

4. Public Use Doctrine.

Nothing in the statute granting public service companies the power to condemn property indicates an intent to codify or limit the prior public use doctrine; that statute simply grants public utilities a general condemnation power. In re Vt. Gas Sys., 205 Vt. 509, 174 A.3d 1253 (2017).

Cited. Vermont Electric Power Co. v. Bandel, 135 Vt. 141, 375 A.2d 975 (1977); In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 110a. Inclusion of communications facilities.

When a gas or electric utility subject to the jurisdiction of the Commission files a petition to condemn an easement or limited right in property, there shall be a rebuttable presumption that access to the utility's facilities provided pursuant to chapter 92 of this title shall be a necessary component of the utility's rendering of adequate service to the public.

Added 2007, No. 131 (Adj. Sess.), § 3.

§ 111. Petition; notice of hearing.

  1. Such corporation shall present a petition to the Public Utility Commission and to the Department of Public Service describing the property or right, and stating why it is unable to acquire it without condemnation, and why its acquisition is necessary.  The Commission shall set a time and place for hearing such petition and shall issue a citation.  The Department, after appropriate investigation, shall present at the hearing on the petition its position on the need for the acquisition, any alternatives to the acquisition, and its recommendations on the acquisition.
  2. The citation shall be served upon each person having any legal interest in the property, including each municipality and each planning body where the property is situate like a summons, or on absent persons in such manner as the Supreme Court may by rule provide for service of process in civil actions.  The Commission, in its discretion, may schedule a joint hearing of some or all petitions relating to the same project and concerning properties or rights located in the same town or abutting towns.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1967, No. 205 , § 2; 1971, No. 185 (Adj. Sess.), § 213, eff. March 29, 1972; 1979, No. 204 (Adj. Sess.), § 20, eff. Feb. 1, 1981.

History

Source. V.S. 1947, § 9332. P.L. § 5956. G.L. § 4984. 1915, No. 163 , § 7.

Revision note. Undesignated paragraphs were designated as subsecs. (a) and (b) to conform section to V.S.A. style.

Amendments--1979 (Adj. Sess.). Subsec. (a): Inserted "and to the public service department" following "board" in the first sentence, substituted "board" for "commission" preceding "shall set" in the second sentence and added the third sentence.

Amendments--1971 (Adj. Sess.). Subsec. (b): Deleted "writ of" preceding "summons" in the first sentence, substituted "in such manner as the supreme court may by rule provide for service of process in civil actions" for "as provided for in sections 911, 912 and 913 of Title 12" following "absent persons" at the end of that sentence and deleted the former second sentence.

Amendments--1967. Section amended generally.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Prior law. 30 V.S.A. § 110.

ANNOTATIONS

1. Description of property.

In a condemnation proceeding, the description of the location of the easement was not inadequate. The landowner did not claim that he was misled or was unable to obtain clarity about the specific location of the easement, which was plainly depicted in a drawing that was admitted as an exhibit. In re Cent. Vt. Pub. Serv. Corp., 187 Vt. 598, 992 A.2d 308 (mem.) (2010).

Cited. Auclair v. Vermont Electric Power Co., 133 Vt. 22, 329 A.2d 641 (1974); In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 111a. Preexisting utility lines.

  1. When a corporation seeks to condemn property or an easement or other right over property where a currently existing utility line capable of operating at 100 kilovolts or less has not been abandoned and was in place on July 1, 1993, there is a rebuttable presumption that the condemnation of the property right authorizing the existing utility line or lines is necessary in order that the petitioner may render service to the public, provided that the property right is limited to that which is required to allow the operation, maintenance, and repair of the existing line or lines, and does not:
    1. significantly alter the capabilities or capacity of the line or lines;
    2. materially alter the degree of land use associated with the presence of the line or lines; and
    3. authorize the company to perform replacements or upgrades that would have a significant impact under the criteria set forth in section 248 of this title.
  2. When a corporation seeks to condemn property or establish an easement or other right over property where a utility line, that has not been abandoned, was in place on July 1, 1993, the corporation shall present a petition to the Public Utility Commission and to the Department of Public Service describing the property or right, and why the action is necessary. The property or right shall be limited to that which is required to allow the operation, maintenance, and repair of the existing line or lines, subject to the limitations set forth in subsection (a) of this section. The Commission shall issue a citation upon each person whose property or right the petitioner proposes to condemn and each municipality and each planning body where the property is located, or on absent persons in such manner as the Supreme Court may by rule provide for service of process in civil actions, including by publication.
  3. Upon the filing of the petition with the Commission and Department, any pending actions and proceedings against the petitioner affecting its right to use and enjoy the subject property are stayed for the pendency of the condemnation proceeding before the Commission, and the petitioner may enter upon the property to be condemned for the purposes of examination and obtaining necessary information in order to proceed with the taking and to conduct the minimum amount of maintenance and repairs necessary to provide service.
  4. The Commission shall fix the time and the place for hearing.
  5. If the utility line for which the corporation seeks to acquire easements through condemnation under this section crosses more than one property, the corporation may petition the Commission to hold a single hearing to determine necessity for all persons subject to condemnation under subsection (b) of this section.
  6. A person owning or having an interest in lands or rights to be taken may stipulate as to the necessity of the taking. The stipulation shall be filed with the Commission. The Commission shall issue an order on necessity within 45 days upon receiving the stipulation.
  7. A stipulation under subsection (f) of this section shall be accompanied by an affidavit sworn to before a person authorized to take acknowledgments. The stipulation shall include the following:
    1. a recital that the person or persons executing the stipulation have examined the proposed easement, which includes a description of the property or rights to be taken; and
    2. an explanation of the legal and property rights affected.
  8. If a hearing is required, the Commission shall hear all persons whose property or right is the subject of the condemnation petition and who wish to be heard at the time and place appointed for the hearing. The Commission shall make findings of fact, and by its order, determine whether necessity requires the taking of the land and rights as set forth in the petition.
  9. Following a determination of necessity pursuant to subsection (f) or (h) of this section, the Commission shall expeditiously appoint a time and place for examining the premises and provide an opportunity for a hearing on the issue of compensation, giving at least 10 days' notice in writing to the persons that are subject to the condemnation petition.
  10. There shall be rebuttable presumptions that compensation for the taking or use of property rights under the provision of this section shall be the diminution of value caused by the existence of such utility lines across the property at the time the petition was filed with the Commission and that, where a property owner acquired the property with the utility line already in place, the diminution in value was reflected in the terms of acquiring the property. Upon rebuttal of either of these presumptions under the standard set forth in subsection (m) of this section, the Commission shall determine compensation pursuant to the criteria established by subdivision 112(3) of this title.
    1. When the Commission renders judgment, it shall send by registered mail to each of the parties in interest or their attorneys, within 30 days thereafter, a certified copy of such judgment. If the judgment is in favor of the petitioner, the Commission, in the same manner, shall send to such parties a certified copy of the findings which shall include a description of the property or right to be condemned. The petitioner shall cause a certified copy of the judgment and findings to be recorded in the clerk's office of the town or towns in which such property is located within 30 days after the clerk receives the copies. (k) (1)  When the Commission renders judgment, it shall send by registered mail to each of the parties in interest or their attorneys, within 30 days thereafter, a certified copy of such judgment. If the judgment is in favor of the petitioner, the Commission, in the same manner, shall send to such parties a certified copy of the findings which shall include a description of the property or right to be condemned. The petitioner shall cause a certified copy of the judgment and findings to be recorded in the clerk's office of the town or towns in which such property is located within 30 days after the clerk receives the copies.
    2. Upon the payment or deposit of the amounts awarded by the Commission, with interest, in accordance with its order, the petitioner shall be the owner of the property or right described in the findings. However, when an appeal is taken as provided in section 12 of this title, such ownership shall be an equitable title only with right of possession until the judgment of the Supreme Court is complied with.
  11. Section 112 of this title does not apply to petitions filed under this section except as provided in subsection (j) of this section. An appeal or review relating to an action under this section shall be to the Supreme Court pursuant to section 12 of this title.
  12. The presumptions arising under subsections (a) and (j) of this section shall operate in accordance with the provisions of Vermont Rule of Evidence 301(a). These presumptions shall shift only the burden of production, and shall lose their effect as soon as any evidence to support a finding of the nonexistence of the presumed fact is introduced.
  13. Nothing in this section shall impact any permitting or regulatory requirements that may apply to the corporation.

    Added 2007, No. 131 (Adj. Sess.), § 4.

History

2017. In subsec. (a), after "100 kilowatts or less" deleted "that" to make the language grammatical.

§ 112. Findings; dams; assessment of damages; jury trial.

  1. When the Commission finds:
    1. In the case of dams, that a certificate of public good authorizing the project as herein required, or a license from the Federal Power Commission has been granted; and
    2. That the condemnation of such property or right is necessary in order that the petitioner may render adequate service to the public in the conduct of the business which it is authorized to conduct, and in conducting which it will, according to the laws of this State, be under an obligation to serve the public on reasonable terms, and pursuant to the regulations of the Commission;
    3. That the condemnation of the property or right will not unduly interfere with the orderly development of the region and scenic preservation; and
    4. That the condemnation of such property or right is sought in order that the petitioner may render adequate service to the public in the conduct of such business, the Commission shall adjudge the petitioner entitled to condemn such property or right, shall assess the compensation to be paid therefor, and shall determine the time and manner of such payment.
  2. The compensation to be paid shall be based upon the value of the property on the day the petition is presented to the Commission, and shall include as separate elements the value of the property taken, impairment to the value of remaining property or rights of the owner, and consequential damages, including the damage to the owner's business. Provided, however, if the petitioner or the person or persons owning or interested in such property or right are dissatisfied with the compensation assessed by the Commission, either the petitioner or such person or persons, may, within 30 days after the order of the Commission is made, appeal to the Superior Court of the county within which such property or right, or any part thereof, is situated to have the amount of compensation reassessed and the time and manner of payment redetermined, and either party may demand and have a trial by jury.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 263 , § 1, eff. July 31, 1961; 1967, No. 205 , § 4; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1997, No. 161 (Adj. Sess.), § 21, eff. Jan. 1, 1998.

History

Source. V.S. 1947, § 9333. 1947, No. 174 , § 1. 1945, No. 138 , § 6. P.L. § 5957. 1933, No. 157 , § 5632. G.L. § 4985. 1915, No. 163 , § 7. 1908, No. 116 , § 13.

Reference in text. The Federal Power Commission, referred to in subdiv. (1), no longer exists. Its functions have been transferred to the Secretary of Energy and the Federal Energy Regulatory Commission. See 42 U.S.C. §§ 7151(b), 7172(a).

2016. Divided into subsecs. for clarity.

In subdiv. (4), deleted "but not limited to" following "including" in accordance with 2013, No. 5 , § 4.

- 2008. Redesignated subdivs. (2)(A) and (B) as subdivs. (3) and (4) and substituted "the Board" for "it" in subdiv. (4) for purposes of clarity.

Revision note - At the end of subdiv. (3), deleted "writ of" preceding "summons" to conform language to V.R.C.P. 4, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under 4 V.S.A. § 219.

Amendments--1997 (Adj. Sess.). Subdiv. (3): Substituted "appeal" for "apply by petition in writing" in the last sentence and deleted the former last sentence, which read "Such petition shall be served and returned like a summons".

Amendments--1973 (Adj. Sess.). Subdiv. (3): Substituted "superior" for "county" preceding "court" in the third sentence.

Amendments--1967. Subdiv. (2)(A): Added.

Amendments--1961. Subdiv. (3): Inserted the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" in the introductory clause and in subdivs. (2) and (3).

Retroactive effective date--1997 (Adj. Sess.) amendment. 1997, No. 161 (Adj. Sess.), § 26, provided in part that the amendment to this section shall be retroactive to January 1, 1998.

Prior law. 30 V.S.A. § 111.

Cross References

Cross references. Compensation for taking of private property required by state constitution, see article 2 of Chapter I of Vermont Constitution.

Findings of damages and instructions to jury in eminent domain proceedings, see 12 V.S.A. § 1905.

Jurisdiction of Public Utility Commission over dams, see 10 V.S.A. § 1080 et seq.

ANNOTATIONS

Analysis

1. Constitutionality.

The functions of the Public Service Commission and its impartial character, considered in connection with the right of an aggrieved party to resort to the courts, render it not only eminently fit but unobjectionable on constitutional grounds that it should be entrusted with the determination of the questions of necessity and compensation in eminent domain proceedings brought by public service corporations. George v. Consolidated Lighting Co., 87 Vt. 411, 89 A. 635 (1914).

2. Construction.

Under subdivision (1) of this section, the power of eminent domain is subordinate to, and dependent upon, the license to maintain the facility for which the land is sought to be condemned. Citizens Utilities Co. v. Prouty, 122 Vt. 443, 176 A.2d 751 (1961), cert. denied, 369 U.S. 838, 82 S. Ct. 867, 7 L. Ed. 2d 842 (1962).

3. Jurisdiction.

Public Service Commission had no jurisdiction to condemn land in connection with a project involving navigable waters in proceedings instituted by utility company not licensed by the Federal Power Commission, even in the absence of any federal action. Prouty v. Citizens Utilities Co., 321 F.2d 34 (2d Cir. 1963), cert. denied, 375 U.S. 920, 84 S. Ct. 265, 11 L. Ed. 2d 164 (1963).

Public Service Commission lacked jurisdiction under this section to authorize company to condemn lands where company failed to secure license as ordered by the Federal Power Commission. Citizens Utilities Co. v. Prouty, 122 Vt. 443, 176 A.2d 751 (1961), cert. denied, 369 U.S. 838, 82 S. Ct. 867, 7 L. Ed. 2d 842 (1962).

4. Adequate service.

The Legislature has given the right to the Public Service Board to order condemnation when the Board finds that it is necessary in order that the utility may render adequate service to the public, and in electric cases the test for adequacy is to deduct the largest single source of power supply from all other sources which are available and apply the result to the required load. Vermont Electric Power Co. v. Bandel, 135 Vt. 141, 375 A.2d 975 (1977).

5. Scenic preservation.

In utility condemnation cases the public need for the work must be great enough to justify interference with scenic preservation, and as long as the Public Service Board has exercised its authority in that regard in good faith, with adequate evidentiary basis, the reviewing court will not intrude upon its decision. Vermont Electric Power Co. v. Bandel, 135 Vt. 141, 375 A.2d 975 (1977).

6. Reassessment.

A petition for reassessment brought under subdivision (3) of this section is not an original action but is, in effect, the transfer of the damage aspect of the matter into another tribunal for redetermination. Anderson v. Vermont Electric Power Co., 122 Vt. 43, 164 A.2d 156 (1960).

7. Necessity.

In a condemnation case, a utility presented sufficient evidence that the chosen route for the pipeline through a park was the best option when all four alternative routes were inferior to the proposed easement for multiple reasons, including being longer and less linear, causing traffic problems, and causing adverse effects on natural resources and aesthetics. Furthermore, the absence of comparative cost data did not undermine the Public Service Board's conclusions, and while the board might have been mindful of the costs of delay, the court did not read its analysis as relying to any great degree on that factor. In re Vt. Gas Sys., 205 Vt. 509, 174 A.3d 1253 (2017).

Record supported the Public Service Board's finding of the necessity of condemning a corridor on a landowner's property to extend utility lines to the property of a neighbor who intended to build a home there. The Board found that: (1) placing the easement on the landowner's property would cover the shortest distance, involve the least amount of tree clearing and aesthetic impact, and be the least expensive option; (2) the proposed route through the landowner's property would extend an existing and well-established utility corridor that already included a utility pole and lines on the property; (3) in contrast to a proposed alternative that would run the lines along a nearby road, the town did not raise any concerns about placing the line through the existing corridor on the landowner's property; (4) the cleared easement corridor would remain well-screened and not visible from the road; (5) the view from landowner's property would remain largely unaffected; (6) all of the other suggested alternatives, apart from placing the lines underground, would result in the same or greater cost to the neighbor and impact to the environment; and (7) the expense of underground lines could not be justified by any potential benefits to landowner. In re Cent. Vt. Pub. Serv. Corp., 187 Vt. 598, 992 A.2d 308 (mem.) (2010).

8. Compensation.

Public Service Board did not substantively stray from the statutory standard in awarding a landowner $250 for the easement taken. In so doing, the Board adopted the hearing officer's conclusions, supported by the record, that the landowner retained access to and use of the underlying real estate and that it was hardly more impacted by the new easement than from preexisting easements; the Board determined that extending the utility easement corridor on landowner's property approximately 115 feet would have virtually no effect on the value of the remaining property in light of the evidence presented. In re Cent. Vt. Pub. Serv. Corp., 187 Vt. 598, 992 A.2d 308 (mem.) (2010).

Testimony upon which the Public Service Board relied in setting compensation was not improperly admitted. The hearing officer did not rely upon the valuation opinion of a witness who was not an expert; moreover, the Board explicitly found that the landowner's objections to the pre-filed testimony of both witnesses was untimely. In re Cent. Vt. Pub. Serv. Corp., 187 Vt. 598, 992 A.2d 308 (mem.) (2010).

Cited. Auclair v. Vermont Electric Power Co., 132 Vt. 519, 323 A.2d 578 (1974); Auclair v. Vermont Electric Power Co., 133 Vt. 22, 329 A.2d 641 (1974); City of South Burlington v. Vermont Electric Power Co., 133 Vt. 438, 344 A.2d 19 (1975); In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 113. Compensation; where party cannot be found.

When a person to whom such compensation or any part thereof is due cannot be found, or is under any legal disability, or is out of this State, the Commission may order such compensation or part thereof to be deposited with the county clerk of the county wherein the hearing was held. Such money shall be invested and paid out according to orders made by a Superior judge.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. V.S. 1947, § 9334. P.L. § 5958. G.L. § 4986. 1915, No. 163 , § 7.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "may order" in the first sentence.

Prior law. 30 V.S.A. § 112.

ANNOTATIONS

Cited. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 114. Copy of order; record.

When the Commission renders judgment, it shall send by registered mail to each of the parties in interest or their attorneys, within 30 days thereafter, a certified copy of such judgment. If the judgment is in favor of the petitioner, the Commission, in the same manner, shall send to such parties a certified copy of the findings which shall include a description of the property or right to be condemned. The petitioner shall cause a certified copy of the judgment and findings to be recorded in the clerk's office of the town or towns in which such property is located, within 30 days after such copies are received by him or her.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. V.S. 1947, § 9335. P.L. § 5959. G.L. § 4987. 1915, No. 163 , § 7.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" whenever it appeared.

Prior law. 30 V.S.A. § 113.

ANNOTATIONS

Cited. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 115. Effect of payment of awards.

Upon the payment or deposit of the amounts awarded by the Commission, with interest, in accordance with its order, the petitioner shall be the owner of the property or right described in the findings. However, when an appeal is taken as provided in section 112 of this title, such ownership shall be an equitable title only with right of possession until the judgment of the Superior Court is complied with.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source. V.S. 1947, § 9336. 1947, No. 174 , § 2. P.L. § 5960. G.L. § 4988. 1915, No. 163 , § 7.

Revision note. Reference to "section 111 of this title" in the second sentence changed to "section 112 of this title" to conform reference to renumbering of such section.

Amendments--1973 (Adj. Sess.). Substituted "superior" for "county" preceding "court" in the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "awarded by the" in the first sentence.

Prior law. 30 V.S.A. § 114.

ANNOTATIONS

1. Interest.

Under this section it was left to the Public Service Commission to award interest or not according to the equities of the case, and where award did not bear interest by virtue of its language, it bore interest from the original date fixed for payment under general provisions of law, and not by virtue of this section. Essex Storage Electric Co. v. Victory Lumber Co., 95 Vt. 117, 112 A. 832 (1921).

Where its award did not bear interest, the Public Service Commission, in fixing a new time of payment under a mandate from the Supreme Court, had no authority to fix the date when interest should begin to accrue on the award. Essex Storage Electric Co. v. Victory Lumber Co., 95 Vt. 117, 112 A. 832 (1921).

Cited. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 116. Scope of application.

Without limiting or enlarging the scope of sections 110-115 of this title, it is hereby specifically provided that they shall apply to the condemnation of rights to construct and maintain pipe lines, conduits, lines of poles, towers, or wires, and to rights to appropriate, divert, and flow back water.

History

Source. V.S. 1947, § 9337. P.L. § 5961. G.L. § 4989. 1915, No. 163 , § 7. 1908, No. 116 , § 13.

Revision note. Reference to "sections 109-114 of this title" changed to "sections 110-115 of this title" to conform reference to renumbering of such sections.

Prior law. 30 V.S.A. § 115.

ANNOTATIONS

Cited. Citizens Utilities Co. v. Prouty, 122 Vt. 443, 176 A.2d 751 (1961), cert. denied, 369 U.S. 838, 82 S. Ct. 867, 7 L. Ed. 2d 842 (1962); Prouty v. Citizens Utilities Co., 321 F.2d 34 (2d Cir. 1963), cert. denied, 375 U.S. 920, 84 S. Ct. 265, 11 L. Ed. 2d 164 (1963); In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 117. Rights acquired and not used.

Where property, easements, or other rights are condemned under this chapter in order that the corporation may render adequate service to the public in the conduct of its business, and such property, easements, or rights are not so applied and used, they shall be subject to condemnation under this chapter for a public use by another public service corporation, other than a railroad.

History

Source. V.S. 1947, § 9338. P.L. § 5962. G.L. § 4990. 1915, No. 163 , § 7.

Prior law. 30 V.S.A. § 116.

ANNOTATIONS

Cited. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 118. Taking burial grounds; condemnation.

When it is necessary that a corporation formed under the provisions of this chapter or a foreign corporation engaged in public service should acquire or flood land used or set apart for a cemetery or burial ground, either public or private, or should acquire an easement or limited right in such cemetery or burial ground, in order that it may render adequate service to the public in the conduct of its business, or in order that it may build and maintain its storage basins, dams, powerhouses, or lines, it may condemn such property or right as provided in this chapter.

History

Source. V.S. 1947, § 9339. P.L. § 5963. 1927, No. 87 , § 1.

Prior law. 30 V.S.A. § 117.

§ 119. Notice to municipality.

Notice of such proceedings shall be given to the municipality in which the cemetery is located and such municipality shall be a party to the proceedings for all purposes.

History

Source. V.S. 1947, § 9340. P.L. § 5964. 1927, No. 87 , § 3.

Prior law. 30 V.S.A. § 118.

§ 120. Removal of remains.

The remains of the dead in such cemetery shall be removed by the selectboard or board of cemetery commissioners and interred in some suitable cemetery after final judgment and before the exercise of any rights in such cemetery.

History

Source. V.S. 1947, § 9341. P.L. § 5965. 1933, No. 157 , § 5640. 1927, No. 87 , § 4. G.L. §§ 4790, 4791. P.S. §§ 4160, 4161. V.S. §§ 3591, 3592. R.L. § 3198. 1878, No. 69 . G.S. 18, § 8. 1857, No. 34 .

2016. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , (Adj. Sess.), § 72.

Prior law. 30 V.S.A. § 119.

§ 121. Notice to kindred.

Before the removal of such remains, the selectboard or board of cemetery commissioners, if there are known relatives of the deceased residing in the State, shall give such relatives 30 days' notice in writing of the intention so to do. If known relatives do not reside in the State but reside outside the State, then the remains shall not be so removed until after 60 days' notice in writing thereof has been given to such relatives.

History

Source. V.S. 1947, § 9342. P.L. § 5966. 1933, No. 157 , § 5641. 1927, No. 87 , § 4. G.L. §§ 4790, 4791. P.S. §§ 4160, 4161. V.S. §§ 3591, 3592. R.L. § 3198. 1878, No. 69 . G.S. 18, § 8. 1857, No. 34 .

2016. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , (Adj. Sess.), § 72.

Prior law. 30 V.S.A. § 120.

§ 122. Headstones or monuments erected.

The selectboard or board of cemetery commissioners shall cause existing headstones or monuments to be removed and reerected to the memory of the deceased. Permanent markers shall be provided to designate the place or reinterment of those not so marked previously.

History

Source. V.S. 1947, § 9343. P.L. § 5967. 1933, No. 157 , § 5642. 1927, No. 87 , § 4. G.L. §§ 4790, 4791. P.S. §§ 4160, 4161. V.S. §§ 3591, 3592. R.L. § 3198. 1878, No. 69 . G.S. 18, § 8. 1857, No. 34 .

2016. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , (Adj. Sess.), § 72.

Prior law. 30 V.S.A. § 121.

§ 123. Expense.

The entire expense of whatever land may be necessary for the reinterment of such remains and the cost of removal and reerection of headstones or monuments shall be paid by the corporation acquiring such burial ground and the easement therein.

History

Source. V.S. 1947, § 9344. P.L. § 5968. 1933, No. 157 , § 5643. 1927, No. 87 , § 4. G.L. §§ 4790, 4791. P.S. §§ 4160, 4161. V.S. §§ 3591, 3592. R.L. § 3198. 1878, No. 69 . G.S. 18, § 8. 1857, No. 34 .

Prior law. 30 V.S.A. § 122.

§ 124. Appeal.

The judgment and findings of the Commission shall be final, except that a party who feels himself or herself aggrieved thereby may appeal to the Supreme Court pursuant to the provisions of section 12 of this title. Such appeal shall suspend execution of the judgment of the Commission, but the Supreme Court, or a single Justice in vacation, may vacate the suspension as justice and equity require.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. V.S. 1947, § 9345. P.L. § 5969. G.L. § 4991. 1915, No. 163 , § 7. 1908, No. 116 , § 12.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Prior law. 30 V.S.A. § 123.

ANNOTATIONS

1. Condemnation proceedings.

As originally enacted this section had direct application to condemnation proceedings, and although its sequence has been changed in subsequent statutory revisions, its substance and application remain the same. Vermont Electric Power Co. v. Anderson, 121 Vt. 72, 147 A.2d 875 (1959).

Cited. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 125. Powers; annual report.

A public service corporation shall have the privilege and be subject to the provisions of the general corporation law, and also to the provisions of chapter 5 of this title, except as such provisions are inconsistent with the provisions of this chapter. Such corporations shall not be required to make any annual report, except as provided in chapter 5 of this title.

Amended 1985, No. 224 (Adj. Sess.), § 4.

History

Source. V.S. 1947, § 9346. P.L. § 5970. G.L. § 4992. 1917, No. 254 , § 4878. 1915, No. 163 , §§ 8, 9.

Amendments--1985 (Adj. Sess.). Deleted "other than a railroad" following "public service corporation" in the first sentence.

Prior law. 30 V.S.A. § 124.

§ 126. Saving clause; corporations formed before April 2, 1915.

All corporations formed prior to April 2, 1915, by special act or under the general laws of this State, that are conducting any business subject to regulation by the Public Utility Commission, shall, with respect to acts done after such date, be deemed to be within the provisions of this chapter and the provisions of the general corporation law in like manner as a corporation formed under this chapter. However, a corporation theretofore formed shall not do any act in violation of any restriction contained in its charter. The foregoing provisions of this section shall be subject to the exceptions and qualifications contained in 11 V.S.A. §§ 2 and 3, so far as the same may be applicable to corporations formed under the provisions of this chapter.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1985, No. 224 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 9347. P.L. § 5971. G.L. § 4993. 1917, No. 254 , § 4879. 1915, No. 163 , § 9.

Reference in text. 11 V.S.A. §§ 2 and 3, referred to in the third sentence, were repealed by 1971, No. 237 (Adj. Sess.), § 100, eff. Jan. 1, 1973.

Amendments--1985 (Adj. Sess.). Deleted "other than a railroad business" following "conducting any business" in the first sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "public service" in the first sentence.

Prior law. 30 V.S.A. § 125.

§ 127. Utility poles in easements across private property.

  1. Utility easements and State rules regarding utility rights of way and pole attachments shall include as an authorized utility use the installation of fiber-optic cable for purposes of providing broadband service to the public or for providing utility network management and monitoring, or both. Such use of the utility easement and right of way is generally of the type contemplated in utility easements, does not materially burden the landowner beyond what was intended in the conveyance or condemnation, serves the public good, and facilitates the construction of broadband networks as contemplated in this act.
  2. This section shall apply to all utility easements and State rules in effect on or after the effective date of this act. This section shall not apply to an easement that contains an express prohibition on the installation and operation of fiber-optic cable.

    Added 2021, No. 71 , § 19, eff. June 8, 2021.

CHAPTER 5. STATE POLICY; PLANS; JURISDICTION AND REGULATORY AUTHORITY OF COMMISSION AND DEPARTMENT

History

2016. Revised chapter heading to convey more information on contents of chapter.

Revision note - Inserted "department of public service and public service" in the chapter heading to reflect changes made by 1979, No. 204 (Adj. Sess.).

Cross References

Cross references. Regulation of surface transportation companies generally, see 5 V.S.A. § 1601.

Subchapter 1. General Powers

History

Legislative findings. 2013, No. 89 , § 1 provides: "The General Assembly finds that:

"(1) The primary driver of climate change in Vermont and elsewhere is the increase of atmospheric carbon dioxide (CO 2 ) from the burning of fossil fuels. The warming caused by carbon dioxide is amplified multiple times because atmospheric water vapor, another greenhouse gas, increases as temperature increases.

"(2) The primary sources of Vermont's greenhouse gas emissions are the consumption of fossil fuels for transportation fuels and for heating buildings and water (thermal energy). In 2010, CO 2 and equivalent emissions from Vermont energy consumption totaled approximately eight million metric tons (MMTCO 2 ). Of this total, transportation fuel use accounted for approximately 3.5 and nonelectric fuel use by homes and businesses for approximately 2.5.

"(3) Another result of high fossil fuel consumption is that the average Vermonter and the Vermont economy are facing a fuel affordability challenge of historic proportions. In 2010, Vermonters paid over $600 million to import fossil fuels for use in their homes, businesses, and other buildings, almost $300 million more than Vermont paid in 2000.

"(4) In January 2013, the Department of Public Service submitted the report of its Thermal Energy Task Force (the Task Force). Among other things, the Task Force found that: 'Investing in thermal efficiency improvements . . . can dramatically reduce heating energy use in a building. At current fuel prices, thermal efficiency improvements can bring savings of approximately $1,000.00 per year over the lifetime of the investment . . . . As each year passes and investments are not made, cost burdens must be borne by individual Vermonters, businesses and property owners - collectively burdening the Vermont economy as a whole.'

"(5) This burden is felt most by Vermonters of limited means or on fixed incomes, such as persons who may be elderly or have disabilities. These Vermonters face the dilemma of being unable to pay for heat as fuel prices rise and federal fuel assistance is reduced. Since 2009, the percentage of an average recipient household's heating costs paid by Vermont's fuel assistance program has dropped precipitously, primarily because of cuts to the federal Low Income Home Energy Assistance Program (LIHEAP) totaling approximately 40 percent. Benefits have been cut almost in half from a seasonal high of over $1,700.00 to $900.00, and the percentage paid of the average recipient household's bill has dropped from 86 percent to 32 percent. While the State of Vermont has attempted to soften the blow to date, the State's ability to continue to provide fuel assistance funding is limited, and additional LIHEAP cuts may result from the so-called federal 'sequester.'

"(6) Many Vermonters who receive financial assistance from the state and federal governments to meet their heating needs live in poorly insulated buildings. The level of expenditure necessary to heat these homes could be significantly decreased if appropriate and cost-effective thermal energy efficiency measures applied. Reducing fuel consumption through weatherization services would decrease the need for supplemental assistance in individual units and allow limited funds to cover a greater number of needy residents. Conversely, as the Task Force found: 'Delaying weatherization for this population places more pressure on other public resources such as the Low-Income Heating Assistance Program (LIHEAP).'

"(7) The Task Force found that substantial public investment would be necessary to meet the State's statutory goals for improving the energy fitness of its homes and buildings. At this investment level, the Task Force found that, over the life of the energy efficiency measures, over $1.4 billion would be saved, approximately 800 job-years would be created, and 6.8 million tons of CO would be kept from entering the atmosphere.

"(8) Vermont must act to reduce its greenhouse gas emissions and consumption of fossil fuels. The State must encourage the efficient use of energy to heat buildings and water in order to reduce Vermont's carbon footprint and fuel costs and make heating more affordable for all Vermonters."

§ 201. Definitions.

As used in this chapter:

  1. "Company" or "companies" means and includes individuals, partnerships, associations, corporations, and municipalities owning or conducting any public service business or property used in connection therewith and covered by the provisions of this chapter. The term "company" or "companies" also includes electric cooperatives organized and operating under chapter 81 of this title, the Vermont Public Power Supply Authority to the extent not inconsistent with chapter 84 of this title, and the Vermont Hydroelectric Power Authority to the extent not inconsistent with chapter 90 of this title. In the context of actions requiring prior approval under section 107 of this title, the term "company" shall also mean any individual, partnership, association, corporation, group, syndicate, operating division, joint stock company, trust, other entity, or municipality which would be defined as a company pursuant to this section if such approval were to be granted.
  2. "Electric vehicle supply equipment" means a device or system designed and used specifically to transfer electrical energy to a plug-in electric vehicle as defined in 23 V.S.A. § 4(85) , either as charge transferred via a physical or wireless connection, by loading a fully charged battery, or by other means. "Electric vehicle supply equipment available to the public" shall:
    1. be located at a publicly available parking space, which does not include a parking space that is part of or associated with a private residence or a parking space that is reserved for the exclusive use of an individual driver, vehicle, or group of drivers or vehicles including employees, tenants, visitors, residents of a common interest development, residents of an adjacent building, or customers of a business whose primary business is not electric vehicle charging;
    2. disclose all charges for the use of the electric vehicle supply equipment at the point of sale; and
    3. provide multiple payment options that allow access by the public, if a fee is required, and shall not require persons desiring to use such public electric vehicle supply equipment to pay a subscription fee or otherwise obtain a membership in any club, association, or organization as a condition of using such electric vehicle supply equipment, but may have different price schedules that are conditioned on a subscription or membership in a club, association, or organization.
  3. "Energy" means not only the traditional scientific characteristic of "ability to do work" but also the substances or processes used to produce heat, light, or motion, including petroleum or other liquid fuels, natural or synthetic fuel gas, solid carbonaceous fuels, solar radiation, geothermal sources, nuclear sources, biomass, organic waste products, wind, or flowing water.
  4. "Energy storage facility" means a stationary device or system that captures energy produced at one time, stores that energy for a period of time, and delivers or may deliver that energy as electricity to the grid for use at a future time.
  5. "Energy storage aggregation" means a virtual resource formed by combining multiple stationary energy storage devices at different points of interconnection on the distribution system.
  6. "Energy storage aggregator" means an entity other than a distribution utility that is operating an energy storage aggregation of 100 kW or greater aggregate nameplate capacity.

    Amended 1969, No. 257 (Adj. Sess.), § 1; 1981, No. 236 (Adj. Sess.), § 3; 1985, No. 48 , § 3; 1985, No. 224 (Adj. Sess.), § 6; 1989, No. 96 , § 1, eff. June 14, 1989; 1991, No. 170 (Adj. Sess.), § 5, eff. May 15, 1992; 2003, No. 121 (Adj. Sess.), § 103, eff. June 8, 2004; 2019, No. 31 , § 24; 2019, No. 59 , § 30, eff. June 14, 2019; 2021, No. 54 , § 5.

History

Source. V.S. 1947, § 9359. P.L. § 6084. G.L. § 5055. 1908, No. 116 , § 2.

2016. In subsec. (b), deleted "but not being limited to:" following "including" in accordance with 2013, No. 5 , § 4.

2019. The text of this section is based on the harmonization of two amendments. During the 2019 session, this section was amended twice, by Act Nos. 31 and 59, resulting in two versions of this section. In order to reflect all of the changes enacted by the Legislature during the 2019 session, the text of Act Nos. 31 and 59 was merged to arrive at a single version of this section, using the codification scheme adopted in Act No. 59 to redesignate as subdiv. (4) the definition of "energy storage facility" enacted as subsec. (b) by Act No. 31, and eliminating the duplicative lead-in language "As used in this chapter" from the beginning of the redesignated subdiv. The specific changes that each of the amendments made are described in the amendment notes set out below.

Amendments--2021. Subdiv. (4): Amended generally.

Subdivs. (5), (6): Added.

Amendments--2019. Act No. 31 added subdiv. (4).

Act No. 59 deleted the subsec. (a) designation, deleted "the word "'company'" in the introductory paragraph, added the subdiv. (1) designation, added "Company" at the beginning of subdiv. (1), added subdiv. (2), redesignated former subsec. (b) as subdiv. (3), and deleted "As used in this chapter" preceding "Energy" in the redesignated subdiv. (3).

Amendments--2003 (Adj. Sess.). Subsec. (a): Deleted "and" preceding "the Vermont public power supply authority" and inserted "and the Vermont Hydro-electric Power Authority to the extent not inconsistent with chapter 90 of this title" following "chapter 84 of this title".

Amendments--1991 (Adj. Sess.). Subsec. (a): Added "and the Vermont public power supply authority to the extent not inconsistent with chapter 84 of this title" following "chapter 81 of this title" in the second sentence.

Amendments--1989. Subsec. (a): Added the third sentence.

Amendments--1985 (Adj. Sess.). Subsec. (a): Deleted "other than railroads and aircraft" following "property used in connection therewith" in the first sentence and deleted the former second sentence.

Amendments--1985. Subsec. (a): Inserted the second sentence.

Amendments--1981 (Adj. Sess.). Rewrote the catchline, designated existing provisions of section as subsec. (a) and added subsec. (b).

Amendments--1969 (Adj. Sess.). Substituted "means and includes" for "shall mean and include" preceding "individuals" and added the second sentence.

Construction of 1994 (Adj. Sess.) amendment. 1991, No. 170 (Adj. Sess.), § 1, eff. May 15, 1992, provided in part: "Nothing in this act [which amended this section and sections 4002 and 5012 of this title and added section 4002a of this title] shall be construed as limiting or revoking any existing powers conferred on Vermont public power supply authority by statute. This act shall be liberally construed to effectuate its purpose, which is to enable member systems of the authority which wish to do so, and which receive the approvals required by the act, to take full advantage of the administrative and economic efficiencies available through implementation of an all requirements concept, while preserving, through representation of each member system on the authority's board, the right of each signatory to an all requirements contract to participate fully in decisions of the authority implementing the rights confirmed by this act."

1991, No. 170 (Adj. Sess.), § 6, eff. May 15, 1992, provided: "Nothing provided in this act shall be deemed to alter the existing contractual obligations of the Vermont public power supply authority, and the obligations of participants under any contracts they may have with the authority that secure or are pledged as security for any outstanding bonds issued by the authority."

ANNOTATIONS

Cited. In re Bloch, 133 Vt. 326, 340 A.2d 51 (1975); In re Pfenning, 136 Vt. 92, 385 A.2d 1070 (1978); In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983); Washington Electric Coop. v. Massachusetts Municipal Wholesale Electric, Co., 922 F.2d 92 (2d Cir. 1990).

§ 202. Electrical energy planning.

  1. The Department of Public Service, through the Director for Regulated Utility Planning, shall constitute the responsible utility planning agency of the State for the purpose of obtaining for all consumers in the State proper utility service at minimum cost under efficient and economical management consistent with other public policy of the State. The Director shall be responsible for the provision of plans for meeting emerging trends related to electrical energy demand, supply, safety, and conservation.
  2. The Department, through the Director, shall prepare the Electrical Energy Plan for the State. The Plan shall be for a 20-year period and shall serve as a basis for State electrical energy policy. The Electrical Energy Plan shall be based on the principles of "least-cost integrated planning" set out in and developed under section 218c of this title. The Plan shall include at a minimum:
    1. an overview, looking 20 years ahead, of statewide growth and development as they relate to future requirements for electrical energy, including patterns of urban expansion, statewide and service area economic growth, shifts in transportation modes, modifications in housing types, and design, conservation, and other trends and factors which, as determined by the Director, will significantly affect State electrical energy policy and programs;
    2. an assessment of all energy resources available to the State for electrical generation or to supply electrical power, including, among others, fossil fuels, nuclear, hydroelectric, biomass, wind, fuel cells, and solar energy and strategies for minimizing the economic and environmental costs of energy supply, including the production of pollutants, by means of efficiency and emission improvements, fuel shifting, and other appropriate means;
    3. estimates of the projected level of electrical energy demand;
    4. a detailed exposition, including capital requirements and the estimated cost to consumers, of how such demand shall be met based on the assumptions made in subdivision (1) of this subsection and the policies set out in subsection (c) of this section;
    5. specific strategies for reducing electric rates to the greatest extent possible in Vermont over the most immediate six-year period, for the next succeeding six-year period, and long-term sustainable strategies for achieving and maintaining the lowest possible electric rates over the full 20-year planning horizon consistent with the goal of maintaining a financially stable electric utility industry in Vermont; and
    6. recommendations for regional and municipal energy planning and standards for issuing a determination of energy compliance pursuant to 24 V.S.A. § 4352 .
  3. In developing the Plan, the Department shall take into account the protection of public health and safety; preservation of environmental quality; the relevant goals of 24 V.S.A. § 4302 ; the potential for reduction of rates paid by all retail electricity customers; the potential for reduction of electrical demand through conservation, including alternative utility rate structures; use of load management technologies; efficiency of electrical usage; utilization of waste heat from generation; and utility assistance to consumers in energy conservation.
  4. In establishing plans, the Director shall:
    1. Consult with:
      1. the public;
      2. Vermont municipal utilities and planning commissions;
      3. Vermont cooperative utilities;
      4. Vermont investor-owned utilities;
      5. Vermont electric transmission companies;
      6. environmental and residential consumer advocacy groups active in electricity issues;
      7. industrial customer representatives;
      8. commercial customer representatives;
      9. the Public Utility Commission;
      10. an entity designated to meet the public's need for energy efficiency services under subdivision 218c(a)(2) of this title;
      11. other interested State agencies;
      12. other energy providers; and
      13. the regional planning commissions.
    2. To the extent necessary, include in the Plan surveys to determine needed and desirable plant improvements and extensions and coordination between utility systems, joint construction of facilities by two or more utilities, methods of operations, and any change that will produce better service or reduce costs. To this end, the Director may require the submission of data by each company subject to supervision, of its anticipated electrical demand, including load fluctuation, supplies, costs, and its plan to meet that demand and such other information as the Director deems desirable.
  5. The Department shall conduct public hearings on the final draft and shall consider the evidence presented at such hearings in preparing the final Plan. The Plan shall be adopted on or before January 1, 2016 and readopted in accordance with this section on or before every sixth January 15 thereafter, and shall be submitted to the General Assembly each time the plan is adopted or readopted. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the submission to be made under this subsection.
  6. After adoption by the Department of a final plan, any company seeking Commission authority to make investments, to finance, to site or construct a generation or transmission facility, or to purchase electricity or rights to future electricity, shall notify the Department of the proposed action and request a determination by the Department whether the proposed action is consistent with the Plan. In its determination whether to permit the proposed action, the Commission shall consider the Department's determination of its consistency with the Plan along with all other factors required by law or relevant to the Commission's decision on the proposed action. If the proposed action is inconsistent with the Plan, the Commission may nevertheless authorize the proposed action if it finds that there is good cause to do so. The Department shall be a party to any proceeding on the proposed action, except that this section shall not be construed to require a hearing if not otherwise required by law.
  7. The Director shall annually review that portion of a Plan extending over the next six years. The Department, through the Director, shall biennially extend the Plan by two additional years; and from time to time, and in any event every sixth year, institute proceedings to review a Plan and make revisions, where necessary. The six-year review and any interim revisions shall be made according to the procedures established in this section for initial adoption of the Plan. The six-year review and any revisions made in connection with that review shall be performed contemporaneously with readoption of the Comprehensive Energy Plan under section 202b of this title.
  8. The Plans adopted under this section shall become the electrical energy portion of the State Energy Plan.
  9. It shall be a goal of the Electrical Energy Plan to assure, by 2028, that at least 60 MW of power are generated within the State by combined heat and power (CHP) facilities powered by renewable fuels as defined in section 8002 of this title. In order to meet this goal, the Plan shall include incentives for development and strategies to identify locations in the State that would be suitable for CHP. The Plan shall include strategies to assure the consideration of CHP potential during any process related to the expansion of natural gas services in the State.
  10. For the purpose of assisting in the development of municipal and regional plans under 24 V.S.A. chapter 117, the Director shall, on request, provide municipal and regional planning commissions with publicly available information detailing the location of electric transmission and distribution infrastructure in the relevant municipality or region and the capacity of that infrastructure to accept additional electric generation facilities without modification. In providing this information, the Director shall be entitled to the assistance of the electric utilities that own electric transmission or distribution systems, or both, located in Vermont, including the ability to obtain from those utilities such publicly available data as the Director considers necessary to discharge his or her duties under this subsection.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1979, No. 204 (Adj. Sess.), § 21, eff. Feb. 1, 1981; 1981, No. 236 (Adj. Sess.), § 6; 1983, No. 1 , eff. Jan. 31, 1983; 1983, No. 46 ; 1983, No. 1 70 (Adj. Sess.), §§ 11, 12, eff. April 19, 1984; 1987, No. 87 , § 3; 1991, No. 259 (Adj. Sess.), §§ 4, 5; 2003, No. 69 , § 5, eff. June 17, 2003; 2007, No. 209 (Adj. Sess.), § 12; 2013, No. 34 , § 18; 2013, No. 91 (Adj. Sess.), § 6, eff. Feb. 4, 2014; 2015, No. 174 (Adj. Sess.), § 7; 2017, No. 74 , § 123.

History

Source. 1951, No. 193 , § 1.

2017. In subsec. (b), in the second sentence, substituted "Electrical" for "Electric" for the purpose of consistency.

- 2003. In subdiv. (d)(2), struck "the director shall" following "necessary" as redundant language.

Amendments--2017. Subsec. (e): In the second sentence, substituted "on or before" for "no later than" preceding "January 1, 2016" and for "by" preceding "every sixth"'.

Amendments--2015 (Adj. Sess.). Subdiv. (b)(6): Added.

Subsec. (c): Inserted "the relevant goals of 24 V.S.A. § 4302" following "environmental quality,".

Subsec. (d): Inserted "and planning commissions" at the end of subdiv. (d)(1)(B), and added subdiv. (d)(1)(M).

Subsec. (e): Substituted "every sixth January 15" for "every sixth January 1" in the second sentence.

Subsec. (j): Added.

Amendments--2013 (Adj. Sess.). Subdiv. (b)(5): Substituted "six-year" for "five-year" preceding "period" in two places.

Subsec. (e): Amended generally.

Subsec. (g): Amended generally.

Subsec. (h): Deleted "shall be submitted to the energy committees of the general assembly and" preceding "shall".

Subsec. (i): Deleted "or by nonqualifying SPEED resources" following "fuels".

Amendments--2013. Subsec. (i): Substituted "ensure" for "assure" preceding "by 2028", and "energy" for "fuels or by nonqualifying SPEED resources" following "powered by renewable".

Amendments--2007 (Adj. Sess.). Subsec. (i): Added.

Amendments--2003. Subsec. (b): Substituted "20-year" for "twenty-year" preceding "period".

Subdiv. (b)(2): Substituted "all" for "the" preceding "energy"; inserted "or to supply electrical power" following "generation"; substituted "biomass" for "wood"; and inserted "fuel cells" following "wind".

Subdiv. (b)(4): Substituted "subdivision (1) of this subsection" for "subdivision (b)(1) of this section".

Subdiv. (b)(5): Added.

Subsec. (c): Inserted "the potential for reduction of rates paid by all retail electricity customers" following "quality".

Subsec. (d): Deleted "public hearings shall be held" following "plans".

Subdivs. (d)(1), (2): Added the subdiv. designations and amended generally.

Subsec. (e): Amended generally.

Subsec. (g): Substituted "extending" for "which extends".

Amendments--1991 (Adj. Sess.). Subsec. (b): Added the third sentence of the introductory paragraph, added "and strategies for minimizing the economic and environmental costs of energy supply, including the production of pollutants, by means of efficiency and emission improvements, fuel shifting, and other appropriate means" following "solar energy" in subdiv. (2), and rewrote subdiv. (3).

Subsec. (d): Inserted "supplies, costs" following "fluctuation" in the third sentence.

Amendments--1987. Rewrote the section catchline.

Amendments--1983 (Adj. Sess.). Subsec. (d): Deleted "the state energy office" following "providers" in the first sentence.

Subsec. (h): Substituted "energy committees of the general assembly" for "state energy office" following "submitted to the".

Amendments--1983. Subsec. (e): Act No. 1 substituted "April" for "February" preceding "1" in the third sentence.

Subsec. (g): Act No. 46 added the third sentence and "and make revisions, where necessary" following "review a plan" at the end of the second sentence.

Amendments--1981 (Adj. Sess.). Subsec. (d): Substituted "energy committees" for "joint energy committee" following "legislative" in the first sentence.

Amendments--1979 (Adj. Sess.). Section amended generally.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Legislative findings. 2003, No. 69 , § 4, provides: "(a) The department of public service is charged with planning for proper utility service and representing the public interest in proceedings to set electric rates.

"(b) The department's planning function includes creation of an electrical energy plan pursuant to 30 V.S.A. § 202, which looks out over a 20-year planning horizon.

"(c) Achieving and maintaining the lowest possible electric rates that provide safe, efficient, and reliable service while maintaining a financially stable electric utility industry, is integral to the department's planning function and to the electrical energy plan in order to maintain and promote Vermont's economic well-being and growth in all regions and for all electric customers.

"(d) The department of public service, as the state's ratepayer representative and the state's electrical energy planning agency, is the appropriate agency to study and make recommendations on how or the extent to which, among the other factors studied in the electrical energy plan, rates can be reduced from present levels in the short term and reduced or controlled throughout the 20-year planning horizon."

Legislative intent. 2013, No. 91 (Adj. Sess.), § 8 provide: "In enacting Secs. 6 (20-year Electric Plan) [which amended this section] and 7 (Comprehensive Energy Plan) [which amended 30 V.S.A. § 202b], the General Assembly intends to set the readoption of these Plans by the Department of Public Service on a regular six-year cycle."

ANNOTATIONS

Analysis

1. Scope of planning function.

The Public Service Board's planning function is not a passive one, and it has a duty to actively review the operations of companies under its jurisdiction and inform the public of what it is doing to insure proper service at minimum cost. In re Green Mountain Power Corp., 131 Vt. 284, 305 A.2d 571 (1973).

Public Service Board did not have a duty under this section to investigate long range decisions involving operations of electric company which sought a rate increase. In re Green Mountain Power Corp., 131 Vt. 284, 305 A.2d 571 (1973).

2. Jurisdiction.

The Legislature gave jurisdiction over hydroelectric dams to the Public Service Board and the additional mandate of insuring proper utility service at minimum cost under efficient and economical management set forth in this section and any complaints as to facilities and methods of operation of existing dams should be brought to the attention of that board by a complaint in accordance with this section. 1968-70 Op. Atty. Gen. 185.

Cited. City of South Burlington v. Vermont Electric Power Co., 133 Vt. 438, 344 A.2d 19 (1975); Vermont Electric Power Co. v. Bandel, 135 Vt. 141, 375 A.2d 975 (1977); In re Green Mountain Power Corp., 142 Vt. 373, 455 A.2d 823 (1983); In re Vermont Electric Generation & Transmission Cooperative, Inc., 146 Vt. 235, 502 A.2d 841 (1985).

§ 202a. State energy policy.

It is the general policy of the State of Vermont:

  1. To ensure to the greatest extent practicable that Vermont can meet its energy service needs in a manner that is adequate, reliable, secure, and sustainable; that ensures affordability and encourages the State's economic vitality, the efficient use of energy resources, and cost-effective demand-side management; and that is environmentally sound.
  2. To identify and evaluate, on an ongoing basis, resources that will meet Vermont's energy service needs in accordance with the principles of reducing greenhouse gas emissions and least-cost integrated planning, including efficiency, conservation, and load management alternatives; wise use of renewable resources; and environmentally sound energy supply.
  3. To meet Vermont's energy service needs in a manner that will achieve the greenhouse gas emissions reductions requirements pursuant to 10 V.S.A § 578 and is consistent with the Vermont Climate Action Plan adopted and updated pursuant to 10 V.S.A. § 592 .

    Added 1981, No. 236 (Adj. Sess.), § 4; amended 1983, No. 170 (Adj. Sess.), § 13, eff. April 19, 1984; 1991, No. 259 (Adj. Sess.), § 1; 2019, No. 153 (Adj. Sess.), § 7, eff. Sept. 22, 2020.

History

Amendments--2019 (Adj. Sess.). Subdiv. (1): Substituted "ensure" for "assure," and "ensures" for "assures".

Subdiv. (2): Inserted "reducing greenhouse gas emissions and".

Subdiv. (3): Added.

Amendments--1991 (Adj. Sess.). Section amended generally.

Amendments--1983 (Adj. Sess.). Subsec. (a): Substituted "chairman of the joint energy committee" for "director of the state energy office" preceding "and one" in the first sentence.

Legislative findings. 2007, No. 92 , § 2, provides: "The general assembly finds that:

"(1) Global climate change, which is threatening our environment and perhaps ultimately our existence, has been caused in part by an energy policy that is largely dependent on the burning of fossil fuels.

"(2) In order to reduce greenhouse gas emissions and environmental degradation, it is essential that we reduce or eliminate our dependency on fossil fuels by significantly improving energy efficiency and shifting to nonpolluting benign forms of energy such as wind, sun, and water power.

"(3) In order for Vermont to meet the greenhouse gas reduction goals set by the conference of the New England governors and Eastern Canadian premiers' climate change action plan, Vermont needs to provide effective weatherization services, new funding strategies, green building practices, and installation of renewable energy systems.

"(4) The 'Vermont energy efficiency potential study for non-regulated fuels' recently completed by the department of public service indicates that Vermont has cost-effective potential energy savings of $486 million over the next ten years with 63 percent of those savings from building shell improvements.

"(5) Although workforce development in the field of green building, renewable energy, and energy efficiency is an essential component of the battle to combat global climate change, there are few trained applicants to fill the new well-paying jobs being created in this field."

§ 202b. State Comprehensive Energy Plan.

  1. The Department of Public Service, in conjunction with other State agencies designated by the Governor, shall prepare a State Comprehensive Energy Plan covering at least a 20-year period. The Plan shall seek to implement the State energy policy set forth in section 202a of this title, including meeting the State's greenhouse gas emissions reductions requirements pursuant to 10 V.S.A. § 578 , and shall be consistent with the relevant goals of 24 V.S.A. § 4302 and with the Vermont Climate Action Plan adopted and updated pursuant to 10 V.S.A. § 592 . The State Comprehensive Energy Plan shall include:
    1. a comprehensive analysis and projections regarding the use, cost, supply, and environmental effects of all forms of energy resources used within Vermont;
    2. recommendations for State implementation actions, regulation, legislation, and other public and private action to carry out the Comprehensive Energy Plan, including recommendations for State agency energy plans under 3 V.S.A. § 2291 and transportation planning under Title 19; and
    3. recommendations for regional and municipal energy planning and standards for issuing a determination of energy compliance pursuant to 24 V.S.A. § 4352 .
  2. In developing or updating the Plan's recommendations, the Department of Public Service shall seek public comment by holding public hearings in at least five different geographic regions of the State on at least three different dates, and by providing notice through publication once a week and at least seven days apart for two or more successive weeks in a newspaper or newspapers of general circulation in the regions where the hearings will be held, and by delivering notices to all licensed commercial radio and television stations with transmitting facilities within the State, plus Vermont Public Radio and Vermont Educational Television.
  3. The Department shall adopt the State Comprehensive Energy Plan on or before January 1, 2016 and shall readopt the Plan on or before every sixth January 15 thereafter. On adoption or readoption, the Plan shall be submitted to the General Assembly. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to such submission.
    1. Upon adoption of the Plan, analytical portions of the Plan may be updated and published biennially.
    2. Every fourth year after the adoption or readoption of a Plan under this section, the Department shall publish the manner in which the Department will engage the public in the process of readopting the Plan under this section.
    3. The publication requirements of subdivisions (1) and (2) of this subsection may be met by inclusion of the subject matter in the Department's biennial report.
    4. The Plan's implementation recommendations shall be updated by the Department no less frequently than every six years. These recommendations shall be updated prior to the expiration of six years if the General Assembly passes a joint resolution making a request to that effect. If the Department proposes or the General Assembly requests the revision of implementation recommendations, the Department shall hold public hearings on the proposed revisions.
  4. Distribution of the Plan to members of the General Assembly shall be in accordance with the provisions of 2 V.S.A. § 20(a) -(c).
  5. The Commissioner of Public Service (Commissioner) shall file an annual report on progress in meeting the goals of the Plan. The report shall address each of the following sectors of energy consumption in the State: electricity, nonelectric fuels for thermal purposes, and transportation. In preparing the report, the Commissioner shall consult with the Secretaries of Administration, of Agriculture, Food and Markets, of Natural Resources, and of Transportation and the Commissioner of Buildings and General Services.
    1. The Commissioner shall file the report on or before January 15 of each year, commencing in 2019. The provisions of 2 V.S.A. § 20(d) shall not apply to this report.
    2. The Commissioner shall file the report with the House Committees on Energy and Technology and on Natural Resources, Fish, and Wildlife and with the Senate Committees on Finance and on Natural Resources and Energy.
    3. For each sector, the report shall provide:
      1. In millions of British thermal units (MMBTUs) for the most recent calendar year for which data are available, the total amount of energy consumed, the amount of renewable energy consumed, and the percentage of renewable energy consumed. For the electricity sector, the report shall also state the amounts in megawatt hours (MWH) and the Vermont and New England summer and winter peak electric demand, including the hour and day of peak demand.
      2. Projections of the energy reductions and shift to renewable energy expected to occur under existing policies, technologies, and markets. The most recent available data shall be used to inform these projections and shall be provided as a supplement to the data described in subdivision (A) of this subdivision (3).
      3. Recommendations of policies to further the renewable energy goals set forth in statute and the Plan, along with an evaluation of the relative cost-effectiveness of different policy approaches.
    4. The report shall include a supplemental analysis setting forth how progress toward the goals of the Plan is supported by complementary work in avoiding or reducing energy consumption through efficiency and demand reduction. In this subdivision (4), "demand reduction" includes dispatchable measures, such as controlling appliances that consume energy, and nondispatchable measures, such as weatherization.
    5. The report shall include recommendations on methods to enhance the process for planning, tracking, and reporting progress toward meeting statutory energy goals and the goals of the Plan. Such recommendations may include the consolidation of one or more periodic reports filed by the Department or other State agencies relating to renewable energy, with proposals for amending the statutes relevant to those reports.
    6. The report shall include a summary of the following information for each sector:
      1. major changes in relevant markets, technologies, and costs;
      2. average Vermont prices compared to the other New England states, based on the most recent available data; and
      3. significant Vermont and federal incentive programs that are relevant to one or more of the sectors.
    7. The report shall include any activity that occurs under the Vermont Small Hydropower Assistance Program, the Vermont Village Green Program, and the Fuel Efficiency Fund.

      Added 1981, No. 236 (Adj. Sess.), § 5; amended 1991, No. 259 (Adj. Sess.), § 2; 2013, No. 91 (Adj. Sess.), § 7, eff. Feb. 4, 2014; 2015, No. 174 (Adj. Sess.), § 8; 2017, No. 74 , § 124; 2017, No. 139 (Adj. Sess.), § 8; 2019, No. 31 , § 4; 2019, No. 153 (Adj. Sess.), § 8, eff. Sept. 22, 2020.

History

2017. In subsec. (c), in the first sentence, replaced "a State Energy Plan" with "the State Comprehensive Energy Plan".

Amendments--2019 (Adj. Sess.). Subsec: (a): Inserted ", including meeting the State's greenhouse gas emissions reductions requirements pursuant to 10 V.S.A. § 578," and "and with the Vermont Climate Action Plan adopted and updated pursuant to 10 V.S.A. § 592" in the second sentence; and inserted "State Comprehensive Energy" in the last sentence.

Amendments--2019. Subdiv. (e)(7): Added.

Amendments--2017 (Adj. Sess.) Subdiv. (a)(2): Added "including recommendations for State agency energy plans under 3 V.S.A. § 2291 and transportation planning under Title 19; and".

Subsec. (e): Added.

Amendments--2017. Subsec. (c): Substituted "on or before" for "by" preceding "every sixth January" in the first sentence.

Amendments--2015 (Adj. Sess.). Subsec. (a): Inserted "and shall be consistent with the relevant goals of 24 V.S.A. § 4302" at the end of the second sentence.

Subdiv. (a)(3): Added.

Subsec. (c): Substituted "every sixth January 15" for "every sixth January 1" in the first sentence.

Amendments--2013 (Adj. Sess.). Subsec. (a): Substituted "State Comprehensive Energy Plan" for "comprehensive state energy plan" preceding "covering".

Subsec. (c): Substituted "on or before" for "by no later than" preceding "January" and "2016 and shall readopt the Plan for every sixth January 1 thereafter" for "1994" and added the second and third sentences.

Subdiv.(c)(1): Substituted "and published biennially" for "annually" following "updated".

Subdivs. (c)(1) and (c)(2): Added.

Subdiv. (c)(4): Substituted "six" for "five" preceding "years" in two places.

Subsec. (d): Inserted "(a)-(c)" following "2 V.S.A. § 20".

Amendments--1991 (Adj. Sess.). Section amended generally.

Legislative intent. See note after 30 V.S.A. § 202 for legislative intent of 2013, No. 91 (Adj. Sess.), §§ 6 and 7.

Cross References

Cross references. Adoption of State Agency Energy Plan, see 3 V.S.A. § 2291.

§ 202c. State telecommunications; policy and planning.

  1. The General Assembly finds that advances in telecommunications technology and changes in federal regulatory policy are rapidly reshaping telecommunications services, thereby promising the people and businesses of the State communication and access to information, while creating new challenges for maintaining a robust, modern telecommunications network in Vermont.
  2. Therefore, to direct the benefits of improved telecommunications technology to all Vermonters, it is the purpose of this section and section 202d of this title to:
    1. strengthen the State's role in telecommunications planning;
    2. support the universal availability of appropriate infrastructure and affordable services for transmitting voice and high-speed data;
    3. support the availability of modern mobile wireless telecommunications services along the State's travel corridors and in the State's communities;
    4. provide for high-quality, reliable telecommunications services for Vermont businesses and residents;
    5. provide the benefits of future advances in telecommunications technologies to Vermont residents and businesses;
    6. support competitive choice for consumers among telecommunications service providers and promote open access among competitive service providers on nondiscriminatory terms to networks over which broadband and telecommunications services are delivered;
    7. support the application of telecommunications technology to maintain and improve governmental and public services, public safety, and the economic development of the State;
    8. support deployment of broadband infrastructure that:
      1. uses the best commercially available technology;
      2. does not negatively affect the ability of Vermont to take advantage of future improvements in broadband technology or result in widespread installation of technology that becomes outmoded within a short period after installation;
    9. in the deployment of broadband infrastructure, encourage the use of existing facilities, such as existing utility poles and corridors and other structures, in preference to the construction of new facilities or the replacement of existing structures with taller structures; and
    10. support measures designed to ensure that by the end of the year 2024 every E-911 business and residential location in Vermont has infrastructure capable of delivering Internet access with service that has a minimum download speed of 100 Mbps and is symmetrical.

      Added 1987, No. 87 , § 1; amended 2003, No. 164 (Adj. Sess.), § 15, eff. June 12, 2004; 2009, No. 54 , § 49, eff. June 1, 2009; 2011, No. 53 , § 24b, eff. May 27, 2011; 2013, No. 190 (Adj. Sess.), § 8, eff. June 16, 2014.

History

Amendments--2013 (Adj. Sess.). Subdiv. (b)(7): Substituted "support" for "Support, to the extent practical and cost effective," at the beginning.

Subdiv. (b)(10): Added.

Amendments--2011. Subdiv. (b)(6): Inserted "and promote open access among competitive service providers on nondiscriminatory terms to networks over which broadband and telecommunications services are delivered" following "providers".

Subdiv. (b)(9): Added.

Amendments--2009. Subsec. (b): Added subdiv. (8).

Amendments--2003 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Regulation of pay-per-call services, see 9 V.S.A. § 2501 et seq.

§ 202d. Telecommunications plan.

  1. The Department of Public Service shall constitute the responsible planning agency of the State for the purpose of obtaining for all consumers in the State stable and predictable rates and a technologically advanced telecommunications network serving all service areas in the State. The Department shall be responsible for the provision of plans for meeting emerging trends related to telecommunications technology, markets, financing, and competition.
  2. The Department shall prepare the Telecommunications Plan for the State. The Agency of Digital Services, the Agency of Commerce and Community Development, and the Agency of Transportation shall assist the Department in preparing the Plan. The Plan shall be for a 10-year period and shall serve as a basis for State telecommunications policy. Prior to preparing the Plan, the Department shall prepare:
    1. An overview, looking 10 years ahead, of statewide growth and development as they relate to future requirements for telecommunications services, including patterns of urban expansion, statewide and service area economic growth, shifts in transportation modes, economic development, technological advances, and other trends and factors that will significantly affect State telecommunications policy and programs. The overview shall include an economic and demographic forecast sufficient to determine infrastructure investment goals and objectives.
    2. One or more surveys of Vermont residents and businesses, conducted in cooperation with the Agency of Commerce and Community Development to determine what telecommunications services are needed now and in the succeeding 10 years, generally, and with respect to the following specific sectors in Vermont;
      1. the educational sector, with input from the Secretary of Education;
      2. the health care and human services sectors, with input from the Commissioner of Health and the Secretary of Human Services;
      3. the public safety sector, with input from the Commissioner of Public Safety and the Executive Director of the Enhanced 911 Board; and
      4. the workforce training and development sectors, with input from the Commissioner of Labor.
    3. An assessment of the current state of telecommunications infrastructure.
    4. An assessment, conducted in cooperation with the Agency of Digital Services and the Agency of Transportation, of State-owned and managed telecommunications systems and related infrastructure and an evaluation, with specific goals and objectives, of alternative proposals for upgrading the systems to provide the best available and affordable technology for use by State and local government, public safety, educational institutions, community media, nonprofit organizations performing governmental functions, and other community anchor institutions.
    5. A geographically specific assessment of the status, coverage, and capacity of telecommunications networks and services available throughout Vermont, a comparison of available services relative to other states, including price and broadband speed comparisons for key services and comparisons of the status of technology deployment.
    6. An assessment of opportunities for shared infrastructure, open access, and neutral host wireless facilities that is sufficiently specific to guide the Public Utility Commission, the Department, State and local governments, and telecommunications service companies in the deployment of new technology.
    7. [Repealed.]
    8. With respect to emergency communications, an analysis of all federal initiatives and requirements, including the Department of Commerce FirstNet initiative and the Department of Homeland Security Statewide Communication Interoperability Plan, and how these activities can best be integrated with strategies to advance the State's interest in achieving ubiquitous deployment of mobile telecommunications and broadband services within Vermont.
    9. An analysis of alternative strategies to leverage the State's ownership and management of the public rights-of-way to create opportunities for accelerating the buildout of fiber-optic broadband and for increasing network resiliency capacity.
  3. In developing the Plan, the Department shall address each of the State telecommunications policies and goals of section 202c of this title, and shall assess initiatives designed to advance and make measurable progress with respect to each of those policies and goals. The assessment shall include identification of the resources required and potential sources of funding for Plan implementation.
  4. The Department shall establish a participatory planning process that includes effective provisions for increased public participation. In establishing plans, public hearings shall be held and the Department shall consult with members of the public, representatives of telecommunications utilities with a certificate of public good, other providers, including the Vermont Electric Power Co., Inc. (VELCO) and communications union districts, and other interested State agencies, particularly the Agency of Commerce and Community Development, the Agency of Transportation, and the Agency of Digital Services, whose views shall be considered in preparation of the Plan. To the extent necessary, the Department shall include in the Plan surveys to determine existing, needed, and desirable plant improvements and extensions, access and coordination between telecommunications providers, methods of operations, and any change that will produce better service or reduce costs. To this end, the Department may require the submission of data by each company subject to supervision by the Public Utility Commission.
  5. Before adopting the Plan, the Department shall first prepare and publish a preliminary draft and solicit public comment. The Department's procedures for soliciting public comment shall include a method for submitting comments electronically. After review and consideration of the comments received, the Department shall prepare a final draft. This final draft shall either incorporate public comments received with respect to the preliminary draft or shall include a detailed explanation as to why specific individual comments were not incorporated. The Department shall conduct at least four public hearings across the State on the final draft and shall consider the testimony presented at such hearings when preparing the Plan. The Department shall coordinate with Vermont's access media organizations when planning the public hearings required by this subsection. At least one public hearing shall be held jointly with committees of the General Assembly designated by the General Assembly for this purpose.
  6. The Department shall adopt a new Plan every three years pursuant to the procedures established in subsection (e) of this section. The Plan shall outline significant deviations from the prior Plan. For good cause or upon request by a joint resolution passed by the General Assembly, an interim review and revision of any section of the Plan may be made after conducting public hearings on the interim revision. At least one hearing shall be held jointly with committees of the General Assembly designated by the General Assembly for this purpose.

    Added 1987, No. 87 , § 2; amended 1995, No. 190 (Adj. Sess.), § 1(a); 2003, No. 164 (Adj. Sess.), § 16, eff. June 12, 2004; 2013, No. 190 (Adj. Sess.), § 9, eff. June 16, 2014; 2015, No. 41 , § 3; 2017, No. 41 , § 1, eff. May 22, 2017; 2019, No. 79 , § 22, eff. June 20, 2019; 2019, No. 154 (Adj. Sess.), § B.1105, eff. Oct. 2, 2020.

History

Amendments--2019 (Adj. Sess.). Subdiv. (b)(7): Repealed.

Amendments--2019. Subsec. (b): Substituted "Agency of Digital Services" for "Department of Innovation and Information" in the introductory paragraph.

Subdivs. (b)(1), (b)(4), and (b)(5): Amended generally.

Subdivs. (b)(6)-(b)(9): Added.

Subsecs. (c)-(f): Amended generally.

Subsec. (g): Repealed.

Amendments--2017. Subdiv. (b)(2): Substituted "one or more surveys" for "a survey" preceding "of Vermont" and "10" for "ten" preceding "years"; inserted ", generally, and with respect to the following specific sectors in Vermont" following "years"; and added subdivs. (A)-(D).

Amendments--2015. Section amended generally.

Amendments--2013 (Adj. Sess.). Subsec. (a): Substituted "The Department" for "The department of public service" at the beginning of the second sentence.

Subsec. (b): Amended generally.

Subdiv. (b)(1): Substituted "10 years" for "seven years" preceding "ahead, of future requirements".

Subdiv. (b)(2): Amended generally.

Subdiv. (b)(4): Substituted "Department of Innovation and Information and the Division for Connectivity" for "department of innovation and information" following "in cooperation with the".

Subsec. (d): Amended generally.

Subsec. (e): Substituted "September 1, 2014" for "September 1, 2004" at the end.

Subsec. (g): Added.

Amendments--2003 (Adj. Sess.). Section amended generally.

Amendments--1995 (Adj. Sess.) Subdiv. (b)(2): Substituted "agency of commerce and community development" for "agency of development and community affairs".

Cross References

Cross references. Regulation of pay-per-call services, see 9 V.S.A. § 2501 et seq.

ANNOTATIONS

1. Approval of contracts.

The Public Service Board may grant approval of a telecommunications contract only if it finds that the contract in its entirety is just and reasonable giving due consideration to the services and price levels covered and any risk of cross-subsidization, promotes the general good of the State, supports reasonable competition, and takes into consideration any State telecommunications plan or policy. In re New England Telephone & Telegraph Co., 159 Vt. 459, 621 A.2d 232 (1993).

§ 202e. Telecommunications and connectivity.

  1. Among other powers and duties specified in this title, the Department of Public Service, through the Division for Telecommunications and Connectivity, shall promote:
    1. access to affordable broadband service to all residences and businesses in all regions of the State, to be achieved in a manner that is consistent with the State Telecommunications Plan;
    2. universal availability of mobile telecommunication services, including voice and high-speed data along roadways, and near universal availability statewide;
    3. investment in telecommunications infrastructure in the State that creates or completes the network for service providers to create last-mile connection to the home or business and supports the best available and economically feasible service capabilities;
    4. the continuous upgrading of telecommunications and broadband infrastructure in all areas of the State to reflect the rapid evolution in the capabilities of available broadband and mobile telecommunications technologies, the capabilities of broadband and mobile telecommunications services needed by persons, businesses, and institutions in the State; and
    5. the most efficient use of both public and private resources through State policies by encouraging the development, funding, and implementation of open access telecommunications infrastructure.
  2. To achieve the goals specified in subsection (a) of this section, the Division shall:
    1. provide resources to local, regional, public, and private entities in the form of grants, technical assistance, coordination, and other incentives;
    2. prioritize the use of existing buildings and structures, historic or otherwise, as sites for visually-neutral placement of mobile telecommunications and wireless broadband antenna facilities;
    3. inventory and assess the potential to use federal radio frequency licenses held by instrumentalities of the State to enable broadband service in unserved areas of the State; take steps to promote the use of those licensed radio frequencies for that purpose; and recommend to the General Assembly any further legislative measures with respect to ownership, management, and use of these licenses as would promote the general good of the State;
    4. coordinate telecommunications initiatives among Executive Branch agencies, departments, and offices;
    5. identify the types and locations of infrastructure and services needed to carry out the goals stated in subsection (a) of this section;
    6. formulate, with the advice and assistance of the Telecommunications and Connectivity Board and with input from the regional planning commissions, an action plan that conforms with the State Telecommunications Plan, as updated and revised, and carries out the goals stated in subsection (a) of this section;
    7. coordinate the agencies of the State to make public resources available to support the extension of broadband and mobile telecommunications infrastructure and services to all unserved and underserved areas;
    8. support and facilitate initiatives to extend the availability of broadband and mobile telecommunications, and promote development of the infrastructure that enables the provision of these services;
    9. work cooperatively with the Agency of Transportation and the Department of Buildings and General Services to assist in making available transportation rights-of-way and other State facilities and infrastructure for telecommunications projects in conformity with applicable federal statutes and regulations; and
    10. receive all technical and administrative assistance as deemed necessary by the Director for Telecommunications and Connectivity.
    1. The Director may request from telecommunications service providers voluntary disclosure of information regarding deployment of broadband, telecommunications facilities, or advanced metering infrastructure that is not publicly funded. Such information may include data identifying projected coverage areas, projected average speed of service, service type, and the anticipated date of completion in addition to identifying the location and routes of proposed cables, wires, and telecommunications facilities. (c) (1)  The Director may request from telecommunications service providers voluntary disclosure of information regarding deployment of broadband, telecommunications facilities, or advanced metering infrastructure that is not publicly funded. Such information may include data identifying projected coverage areas, projected average speed of service, service type, and the anticipated date of completion in addition to identifying the location and routes of proposed cables, wires, and telecommunications facilities.
    2. The Director may enter into a nondisclosure agreement with respect to any voluntary disclosures under this subsection, and the information disclosed pursuant thereto shall remain confidential. Alternatively, entities that voluntarily provide information requested under this subsection may select a third party to be the recipient of such information. The third party may aggregate information provided by the entities, but shall not disclose provider-specific information it has received under this subsection to any person, including the Director. The third party shall only disclose the aggregated information to the Director. The Director may publicly disclose aggregated information based upon the information provided under this subsection. The confidentiality requirements of this subsection shall not affect whether information provided to any agency of the State or a political subdivision of the State pursuant to other laws is or is not subject to disclosure.
  3. The Division shall only promote the expansion of broadband services that offer actual speeds that meet or exceed the minimum technical service characteristic objectives contained in the State's Telecommunications Plan.
  4. Notwithstanding 2 V.S.A. § 20(d) , on or before January 15 of each year, the Director, with the advice and assistance of the Telecommunications and Connectivity Board, shall submit a report of its activities pursuant to this section and duties of subsection 202f(f) of this title for the preceding fiscal year to the General Assembly. Each report shall include an operating and financial statement covering the Division's operations during the year, including a summary of all grant awards and contracts and agreements entered into by the Division, as well as the action plan required under subdivision (b)(6) of this section. In addition, the report shall include an accurate map and narrative description of each of the following:
    1. the areas served and the areas not served by broadband that has a download speed of at least 4 Mbps and an upload speed of at least 1 Mbps, and cost estimates for providing such service to unserved areas;
    2. the areas served and the areas not served by broadband that has a download speed of at least 25 Mbps and an upload speed of at least 3 Mbps, or as defined by the FCC in its annual report to Congress required by section 706 of the Telecommunications Act of 1996, whichever is higher, and the cost estimates for providing such service to unserved areas;
    3. the areas served and the areas not served by broadband that has a download speed of at least 100 Mbps and is symmetrical, and the cost estimates for providing such service to unserved areas; and
    4. if monetarily feasible, the areas served and the areas not served by wireless communications service, and cost estimates for providing such service to unserved areas.

      Added 2015, No. 41 , § 4.

History

Former § 202e, relating to report on natural gas regulation, was derived from 1987, No. 273 (Adj. Sess.), § 6 and was previously repealed by 1993, No. 21 , § 16.

Transfer of fiber-optic assets. 2021, No. 71 , § 7 provides: "On or before September 30, 2021, subject to review and approval by the State Treasurer, the Department of Public Service shall transfer ownership of its fiber-optic assets to the communications union district in which those assets are located. The transfer shall include the transfer of rights and obligations under any existing contracts or lease agreements with third parties regarding the maintenance or use of the fiber-optic assets. In addition, the transfer shall include a requirement that, upon the dissolution of a communications union district, any such fiber assets shall become the property of the State to be managed by the Department of Public Service. A communications union district may refuse to accept the transfer of assets authorized by this section, in which case the assets shall remain the property of the Department of Public Service. Nothing in this section shall preclude the Department from transferring fiber-optic assets to a communications union district that initially declined to accept such assets prior to September 30, 2021."

§ 202f. Telecommunications and Connectivity Advisory Board. Section 202f effective until January 1, 2022; see also section 202f effective January 1, 2022 set out below.

  1. There is created the Telecommunications and Connectivity Advisory Board for the purpose of making recommendations to the Commissioner of Public Service regarding his or her telecommunications responsibilities and duties as provided in this section. The Connectivity Advisory Board shall consist of eight members selected as follows:
    1. the State Treasurer or designee;
    2. the Secretary of Commerce and Community Development or designee;
    3. five at-large members appointed by the Governor, who shall not be employees or officers of the State at the time of appointment; and
    4. the Secretary of Transportation or designee.
  2. A quorum of the Connectivity Advisory Board shall consist of four voting members. No action of the Board shall be considered valid unless the action is supported by a majority vote of the members present and voting and then only if at least four members vote in favor of the action. The Governor shall select, from among the at-large members, a chair and vice chair.
  3. In making appointments of at-large members, the Governor shall give consideration to citizens of the State with knowledge of telecommunications technology, telecommunications regulatory law, transportation rights-of-way and infrastructure, finance, environmental permitting, and expertise regarding the delivery of telecommunications services in rural, high-cost areas. However, the five at-large members may not be persons with a financial interest in or owners or employees of an enterprise that provides broadband or cellular service or that is seeking in-kind or financial support from the Department of Public Service. The conflict of interest provision in this subsection shall not be construed to disqualify a member who has ownership in a mutual fund, exchange traded fund, pension plan, or similar entity that owns shares in such enterprises as part of a broadly diversified portfolio. The at-large members shall serve terms of two years beginning on February 1 in odd-numbered years and until their successors are appointed and qualified. However, three of the five at-large members first appointed by the Governor shall serve an initial term of three years. Vacancies shall be filled for the balance of the unexpired term. A member may be reappointed for up to three consecutive terms. Upon completion of a term of service for any reason, including the term's expiration or a member's resignation, and for one year from the date of such completion, a former Board member shall not advocate before the Connectivity Board, Department of Public Service, or the Public Utility Commission on behalf of an enterprise that provides broadband or cellular service.
  4. Except for those members otherwise regularly employed by the State, the compensation of the Board's members is that provided by 32 V.S.A. § 1010(a) . All members of the Board, including those members otherwise regularly employed by the State, shall receive their actual and necessary expenses when away from home or office upon their official duties.
  5. In performing its duties, the Connectivity Advisory Board may use the legal and technical resources of the Department of Public Service. The Department of Public Service shall provide the Board with administrative services.
  6. The Connectivity Advisory Board shall:
    1. have review and nonbinding approval authority with respect to the awarding of grants under the Connectivity Initiative. The Commissioner shall have sole authority to make the final decision on grant awards, as provided in subsection (g) of this section.
    2. function in an advisory capacity to the Commissioner on the development of State telecommunications policy and planning, including the action plan required under subdivision 202e(b)(6) of this chapter and the State Telecommunications Plan.
    3. annually advise the Commissioner on the development of requests for proposals under the Connectivity Initiative.
    4. annually provide the Commissioner with recommendations for the apportionment of funds to the High-Cost Program and the Connectivity Initiative.
    5. annually provide the Commissioner with recommendations on the appropriate Internet access speeds for publicly funded telecommunications and connectivity projects.
  7. The Commissioner shall make an initial determination as to whether a proposal submitted under the Connectivity Initiative meets the criteria of the request for proposals. The Commissioner shall then provide the Connectivity Advisory Board a list of all eligible proposals and recommendations. The Connectivity Advisory Board shall review the recommendations of the Commissioner and may review any proposal submitted, as it deems necessary, and either approve or disapprove each recommendation and may make new recommendations for the Commissioner's final consideration. The Commissioner shall have final decision-making authority with respect to the awarding of grants under the Connectivity Initiative. If the Commissioner does not accept a recommendation of the Board, he or she shall provide the Board with a written explanation for such decision.
  8. On November 15, 2019, and annually thereafter, the Commissioner shall submit to the Connectivity Advisory Board an accounting of monies in the Connectivity Fund and anticipated revenue for the next year.
  9. The Chair shall call the first meeting of the Connectivity Advisory Board. The Chair or a majority of Board members may call a Board meeting. The Board may meet up to six times a year.
  10. At least annually, the Connectivity Advisory Board and the Commissioner or designee shall jointly hold a public meeting to review and discuss the status of State telecommunications policy and planning, the Telecommunications Plan, the Connectivity Fund, the Connectivity Initiative, the High-Cost Program, and any other matters they deem necessary to fulfill their obligations under this section.
  11. Information and materials submitted by a telecommunications service provider concerning confidential financial or proprietary information shall be exempt from public inspection and copying under the Public Records Act, nor shall any information that would identify a provider who has submitted a proposal under the Connectivity Initiative be disclosed without the consent of the provider, unless a grant award has been made to that provider. Nothing in this subsection shall be construed to prohibit the publication of statistical information, determinations, reports, opinions, or other information so long as the data are disclosed in a form that cannot identify or be associated with a particular telecommunications service provider.

    Added 2015, No. 41 , § 5; amended 2019, No. 31 , § 7.

History

Amendments--2019. Subsec. (a): Deleted ", seven voting and one nonvoting," in the second sentence.

Subdiv. (a)(4): Deleted ", who shall be a nonvoting member" from the end of the sentence.

Subsec. (h): Substituted "November 15, 2019" for "September 15, 2015" in the first sentence, and deleted the second sentence.

§ 202f. Telecommunications and Connectivity Advisory Board. Section 202f effective January 1, 2022; see also section 202f effective until January 1, 2022 set out above.

  1. There is created the Telecommunications and Connectivity Advisory Board for the purpose of making recommendations to the Commissioner of Public Service regarding his or her telecommunications responsibilities and duties as provided in this section. The Connectivity Advisory Board shall consist of eight members selected as follows:
    1. the State Treasurer or designee;
    2. the Secretary of Commerce and Community Development or designee;
    3. five at-large members appointed by the Governor, who shall not be employees or officers of the State at the time of appointment; and
    4. the Secretary of Transportation or designee.
  2. A quorum of the Connectivity Advisory Board shall consist of four voting members. No action of the Board shall be considered valid unless the action is supported by a majority vote of the members present and voting and then only if at least four members vote in favor of the action. The Governor shall select, from among the at-large members, a chair and vice chair.
  3. In making appointments of at-large members, the Governor shall give consideration to citizens of the State with knowledge of telecommunications technology, telecommunications regulatory law, transportation rights-of-way and infrastructure, finance, environmental permitting, and expertise regarding the delivery of telecommunications services in rural, high-cost areas. However, the five at-large members may not be persons with a financial interest in or owners or employees of an enterprise that provides broadband or cellular service or that is seeking in-kind or financial support from the Department of Public Service. The conflict of interest provision in this subsection shall not be construed to disqualify a member who has ownership in a mutual fund, exchange traded fund, pension plan, or similar entity that owns shares in such enterprises as part of a broadly diversified portfolio. The at-large members shall serve terms of two years beginning on February 1 in odd-numbered years and until their successors are appointed and qualified. However, three of the five at-large members first appointed by the Governor shall serve an initial term of three years. Vacancies shall be filled for the balance of the unexpired term. A member may be reappointed for up to three consecutive terms. Upon completion of a term of service for any reason, including the term's expiration or a member's resignation, and for one year from the date of such completion, a former Board member shall not advocate before the Connectivity Board, Department of Public Service, or the Public Utility Commission on behalf of an enterprise that provides broadband or cellular service.
  4. Except for those members otherwise regularly employed by the State, the compensation of the Board's members is that provided by 32 V.S.A. § 1010(a) . All members of the Board, including those members otherwise regularly employed by the State, shall receive their actual and necessary expenses when away from home or office upon their official duties.
  5. In performing its duties, the Connectivity Advisory Board may use the legal and technical resources of the Department of Public Service. The Department of Public Service shall provide the Board with administrative services.
  6. The Connectivity Advisory Board shall:
    1. function in an advisory capacity to the Commissioner on the development of State telecommunications policy and planning, including the action plan required under subdivision 202e(b)(6) of this chapter and the State Telecommunications Plan; and
    2. annually provide the Commissioner with recommendations on the appropriate Internet access speeds for publicly funded telecommunications and connectivity broadband projects.
  7. On November 15, 2019, and annually thereafter, the Commissioner shall submit to the Connectivity Advisory Board an accounting of monies in the Connectivity Fund and anticipated revenue for the next year.
  8. The Chair shall call the first meeting of the Connectivity Advisory Board. The Chair or a majority of Board members may call a Board meeting. The Board may meet up to six times a year.
  9. At least annually, the Connectivity Advisory Board and the Commissioner or designee shall jointly hold a public meeting to review and discuss the status of State telecommunications policy and planning, the Telecommunications Plan, the Connectivity Fund, the Connectivity Initiative, the High-Cost Program, and any other matters they deem necessary to fulfill their obligations under this section.
  10. Information and materials submitted by a telecommunications service provider concerning confidential financial or proprietary information shall be exempt from public inspection and copying under the Public Records Act, nor shall any information that would identify a provider who has submitted a proposal under the Connectivity Initiative be disclosed without the consent of the provider, unless a grant award has been made to that provider. Nothing in this subsection shall be construed to prohibit the publication of statistical information, determinations, reports, opinions, or other information, provided the data are disclosed in a form that cannot identify or be associated with a particular telecommunications service provider.

    Added 2015, No. 41 , § 5; amended 2019, No. 31 , § 7; 2021, No. 71 , § 8, eff. Jan. 1, 2022.

History

Amendments--2021. Section amended generally.

Effective date of 2021 amendment. 2021, No. 71 , § 21(2) provides that the amendments to this section by 2021, No. 71 , § 8 shall take effect on January 1, 2022.

§ 203. Jurisdiction of certain public utilities.

The Public Utility Commission and the Department of Public Service shall have jurisdiction over the following described companies within the State, their directors, receivers, trustees, lessees, or other persons or companies owning or operating such companies and of all plants, lines, exchanges, and equipment of such companies used in or about the business carried on by them in this State as covered and included herein. Such jurisdiction shall be exercised by the Commission and the Department so far as may be necessary to enable them to perform the duties and exercise the powers conferred upon them by law. The Commission and the Department may, when they deem the public good requires, examine the plants, equipment, lines, exchanges, stations, and property of the companies subject to their jurisdiction under this chapter.

  1. A company engaged in the manufacture, transmission, distribution, storage, or sale of gas or electricity directly to the public or to be used ultimately by the public for lighting, heating, or power and so far as relates to their use or occupancy of the public highways.
  2. That part of the business of a company that consists of the manufacture, transmission, distribution, storage, or sale of gas or electricity directly to the public or to be used ultimately by the public for lighting, heating, or power and so far as relates to their use or occupancy of the public highways.
  3. A company other than a municipality or a water system exempted under the provisions of 10 V.S.A. § 1675a engaged in the collecting, sale, and distribution of water for domestic, industrial, business, or fire protection purposes.
  4. A company engaged in the construction and maintenance of dams and storage reservoirs whether for the purpose of prevention of damage by flood, or for the purpose of power to be developed, or for the benefit of waterpower, developed or undeveloped, so situated as to be affected by such reservoirs and dams.
  5. A person or company offering telecommunications service to the public on a common carrier basis. "Telecommunications service" means the transmission of any interactive two-way electromagnetic communications, including voice, image, data, and information. Transmission of electromagnetic communications includes the use of any media such as wires, cables, television cables, microwaves, radio waves, light waves, or any combination of those or similar media. Telecommunications service does not include value-added nonvoice services in which computer processing applications are used to act on the form, content, code, and protocol of the information to be transmitted unless those services are provided under tariff approved by the Public Utility Commission.
  6. A company or that part of a company, other than a municipality, which has obtained a direct or indirect discharge permit issued by the Agency of Natural Resources and is engaged in the collection or disposal of wastewater or domestic sewage or any combination of these activities, except companies solely involved in the hauling of septage or sludge. This subdivision shall only apply to companies which, together with any affiliates, service 750 or more household or dwelling units.
  7. Notwithstanding subdivisions (1) and (2) of this section, the Commission and Department shall not have jurisdiction over persons otherwise not regulated by the Commission that are engaged in the siting, construction, ownership, operation, or control of a facility that sells or supplies electricity to the public exclusively for charging a plug-in electric vehicle, as defined in 23 V.S.A. § 4(85) . These persons may charge by the kWh for owned or operated electric vehicle supply equipment, as defined in section 201 of this title, but shall not be treated as an electric distribution utility just because electric vehicle supply equipment charges by the kWh.
  8. For purposes of this section, "storage" has the same meaning as "energy storage facility" as defined in section 201 of this title.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 267 , § 1, eff. Aug. 1, 1961; 1979, No. 204 (Adj. Sess.), § 22, eff. Feb. 1, 1981; 1985, No. 224 (Adj. Sess.), § 8; 1987, No. 87 , § 5; 1993, No. 21 , § 19, eff. May 12, 1993; 1993, No. 120 (Adj. Sess.), § 1; 2007, No. 156 (Adj. Sess.), § 2; 2019, No. 59 , § 39, eff. June 14, 2019; 2021, No. 54 , § 6.

History

Source. 1953, No. 36 , § 1. V.S. 1947, § 9360. 1947, No. 202 , § 9491. P.L. § 6085. 1925, No. 86 . 1921, No. 148 , § 1. G.L. § 5056. 1917, No. 150 , § 1. 1908, No. 116 , § 3.

Amendments--2021. Subdivs. (1), (2): Inserted "storage," following "distribution,".

Subdiv. (8): Added.

Amendments--2019. Subdiv. (2): Substituted "that" for "which" near the beginning.

Subdiv. (7): Added.

Amendments--2007 (Adj. Sess.). Subdiv. (3): Inserted "or a water system exempted under the provisions of 10 V.S.A. § 1675a" following "a municipality".

Amendments--1993 (Adj. Sess.). Subdiv. (6): Substituted "household or dwelling units" for "connections" following "more" in the second sentence.

Amendments--1993. Made a minor change in punctuation at the end of subdiv. (5) and added subdiv. (6).

Amendments--1987. Subdiv. (5): Section amended generally.

Amendments--1985 (Adj. Sess.). Subsec. (b): Repealed.

Amendments--1979 (Adj. Sess.). Section amended generally.

Amendments--1961. Subdivs. (1) and (2): Inserted "transmission" following "manufacture".

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Applicability--1993 (Adj. Sess.) amendment. 1993, No. 120 (Adj. Sess.), § 2, provided in part that the amendment to subdiv. (6) by section 1 of the act shall apply to all proceedings before the Public Service Board commencing on and after May 12, 1993.

Cross References

Cross references. General scope of jurisdiction, see § 209 of this title.

Jurisdiction over charges and rates, see § 218 of this title.

Jurisdiction over cable television systems, see § 502 of this title.

Transfer of jurisdiction over dams from Department of Environmental Conservation to Public Utility Commission, see 10 V.S.A. § 1081.

ANNOTATIONS

Analysis

1. Construction.

Jurisdiction under this section does not require the consent of the company affected. Krulee v. F. C. Huyck & Sons, 121 Vt. 299, 156 A.2d 74 (1959).

2. Scope of jurisdiction.

Voice over Internet Protocol telephony fell within the Public Service Board's purview for purposes of Vermont law because the company was offering telecommunications service to the public on a common carrier basis. In re Investigation Into Regulation of Voice Over Internet Protocol, 193 Vt. 439, 70 A.3d 997 (2013).

In determining whether to grant a certificate of public good (CPG) to a public utility that had formerly been private, the Public Service Board was entitled to consider the past management practices of the utility. The Board's consideration of past acts did not violate any constitutional rights nor constitute retroactive application of 30 V.S.A. § 203(6); any CPG applicant must expect the Board to consider past incidents of mismanagement in making its decision and the utility had no vested property right to conduct a business that could be affected by the Board's denial. In re Quechee Service Co., 166 Vt. 50, 690 A.2d 354 (1996).

The jurisdiction of the Public Service Commission is limited by this section to intrastate operation and matters pertaining thereto. In re New England Telephone & Telegraph Co., 115 Vt. 494, 66 A.2d 135 (1949).

3. Federal jurisdiction.

The retention of stream flow questions, by the Public Service Board subsequent to the exercise of jurisdiction by the Federal Power Commission, would be in conflict with the power of the federal commission and would be of no effect. 1968-70 Op. Atty. Gen. 185.

4. Judicial jurisdiction.

The jurisdiction conferred upon the Public Service Commission does not deprive the courts of jurisdiction of actions of contract against such corporations. Roben v. Ryegate Light & Power Co., 91 Vt. 402, 100 A. 768 (1917); Trybulski v. Bellows Falls Hydro-Electric Corp., 112 Vt. 1, 20 A.2d 117 (1941).

5. Municipalities.

Local municipalities should play a secondary role where a clash of authority appears to exist between State control and local control of a public utility furnishing a statewide service. City of South Burlington v. Vermont Electric Power Co., 133 Vt. 438, 344 A.2d 19 (1975).

Under subdiv. (3) of this section the sale and distribution of water by a municipality is expressly removed from the control of the Public Service Board. In re Dixon, 123 Vt. 111, 183 A.2d 522 (1962).

Since 1 V.S.A. § 126 defines municipality to include fire districts, a fire district which distributes water for domestic purposes is within the specific exemption provided in subdiv. (3) of this section. 1958-60 Op. Atty. Gen. 183.

The fact that a municipal water system supplies some users outside of the limits of the municipality does not give the Public Service Commission jurisdiction to control its rates. 1954-56 Op. Atty. Gen. 256.

Where it was assumed that municipal corporation in sale of its surplus electric energy outside its limits was not acting as a public utility, but that its relations with its customers were purely contractual, its status was that of purveyor of electric energy by special contract, and its transmission lines and equipment used for that purpose were not dedicated to public use so as to bring it under jurisdiction of Public Service Commission. Valcour v. Village of Morrisville, 108 Vt. 242, 184 A. 881 (1936).

6. Telephone and telegraph.

Telephone company's classified directory was outside its duties of public service and was not controlled by the Public Service Commission but rather was governed by general law of contracts. McTighe v. New England Telephone & Telegraph Co., 216 F.2d 26 (2d Cir. 1954).

The words "telephone" and "telegraph" in this section do not include television. 1952-54 Op. Atty. Gen. 304.

7. Private companies.

If the users of a water system are also its owners, it does not have the public nature that brings it under subdiv. (3) of this section. In re Pfenning, 136 Vt. 92, 385 A.2d 1070 (1978).

The Public Service Board has no jurisdiction over a water corporation that limits its service to members only, since it does not offer a service to the general public but only to its own corporate membership. 1966-68 Op. Atty. Gen. 153.

If a cooperative runs a business limited solely to its members and without serving or offering to serve the general public, it is not a public service business and is exempt from regulation. 1958-60 Op. Atty. Gen. 183.

8. Ownership.

Public Service Board had jurisdiction to set rates for, and otherwise supervise, water system, where users had no recognized property right in system as evidenced by claim of title indicating that there was never any intent to convey to present users, apart from operators of system, anything more than contract right to be furnished water. In re Pfenning, 136 Vt. 92, 385 A.2d 1070 (1978).

9. Voice mail.

Because voice mail is properly construed as a "telecommunications service" under the statutory definition thereof, it follows that the Public Service Board's order requiring telecommunications company to offer voice mail for resale was consistent with the Board's jurisdictional grant. In re Petition of Verizon New England, Inc., 173 Vt. 327, 795 A.2d 1196 (2002).

Cited. Hall v. Village of Swanton, 113 Vt. 424, 35 A.2d 381 (1944); In re Citizens Utilities Co., 125 Vt. 388, 216 A.2d 923 (1966); In re Milton Water Corp., 125 Vt. 487, 218 A.2d 710 (1966); Flanders Lumber & Building Supply Co. v. Town of Milton, 128 Vt. 38, 258 A.2d 804 (1969); Kelly v. Alpstetten Association, Inc., 131 Vt. 165, 303 A.2d 136 (1973); Wendland v. Green Mountain Power Corp., 132 Vt. 320, 318 A.2d 668 (1974); In re Bloch, 133 Vt. 326, 340 A.2d 51 (1975); West v. Village of Morrisville, 728 F.2d 130 (2d Cir. 1984); Washington Electric Coop. v. Massachusetts Municipal Wholesale Electric Co., 922 F.2d 92 (2d Cir. 1990).

§ 203a. Fuel Efficiency Fund.

  1. Fuel Efficiency Fund.  There is established the Fuel Efficiency Fund to be administered by a fund administrator appointed by the Commission. Balances in the Fund shall be ratepayer funds, shall be used to support the activities authorized in this subsection, and shall be carried forward and remain in the Fund at the end of each fiscal year. These monies shall not be available to meet the general obligations of the State. Interest earned shall remain in the Fund. The Fund shall contain such sums as appropriated by the General Assembly or as otherwise provided by law, in addition to revenues from the sale of credits under the RGGI cap and trade program as provided for under section 255 of this title.
  2. Use of the Fund.  The Fuel Efficiency Fund shall be used to support the delivery of energy efficiency services to Vermont heating and process fuel consumers and to carry out cost-effective efficiency measures and reductions in greenhouse gas emissions from those sectors. These energy efficiency services shall be delivered by the service provider or providers selected by the Department of Public Service under section 235 of this title to perform these functions.
  3. [Repealed.]
  4. Department costs.  Up to five percent of amounts allocated to the Department of Public Service from the Fund may be used for administrative costs directly related to the Fuel Efficiency Fund.

    Added 2007, No. 92 (Adj. Sess.), § 11; amended 2009, No. 54 , § 103, eff. June 1, 2009; 2009, No. 1 (Sp. Sess.), § E.235, eff. June 2, 2009; 2013, No. 142 (Adj. Sess.), § 48; 2019, No. 31 , § 1.

History

2009. Act No. 3 (Sp. Sess.), § 14(c) provides that No. 54, § 103 "shall supersede and replace" No. 1 (Sp. Sess.), § E.235.

Amendments--2019. Subsec. (c): Repealed.

Amendments--2013 (Adj. Sess.). Subsec. (c): Substituted "Department of Public Service" for "Public Service Department" following "thereafter, the" and "General Assembly" for "Legislature" following "report to the", and added the second sentence.

Amendments--2009. Subsec. (a): Act No. 54 and Act No. 1 (Sp. Sess.) substituted "as provided for" for "established" in the last sentence.

§ 204. Organization; reports of public utility corporations.

Immediately upon the transmission of its articles of association, a corporation subject to supervision under this chapter shall file with the Department of Public Service a copy of such articles, and a copy of its certificate of paid up capital stock if any. The corporation shall also, immediately after its organization, forward to the Department of Public Service a copy of the report of its organization containing the names and addresses of the directors and other officials of the corporation. At the time of commencing, a business, a municipality, person, or company, other than a corporation which is subject to supervision under this chapter, shall file with the Department of Public Service a written statement giving the location, nature, and extent of such business, together with the post office address of the owner or owners, business manager, and other officials.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1979, No. 204 (Adj. Sess.), § 23, eff. Feb. 1, 1981.

History

Source. V.S. 1947, § 9361. 1947, No. 202 , § 9492. P.L. § 6086. G.L. § 5057. 1917, No. 254 , § 4935. 1910, No. 145 .

Amendments--1979 (Adj. Sess.). Substituted "department of public service" for "board" wherever it appeared.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

§ 205. Duty to furnish copies of contracts.

At the request of the Department of Public Service, a corporation subject to supervision under this chapter shall submit to the Department for its approval certified copies of contracts entered into after July 1, 1961, between such corporation and any person, partnership, association, trust, or corporation holding, controlling, or owning 10 percent or more of the voting capital stock of such corporation subject to supervision, or with any other corporation which is itself owned or controlled by a person, partnership, association, trust, or corporation so holding, controlling, or owning 10 percent or more of the voting capital stock of such corporation subject to supervision.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 183 , § 3; 1979, No. 204 (Adj. Sess.), § 35, eff. Feb. 1, 1981.

History

Source. V.S. 1947, § 9362. P.L. § 6087. 1933, No. 114 .

Revision note. Substituted "July 1, 1961" for "the effective date of this act" for purposes of clarity.

Amendments--1979 (Adj. Sess.). Substituted "department of public service" for "public service board" following "request of the" and "department" for "board" following "submit to the".

Amendments--1961. Deleted "the provisions of" preceding "this chapter", substituted "submit to the board for its approval" for "furnish such board" preceding "certified copies" and "10" for "twenty-five" preceding "per cent" and inserted "after the effective date of this act" preceding "between such corporation".

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "public service" and "furnish such".

§ 206. Information to be furnished Department.

On request by the Department of Public Service, a company owning or operating a plant, line, or property subject to supervision under this chapter shall furnish the Department information required by it concerning the condition, operation, management, expense of maintenance and operation, cost of production, rates charged for service or for product, contracts, obligations, and the financial standing of such company. It shall also inform the Department of the salaries of, the pensions, option, or benefit programs affecting, and the expenses reimbursed to, its officers or directors, or both.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 183 , § 4; 1979, No. 204 (Adj. Sess.), § 35, eff. Feb. 1, 1981; 2015, No. 29 , § 22.

History

Source. V.S. 1947, § 9363. P.L. § 6088. G.L. § 5058. 1912, No. 165 , § 2. 1908, No. 116 , § 5.

Amendments--2015. Deleted the former third and fourth sentences.

Amendments--1979 (Adj. Sess.). Substituted "department of public service" for "public service board" and "department" for "board" wherever they appeared.

Amendments--1961. Inserted the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

§ 207. Report of accidents; investigation.

The superintendent or manager of any line or plant, subject to supervision under this chapter, shall, immediately after its occurrence, notify the Department in writing of any accident that occurs within this State upon such line or plant that results in loss of life or injury to any person that incapacitates him or her from engaging in his or her usual vocations. If the accident is subject to investigation by VOSHA pursuant to 21 V.S.A. chapter 3, subchapters 4 and 5, the Department shall provide support as requested by VOSHA, and VOSHA shall, to the extent permitted by law, provide the Department with any information pertaining to the investigation that is requested by the Department. If the accident is not subject to investigation by VOSHA, the Department shall inquire into the cause of the accident and shall make any recommendations to the company and to the Public Utility Commission as appropriate.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1979, No. 204 (Adj. Sess.), § 35, eff. Feb. 1, 1981; 2021, No. 54 , § 1.

History

Source. V.S. 1947, § 9364. P.L. § 6089. G.L. § 5059. 1908, No. 116 , § 7.

2021 Substituted "is" for "it" following "If the accident" in the last sentence to correct a typographical error.

1995. Substituted "5 V.S.A. § 3454" for "section 804 of this title" in view of the recodification of section 804 by 1995, No. 60 , § 37.

Amendments--2021. Section amended generally.

Amendments--1979 (Adj. Sess.). Substituted "department" for "board" preceding "in writing" in the first sentence and "shall inquire" in the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "in writing" in the first sentence and "shall inquire" in the second sentence.

§ 208. Complaints; investigations; procedure.

A complaint to the Public Utility Commission may be made against a company subject to supervision under the provisions of this chapter concerning any claimed unlawful act or neglect adversely affecting the complainant, who may be a company or five or more individuals or, if less than five are so affected, then any one of them. The complainant may bring his or her complaint directly before the Commission or he or she may file his or her complaint with the Department of Public Service which shall investigate such complaint and if sufficient cause exists, shall prosecute the same in the name of the State. Upon request of the trustees of an incorporated village or the selectboard or city council or upon its own motion, the Department of Public Service may institute investigations regarding the price, toll, rate, or rental charged by any utility.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1979, No. 204 (Adj. Sess.), § 24, eff. Feb. 1, 1981.

History

Source. V.S. 1947, § 9365. P.L. § 6090. 1931, No. 99 . 1925, No. 88 . G.L. § 5060. 1908, No. 116 , § 8.

2016. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , (Adj. Sess.), § 72.

Amendments--1979 (Adj. Sess.). Substituted "department of public service which shall" for "attorney general who shall, in person or through the state's attorney of the county" preceding "investigate" in the second sentence and "department of public service" for "board" preceding "may institute" in the third sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Department of Public Service; Certificate of Public Good; Complaint Protocol. 2015, No. 130 (Adj. Sess.), § 5c directs the Commissioner of Public Service to "establish and implement a protocol for handling complaints concerning the alleged failure of a company to comply with the terms and conditions of a certificate of public good issued by the Public Service Board under 30 V.S.A. § 248 or 248a." For full text see history note under 30 V.S.A. § 248.

ANNOTATIONS

Analysis

1. Judicial power.

The Public Service Board has been granted judicial power under this section and section 209 of this title to entertain proceedings and determine the facts upon which the law operates in a controversy between consumers and a utility. North v. City of Burlington Electric Light Dept., 125 Vt. 240, 214 A.2d 82 (1965).

In exercise of its judicial power the Public Service Board has the authority and duty to investigate any claimed unlawful act adversely affecting a consumer served by a utility subject to its supervision. North v. City of Burlington Electric Light Dept., 125 Vt. 240, 214 A.2d 82 (1965).

2. Validity of statutes.

The Public Service Board, as an administrative tribunal, does not have power to determine the constitutional validity of statutes. Westover v. Village of Barton Electric Dept., 149 Vt. 356, 543 A.2d 698 (1988).

3. Intervention.

Provision of this section, allowing a single company or five individuals to attack utility practices, indicated the Legislature's determination that those who wished to do so were to be allowed to have a voice in power supply issues, and supported intervention by ratepayers to support their interests in proceedings before Public Service Board to consider approval of loan agreement between bank and electric company. In re Vermont Public Power Supply Authority, 140 Vt. 424, 440 A.2d 140 (1981).

Cited. In re Central Vermont Public Service Corp., 116 Vt. 206, 71 A.2d 576 (1950); Carpenter v. Home Telephone Co., 122 Vt. 50, 163 A.2d 838 (1960); In re Milton Water Corp., 125 Vt. 487, 218 A.2d 710 (1966); In re Allied Power & Light Co., 132 Vt. 354, 321 A.2d 7 (1974); Moore v. Gilbert, 132 Vt. 365, 321 A.2d 13 (1974); In re Bloch, 133 Vt. 326, 340 A.2d 51 (1975); In re Allied Power & Light Co., 133 Vt. 586, 350 A.2d 360 (1975); In re Village of Morrisville Water & Light Dept., 134 Vt. 428, 365 A.2d 525 (1976); Arlington Selectmen v. Arlington Water Co., 136 Vt. 495, 394 A.2d 1130 (1978); West v. Village of Morrisville, 728 F.2d 130 (2d Cir. 1984); Ratepayers Coalition of Rochester v. Rochester Electric Light & Power Co., 153 Vt. 327, 571 A.2d 606 (1989); Washington Electric Coop. v. Massachusetts Municipal Wholesale Electric Co., 922 F.2d 92 (2d Cir. 1990).

§ 208a. Selection of telecommunications carrier.

  1. No provider of telecommunications services shall submit a change order for primary interexchange carrier or for local exchange carrier to any telecommunications company regarding a Vermont customer unless and until the submitting carrier has obtained express authorization from the customer for the change. Upon request of the customer, offers to provide telecommunications services shall be sent to the customer in written form describing the terms and conditions of service. As used in this section, "express authorization" means an express, affirmative act by the customer clearly agreeing to the change in primary interexchange carrier or local exchange carrier, in the form of:
    1. a written authorization;
    2. a customer initiated call to the submitting carrier;
    3. an oral authorization verified by an independent third party and the verification has been recorded;
    4. electronic authorization; or
    5. some other form of recorded authorization.
    1. A petition alleging violation of this section may be brought to the Public Utility Commission by the customer, by the Department of Public Service, by the Attorney General, or by the customer's former carrier. If the Public Utility Commission determines after opportunity for hearing that a telecommunications carrier has submitted a change order and cannot demonstrate that it has complied with this section, and with rules adopted by the Commission, the Commission may: (b) (1)  A petition alleging violation of this section may be brought to the Public Utility Commission by the customer, by the Department of Public Service, by the Attorney General, or by the customer's former carrier. If the Public Utility Commission determines after opportunity for hearing that a telecommunications carrier has submitted a change order and cannot demonstrate that it has complied with this section, and with rules adopted by the Commission, the Commission may:
      1. void any pending charges and require the submitting carrier to pay to the customer an amount equal to all charges previously paid by the customer to the submitting carrier and made possible by the change order, providing that the voiding and repayment shall apply only for a reasonable time after the customer discovered or should have discovered the change in carriers;
      2. require the submitting carrier to pay to the customer an amount of money to compensate for damages that arose because the change order altered the nature or quality of the customer's telecommunications services;
      3. require the submitting carrier to pay to the former carrier an amount equal to the revenues the former carrier would have received for providing equivalent services to the customer had the unauthorized switch not occurred;
      4. require the submitting carrier to pay to the customer's local exchange carrier an amount to compensate for any costs arising from changes caused by the invalid change order;
      5. require the submitting carrier to pay, to the petitioner, the costs of prosecuting the complaint before the Commission, including reasonable attorney's fees, witness fees, and incidental costs; and
      6. require the submitting carrier to pay a penalty as authorized by section 30 of this title.
    2. Payments and penalties under this section shall be in addition to those otherwise provided by law.
  2. The Public Utility Commission shall adopt such rules as are necessary to carry out the purposes of this section. Such rules shall be no less stringent than the federal rules relating to changes of carrier, and shall include such further provisions as are needed to implement the provisions of this section.

    Added 1995, No. 182 (Adj. Sess.), § 1, eff. May 22, 1996; amended 1997, No. 135 (Adj. Sess.), § 3.

History

2016. In subsec. (b), added the subdiv. (1) and (2) designations and re-lettered former subdivs. (b)(1)-(6) to be subdivs. (b)(1)(A)-(F).

Amendments--1997 (Adj. Sess.). Substituted "telecommunications" for "primary interexchange" in the section heading; in subsec. (a), deleted "interexchange" before "services" twice, substituted "submitting" for "interexchange" twice, substituted "or for local" for "to a local" near the beginning, inserted "regarding a Vermont customer" in the first sentence and "or local exchange carrier" in the third sentence, inserted "and the verification has been" in subdiv. (a)(3), and made several stylistic changes; rewrote the introductory language of subsec. (b) and added subdivs. (b)(1) through (6); and in subsec. (c), substituted "primary interexchange carrier changes" for "changes of carrier" in the last sentence.

Adoption of rules. 1995, No. 182 (Adj. Sess.), § 2, eff. May 22, 1996, provided: "The public service board shall, within 60 days of the effective date of this section, adopt emergency rules implementing Sec. 1 of this act [which enacted this section]. Such emergency rules shall remain in effect until permanent rules are adopted. Within one year of the effective date of this section [May 22, 1996], the public service board shall establish permanent rules to prohibit unauthorized primary interexchange carrier changes."

§ 208b. Unauthorized billing.

A company subject to the jurisdiction of the Public Utility Commission shall not send a bill to a consumer for goods or services that the company provides and that will appear as a charge on the consumer's telecommunications bill without the consumer's consent. The Department shall develop a consumer education plan to ensure that consumers of telecommunications services have adequate notice of this requirement. A company that violates this section shall be subject to the remedies authorized by this title, including penalties authorized by section 30 and injunctions authorized by section 209.

Added 1999, No. 67 (Adj. Sess.), § 1.

§ 209. Jurisdiction; general scope.

  1. General jurisdiction.  On due notice, the Commission shall have jurisdiction to hear, determine, render judgment, and make orders and decrees in all matters provided for in the charter or articles of any corporation owning or operating any plant, line, or property subject to supervision under this chapter, and shall have like jurisdiction in all matters respecting:
    1. the purity, quantity, or quality of any product furnished or sold by any company subject to supervision under this chapter, and may prescribe the equipment for and standard of measurement, pressure, or initial voltage of such product;
    2. the providing for each kind of business subject to supervision under this chapter, suitable and convenient standard commercial units of product or service, which standards shall be lawful for the purposes of this chapter;
    3. the manner of operating and conducting any business subject to supervision under this chapter, so as to be reasonable and expedient, and to promote the safety, convenience, and accommodation of the public;
    4. the price, toll, rate, or rental charged by any company subject to supervision under this chapter, when unreasonable or in violation of law;
    5. the sufficiency and maintenance of proper systems, plants, conduits, appliances, wires, and exchanges, and when the public safety and welfare require the location of such wires or any portion thereof underground;
    6. to restrain any company subject to supervision under this chapter from violations of law, unjust discriminations, usurpation, or extortion;
    7. the issue of stock, mortgages, bonds, or other securities as provided in section 108 of this title;
    8. the sale to electric companies of electricity generated by facilities:
      1. that produce electric energy solely by the use of biomass, waste, renewable resources, cogeneration, or any combination thereof; and
      2. that are owned by a person not primarily engaged in the generation or sale of electric power, excluding power derived from facilities described in subdivision (A) of this subdivision (8); and
      3. that have a power production capacity that, together with any other facilities located at the same site, is not greater than 80 megawatts; and
    9. the issuance of qualified cost mitigation charge orders pertaining to facilities described in subdivision (8) of this subsection, subject to the terms and conditions of section 209a of this title.
  2. Required rules.  The provisions of section 218 of this title notwithstanding, the Public Utility Commission shall, under 3 V.S.A. §§ 803-804 , adopt rules applicable to companies subject to this chapter that:
    1. regulate or prescribe terms and conditions of extension of utility service to customers or applicants for service including:
      1. the conditions under which a deposit may be required, if any;
      2. the extension of service lines;
      3. the terms of payment of any required deposit; and
      4. the return of any deposit;
    2. regulate or prescribe the grounds upon which the companies may disconnect or refuse to reconnect service to customers; and
    3. regulate and prescribe reasonable procedures used by companies in disconnecting or reconnecting services and billing customers in regard thereto.
  3. Uninterrupted service; reasonable terms.  Rules adopted under subsection (b) of this section shall be aimed at protection of the health and safety of utility customers so that uninterrupted utility service may be continued on reasonable terms for the utility and its customers.  Such rules shall also ensure that a reasonable rate of interest, adjusted for variations in market interest rates, be set on security deposits held by utility companies.
  4. Energy efficiency.
    1. Programs and measures.  The Department of Public Service, any entity appointed by the Commission under subdivision (2) of this subsection, all gas and electric utility companies, and the Commission upon its own motion are encouraged to propose, develop, solicit, and monitor energy efficiency and conservation programs and measures, including appropriate combined heat and power systems that result in the conservation and efficient use of energy and meet the applicable air quality standards of the Agency of Natural Resources. Such programs and measures, and their implementation, may be approved by the Commission if it determines they will be beneficial to the ratepayers of the companies after such notice and hearings as the Commission may require by order or by rule. The Department of Public Service shall investigate the feasibility of enhancing and expanding the efficiency programs of gas utilities and shall make any appropriate proposals to the Commission.
    2. Appointment of independent efficiency entities.
      1. Electricity and natural gas.  In place of utility-specific programs developed pursuant to this section and section 218c of this title, the Commission shall, after notice and opportunity for hearing, provide for the development, implementation, and monitoring of gas and electric energy efficiency and conservation programs and measures, including programs and measures delivered in multiple service territories, by one or more entities appointed by the Commission for these purposes. The Commission may include appropriate combined heat and power systems that result in the conservation and efficient use of energy and meet the applicable air quality standards of the Agency of Natural Resources. Except with regard to a transmission company, the Commission may specify that the appointment of an energy efficiency utility to deliver services within an electric utility's service territory satisfies that electric utility's corresponding obligations, in whole or in part, under section 218c of this title and under any prior orders of the Commission.
      2. Thermal energy and process-fuel customers.  The Commission shall provide for the coordinated development, implementation, and monitoring of cost-effective efficiency and conservation programs to thermal energy and process-fuel customers on a whole buildings basis by one or more entities appointed by the Commission for this purpose.
        1. In this section, "thermal energy" means the use of fuels to control the temperature of space within buildings and to heat water.
        2. Periodically on a schedule directed by the Commission, the appointed entity or entities shall propose to the Commission a plan to implement this subdivision (d)(2)(B). The proposed plan shall comply with subsections (e)-(g) of this section and shall be subject to the Commission's approval. The Commission shall not conduct the review of the proposed plan as a contested case under 3 V.S.A. chapter 25 but shall provide notice and an opportunity for written and oral comments to the public and affected parties and State agencies.
    3. Energy efficiency charge; regulated fuels.  In addition to its existing authority, the Commission may establish by order or rule a volumetric charge to customers for the support of energy efficiency programs that meet the requirements of section 218c of this title, with due consideration to the State's energy policy under section 202a of this title and to its energy and economic policy interests under section 218e of this title to maintain and enhance the State's economic vitality. The charge shall be known as the energy efficiency charge, shall be shown separately on each customer's bill, and shall be paid to a fund administrator appointed by the Commission and deposited into the Electric Efficiency Fund. When such a charge is shown, notice as to how to obtain information about energy efficiency programs approved under this section shall be provided in a manner directed by the Commission. This notice shall include, at a minimum, a toll-free telephone number, and to the extent feasible shall be on the customer's bill and near the energy efficiency charge.
      1. Balances in the Electric Efficiency Fund shall be ratepayer funds, shall be used to support the activities authorized in this subdivision, and shall be carried forward and remain in the Fund at the end of each fiscal year. These monies shall not be available to meet the general obligations of the State. Interest earned shall remain in the Fund. The Commission will annually provide the General Assembly with a report detailing the revenues collected and the expenditures made for energy efficiency programs under this section. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subsection (d).
      2. The charge established by the Commission pursuant to this subdivision (3) shall be in an amount determined by the Commission by rule or order that is consistent with the principles of least-cost integrated planning as defined in section 218c of this title. As circumstances and programs evolve, the amount of the charge shall be reviewed for unrealized energy efficiency potential and shall be adjusted as necessary in order to realize all reasonably available, cost-effective energy efficiency savings. In setting the amount of the charge and its allocation, the Commission shall determine an appropriate balance among the following objectives; provided, however, that particular emphasis shall be accorded to the first four of these objectives: reducing the size of future power purchases; reducing the generation of greenhouse gases; limiting the need to upgrade the State's transmission and distribution infrastructure; minimizing the costs of electricity; reducing Vermont's total energy demand, consumption, and expenditures; providing efficiency and conservation as a part of a comprehensive resource supply strategy; providing the opportunity for all Vermonters to participate in efficiency and conservation programs; and targeting efficiency and conservation efforts to locations, markets, or customers where they may provide the greatest value. The Commission, by rule or order, shall establish a process by which a customer who pays an average annual energy efficiency charge under this subdivision (3) of at least $5,000.00 may apply to the Commission to self-administer energy efficiency through the use of an energy savings account which shall contain a percentage of the customer's energy efficiency charge payments as determined by the Commission. The remaining portion of the charge shall be used for systemwide energy benefits. The Commission in its rules or order shall establish criteria for approval of these applications.
      3. The Commission may authorize the use of funds raised through an energy efficiency charge on electric ratepayers to reduce the use of fossil fuels for space heating by supporting electric technologies that may increase electric consumption, such as air source or geothermal heat pumps if, after investigation, it finds that deployment of the technology:
        1. will be beneficial to electric ratepayers as a whole;
        2. will result in cost-effective energy savings to the end-user and to the State as a whole;
        3. will result in a net reduction in State energy consumption and greenhouse gas emissions on a life-cycle basis and will not have a detrimental impact on the environment through other means such as release of refrigerants or disposal. In making a finding under this subdivision, the Commission shall consider the use of the technology at all times of year and any likely new electricity demand created by such use;
        4. will be part of a comprehensive energy efficiency and conservation program that meets the requirements of subsections (d)-(g) of this section and that makes support for the technology contingent on the energy performance of the building in which the technology is to be installed. The building's energy performance shall achieve or shall be improved to achieve an energy performance level that is approved by the Commission and that is consistent with meeting or exceeding the goals of 10 V.S.A. § 581 (building efficiency);
        5. among the product models of the technology that are suitable for use in Vermont, will employ the product models that are the most efficient available;
        6. will be promoted in conjunction with demand management strategies offered by the customer's distribution utility to address any increase in peak electric consumption that may be caused by the deployment;
        7. will be coordinated between the energy efficiency and distribution utilities, consistent with subdivision (f)(5) of this section; and
        8. will be supported by an appropriate allocation of funds among the funding sources described in this subsection (d) and subsection (e) of this section. In the case of measures used to increase the energy performance of a building in which the technology is to be installed, the Commission shall assume installation of the technology in the building and then determine the allocation according to the proportion of the benefits provided to the regulated fuel and unregulated fuel sectors. In this subdivision (viii), "regulated fuel" and "unregulated fuel" shall have the same meaning as under subsection (e) of this section.
    4. Contract or order of appointment.  Appointment of an entity under subdivision (2) of this subsection may be by contract or by an order of appointment. An appointment, whether by order of appointment or by contract, may only be issued after notice and opportunity for hearing. An order of appointment shall be for a limited duration not to exceed 12 years, although an entity may be reappointed by order or contract. An order of appointment may include any conditions and requirements that the Commission deems appropriate to promote the public good. For good cause, after notice and opportunity for hearing, the Commission may amend or revoke an order of appointment.
    5. Appointed entity; supervision.  Any entity appointed by order of appointment under subdivisions (2) and (4) of this subsection that is not an electric or gas utility already regulated under this title shall not be considered to be a company as defined under section 201 of this title, but shall be subject to the provisions of sections 18-21, 30-32, 205-208, subsection 209(a), sections 219, 221, and subsection 231(b) of this title, to the same extent as a company as defined under section 201 of this title. The Commission and the Department of Public Service shall have jurisdiction under those sections over the entity, its directors, receivers, trustees, lessees, or other persons or companies owning or operating the entity and of all plants, equipment, and property of that entity used in or about the business carried on by it in this State as covered and included in this section. This jurisdiction shall be exercised by the Commission and the Department so far as may be necessary to enable them to perform the duties and exercise the powers conferred upon them by law. The Commission and the Department each may, when they deem the public good requires, examine the plants, equipment, and property of any entity appointed by order of appointment under subdivisions (2) and (4) of this subsection.
  5. Thermal energy and process fuel efficiency funding.
    1. Each of the following shall be used to deliver thermal energy and process fuel energy efficiency services in accordance with this section for unregulated fuels to Vermont consumers of such fuels. In addition, the Commission may authorize an entity appointed to deliver such services under subdivision (d)(2)(B) of this section to use monies subject to this subsection for the engineering, design, and construction of facilities for the conversion of thermal energy customers using fossil fuels to district heat if the majority of the district's energy is from biomass sources, the district's distribution system is highly energy efficient, and such conversion is cost effective.
      1. Net revenues above costs associated with payments from the New England Independent System Operator (ISO-NE) for capacity savings resulting from the activities of the energy efficiency utility designated under subdivision (2)(A) of this subsection (e) that are not transferred to the State PACE Reserve Fund under 24 V.S.A. § 3270(c) . These revenues shall be deposited into the Electric Efficiency Fund established by this section. In delivering services with respect to heating systems using the revenues subject to this subdivision (A), the entity shall give priority to incentives for the installation of high efficiency biomass heating systems and shall have a goal of offering an incentive that is equal to 25 percent of the installed cost of such a system. Provision of an incentive under this subdivision (A) for a biomass heating system shall not be contingent on the making of other energy efficiency improvements at the property on which the system will be installed.
      2. Net revenues above costs from the sale of carbon credits under the cap and trade program established under section 255 of this title, which shall be deposited into the Electric Efficiency Fund established by this section.
      3. Any other monies that are appropriated to or deposited in the Electric Efficiency Fund for the delivery of thermal energy and process fuel energy efficiency services.
    2. If a program combines regulated fuel efficiency services with unregulated fuel efficiency services supported by funds under this section, the Commission shall allocate the costs of the program among the funding sources for the regulated and unregulated fuel sectors in proportion to the benefits provided to each sector.
    3. In this subsection:
      1. "Biomass" means organic nonfossil material constituting a source of renewable energy within the meaning of section 8002 of this title.
      2. "District heat" means a system through which steam or hot water from a central plant is piped into buildings to be used as a source of thermal energy.

        "Efficiency services" includes the establishment of a statewide information clearinghouse under subsection (g) of this section.

        (D) "Fossil fuel" means an energy source formed in the earth's crust from decayed organic material. The common fossil fuels are petroleum, coal, and natural gas. A fossil fuel may be a regulated or unregulated fuel.

        "Regulated fuels" means electricity and natural gas delivered by a regulated utility.

        "Unregulated fuels" means fuels used by thermal energy and process fuel customers other than electricity and natural gas delivered by a regulated utility.

  6. Goals and criteria; all energy efficiency programs.  With respect to all energy efficiency programs approved under this section, the Commission shall:
    1. Ensure that all retail consumers, regardless of retail electricity, gas, or heating or process fuel provider, will have an opportunity to participate in and benefit from a comprehensive set of cost-effective energy efficiency programs and initiatives designed to overcome barriers to participation.
    2. Require that continued or improved efficiencies be made in the production, delivery, and use of energy efficiency services, including the use of compensation mechanisms for any energy efficiency entity appointed under subdivision (d)(2) of this section that are based upon verified savings in energy usage and demand, and other performance targets specified by the Commission. The linkage between compensation and verified savings in energy usage and demand (and other performance targets) shall be reviewed and adjusted not less than triennially by the Commission.
    3. Build on the energy efficiency expertise and capabilities that have developed or may develop in the State.
    4. Promote program initiatives and market strategies that address the needs of persons or businesses facing the most significant barriers to participation, including those who do not own their place of residence.
    5. Promote and ensure coordinated program delivery, including coordination with low-income weatherization programs, entities that fund and support affordable housing, regional and local efficiency entities within the State, other efficiency programs, and utility programs.
    6. Consider innovative approaches to delivering energy efficiency, including strategies to encourage third party financing and customer contributions to the cost of efficiency measures.
    7. Provide a reasonably stable multiyear budget and planning cycle in order to promote program improvement, program stability, enhanced access to capital and personnel, improved integration of program designs with the budgets of regulated companies providing energy services, and maturation of programs and delivery resources.
    8. Approve programs, measures, and delivery mechanisms that reasonably reflect current and projected market conditions, technological options, and environmental benefits.
    9. Provide for delivery of these programs as rapidly as possible, taking into consideration the need for these services, and cost-effective delivery mechanisms.
    10. Provide for the independent evaluation of programs delivered under subsection (d) of this section.
    11. Require that any entity appointed by the Commission under subsection (d) of this section deliver Commission-approved programs in an effective, efficient, timely, and competent manner and meet standards that are consistent with those in section 218c of this title, the Board's orders in Public Service Board docket 5270, and any relevant Board orders in subsequent energy efficiency proceedings.
    12. Require verification, on or before January 1, 2003, and every three years thereafter, by an independent auditor of the reported energy and capacity savings and cost-effectiveness of programs delivered by any entity appointed by the Commission to deliver energy efficiency programs under subdivision (d)(2) of this section.
    13. Ensure that any energy efficiency program approved by the Commission shall be reasonable and cost-effective.
    14. Consider the impact on retail electric rates and bills of programs delivered under subsection (d) of this section and the impact on fuel prices and bills.
    15. Ensure that the energy efficiency programs implemented under this section are designed to make continuous and proportional progress toward attaining the overall State building efficiency goals established by 10 V.S.A. § 581 , by promoting all forms of energy end-use efficiency and comprehensive sustainable building design.
  7. Thermal energy and process fuel efficiency programs; additional criteria.  With respect to energy efficiency programs delivered under this section to thermal energy and process fuel customers, the Commission shall:
    1. Ensure that programs are delivered on a whole-buildings basis to help meet the State's building efficiency goals established by 10 V.S.A. § 581 and to reduce greenhouse gas emissions from thermal energy and process fuel use in Vermont.
    2. Require the establishment of a statewide information clearinghouse to enable effective access for customers to and effective coordination across programs. The clearinghouse shall serve as a portal for customers to access thermal energy and process fuel efficiency services and for coordination among State, regional, and local entities involved in the planning or delivery of such services, making referrals as appropriate to service providers and to entities having information on associated environmental issues such as the presence of asbestos in existing insulation.
    3. In consultation with the Agency of Natural Resources, establish annual interim goals starting in 2014 to meet the 2017 and 2020 goals for improving the energy fitness of housing stock stated in 10 V.S.A. § 581 (1).
    4. Ensure the monitoring of the State's progress in meeting the goals of 10 V.S.A. § 581(1) . This monitoring shall be performed according to a standard methodology and on a periodic basis that is not less than annual.
  8. Electricity labeling.  The Public Utility Commission may prescribe, by rule or order, standards for the labeling of electricity delivered or intended for delivery to ultimate consumers as to price, terms, sources, and objective environmental impacts, along with such procedures as it deems necessary for verification of information contained in such labels. The Public Utility Commission may prescribe, by rule or by order, standards and criteria for the substantiation of such labeling or of any claims regarding the price, terms, sources, and environmental impacts of electricity delivered or intended for delivery to ultimate consumers in Vermont, along with enforcement procedures and penalties. When establishing standards for the labeling of electricity, the Commission shall weigh the cost, as well as the benefits, of compliance with such standards. With respect to companies distributing electricity to ultimate consumers, the Commission may order disclosure and publication, not to occur more than once each year, of any labeling required pursuant to the standards established by this subsection. Standards established under this subsection may include provisions for:
    1. the form of labels;
    2. information on retail and wholesale price;
    3. terms and conditions of service;
    4. types of generation resources in a seller's mix and percentage of power produced from each source;
    5. disclosure of the environmental effects of each energy source; and
    6. a description of other services, including energy services or energy efficiency opportunities.
    1. Pole attachments; broadband.  For the purposes of Commission rules on attachments to poles owned by companies subject to regulation under this title, broadband service providers shall be considered "attaching entities" with equivalent rights to attach facilities as those provided to "attaching entities" in the rules, regardless of whether such broadband providers offer a service subject to the jurisdiction of the Commission. The Commission shall adopt rules in accordance with 3 V.S.A. chapter 25 to further implement this section. The rules shall be aimed at furthering the State's interest in ubiquitous deployment of mobile telecommunications and broadband services within the State. (i) (1)  Pole attachments; broadband.  For the purposes of Commission rules on attachments to poles owned by companies subject to regulation under this title, broadband service providers shall be considered "attaching entities" with equivalent rights to attach facilities as those provided to "attaching entities" in the rules, regardless of whether such broadband providers offer a service subject to the jurisdiction of the Commission. The Commission shall adopt rules in accordance with 3 V.S.A. chapter 25 to further implement this section. The rules shall be aimed at furthering the State's interest in ubiquitous deployment of mobile telecommunications and broadband services within the State.
    2. The rules adopted pursuant to this subsection shall specify that:
      1. The applicable make-ready completion period shall not be extended solely because a utility pole is jointly owned.
      2. At the time of an initial pole make-ready survey application, when a pole is jointly owned, the joint owners shall inform the applicant which owner is responsible for all subsequent stages and timely completion of the make-ready process.
      3. If the make-ready work is not completed within the applicable make-ready completion period, the pole owner, within 30 days of the expiration of the make-ready completion period, shall refund the portion of the payment received for make-ready work that is not yet completed, and the attaching entity may hire a qualified contractor to complete the make-ready work. All pole owners and attaching entities shall submit to the Commission a list of contractors whom they allow to perform make-ready surveys, make-ready installation or maintenance, or other specified tasks upon their equipment. The Commission shall provide the appropriate list to an attaching entity, upon request.
  9. Self-managed energy efficiency programs.
    1. There shall be a class of self-managed energy efficiency programs for transmission and industrial electric ratepayers only.
    2. The Commission, by order, shall enact this class of programs.
    3. Entities approved to participate in the self-managed energy efficiency program class shall be exempt from all statewide charges under subdivision (d)(3) of this section that support energy efficiency programs performed by or on behalf of Vermont electric utilities. If an electric ratepayer approved to participate in this program class also is a customer of a natural gas utility, the ratepayer shall be exempt from all charges under subdivision (d)(3) of this section or contained within the rates charged by the natural gas utility to the ratepayer that support energy efficiency programs performed by or on behalf of that utility, provided that the ratepayer complies with this subsection.
    4. All of the following shall apply to a class of programs under this subsection:
      1. A member of the transmission or industrial electric rate class shall be eligible to apply to participate in the self-managed energy efficiency program class if the charges to the applicant, or to its predecessor in interest at the served property, under subdivision (d)(3) of this section were a minimum of:
        1. $1.5 million during calendar year 2008; or
        2. $1.5 million during calendar year 2017.
      2. A cost-based fee to be determined by the Commission shall be charged to the applicant to cover the administrative costs, including savings verification, incurred by the Commission and Department. The Commission shall determine procedures for savings verification. Such procedures shall be consistent with savings verification procedures established for entities appointed under subdivision (d)(2) of this section and, when determined to be cost-effective under subdivision (L) of this subdivision (4), with the requirements of ISO-New England for the forward capacity market (FCM) program.
      3. An applicant shall demonstrate to the Commission that it has a comprehensive energy management program with annual objectives. Achievement of certification of ISO standard 14001 shall be eligible to satisfy the requirements of having a comprehensive program.
      4. An applicant eligible pursuant to subdivision (A)(i) of this subdivision (j)(4) shall commit to an annual average investment in energy efficiency and energy productivity programs and measures during each three-year period that the applicant participates in the program of not less than $1 million. An applicant eligible pursuant to subdivision (A)(ii) of this subdivision (j)(4) shall commit to an annual average investment in energy efficiency and energy productivity programs and measures during each three-year period that the applicant participates in the program of not less than $500,000.00. To achieve the exemption from energy efficiency charges related to natural gas under subdivision (3) of this subsection (j), an applicant shall make an additional annual energy efficiency investment in an amount not less than $55,000.00. As used in this subsection (j), "energy productivity programs and measures" means investments that reduce the amount of energy required to produce a unit of product below baseline energy use. Baseline energy use shall be calculated as the average amount of energy required to make one unit of the same product in the two years preceding implementation of the program or measure.
      5. Participation in the self-managed program includes efficiency and productivity programs and measures applicable to electric and other forms of energy. A participant may balance investments in such programs and measures across all types of energy or fuels without limitations.
      6. A participant shall provide to the Commission and Department annually an accounting of investments in energy efficiency and energy productivity programs and measures and the resultant energy savings in the form prescribed by the Commission, which may conduct reasonable audits to ensure the accuracy of the data provided.
      7. The Commission shall report to the General Assembly annually on or before April 30 concerning the prior calendar year's class of self-managed energy efficiency programs. The report shall include identification of participants, their annual investments and resulting savings, and any actions taken to exclude entities from the program.
      8. Upon approval of an application by the Commission, the applicant shall be able to participate in the class of self-managed energy efficiency programs.
      9. On a determination that, for a given three-year period, a participant in the self-managed efficiency program class did not meet or has not met the commitment required by subdivision (D) of this subdivision (j)(4), the Commission shall terminate the participant's eligibility for the self-managed program class.
        1. On such termination, the former participant will be subject fully to the then existing charges applicable to its rate class without exemption under subdivision (3) of this subsection (j), and within 90 days after such termination shall pay:
          1. the difference between the investment it made pursuant to the self-managed energy efficiency program during the three-year period of noncompliance and the full amount of the charges and rates related to energy efficiency it would have incurred during that period absent exemption under subdivision (3) of this subsection (j); and
          2. the difference between the investment it made pursuant to the program within the current three-year period, if different from the period of noncompliance, and the full amount of the charges and rates related to energy efficiency it would have incurred during the current period absent exemption under subdivision (3) of this subsection (j).
        2. Payments under subdivision (i) of this subdivision (4)(I) shall be made to the entities to which the full amount of charges and rates would have been paid absent exemption under subdivision (3) of this subsection (j).
        3. A former participant may not reapply for membership in the self-managed program after termination under this subdivision (4)(I).
      10. A participant in the self-managed program class may request confidentiality of data it reports to the Commission if the data would qualify for exemption from disclosure under 1 V.S.A. § 317 . If such confidentiality is requested, the Commission shall disclose the data only in accordance with a protective agreement approved by the Commission and signed by the recipient of the data, unless a court orders otherwise.
      11. Any data not subject to a confidentiality request under subdivision (J) of this subdivision (4) will be a public record.
      12. A participant in the self-managed program class shall work with the Department of Public Service to determine whether it is cost-effective to submit projects to ISO-New England for payments under the FCM program.
        1. As used in this subdivision (L), "cost-effective" requires that the estimated payments from the FCM program exceed the incremental cost of savings verification necessary for submission to that program.
        2. If the Department determines the submission to be cost-effective, then an entity appointed to deliver electric energy efficiency services under subdivision (d)(2) of this section shall submit the project to the FCM program for payment and any resulting payments shall be remitted to the Electric Efficiency Fund for use in accordance with subdivision (e)(1)(A) of this section.
      13. A participant in the self-managed program class may receive funding from an energy program administered by a government or other entity that is not the participant and may count such funds received as part of the annual commitment to its self-managed energy efficiency program.
      14. If, at the end of every third year after an applicant's approval to participate in the self-managed efficiency program (the three-year period), the applicant has not met the commitment required by subdivision (4)(D) of this subsection, the applicant shall pay the difference between the investment the applicant made while in the self-managed energy efficiency program and the full amount of charges and rates that the applicant would have incurred absent the exemption under subdivision (3) of this subsection. This payment shall be made no later than 90 days after the end of the three-year period to the entities to which the full amount of those charges and rates would have been paid absent the exemption.
    5. This subdivision applies to a transferee of all or substantially all of the assets at the served property of an entity approved to participate in the self-managed energy efficiency program. The Commission shall allow the transferee to continue as a participant in the self-managed energy efficiency program class in the same manner and under the same terms and conditions that the transferor participant was authorized to participate, provided:
      1. the transferor participant met the requirements of subdivision (4)(A) of this subsection (j) and the transferee otherwise meets the requirements of this subsection; and
      2. the transferee assumes the obligation to fulfill any outstanding commitment of the transferor participant under subdivision (4)(D) of this subsection.
  10. Energy storage facilities.  Except when owned by a retail distribution utility, an energy efficiency utility, or the Vermont Electric Power Company, Inc., competitive suppliers of energy storage services that do not serve retail customers shall be exempt from sections 107, 108, and 109 of this title.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 183 , § 5; 1975, No. 56 , § 1; 1979, No. 147 (Adj. Sess.), § 2; 1981, No. 245 (Adj. Sess.), § 2; 1989, No. 112 , § 6, eff. June 22, 1989; 1995, No. 182 (Adj. Sess.), § 27a, eff. May 22, 1996; 1999, No. 60 , § 1, eff. June 1, 1999; 1999, No. 143 (Adj. Sess.), § 28; 2001, No. 145 (Adj. Sess.), §§ 1, 2; 2005, No. 61 , § 6; 2005, No. 208 (Adj. Sess.), § 10; 2007, No. 79 , § 6, eff. June 9, 2007; 2007, No. 92 (Adj. Sess.), § 12; 2007, No. 190 (Adj. Sess.), §§ 52, 53, eff. June 6, 2008; 2009, No. 45 , §§ 14, 14a, eff. May 27, 2009; 2009, No. 54 , § 104, eff. June 1, 2009; 2009, No. 1 (Sp. Sess.), § E.235.1, eff. June 2, 2009; 2011, No. 47 , §§ 3, 20b, eff. May 25, 2011; 2011, No. 170 (Adj. Sess.), § 16; 2013, No. 89 , §§ 2, 3; 2013, No. 142 (Adj. Sess.), § 49; 2013, No. 184 (Adj. Sess.), § 1; 2015, No. 56 , §§ 15, 15a; 2017, No. 77 , § 6; 2017, No. 102 (Adj. Sess.), § 1; 2017, No. 150 (Adj. Sess.), § 1; 2019, No. 31 , § 14; 2019, No. 79 , § 20, eff. June 20, 2019; 2021, No. 54 , § 7.

History

Source. V.S. 1947, § 9366. P.L. § 6091. G.L. § 5061. 1917, No. 254 , § 4939. 1908, No. 116 , § 9.

Reference in text. Sections 3 V.S.A. §§ 803-804, referred to in subsec. (b), were repealed by 1981, No. 82 , § 7. The subject matter of those sections is now covered by sections 3 V.S.A. §§ 836, 843-845.

2017. In subdiv. (f)(11), some references to the former name of the Public Utility Commission ("Public Service Board" or "Board") are retained for historical accuracy because they refer to orders issued under that former name.

- 2016. In subsec. (e), revised the cross-reference to 30 V.S.A. § 8002 in light of the amendments to that section by 2013, No. 99 (Adj. Sess.), § 3 and 2015, No. 56 , § 25.

- 2013. In subdiv. (h)(6), deleted ", but not limited to," following "including" in accordance with 2013, No. 5 , § 4.

- 2008. In subdiv. (d)(6), substituted "18-21, 30-32, 205-208" for "18, 19, 20, 21, 30, 31, 32, 205, 206, 207, 208" and substituted "subsection 209(a), sections 219, 221, and subsection 231(b)" for "209(a), 219, 221 and 231(b)" to conform references to V.S.A. style.

2009. Act No. 3 (Sp. Sess.), § 14(c) provides that No. 54, § 103 "shall supersede and replace" No. 1 (Sp. Sess.), § E.235.

Amendments--2021. Subsec. (k): Added.

Amendments--2019. Subsec. (e): Act No. 31 inserted "engineering, design, and construction of facilities for the" preceding "conversion of" in the second sentence.

Subsec. (i): Act No. 79 added the subdiv. (1) designation, and added subdiv. (2).

Amendments--2017 (Adj. Sess.). Subsec. (e): Amended generally by Act No. 102.

Subdivs. (j)(4)(A) through (j)(4)(M): Amended generally by Act No. 150.

Amendments--2017. Subdiv. (d)(3): Added "with due consideration to the State's energy policy under section 202a of this title and to its energy and economic policy interests under section 218e of this title to maintain and enhance the State's economic vitality" in the first sentence, and substituted "the" for "an" preceding "Electric Efficiency" in the second sentence.

Amendments--2015. Subdiv. (j)(4)(A): Inserted "or to its predecessor in interest at the served property" following "applicant".

Subdiv. (j)(5): Added.

Amendments--2013 (Adj. Sess.). Subdiv. (d)(3)(A): Act No. 142 added the last sentence.

Subdiv. (d)(3)(B): Act No. 184 amended generally.

Subdiv. (d)(3)(C): Added by Act No. 184.

Amendments--2013. Section amended generally.

Amendments--2011 (Adj. Sess.). Subdiv. (d)(7): In the third sentence, substituted "high efficiency biomass" for "woody biomass", and in the fourth sentence, deleted "'woody" preceding "biomass"' and "from trees or woody plants" following "nonfossil material".

Amendments--2011. Subdiv. (d)(7): Section amended generally.

Subdiv. (d)(8): Inserted "net" preceding "revenues", "above costs" following "revenues" and added the second sentence.

Subsec. (h): Section amended generally.

Amendments--2009. Subdiv. (d)(4): Amended generally by Act No. 45.

Subdiv. (d)(8): Added by Act No. 54 and Act No. 1 (Sp. Sess.).

Subsec. (h): Act No. 45 added.

Amendments--2007 (Adj. Sess.). Subdiv (d)(1): Act No. 92 added the third sentence.

Subdiv. (d)(2): Act No. 92 substituted "shall" for "may" following "board" in the first sentence and "Except with regard to a transmission company, the" for "The" preceding "board"; "appointment of an energy efficiency utility to deliver services within an electric utility's service territory" for "implementation of these programs and measures" preceding "satisfies" and "that electric" for "a" preceding "utility's" in the second sentence.

Subdiv. (d)(3): Act No. 92 inserted "and deposited into an electric efficiency fund" following "board" in the second sentence and "electric efficiency" preceding "fund" in the fifth sentence.

Subdiv. (d)(4): Amended generally by Act No. 92.

Subdivs. (d)(5)-(7): Added by Act No. 92.

Subdivs. (d)(7): Act No. 190 added "and be used by the entity appointed under subdiv. (2) of this subsec. to deliver fossil fuel energy efficiency services to Vermont heating and process-fuel consumers on a whole-buildings basis to help meet the state's building efficiency goals established by 10 V.S.A. § 581".

Subdiv. (e)(1): Act No. 92 deleted "or" preceding "gas" and inserted "or heating or process fuel" following "gas".

Subdiv. (e)(2): Section amended generally by Act No. 92.

Subdiv. (e)(7): Act No. 92 substituted "in order to" for "and" following "cycle" and inserted "enhanced access to capital and personnel, improved integration of program designs with the budgets of regulated companies providing energy services" following "stability".

Subdiv. (e)(11): Act No. 92 substituted "appointed" for "approved" following "entity".

Subdiv. (e)(14): Act No. 92 inserted "and bills" following "rates" and "and the impact on fuel prices and bills" following "section".

Subdiv. (e)(15): Added by Act No. 92.

Act No. 190 added the second sentence.

Amendments--2007. Subsec. (g): Added.

Amendments--2005 (Adj. Sess.). Subdiv. (d)(4): In the third sentence, deleted the semicolon following "objectives" and added the language beginning ", provided, however, that particular emphasis shall be accorded" and ending "minimizing the cost of electricity;".

Amendments--2005 Subdiv. (d)(1): Added ", including appropriate combined heat and power systems that result in the conservation and efficient use of energy and meet the applicable agency of natural resources' air quality standards" in the first sentence.

Subdiv. (d)(2): Added the second sentence.

Subdiv. (d)(4): Amended generally.

Subsec. (e): Added subdiv. (14).

Amendments--2001 (Adj. Sess.). Subdiv. (a)(9): Added.

Subsec. (f): Added.

Amendments--1999 (Adj. Sess.). Subdiv. (d)(3): Rewrote the fifth sentence and added the sixth and seventh sentences.

Amendments--1999. Rewrote subsec. (d) and added subsec. (e).

Amendments--1995 (Adj. Sess.) Subsec. (c): Added the second sentence.

Amendments--1989. Subsec. (d): Substituted "and all gas and electric utility companies are" for "is" preceding "encouraged" and inserted "efficiency and" preceding "conservation" in the first sentence, and deleted "after proper notice and hearings" preceding "such programs" and added "after such notice and hearings as the board may require by order or by rule" following "companies" in the second sentence.

Amendments--1981 (Adj. Sess.). Subsec. (d): Added.

Amendments--1979 (Adj. Sess.). Subdiv. (a)(8): Added.

Amendments--1975. Designated existing provisions of section as subsec. (a) and added subsecs. (b) and (c).

Amendments--1961. Subdiv. (7): Deleted "in order to prevent overcapitalization" following "securities".

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "shall have jurisdiction" in the introductory paragraph.

Purpose of subdiv. (a)(8). 1979, No. 147 (Adj. Sess.), § 1, provided: "It is the purpose of this act [which added subdiv. (a)(8) to this section] to encourage development of electricity through the use of biomass and other renewable resources, waste and cogeneration, while giving due consideration to the duties and responsibilities of utilities."

Applicability--1999 amendment. 1999, No. 60 , § 3, provided that this act [which amended this section and § 218c of this title] shall apply to the pending proceeding in docket 5980 before the Public Service Board and to any pending challenges to the Board's jurisdiction to authorize and fund an entity, independent of the electric utilities, to deliver energy efficiency programs.

Energy savings account partnership pilot. 2017, No. 150 (Adj. Sess.), § 2 creates an "ESA Partnership Pilot" for three years commencing by July 1, 2019.

Allowance of the use of energy efficiency charge funds for greenhouse gas emissions reduction programs. 2019, No. 151 (Adj. Sess.), § 1 provides: "(a) The electric resource acquisition budget for an entity appointed to provide electric energy efficiency and conservation programs and measures pursuant to 30 V.S.A. § 209(d)(2)(A) for the calendar years 2021-2023 shall be determined pursuant to 30 V.S.A. § 209(d)(3)(B). This section shall apply only if the entity's total electric resource acquisition budget for 2021-2023 does not exceed the entity's total electric resource acquisition budget for 2018-2020.

"(b) Notwithstanding any provision of law or order of the Public Utility Commission (PUC) to the contrary, the PUC shall authorize an entity pursuant to subsection (a) of this section to spend a portion of its electric resource acquisition budget, in an amount to be determined by the PUC but not to exceed $2,000,000.00 per year, on programs, measures, and services that reduce greenhouse gas emissions in the thermal energy or transportation sectors. Programs, measures, and services authorized pursuant to subsection (a) of this section shall:

"(1) Reduce greenhouse gas emissions in the thermal energy or transportation sectors, or both.

"(2) Have a nexus with electricity usage.

"(3) Be additive and complementary to and shall not replace or be in competition with electric utility energy transformation projects pursuant to 30 V.S.A. § 8005(a)(3) such that they result in the largest possible greenhouse gas emissions reductions in a cost-effective manner.

"(4) Be proposed after the entity consults with any relevant State agency or department and shall not be duplicative or in competition with programs delivered by that agency or department.

"(5) Be delivered on a statewide basis. However, if any of these funds are used for services specific to a retail electricity provider, the funds used for services to each retail electricity provider for the calendar years 2021-2023 shall be reasonably proportionate to the energy efficiency charge collected in that territory.

"(c) An entity that is approved to provide a program, measure, or service pursuant to this section shall provide the program, measure, or service in cooperation with a retail electricity provider.

"(1) The entity shall not claim any savings and reductions in fossil fuel consumption and in greenhouse gas emissions by the customers of the retail electricity provider resulting from the program, measure, or service if the provider elects to offer the program, measure, or service pursuant to 30 V.S.A. § 8005(a)(3) unless the entity and provider agree upon how savings and reductions should be accounted for, apportioned, and claimed.

"(2) The PUC shall develop standards and methods to appropriately measure the effectiveness of the programs, measures, and services in relation to the entity's Demand Resources Plan proceeding.

"(d) Any funds spent on programs, measures, and services pursuant to this section shall not be counted towards the calculation of funds used by a retail electricity provider for energy transformation projects pursuant to 30 V.S.A. § 8005(a)(3) and the calculation of project costs pursuant to 30 V.S.A. § 8005(a)(3)(C)(iv).

"(e) On or before April 30, 2021 and every April 30 for three years thereafter, the PUC shall submit a written report to the House Committee on Energy and Technology and the Senate Committees on Natural Resources and Energy and on Finance concerning any programs, measures, and services approved pursuant to this section."

Repeal of 2019, No. 151 (Adj. Sess.), § 1. 2019, No. 151 (Adj. Sess.), § 2 provides that § 1 of this act, set forth in the note above, shall be repealed as of April 30, 2024.

ANNOTATIONS

Analysis

1. Construction.

Under Vermont's implementation of Public Utilities Regulatory Policy Act, Legislature's grant of power to Public Service Board is very broad. In re Vermont Power Exchange, 159 Vt. 168, 617 A.2d 418 (1992).

The Public Service Board has been granted judicial power under section 208 of this title and this section to entertain proceedings and determine the facts upon which the law operates in a controversy between consumers and a utility. North v. City of Burlington Electric Light Dept., 125 Vt. 240, 214 A.2d 82 (1965).

2. Validity of statutes.

The Public Service Board, as an administrative tribunal, does not have power to determine the constitutional validity of statutes. Westover v. Village of Barton Electric Dept., 149 Vt. 356, 543 A.2d 698 (1988).

3. Construction with other law.

Statute giving Public Service Board (PSB) jurisdiction over implementation of Public Utilities Regulatory Policy Act (PURPA) gives PSB authority to adopt rule requiring that part of costs of operating Vermont Power Exchange, State's purchasing agent for power delivered by small power producers pursuant to PURPA, must be borne by regulated electric utilities. In re Vermont Power Exchange, 159 Vt. 168, 617 A.2d 418 (1992).

Statute authorizing Public Service Board (PSB) to require that part of costs of operating Vermont Power Exchange (VPX), State's purchasing agent for power delivered by small power producers pursuant to Public Utilities Regulatory Policy Act (PURPA), be borne by regulated electric utilities is not an invalid delegation of legislative functions, as PSB's decision regarding VPX fees is guided by standards set forth in PURPA. In re Vermont Power Exchange, 159 Vt. 168, 617 A.2d 418 (1992).

Imposition of part of costs of operating Vermont Power Exchange, State's purchasing agent for power delivered by small power producers pursuant to Public Utilities Regulatory Policy Act, on purchasing utilities is not inconsistent with federal energy regulatory commission regulations. In re Vermont Power Exchange, 159 Vt. 168, 617 A.2d 418 (1992).

4. Investigations.

Public Service Board did not have a duty under this section to investigate long range decisions involving operations of electric company which sought a rate increase. In re Green Mountain Power Corp., 131 Vt. 284, 305 A.2d 571 (1973).

In exercise of its judicial power the Public Service Board has the authority and duty to investigate any claimed unlawful act adversely affecting a consumer served by a utility subject to its supervision. North v. City of Burlington Electric Light Dept., 125 Vt. 240, 214 A.2d 82 (1965).

5. Management.

Although this section gives the Public Service Commission a broad authority to deny to regulated companies the right to subject their customers to unreasonable, arbitrary, or discriminatory rate or service practices, separate from regular rate proceedings, there are broad limits within which a regulated company is permitted and expected to exercise freely its proper managerial competence. Carpenter v. Home Telephone Co., 122 Vt. 50, 163 A.2d 838 (1960).

6. Cost sharing.

Evidence and findings supported Public Service Board order requiring that part of costs of operating Vermont Power Exchange, State's purchasing agent for power delivered by small power producers pursuant to Public Utilities Regulatory Policy Act, be borne by regulated electric utilities. In re Vermont Power Exchange, 159 Vt. 168, 617 A.2d 418 (1992).

7. Municipalities.

Where it was assumed that municipal corporation in sale of its surplus electric energy outside its limits was not acting as public utility, but that its relations with its customers were purely contractual, its status was that of purveyor of electric energy by special contract, and its transmission lines and equipment used for that purpose were not dedicated to public use so as to bring it under jurisdiction of Public Service Commission. Valcour v. Village of Morrisville, 108 Vt. 242, 184 A. 881 (1936).

8. Rules.

Public Services Board properly employed rulemaking, rather than contested case procedures, in setting rates that small power producers may charge utilities. In re Department of Public Service, 161 Vt. 97, 632 A.2d 1373 (1993).

9. Power lines.

Public Service Commission had jurisdiction over petition of telegraph company, alleging that high tension line of electric wires of another company had been erected in dangerous proximity to previously constructed line of telegraph company, and praying for order for separation of two lines. Western Union Telegraph Co. v. Burlington Traction Co., 90 Vt. 506, 99 A. 4 (1916).

10. Rate violations.

Any attempt by a utility to impose rates at variance with its schedule of tariffs filed with the Public Service Board is unlawful within the meaning of this section. North v. City of Burlington Electric Light Dept., 125 Vt. 240, 214 A.2d 82 (1965).

11. Presumptions.

In proceeding relating to what type of service electric power company was to supply new user, presumption in favor of order of Public Service Board, before which hearing below was held, was a strong one. Wendland v. Green Mountain Power Corp., 132 Vt. 320, 318 A.2d 668 (1974).

12. Suspension of charges.

Where water supplied by water company had to be boiled to be potable, was inadequate in volume and pressure, and hydrants were not functioning, the supply was not totally valueless and it was not an abuse of Public Service Board, on complaint by customers, to refuse to suspend water rents. Arlington Selectmen v. Arlington Water Co., 136 Vt. 495, 394 A.2d 1130 (1978).

13. Power purchase agreement.

Public Service Board had explicit authority under this section to make orders pertaining to utility rates, in a power purchase agreement between electric company and facility not primarily engaged in generation or sale of electric power which produced electrical energy by burning trash with a production capacity of less than 80 megawatts. In re Vicon Recovery Systems, 153 Vt. 539, 572 A.2d 1355 (1990).

14. Franchise.

The Legislature has given the Board statutory authority to grant a franchise, in the form of a "certificate of public good," only after a period of public notice and an opportunity for a public hearing to determine whether the award of such a franchise promotes the good of the State. In re Vermont Electric Power Producers, Inc., 165 Vt. 282, 683 A.2d 716 (1996).

15. Conduct of business.

No limitation restricts the Public Service Board to regulating a business's dealing only with its customers, but rather State law extended the Board's authority to telecommunications company's entire operation; in exercising this authority, the Board's order modifying the manner in which the company provided unbundled network elements to a competitive local exchange carrier properly concerned how the company operated and conducted its business in Vermont. In re Petition of Verizon New England, Inc., 173 Vt. 327, 795 A.2d 1196 (2002).

Public Service Board's order requiring telecommunications company to offer voice mail for resale satisfied the statutory mandate that the Board promote the "convenience and accommodation of the public," by fostering competition between the incumbent and competitive local exchange carriers. In re Petition of Verizon New England, Inc., 173 Vt. 327, 795 A.2d 1196 (2002).

Cited. Trybulski v. Bellows Falls Hydro-Electric Corp., 112 Vt. 1, 20 A.2d 117 (1941); In re Milton Water Corp., 125 Vt. 487, 218 A.2d 710 (1966); In re Allied Power & Light Co., 132 Vt. 354, 321 A.2d 7 (1974); Condosta v. Vermont Electric Cooperative, 400 F. Supp. 358 (D. Vt. 1975); In re Bloch, 133 Vt. 326, 340 A.2d 51 (1975); In re Allied Power & Light Co., 133 Vt. 586, 350 A.2d 360 (1975); In re Village of Morrisville Water & Light Dept., 134 Vt. 428, 365 A.2d 525 (1976); Vermont Electric Power Co. v. Bandel, 135 Vt. 141, 375 A.2d 975 (1977); Davison v. Morrisville Water & Light Dept., 137 Vt. 120, 400 A.2d 989 (1979); Dantos v. New England Telephone & Telegraph Co., 141 Vt. 381, 449 A.2d 953 (1982); In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983); West v. Village of Morrisville, 728 F.2d 130 (2d Cir. 1984); In re Hydro Energies Corp., 147 Vt. 570, 522 A.2d 240 (1987); In re Department of Public Service, 157 Vt. 120, 596 A.2d 1303 (1991).

§ 209a. Qualified cost mitigation charge orders.

  1. Definitions.  As used in this section:
    1. "Electric utility" means any entity engaged in the distribution of electricity directly to the consumers within the State of Vermont.
    2. "Issuer" means any entity approved in a qualified cost mitigation charge order to issue mitigation bonds; "issuer" may include the Vermont qualifying facility contract mitigation authority or the Vermont Public Power Supply Authority.
    3. "Mitigation bond" means a note, bond, debenture, or any other evidence of indebtedness or certificate evidencing an interest in any evidence of indebtedness authorized by a qualified cost mitigation charge order.
    4. "Mitigation charge" means any volumetric charge imposed by the Commission pursuant to a qualified cost mitigation charge order.
    5. "Participating qualifying facility" means any facility described in subdivision 209(a)(8) of this title.
    6. "Power purchase arrangement" means a contract for sale of electricity between a participating qualifying facility with a capacity of 900 kilowatts or greater and a Rule 4.100 purchasing agent, approved by the Public Service Board on or before January 1, 1995.
    7. "Qualified cost mitigation charge order" means an order of the Commission that complies with the requirements of this section.
    8. "Rule 4.100" means Public Utility Commission Rule 4.100 or any amended or successor rule regarding small power production or cogeneration.
    9. "Rule 4.100 purchasing agent" means an entity designated by the Commission to perform the power and financial accounting requirements of Rule 4.100.
    10. "Savings" means the total benefit to electric ratepayers resulting from a qualified cost mitigation charge order, including specifically those benefits resulting from modifications of purchase power arrangements and benefits attributable to the availability of a qualified cost mitigation charge order to pay for those modifications, offset by the costs incurred to obtain the qualified cost mitigation charge order and purchase power arrangement modifications.
  2. General.  Upon an application submitted by the Rule 4.100 purchasing agent or other person or entity, and subject to the terms and conditions of this section, the Commission may issue within five years following the effective date of this section one or more qualified cost mitigation charge orders. A qualified cost mitigation charge order shall impose mitigation charges payable to the issuer of mitigation bonds in order to finance the costs associated with mitigating one or more power purchase arrangements.
  3. Qualified cost mitigation charge order provisions.  A qualified cost mitigation order shall contain, at a minimum, all of the following:
    1. a finding that a qualified cost mitigation charge order will promote the general good within the State of Vermont;
    2. a uniform mitigation charge imposed for the benefit of the issuer on the consumption of all electricity within the State of Vermont to the extent such electricity is conveyed to consumers by electric utilities, and a requirement that such charge be reflected on ratepayer bills in a manner which clearly reflects both the amount of the charge and the reduction in power costs resulting from the charge;
    3. a specific mechanism for automatic adjustment of the mitigation charge, at least annually, in accordance with electricity consumption forecasts prepared by the Rule 4.100 purchasing agent or other entity approved by the Commission, so that the mitigation charge is imposed at all levels designed to provide revenues sufficient to make timely payments of accrued interest and scheduled principal on all mitigation bonds, as well as ongoing administrative expenses, credit enhancement fees, and scheduled overcollateralization amounts with respect to such mitigation bonds. This automatic adjustment may implement a system in which the mitigation charge is initially paid in full by the electric utilities, and uncollectable amounts plus reasonable carrying costs are reimbursed to the utilities as part of the adjustment;
    4. the covenant and pledge of the State of Vermont set forth in subsection (h) of this section.
  4. Approval by the Commission.  The Commission may approve within five years following the effective date of this section a qualified cost mitigation charge order for buydowns or other appropriate modifications, except buyouts, of power purchase arrangements upon finding that such an order will promote the general good within the State of Vermont. To determine that such an order will promote the general good, the Commission shall find that:
    1. significant, quantifiable savings are substantially likely to result from the buydowns and other appropriate modification of purchase power arrangements and the amount of such savings;
    2. such savings will be passed on to electric ratepayers pursuant to subsection (m) of this section;
    3. facilities whose power purchase arrangements are the subject of the buydowns or other appropriate modifications will be reasonably assured to continue to operate for the life of their power purchase arrangements.
  5. Additional factors.  The Commission shall also give consideration to the following factors:
    1. the feasibility of any prospective alternative methods of achieving ratepayer savings;
    2. any impact of the transaction on existing or prospective opportunities for electric consumers to exercise retail choice;
    3. the impact of the transaction on renewable energy resources;
    4. the specific regulatory and accounting treatment that will be required of the purchasing agent, the issuer, the participating qualifying facilities, and the participating electric utilities; and
    5. such other related factors as the Commission deems appropriate.
  6. Collections and remittances.  Mitigation charges and the right to receive mitigation charges shall be property of the issuer. The right to receive mitigation charges shall constitute a present interest in property. If requested by the issuer or any successor that is entitled to receive mitigation charges, mitigation charges shall be collected by each participating electric utility for the benefit of the issuer or the issuer's transferee. Mitigation charges collected by an electric utility shall be remitted by such electric utility to the issuer or its designee within one month after receipt thereof by such electric utility, or such shorter period as shall be designated by the Commission. Upon 30 days' written notice to an electric utility, the issuer or any successor entitled to receive mitigation charges at any time and for any reason may direct that the electric utility shall cease to collect mitigation charges. Any electric utility in possession of mitigation charges shall have no right, title, or interest in such collections, but rather shall hold such collections in trust for the benefit of the issuer.
  7. Nonbypassable.  Mitigation charges shall be separately stated on consumers' retail electric bills, and shall be payable regardless of any change in structure or identity of the electric utility, and regardless of any change in ownership or operation of any electric generation, transmission, or distribution facilities. If a consumer pays only part of its electric bill for any period, a pro rata portion of the payment may be applied to payment of the mitigation charge for the period.
  8. State pledge.  The State of Vermont covenants and pledges for the benefit of the issuer, any assignee of the issuer, and the owners of mitigation bonds that neither the mitigation charge nor the automatic adjustment mechanism set forth in subsection (e) of this section shall be altered, revoked, amended, postponed, impaired, limited, or terminated by the State of Vermont, by the Commission, or by any other agency or instrumentality of the State, absent adequate provision for the protection of the issuer, any designee of the issuer, and the owners of the mitigation bonds. The Commission, as agent of the State of Vermont, is authorized and directed to deliver written confirmation of this covenant and pledge in connection with the issuance of all mitigation bonds.
  9. Bankruptcy.  A qualified cost mitigation charge order shall remain in full force and effect, notwithstanding any bankruptcy, reorganization, or other insolvency proceeding with respect to:
    1. any electric utility or successor or assign of any electric utility; or
    2. the Rule 4.100 purchasing agent or any successor or assign of the Rule 4.100 purchasing agent.
  10. Assignment of mitigation charge revenues.  The issuer may grant a security interest in, or otherwise assign mitigation charges and the right to receive mitigation charges in connection with, the issuance of mitigation bonds. Such grant or assignment shall be valid and enforceable without delivery or filing.
  11. Hearing procedure.  A qualified cost mitigation charge order shall be issued only upon hearing, following due notice to all electric utilities, the owners of all participating qualifying facilities, the Department, and the Rule 4.100 purchasing agent. A qualified cost mitigation charge order issued under this section shall involve all of the State's electric utilities, absent a showing of good cause by any such utility as to why the requirements and customer benefits resulting from a qualified cost mitigation charge order should not be applicable to it.
  12. Pass-through of savings.  A qualified cost mitigation charge order shall contain measures to ensure that savings resulting from that order are passed through to the benefit of electric ratepayers. Such measures may include reduction in utility regulatory assets or creation of regulatory liabilities, adjustments to depreciation or amortization schedules, or the filing of revised tariffs reflecting such savings, which tariffs may be ordered by the Commission without regard to the remaining provisions of this title.
  13. In establishing the appraisal value for the assessment of property taxes on the facilities whose power purchase arrangements are the subject of the buydowns or other appropriate modifications, the municipality may include the amount of any cost mitigation payments made under the authority of this section. For municipalities using an income-based valuation method, the value of any lump sum mitigation payment shall be amortized or prorated over the period of the cost mitigation contract.
  14. Report to Legislature.  Upon approval of a cost mitigation order, the Commission shall submit a report to the Legislature containing the order and detailed information on the findings of the Commission, including the risks, savings, and costs likely to result from the buydowns and other appropriate modifications of purchase power arrangements contained in the order.

    Added 2001, No. 145 (Adj. Sess.), § 3.

History

Reference in text. Rule 4.100 and Rule 4.100 purchasing agent, used in this section, refer to a rule of the Public Utility Commission.

2017. In subdiv. (a)(6), reference is made to the Public Utility Commission's former name, "Public Service Board", because the text concerns an order issued under that former name.

- 2016. In subdiv. (a)(2) and in subsec. ( l ), deleted ", but shall not be limited to," following "include" in accordance with 2013, No. 5 , § 4. In subsec. ( l ), in the first sentence, replaced "assure" with "ensure".

- 2001 (Adj. Sess.) In subsecs. (b) and (d) changed "act" to "section" to conform to V.S.A. style.

Revision note - The word "shall" was accidentally omitted from the final draft of § 3 of 2001, No. 145 (Adj. Sess.).

2001 (Adj. Sess.) The section became effective July 1, 2002 pursuant to No. 145 of 2001 (Adj. Sess.).

§§ 209b. [Reserved for future use.].

  1. The Public Utility Commission shall design a proposed electricity affordability program in the form of draft legislation. The program shall be developed with the aid of an electricity affordability program collaborative. The collaborative, composed of representatives from the electric utilities, residential customers, consumer representatives, low-income program representatives, representatives from programs for elders, the Department of Public Service, the Agency of Human Services, and other stakeholders identified by the Commission, shall aid in the development of an electricity affordability program, as well as requirements for the implementation and funding of the program. The proposed electricity affordability program will be presented to the Vermont General Assembly in the form of draft legislation for consideration in January 2007.
  2. The proposed electricity affordability program shall provide assistance in the payment of electricity bills for eligible low-income residential customers served by electric companies subject to the jurisdiction of the Commission.
  3. In developing the electricity affordability program, the Commission shall review the successes and administrative burdens of similar programs in operation in other states and consider the following goals, which shall be afforded equal weight in formulating the program:
    1. the need to provide payment assistance to low-income customers at and below 150 percent of the federal poverty level;
    2. the need for automatic screening and enrollment methods of eligible customers by means of information obtained from existing means-tested financial assistance programs administered by other Vermont agencies such as food stamps, Medicaid, LIHEAP, or TANF; and
    3. the need to design a program that is funded by all customer classes in an equitable and reasonable manner and that results in the reimbursement of net incremental costs incurred by electric utilities to implement the program, taking into consideration the benefits as well as the costs.

      Added 2005, No. 208 (Adj. Sess.), § 10a; amended 2013, No. 96 (Adj. Sess.), § 191.

History

Reference in text. Medicaid, referred to in subdiv. (c)(2), is codified as 42 U.S.C. § 1301 et seq.

LIHEAP (Low-income Home Energy Assistance Program), referred to in subdiv. (c)(2), is codified as 42 U.S.C. § 8621 et seq.

TANF (Temporary Assistance for Needy Families), referred to in subdiv. (c)(2), is codified as 42 U.S.C. § 601 et seq.

Amendments--2013 (Adj. Sess.). Subsec. (a): Substituted "Public Service Board" for "board of public service" preceding "shall design", "low income" for "low-income" following "consumer representatives,", "representatives from programs for elders" for "elderly program representatives" following "program representatives", and "Agency of Human Services" for "department of human services" following "Department of Public Service".

§ 210. Electric companies; interconnection facilities.

  1. The Public Utility Commission shall have jurisdiction to order electric companies subject to its supervision to build or rebuild electric transmission lines in order to provide adequate interconnection between the transmission systems of the State. The Commission shall have power to exercise the jurisdiction herein conferred only after due notice to all interested parties and opportunity for hearing and after making findings based upon adequate evidence that the ordered construction:
    1. is necessary in the interests of consumers of electrical energy;
    2. is not detrimental to the interests of the investors of the company ordered to build or rebuild;
    3. will serve the public good.
  2. The Commission may allocate the cost of building or rebuilding between the companies whose facilities are to be interconnected, providing that the findings herein referred to are made as to each company affected by such allocation.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1999, No. 157 (Adj. Sess.), § 3.

History

Source. 1951, No. 193 , § 2.

2005. Designated the first and second paragraphs as subsecs. (a) and (b) to conform to V.S.A. style.

Amendments--1999 (Adj. Sess.) Inserted "opportunity for" preceding "hearing" in the introductory paragraph.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

ANNOTATIONS

Analysis

1. Findings.

Upon hearing on petition under this section, seeking order to require construction of transmission facilities, it would be error for Public Service Commission to find affirmatively on issue of public good in absence of evidence as to cost of construction of such facilities. In re Lyndonville Village, 121 Vt. 185, 151 A.2d 319 (1959).

Upon hearing on petition under this section, seeking order to require construction of transmission facilities, in absence of evidence to support finding of cost, any finding by Public Service Commission purporting to determine cost would be error. In re Lyndonville Village, 121 Vt. 185, 151 A.2d 319 (1959).

2. Burden of proof.

Under this section petitioner, seeking order to require construction of transmission facilities, has burden of producing adequate evidence that proposed construction would serve public good. In re Lyndonville Village, 121 Vt. 185, 151 A.2d 319 (1959).

Cited. In re Citizens Utilities Co., 127 Vt. 423, 250 A.2d 844 (1969); City of South Burlington v. Vermont Electric Power Co., 133 Vt. 438, 344 A.2d 19 (1975).

§ 211. Electric energy from inside or outside State.

  1. The Department of Public Service is hereby designated as the agent of the State of Vermont with full powers to act for and represent the State in any negotiations, arrangements, or proceedings for the procurement of electric energy from any source outside the State of Vermont or electric energy generated in the State by a producer, cooperative, municipal, or privately owned, which is subject to the supervision of the Department under this chapter with the right, with the approval of the Commission and the Governor, to contract for the purchase of such power and the resale on a nonprofit basis of such power to the electric distribution or transmission companies, cooperative, municipal, and privately owned, without preference or discrimination, for distribution within the State; provided, however, that purchases from sources inside the State of Vermont may be contracted for by the Department of Public Service as agent for the State only upon request of the seller and a determination by the Department that the purchase of such power and its resale on a nonprofit basis to electric distribution or transmission companies, cooperative, municipal, and privately owned, is in furtherance of the needs of the State of Vermont.  If the term of any proposed purchase exceeds five years, it shall be subject to the approval of the Commission under section 248 of this title.  In addition the Department of Public Service may, with the approval of the Commission and the Governor, contract for the resale of the power outside the State of Vermont, if resale outside the State is reasonably incidental to and in furtherance of the needs of the State of Vermont.  Revenues realized by the Department from such resale outside the State shall be used to defray the costs of such resale, and any revenues in excess of such costs, including interest earned on excess revenues, shall be applied first to reduce the Department's retail rates under section 212a of this title, and thereafter any remaining excess shall be applied to reduce the Department's wholesale rates to Vermont utilities.  The Department of Public Service, with the approval of the Commission, is authorized and empowered to enter into contracts for the transmission of such energy from the place of purchase to the point or points of resale.  The Department shall take all reasonable steps to ensure that the contracts it enters into for the transmission, purchase, and wholesale or retail sale of electricity shall be in writing. The Department of Public Service is authorized and empowered to employ additional engineering and legal personnel to assist in the procurement of such energy.
  2. [Repealed.]
  3. An enterprise fund is established in the Department of Public Service to consist of revenues from the resale of power and to support the activities authorized in this section and sections 212 and 212a of this title. Balances shall remain in the fund at the end of each fiscal year, and the fund shall be appropriated and expended in accordance with 32 V.S.A. § 462(b) . These monies shall not be available to meet the general obligations of the State.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1967, No. 196 ; 1979, No. 204 (Adj. Sess.), § 25, eff. Feb. 1, 1981; 1987, No. 65 , § 2, eff. May 28, 1987; 1987, No. 281 (Adj. Sess.), § 308, eff. June 21, 1988; 2011, No. 139 (Adj. Sess.), § 51, eff. May 14, 2012; 2011, No. 162 (Adj. Sess.), § E.233.

History

Source. 1955, No. 97 . 1951, No. 193 , § 3.

Amendments--2011 (Adj. Sess.). Subsec. (b): Repealed by Act No. 139.

Subsec. (c): Added by Act No. 162.

Amendments--1987 (Adj. Sess.). Subsec. (a): Inserted "including interest earned on excess revenues" following "excess of such costs" in the fourth sentence.

Amendments--1987. Section amended generally.

Amendments--1979 (Adj. Sess.). Substituted "department of public service" for "public service board" wherever it appeared in the section, "department" for "board" following "supervision of the" and "determination of the" in the first sentence and "board" for "governor" following "approval of the" wherever it appeared in the second through fourth sentences.

Amendments--1967. Section amended generally.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Cross References

Cross references. Allocation of expenses incurred in administering the purchase of electric energy from outside of the State, see § 21(c) of this title.

Tax to be paid by companies allocated a share of St. Lawrence power, see § 23 of this title.

ANNOTATIONS

Analysis

1. Construction.

The nonpreferential and nondiscriminatory requirement of this section applies only to the resale of power received from outside the State to electric companies within the State. In re Citizens Utilities Co., 127 Vt. 423, 250 A.2d 844 (1969).

2. Resale.

Resale of State power received from outside the State is subject to the requirement imposed upon the Public Service Board that the sale be on a nonprofit basis to the electric companies within the State, without preference or discrimination. In re Citizens Utilities Co., 127 Vt. 423, 250 A.2d 844 (1969).

3. Contracts.

Public Service Board, in considering contract between private electric companies with respect to subtransmission of St. Lawrence and Niagara power, was not acting in its contractual capacity under this section. In re Citizens Utilities Co., 125 Vt. 388, 216 A.2d 923 (1966).

This section and section 212 of this title place the responsibility upon the Board to purchase power from outside the State, to resell it on a nonprofit basis, without preference or discrimination, and to enter into agreements for transmitting the power to its allottees, thus making it available to the people of Vermont; this is the extent of the contractual power conferred upon the Board by these sections. In re Citizens Utilities Co., 125 Vt. 388, 216 A.2d 923 (1966).

4. Burden of proof.

Burden was on petitioning utility company to establish its claim that distribution of power purchased from outside the State was discriminatory. In re Citizens Utilities Co., 127 Vt. 423, 250 A.2d 844 (1969).

Cited. Vermont Electric Power Co. v. Anderson, 121 Vt. 72, 147 A.2d 875 (1959); In re Vermont Electric Power Co., 125 Vt. 395, 216 A.2d 918 (1966); Vermont Educational Buildings Financing Agency v. Mann, 127 Vt. 262, 247 A.2d 68 (1968), appeal dismissed, 396 U.S. 801, 90 S. Ct. 9, 24 L. Ed. 2d 58 (1969); City of South Burlington v. Vermont Electric Power Co., 133 Vt. 438, 344 A.2d 19 (1975).

§ 212. Niagara power project.

The Department of Public Service, in addition to the powers conferred upon it by section 211 of this title and notwithstanding any limitations on such authority imposed thereby or by any other law of this State, is hereby designated as the agent of the State of Vermont with full power to act for and represent the State in any negotiations, arrangements, or proceedings for the procurement of electrical energy from the Niagara power project authorized by Congress in Public Law 85-159 (16 U.S.C.A. § 836) and for which a license was issued to the power authority of the State of New York by the Federal Power Commission as Project 2216, with the right, with the approval of the Commission, to contract for the purchase of such power and resale thereof in accordance with the terms of said federal legislation with federal license.

1959, No. 326 (Adj. Sess.), eff. Jan. 29, 1960; amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1979, No. 204 (Adj. Sess.), § 26, eff. Feb. 1, 1981.

History

Reference in text. The Federal Power Commission, referred to in this section, no longer exists. Its functions have been transferred to the Secretary of Energy and the Federal Energy Regulatory Commission. See 42 U.S.C. §§ 7151(b), 7172(a).

Amendments--1979 (Adj. Sess.). Substituted "department of public service" for "public service board" preceding "in addition" and "board" for "governor" following "approval of the".

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "public service".

Prior law. 30 V.S.A. § 211a.

Cross References

Cross references. Allocation of expenses incurred in administering the purchase of electric energy from outside of the State, see § 21(c) of this title.

ANNOTATIONS

1. Authority of Board.

Duties imposed upon the Public Service Board as representative of the State in the purchase and resale of Niagara power, under this section, did not disqualify the Board from conducting proceedings to determine whether an interchange of transmission facilities should be ordered under section 213 of this title. In re Vermont Electric Power Co., 125 Vt. 395, 216 A.2d 918 (1966).

Cited. In re Citizens Utilities Co., 125 Vt. 388, 216 A.2d 923 (1966); Vermont Educational Buildings Financing Agency v. Mann, 127 Vt. 262, 247 A.2d 68 (1968), appeal dismissed, 396 U.S. 801, 90 S. Ct. 9, 24 L. Ed. 2d 58 (1969); City of South Burlington v. Vermont Electric Power Co., 133 Vt. 438, 344 A.2d 19 (1975).

§ 212a. Retail sales by Department; statutory authorization.

  1. The Department of Public Service, in addition to the powers conferred upon it by sections 211 and 212 of this title and notwithstanding any limitations on that authority imposed by those sections or by any other law of this State, is authorized to purchase from any source and to distribute and sell at retail without unjust discrimination, electrical energy directly to all consumers of electricity in Vermont, under the provisions of this section and sections 212b-212f of this title.
  2. The Department may continue to purchase, sell, and distribute electric capacity and energy at retail pursuant to contracts or arrangements that existed under the terms of this section prior to changes effected by 1987, No. 65 .  Any purchase, sale, and distribution of electricity by the Department to replace or exceed amounts sold at retail by the Department on May 28, 1987 shall be subject to the provisions of this section and sections 212b-212f as added or amended by 1987, No. 65 .

    Added 1985, No. 20 , eff. April 23, 1985; amended 1987, No. 65, § 3, eff. May 28, 1987.

History

2016. Replaced reference to "this act" and its "effective date" with references to 1987, No. 65 and its effective date of May 28, 1987.

Amendments--1987 Section amended generally.

Law review commentaries

Law review. For comment, "The Vermont Department of Public Service's New Found Power Under Senate Bill 130: A Case of Conflicting Interests," see 12 Vt. L. Rev. 517 (1987).

§ 212b. Review Board on Retail Sales.

  1. There is established a board to represent the interests of the State and its residents with respect to retail sales.  The Board shall consist of the Governor, the Speaker of the House, the House Majority Leader, the House Minority Leader, one other member of the House from the party other than that of the Speaker appointed by the Speaker, the President Pro Tempore of the Senate, the Senate Majority Leader, the Senate Minority Leader, and one other Senator from the party other than that of the President Pro Tempore appointed by the Committee on Committees.  The Review Board shall seek to obtain information from interested parties, including, if appropriate, a representative of each of the following: consumer-owned utilities, investor-owned utilities, electric consumers of the State, and environmental interest groups.
  2. The Governor shall serve as Chair.  The Board shall meet as necessary to discharge its duties under this section, and for attendance at meetings during adjournment of the General Assembly, legislative members of the Board shall be entitled to reimbursement for expenses and per diem compensation under 2 V.S.A. § 406(a) .  Meetings shall be at the call of the Chair, or a majority of the voting members of the Board.
  3. Prior to any filing with the Public Utility Commission under section 212c of this title, the Department shall submit any proposal for retail sales of electric energy or capacity to the Review Board on Retail Sales for its review and approval. The Review Board shall approve a proposal for filing with the Public Utility Commission only if it is satisfied that the potential benefits of the retail sale to the ratepayers of the State outweigh any potential risks to the State's residents, that the sale does not expose the State to unreasonable financial liability, that the sale does not adversely affect the retail electrical energy distribution system as a whole, and that the sale will promote effective competition.  The Board shall conduct its review under such rules and procedures as it deems appropriate.  The Department may proceed to file the proposal for retail sales with the Public Utility Commission upon approval by the Review Board and failure of the Board to act within 60 days of submission of the proposal shall be deemed to be approval.

    Added 1987, No. 65 , § 4, eff. May 28, 1987.

§ 212c. Retail sale by the Department; Commission approval.

  1. The Department shall not enter into a contract or arrangement for retail sales unless approved by the Public Utility Commission under this section. Before the Public Utility Commission approves any retail sale of energy or capacity under this section, it shall conclude that the sale will promote the public good of the State by finding that:
    1. the proposed sale, where appropriate, is reasonably required to meet actual or projected growth in statewide demand, to replace amounts of electricity or capacity sold at retail by the Department on May 28, 1987, or to provide capacity or energy needs arising from a bankruptcy filing by any Vermont electric utility;
    2. the Department's retail rates are just and reasonable, the sale will not result in unjust discrimination in rates, and the sale will result in economic benefits for the State and its residents;
    3. the sale will not adversely affect system stability and reliability, and the sale will be in compliance with the Electric Energy Plan adopted under section 202 of this title, or that there exists good cause to permit the proposed sale; and
    4. the sale is in the best interests of the ratepayers, and that the current and future benefits of the sale outweigh the current and future costs to the State's residents.
  2. The Commission shall make its final determination under this subsection within six months after a filing by the Department.  The Department's rate filings and any adjustments or exceptions thereto shall be consistent with the procedures set forth in sections 225, 226, 227, 228, and 229 of this title, where applicable.

    Added 1987, No. 65 , § 4, eff. May 28, 1987.

History

2016. Replaced "the effective date of this act" with "May 28, 1987". In section heading, deleted "Public Service" before "Board".

§ 212d. Access; negotiations; Commission order.

  1. Upon a finding by the Commission that the retail sale will promote the general good of the State under section 212c of this title, Vermont electric utility companies shall enter into negotiations for contracts with the Department that are necessary for sale and distribution, including lease of facilities, provision of services to the Department to distribute electric energy, and the assurance of adequate reliability.  The rates, charges, terms, or other conditions of such contracts shall be established by negotiations or pursuant to subsection (b) of this section. No electric utility company with which the Department shares a service territory may unreasonably deny replacement power needed by the Department to assure adequate reliability of service.
  2. If, pursuant to subsection (a) of this section, the Department and a company are unable to negotiate the rates, charges, terms, or other conditions of such contracts including the assurance of adequate reliability, either may petition the Public Utility Commission to establish the rates, terms, charges, or conditions thereunder, or resolve any other related matter, as the Commission determines to be just and reasonable. The Commission shall establish rates or charges under this section to compensate or reimburse such company for all costs reasonably and necessarily incurred by it to provide such arrangements. The Commission shall offer an opportunity for commencing a hearing within 45 days of filing of the petition and shall make either a final decision or, if unable to do so, an interim decision within three months of filing of the petition. If, within three months of filing, the Commission is unable to reach a final decision on the petition, the Commission shall direct the company to provide to the Department the necessary arrangements, including if necessary or appropriate, backup reliability, and access to facilities to allow the Department to distribute the electric energy involved in its proposal on an interim basis under such interim terms and conditions as the Commission finds to be reasonable pending a final Commission decision on the petition. The Commission shall render a final decision on the petition within six months from the date it is filed.

    Added 1987, No. 65 , § 4, eff. May 28, 1987; amended 1999, No. 157 (Adj. Sess.), § 4.

History

2016. In subsec. (a), deleted ", without limitation," following "including" in accordance with 2013, No. 5 , § 4.

Amendments--1999 (Adj. Sess.) Subsec. (b): Substituted "offer an opportunity for commencing" for "commence" preceding "a hearing" in the third sentence.

§ 212e. Representation of public; production of records.

  1. The Commission shall request the appearance of the Attorney General or shall appoint a member of the Vermont bar to represent the interests of the public or the State in any hearings before the Commission under section 212a, 212c, or 212d of this title regarding either:
    1. the sale of electrical energy by the Department of Public Service; or
    2. any other matter in which, upon petition of a company directly affected, the Commission finds that there is a conflict or a likelihood of a conflict between the Department's role as seller or distributor of electrical energy under this section and the Department's responsibility to represent the interests of the public or the State in that matter. The Department shall upon request provide sufficient funds to the Attorney General or person so appointed to engage necessary engineering or other technical advice.
  2. Any request by the Department of Public Service, or subpoena issued by the Department of Public Service for the production and examination of books, records, and witnesses, or to furnish information under this title, may, upon motion to the Commission by the company affected, be quashed upon a finding by the Commission that the request or subpoena would result in the production of a trade secret or other confidential research, development, or commercial information of the company which would materially disadvantage the company as a competitor to the Department in the sale or distribution of electrical energy.

    Added 1987, No. 65 , § 4, eff. May 28, 1987.

Cross References

Cross references. Enforcement of subpoenas issued by administrative agencies generally, see 3 V.S.A. § 809a.

Modification of subpoenas or discovery orders issued by administrative agencies, see 3 V.S.A. § 809b.

§ 212f. Identification of Department sales on bills.

  1. Each electric company, municipal, cooperative, or private, shall print on all bill statements to customers at least the following information:
    1. the number of kilowatt hours of electricity available to the customer from the Department of Public Service per billing cycle;
    2. the number of kilowatt hours of Department electricity sold to the customer during the billing cycle; and
    3. the price to the customer of the Department's electricity per kilowatt hour.
  2. With respect to the information itemized in subsection (a) of this section, the companies are required to identify clearly the Department of Public Service as the retail source of the electricity.

    Added 1987, No. 65 , § 5.

History

2016. Added the subsec. (a) and (b) designations and in subsec. (b), substituted "information itemized in subsection (a) of this section" for "above information".

§ 213. Interchange of electric facilities; power shortage.

The Public Utility Commission, in the interest of public necessity, is hereby empowered to order, in writing, a company engaged in the manufacture, transmission, distribution, or sale of electricity directly to the public or to be used ultimately by the public for lighting, heating, or power, to transport electric energy over its transmission or distribution facilities at a reasonable service charge and in such manner as the Commission shall direct when such transmission will alleviate an electric power shortage within this State.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 180 , § 1; 1967, No. 185 , § 1, eff. April 17, 1967.

History

Source. 1949, No. 224 .

Amendments--1967. Added "power shortage" at the end of the catchline and deleted the second and third sentences.

Amendments--1961. Inserted "distribution" preceding "or sale" and "or distribution" preceding "facilities" and added the second and third sentences.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "public service" and preceding "shall direct".

Prior law. 30 V.S.A. § 212.

ANNOTATIONS

1. Authority of Board.

Duties imposed upon the Public Service Board as representative of the State in the purchase and resale of Niagara power, under section 212 of this title, did not disqualify the Board from conducting proceedings to determine whether an interchange of transmission facilities should be ordered under this section. In re Vermont Electric Power Co., 125 Vt. 395, 216 A.2d 918 (1966).

§ 214. Application for interconnection; joint use of facilities; and resolution of transmission disputes.

  1. The Public Utility Commission, upon application of any electric company, municipal, cooperative, or privately owned, engaged or authorized to engage in the manufacture, transmission, distribution, or sale of electric energy, may by order direct an electric company, municipal, cooperative, or privately owned, engaged in the manufacture, transmission, distribution, or sale of electric energy, to establish physical connection of its transmission or distribution facilities with the facilities of one or more other such electric company or companies, to sell energy to, to exchange energy with, to transmit or distribute energy for any other such electric company or companies.  In addition, the Commission, upon application of the Department of Public Service, may by order direct an electric company engaged in the transmission of electric energy to transmit energy for the Department.  For the purposes of this section, a company "authorized to engage" means a municipal company authorized under chapter 79 of this title, a cooperative authorized under chapter 81 of this title, or a privately owned company authorized by its articles of association, charter, or bylaws.  However, the Commission shall have no authority to compel any electric company to sell or exchange, transmit, or distribute energy when to do so would impair its ability to render adequate service to its customers.  The Commission's order may only be issued after due notice to all interested parties and findings based upon adequate evidence that the Commission's action will be consistent with the general good of the State and that it is not detrimental to the interest of investors or consumers.  The Commission may prescribe the terms and conditions of the arrangement to be made between the electric companies, including the Department of Public Service, affected by the order, including the compensation or reimbursement reasonably due to any of them, and in the case of a new physical connection the apportionment of costs between or among them, provided that a company making application for a connection which will inure to its sole benefit shall assume the entire cost of the connection.
  2. The Commission shall have authority to arbitrate disputes between or among users or prospective users of transmission facilities located within the State, where such disputes arise under any agreement or under any State or federal tariff relating to the provision of or entitlements to transmission services and providing for arbitration by the Commission.  In conducting such arbitration, the Commission shall apply the terms and conditions set forth in the agreement or tariff; provided that where a user or prospective user proposes a change in the provision of entitlements to transmission services, it shall bear the burden of proving that the proposed change, including any reduction in or adverse effect upon the transmission services of or entitlements held by any other user, promotes the general good of the State.
  3. In any arbitration proceeding conducted pursuant to this section, the Commission shall give notice to all Vermont electric companies, the Department, and any other persons or entities that have notified the Commission that they hold entitlements to the transmission services that will be the subject of the proceeding.  Upon proper application, all persons and entities entitled to notice under this subsection shall be permitted to participate in the proceeding.
  4. The provisions of 12 V.S.A. §§ 5671(6) -(9) and 5676-5679 shall not apply to any arbitration proceeding conducted pursuant to the provisions of this section if the agreement or tariff under which arbitration is being conducted provides for direct appeal of questions of law to the Supreme Court.  In such cases, any award, order, or decree of the Commission shall, solely for purposes of proceedings subsequent to the issuance of the same, be treated as if it were an order of the Commission acting in a quasi-judicial capacity in a contested case, except that the Commission shall have no power of enforcement.  The provisions of sections 12, 14, and 15 of this title shall also apply in such cases.
  5. Notwithstanding 12 V.S.A. § 5652(b) , a provision to arbitrate transmission disputes is enforceable if contained in a validly filed state or federal tariff.  Unless otherwise provided, a provision to arbitrate contained in a validly filed tariff creates a duty to arbitrate and is valid and enforceable, except upon such grounds as exist for the termination or revocation of the tariff.

    Added 1967, No. 185 , § 22, eff. April 17, 1967; amended 1981, No. 149 (Adj. Sess.), eff. April 13, 1982; 1987, No. 65 , § 6, eff. May 28, 1987; 1987, No. 237 (Adj. Sess.), eff. May 24, 1988.

History

2008. Near the beginning of the first sentence of subsec. (d), substituted "section 5671(6)" for "section 5171(6)" to correct an error in the reference.

Amendments--1987 (Adj. Sess.). Rewrote the section catchline, designated the existing provisions of the section as subsec. (a), and added subsecs. (b)-(e).

Amendments--1987. Added the second sentence, deleted "such" preceding "electric company to sell" and inserted "or" thereafter in the fourth sentence, and inserted "including the department of public service" preceding "affected" in the sixth sentence.

Amendments--1981 (Adj. Sess.). Section amended generally.

Prior law. 30 V.S.A. § 212a.

§ 215. Natural gas.

The Department of Public Service, or its duly appointed representative, is hereby authorized as an agency of the State to represent the interests of the State before the Federal Power Commission or other body in all matters relating to the transportation and distribution of natural gas into the State of Vermont or the New England states. Upon findings by the natural gas study commission that (a) the procurement of natural gas for the State of Vermont or parts thereof is economically feasible and could substantially promote the interests of Vermont consumers, domestic and industrial, and (b) that such procurement cannot be obtained by agreement between or among gas transmission or distribution companies within and outside the State, within a reasonable time, not to exceed two years, the Department of Public Service shall be also designated as the agent of the State of Vermont with full powers to act for and represent the State in any negotiations, arrangements, or proceedings for the procurement of natural gas from any source within or outside of the State of Vermont with the right, with the approval of the Governor, to contract for the purchase and transmission of such gas and the resale thereof on a nonprofit basis to the gas transmission or distribution companies, cooperative, municipal, and privately owned, without preference or discrimination, for transmission or distribution within the State. With the approval of the Governor, it may enter into contracts for the transmission of natural gas from the place of purchase to a point or points within the State of Vermont.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 267 , § 2, eff. Aug. 1, 1961; 1979, No. 204 (Adj. Sess.), § 35, eff. Feb. 1, 1981.

History

Source. 1951, No. 195 , § 1.

Reference in text. The Federal Power Commission, referred to in this section, no longer exists. Its functions have been transferred to the secretary of energy and the Federal Energy Regulatory Commission. See 42 U.S.C. §§ 7151(b), 7172(a).

Revision note. In the second sentence, substituted "obtained" for "contained" preceding "by agreement" and inserted "the" preceding "department of public service" to correct apparent typographical errors.

Amendments--1979 (Adj. Sess.). Substituted "department of public service" for "public service board" wherever it appeared.

Amendments--1961. Added the second and third sentences.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "public service".

Prior law. 30 V.S.A. § 213.

§ 216. Gas rate fixing.

The Public Utility Commission, under its general jurisdiction over public utilities, shall have authority to fix rates and determine the minimum standards of service for consumers in the event natural gas shall be piped into the State.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. 1951, No. 195 , § 2.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "public service".

Prior law. 30 V.S.A. § 214.

§ 217. Department to prosecute.

The Department of Public Service, through the Director for Public Advocacy, shall represent the public at such hearing when the matters involved result directly from a proposed increase in rates, tolls, or charges, or the issuing of stock, bonds, notes, or other evidence of indebtedness for which the approval of the Commission is required by law. In any proceeding, the Commission may request the appearance of the Attorney General or appoint a member of the Vermont bar to represent the interests of the public or State.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1979, No. 204 (Adj. Sess.), § 27, eff. Feb. 1, 1981.

History

Source. V.S. 1947, § 9367. P.L. § 6092. 1931, No. 98 , § 1. 1925, No. 85 , § 3.

2016. In section header, deleted "of Public Service" after "Department".

Amendments--1979 (Adj. Sess.). Section amended generally.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "approval of the".

Prior law. 30 V.S.A. § 215.

ANNOTATIONS

Cited. In re Vermont Public Power Supply Authority, 140 Vt. 424, 440 A.2d 140 (1981); Washington Electric Coop. v. Massachusetts Municipal Wholesale Electric Co., 922 F.2d 92 (2d Cir. 1990).

§ 218. Jurisdiction over charges and rates.

  1. When, after opportunity for hearing, the rates, tolls, charges, or schedules are found unjust, unreasonable, insufficient, or unjustly discriminatory, or are found to be preferential or otherwise in violation of a provision of this chapter, the Commission may order and substitute therefor such rates, tolls, charges, or schedules, and make such changes in any regulations, measurements, practices, or acts of such company relating to its service, and may make such order as will compel the furnishing of such adequate service as shall at such hearing be found by it to be just and reasonable. This section shall not be construed to require the same rates, tolls, or charges from any company subject to supervision under this chapter for like service in different parts of the State, but the Commission in determining these questions shall investigate local conditions and its final findings and judgment shall take cognizance thereof. This section does not prohibit a telecommunications company from filing tariffs that condition the availability of an intrastate service upon subscription to an interstate or unregulated service from the same or an affiliated company; provided that an incumbent local exchange carrier shall provide a plan to allocate reasonably revenue between the regulated intrastate service and other services. The Commission shall retain the authority to review the tariff filing to determine whether it is just and reasonable.
  2. The Department of Public Service shall propose, and the Commission through the establishment of rates of return, rates, tolls, charges, or schedules shall encourage the implementation by electric and gas utilities of energy-efficiency and load management measures which will be cost-effective for the utilities and their customers on a life cycle cost basis. The Commission shall approve rate designs to encourage the efficient use of natural gas and electricity, including consideration of the creation of an inclining block rate structure for residential rate customers with an initial block of low-cost power available to all residences.
    1. To implement the requirements of this subsection, the Public Utility Commission shall continue its investigation of the following:
      1. the parameters for residential inclining block rate designs;
      2. alternative rate designs, such as critical peak pricing programs or more widespread use of time-of-day rates, that would encourage more efficient use of electricity;
      3. the possible inclusion of exemptions from otherwise applicable inclining block rates or rate designs to encourage efficiency for situations in which special health needs or another extraordinary situation presents such a significant demand for electricity that the Commission determines use of those rates would cause undue financial hardship for the customer.
    2. By December 31, 2008, the Commission shall issue a report and plan for implementation based upon the results of its investigation. The plan shall require each retail company to upgrade its rates as necessary to implement new rate designs appropriate to encourage efficient energy use, which shall include residential inclining block rates, if the Commission determines that those rates would be appropriate, by a specified date, or as part of its next rate-related appearance before the Commission, or according to a timetable otherwise specified by the Commission. In implementing these rate designs, the Commission shall consider the appropriateness of phasing in the rate design changes to allow large users of energy a reasonable opportunity to employ methods of conservation and energy efficiency in advance of the full effect of the changes.
    3. Smart grid.  Notwithstanding any provision of law to the contrary, an applicant may propose and the Commission may approve or require an applicant to adopt a rate design that includes dynamic pricing, such as real-time pricing rates. Under such circumstances, the Commission may alter or waive the notice and filing provisions that would apply otherwise under section 225 of this title, provided the applicant ensures that each customer receives sufficient advance notice of the time-of-day usage rates.
    1. The Public Utility Commission shall take any action necessary to enable the State of Vermont and telecommunications companies offering service in Vermont to participate in the federal Lifeline program administered by the Federal Communications Commission (FCC) or its agent and also the Vermont Lifeline program described in subdivision (2) of this subsection. (c) (1)  The Public Utility Commission shall take any action necessary to enable the State of Vermont and telecommunications companies offering service in Vermont to participate in the federal Lifeline program administered by the Federal Communications Commission (FCC) or its agent and also the Vermont Lifeline program described in subdivision (2) of this subsection.
    2. A household that qualifies for participation in the federal Lifeline program under criteria established by the FCC or other federal law or regulation shall also be eligible to receive a Vermont Lifeline benefit for wireline voice telephone service. The Vermont Lifeline benefit established under this subdivision shall be set at an amount not to exceed the benefit provided to a household as of October 31, 2017, or $4.25, whichever is greater, and shall be applied as a supplement to any wireline voice benefit received through participation in the federal Lifeline program. However, in no event shall the aggregate amount of benefits received through the federal and State programs described in this subdivision exceed a household's monthly basic service charge for wireline services, including any standard usage and mileage charges.
    3. A company designated as an eligible telecommunications carrier by the Commission pursuant to 47 U.S.C. § 214(e) shall verify an applicant's eligibility for receipt of federal or State Lifeline benefits as required by federal law or regulation or as directed by the Vermont Agency of Human Services, as applicable. The Agency shall provide the FCC or its agent with categorical eligibility data regarding an applicant's status in qualifying programs administered by the Agency.
    4. Notwithstanding any provisions of this subsection to the contrary, a subscriber who is enrolled in the Lifeline program and has obtained a final relief from abuse order in accordance with the provisions of 15 V.S.A. chapter 21 or 33 V.S.A. chapter 69 shall qualify for a Lifeline benefit credit for the amount of the incremental charges imposed by the local telecommunications company for treating the number of the subscriber as nonpublished and any charges required to change from a published to a nonpublished number. As used in this section, "nonpublished" means that the customer's telephone number is not listed in any published directories, is not listed on directory assistance records of the company, and is not made available on request by a member of the general public, notwithstanding any claim of emergency a requesting party may present. The Department for Children and Families shall develop an application form and certification process for obtaining this Lifeline benefit credit.
    5. [Repealed.]
  3. The Commission may permit recovery in a company's rates of all or a reasonable portion of the company's expenditures directly related to aesthetic improvements of utility substations, provided that such aesthetic improvements are incidental to other necessary expenditures at or in the vicinity of the substation.
  4. Notwithstanding any other provisions of this section, the Commission, on its own motion or upon petition of any person, may issue an order approving a rate schedule, tariff, agreement, contract, or settlement that provides reduced rates for low-income electric utility consumers better to assure affordability. As used in this subsection, "low-income electric utility consumer" means a customer who has a household income at or below 185 percent of the current federal poverty level. When considering whether to approve a rate schedule, tariff, agreement, contract, or settlement for low-income electric utility consumers, the Commission shall take into account the potential impact on, and cost-shifting to, other utility customers.
  5. Regulatory incentives for renewable generation.
    1. Notwithstanding any other provision of law, an electric distribution utility subject to rate regulation under this chapter shall be entitled to recover in rates its prudently incurred costs in applying for and seeking any certificate, permit, or other regulatory approval issued or to be issued by federal, State, or local government for the construction of new renewable energy to be sited in Vermont, regardless of whether the certificate, permit, or other regulatory approval ultimately is granted.
    2. The Commission is authorized to provide to an electric distribution utility subject to rate regulation under this chapter an incentive rate of return on equity or other reasonable incentive on any capital investment made by such utility in a renewable energy generation facility sited in Vermont.
    3. To encourage joint efforts on the part of electric distribution utilities to support renewable energy and to secure stable, long-term contracts beneficial to Vermonters, the Commission may establish standards for preapproving the recovery of costs incurred on a renewable energy plant that is the subject of that joint effort, if the construction of the plant requires a certificate of public good under section 248 of this title and all or part of the electricity generated by the plant will be under contract to the utilities involved in that joint effort.
    4. In this subsection, "plant," "renewable energy," and "new renewable energy" shall be as defined in section 8002 of this title.
  6. Each company subject to the Public Utility Commission's jurisdiction that distributes electrical energy shall have in place a rate schedule for street lighting that provides an option under which efficient streetlights, including light-emitting diode (LED) lights, are installed on company-owned fixtures. These rate schedules also shall include a separate option under which customers may own street lighting and install efficient streetlights, including LED lights, on customer-owned fixtures.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1981, No. 245 (Adj. Sess.), § 1; 1985, No. 13 , eff. April 11, 1985; 1985, No. 48 , § 2; 1985, No. 176 (Adj. Sess.), eff. May 13, 1986; 1989, No. 146 (Adj. Sess.); 1991, No. 239 (Adj. Sess.), § 1, eff. June 1, 1992; 1995, No. 99 (Adj. Sess.), § 7; 1997, No. 135 (Adj. Sess.), § 2; 1999, No. 147 (Adj. Sess.), § 4; 1999, No. 152 (Adj. Sess.), § 273; 1999, No. 157 (Adj. Sess.), §§ 5, 16; 2003, No. 98 (Adj. Sess.), § 2; 2005, No. 174 (Adj. Sess.), § 58; 2003, No. 208 (Adj. Sess.), § 11; 2007, No. 92 (Adj. Sess.), §§ 13, 13a; 2009, No. 45 , § 6, eff. May 27, 2009; 2009, No. 78 (Adj. Sess.), § 23, eff. April 15, 2010; 2011, No. 47 , § 20f, eff. May 25, 2011; 2011, No. 139 (Adj. Sess.), § 51, eff. May 14, 2012; 2013, No. 105 (Adj. Sess.), § 1; 2015, No. 56 , § 16; 2017, No. 41 , § 2, eff. Nov. 1, 2017; 2021, No. 42 , § 5, eff. May 20, 2021.

History

Source. V.S. 1947, § 9368. 1947, No. 202 , § 9499. P.L. § 6093. G.L. § 5062. 1908, No. 116 , § 10.

2005. The text of this section is based on a correlation of two amendments. During the 2005 session, this section was amended twice, by Act Nos. 174 and 208, resulting in two versions of this section. In order to reflect all of these changes, the text of Act Nos. 174 and 208 were merged to arrive at a single version of this section. The changes which each of the amendments made are described in amendment notes set out below.

Amendments--2021. Subsec. (e): In the second sentence, substituted "As used in" for "For the purposes of" at the beginning and "185" for "150" preceding "percent".

Amendments--2017. Subsec. (c): Amended generally.

Amendments--2015. Subsec. (f): Added new subdiv. (3) and redesignated former subdiv. (3) as subdiv. (4), and substituted "In this subsection, 'plant"' for "For the purpose of this subsection".

Amendments--2013 (Adj. Sess.). In subdiv. (c)(3), substituted "for Children and Families" for "of Taxes" following "to the Commissioner", "or" for "and" following "65 years of age"; deleted "Commissioner of Taxes shall transmit the application to the" preceding "Secretary of Human Services", "and" following "Secretary of Human Services", and "as is requested by the Secretary" following "income verification"; and made designation, cross-reference, and minor stylistic changes.

Amendments--2011 (Adj. Sess.). Subdiv. (c)(5): Repealed.

Amendments--2011. Subsec. (g): Added.

Amendments--2009 (Adj. Sess.) Subdiv. (b)(3): Added.

Amendments--2009. Subsec. (f): Added.

Amendments--2007 (Adj. Sess.). Subdivs. (b)(1), (2): Added.

Subsec. (e): Added.

Amendments--2005 (Adj. Sess.). Subdiv. (c)(2): Act No. 174, in the first sentence, substituted "for children and families" for "of social welfare"; deleted "of social welfare" following "department"; in the second sentence, substituted "for children and families" for "of prevention, assistance, transition, and health access".

Subsec. (b): Act No. 208 added the last sentence.

Amendments--2003 (Adj. Sess.). Subsec. (a): Added the third and fourth sentences.

Amendments--1999 (Adj. Sess.). Subsec. (a): Act No. 157 substituted "after opportunity for" for "upon" preceding "hearing" in the first sentence.

Subdiv. (c)(2): Act No. 147 substituted "department of prevention, assistance, transition, and health access" for "department of social welfare" in the introductory paragraph.

Subdivs. (c)(4) and (5): Added by Act No. 152.

Subsec. (d): Added by Act No. 157.

Amendments--1997 (Adj. Sess.). Rewrote subsec. (c).

Amendments--1995 (Adj. Sess.) Subdiv. (c)(1): Deleted "including the setting of telephone rates" following "action" in the first sentence.

Subdiv. (c)(3): Designated the existing text of the subdiv. as subdiv. (A), inserted "this" preceding "section" and deleted "5829(b)(1) of Title 32" thereafter in the first sentence and made minor changes in punctuation in that sentence, and substituted "June 1" for "June 15" in the second sentence of that subdiv. and added subdiv. (B).

Amendments--1991 (Adj. Sess.). Subsec. (c): Designated existing provisions of the introductory paragraph as subdiv. (1), rewrote the second sentence of that subdiv., and redesignated former subdivs. (1)-(3) as subdivs. (2)-(4), respectively.

Amendments--1989 (Adj. Sess.). Subdiv. (c)(2): Deleted "beginning January 1, 1987" preceding "persons" and substituted "175 percent of the official poverty line established by the federal department of health and human services for a family of two published as of October 1 of the taxable year" for "$13,000.00" preceding "shall also" in the first sentence and added the third sentence.

Amendments--1985 (Adj. Sess.). Subsec. (c): Rewrote the second sentence and added subdivs. (1)-(3).

Amendments--1985. Subsec. (b): Act No. 48 inserted "department of public service shall propose, and the" preceding "board".

Subsec. (c): Added by Act No. 13.

Amendments--1981 (Adj. Sess.). Designated existing provisions of section as subsec. (a) and added subsec. (b).

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "may order" in the first sentence and "in determining" in the second sentence.

Prior law. 30 V.S.A. § 216.

Effective date of subsec. (e). 2021, No. 42 , § 9 provides: "This act shall take effect on July 1, 2021, except that Sec. 5 (30 V.S.A. § 218) shall take effect upon passage [May 20, 2021], except for an existing program under 30 V.S.A. § 218(e), for which it shall take effect upon a Commission decision following an investigation regarding tariff changes for the distribution utility sponsor of the program."

Cross References

Cross references. Distribution of funds for telephone lifeline program, see § 7513 of this title.

ANNOTATIONS

Analysis

1. Scope of authority.

The standards of this section call for and expect the application of the expert judgment and expertise of the Public Service Board. In re Continental Telephone Co., 150 Vt. 76, 549 A.2d 639 (1988).

Under this section the basis of the Public Service Board's regulatory authority is extremely broad and unconfining with respect to means and methods available to that body to achieve the stated goal of adequate service at just and reasonable rates. In re Green Mountain Power Corp., 142 Vt. 373, 455 A.2d 823 (1983).

2. Just and reasonable rates .

When setting rates for a utility subject to its jurisdiction, Public Service Board is guided by statutory requirement that ratepayers pay just and reasonable rates only. In re Vermont Telephone Co., 169 Vt. 476, 739 A.2d 671 (1999).

The Public Service Board is required to set rates that are just and reasonable. In re Village of Hardwick Electric Dept., 143 Vt. 437, 466 A.2d 1180 (1983).

The duty of the Public Service Board is to set just and reasonable rates. In re Central Vermont Public Service Corp., 141 Vt. 284, 449 A.2d 904 (1982); In re Central Vermont Public Service Corp., 143 Vt. 120, 463 A.2d 525 (1983); In re New England Telephone & Telegraph Co., 145 Vt. 309, 488 A.2d 746 (1985).

In fulfilling its responsibility under this section, it is the duty of the Public Service Board to first find that a rate is unjust or unreasonable, and then to make such changes as it finds will make rates just and reasonable. In re Green Mountain Power Corp., 131 Vt. 284, 305 A.2d 571 (1973).

*3. Factors considered.

Public Service Board's approval of electric rate redesign was not clearly erroneous, where Board was aware of shortcomings of cost-of-service study and based its decision principally on other evidence, including expert testimony, indicating that occupancy and usage patterns of short-term rental units differed from typical residential dwellings, and that intermittent use billed at residential rate did not contribute proportionately to recovery of fixed costs in electrical plant and equipment. In re Central Vermont Public Service Corp., 167 Vt. 626, 711 A.2d 1158 (mem.) (1998).

In fixing rates that are just and reasonable, the Public Service Board must balance the interests of the consumer and of the owners of the utility; rates cannot be set so low as to be confiscatory for the utility nor so high as to be excessive for the consumer. In re Village of Hardwick Electric Dept., 143 Vt. 437, 466 A.2d 1180 (1983).

Fixing of just and reasonable rates involves balancing of investor and consumer interests. In re New England Telephone & Telegraph Co., 115 Vt. 494, 66 A.2d 135 (1949).

*4. Rate of return.

This section guarantees a reasonable, nonconfiscatory rate of return for public utilities. Arlington Selectmen v. Arlington Water Co., 136 Vt. 495, 394 A.2d 1130 (1978).

Public utility company may insist on just and reasonable rate of return and need not, in addition, raise issue of confiscation. City of Newport v. Citizens Utilities Co., 116 Vt. 103, 70 A.2d 590 (1950).

5. Remedies.

In discharging its duty to set rates that are just and reasonable, the Public Service Board has no authority under this section to make whole either the utility company or its customers for inequities that existed in the past. In re Central Vermont Public Service Corp., 144 Vt. 46, 473 A.2d 1155 (1984).

Discrimination in rates may be removed by raising the lower rate, lowering the higher rate, or by equalizing by a combination of both. In re New England Telephone & Telegraph Co., 116 Vt. 480, 80 A.2d 671 (1951).

The Public Service Commission has no power to cure discrimination in rates by an order which would result in the company operating under unreasonably low and confiscatory rates during the period when the assumed unjustly discriminatory rates were in effect. In re New England Telephone & Telegraph Co., 116 Vt. 480, 80 A.2d 671 (1951).

6. Orders.

This section gives the Board broad authority over the acts and practices of the utility relating to its services and allows it to make orders intended to induce the utility to furnish adequate service. In re Green Mountain Power Corp., 142 Vt. 373, 455 A.2d 823 (1983).

The very breadth of this section's grant of authority to the Public Service Board in the area of rates and service imposes a duty on the Supreme Court, in examining the Board's decisions, to require as part of the order that there be full disclosure of the criteria underlying the decision and the methodology employed to evaluate the facts and integrate them into the result. In re Green Mountain Power Corp., 142 Vt. 373, 455 A.2d 823 (1983).

Order of the Public Service Board allowing cost of load management equipment to be included in utility's rate base was not improper where the Board found that such equipment was vital to a utility in order to prevent a waste of energy resources, order included a timetable for installation of the equipment, with monthly updates on progress, and the order provided that, in the event the utility did not substantially comply with the order, the Board would not only entertain a motion by the Department of Public Service to remove the load equipment from the rate base, but would also require a refund of all rates paid by the customers based on the presence of the projected cost in the rate base. In re Green Mountain Power Corp., 142 Vt. 373, 455 A.2d 823 (1983).

7. Substitution of rates.

Public Service Board has the power and duty to prevent unjust discrimination in rates charged by a public utility and to substitute rates found to be just and reasonable. In re Milton Water Corp., 125 Vt. 487, 218 A.2d 710 (1966).

The Public Service Commission may, in substituting such rates as it shall find to be just and reasonable, prescribe different rates for two or more periods of time. In re New England Telephone & Telegraph Co., 116 Vt. 480, 80 A.2d 671 (1951).

8. Regulations.

To substitute its regulations for those which a utility has previously adopted and filed, the Public Service Board must first find the individual company's regulations to be unjust, unreasonable, insufficient, unjustly discriminatory, or preferential under this section. In re Vermont Welfare Rights Organization, 132 Vt. 622, 326 A.2d 828 (1974).

9. Notice and hearing.

When it is proposed to make changes in a rate schedule under authority of this section, all parties affected by the proposed changes are entitled to notice and opportunity to be heard. Carpenter v. Home Telephone Co., 122 Vt. 50, 163 A.2d 838 (1960).

10. Findings.

Where in determining the amount of recoupment to be awarded to a public utility the Public Service Board found that the utility's power costs had increased, but rather than exercising its discretion to decide what amount of the increased costs, if any, should be awarded limited the amount it awarded to the amount the utility originally requested as a rate increase and made no findings to indicate that the amount it awarded was just and reasonable, its failure to do so constituted an abuse of discretion. In re Central Vermont Public Service Corp., 143 Vt. 120, 463 A.2d 525 (1983).

Public Service Board's finding, unaccompanied by any factual supporting statements, that in many respects utilities' disconnect practices and procedures were arbitrary, unjust, discriminatory and oppressive, was a conclusory finding covering approximately 180 utilities without examination of the regulations of each and did not comply with rate-making requirements made applicable by reason of fact order promulgating disconnect regulations affected rates. In re Vermont Welfare Rights Organization, 132 Vt. 622, 326 A.2d 828 (1974).

11. Municipal utilities.

Once a town has established a municipal utility, it is subject to determinations of the Public Service Board regarding just and fair rates. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

12. Judicial review.

This section, in effect, guarantees to a public utility company that the rates found by the Public Service Commission to be just and reasonable shall so be in fact and in law under tests applied on judicial review, and, by necessary implication, gives the same guarantee as to the rate of return on which the rates are based. City of Newport v. Citizens Utilities Co., 116 Vt. 103, 70 A.2d 590 (1950).

13. Special contracts.

Public Service Board's order requiring incumbent local telephone exchange carrier to include shared and common fixed costs in the price floor for services provided in special contracts did not arbitrarily and improperly contradict its precedent by expanding upon the categories of costs that the carrier must include in the price floor. In re New England Telephone & Telegraph Co., 172 Vt. 405, 779 A.2d 693 (2001).

Public Service Board's order requiring incumbent local telephone exchange carrier to impute the shared and common fixed costs in its special contracts was consistent with the Board's goal in creating pricing rules to encourage competition because it prevents the carrier from using revenues from monopoly services to subsidize special contracts subject to competition. In re New England Telephone & Telegraph Co., 172 Vt. 405, 779 A.2d 693 (2001).

Based on its conclusion that services of a local telephone exchange carrier were not special, but simply volume discounts, the Public Service Board did not err in ruling that, as such, they should not be offered in special contracts but should be offered in tariffed volume-based discounts available to all customers to ensure that rates do not unjustly discriminate between similarly situated customers. In re New England Telephone & Telegraph Co., 172 Vt. 405, 779 A.2d 693 (2001).

14. Bottleneck facilities.

Public Service Board did not err in concluding that toll and business exchange services were bottlenecks although they were no longer exclusively provided by incumbent local telephone exchange carrier. In re New England Telephone & Telegraph Co., 172 Vt. 405, 779 A.2d 693 (2001).

Public Service Board did not err in its conclusion that incumbent local telephone exchange carrier did not meet its burden of showing that its special access for toll service is no longer a bottleneck, because its decision was consistent with its precedent and its requirements for showing that facilities are no longer bottlenecks. In re New England Telephone & Telegraph Co., 172 Vt. 405, 779 A.2d 693 (2001).

Public Service Board did not err in its decision that incumbent local telephone exchange carrier failed to meet its burden of showing that Centrex services are no longer a bottleneck input. In re New England Telephone & Telegraph Co., 172 Vt. 405, 779 A.2d 693 (2001).

Public Service Board did not err by imposing a statewide test to determine whether a facility is a bottleneck because; the decision was consistent with precedent; such policy decisions are properly made by the Board; and the Board stated in its decision that "any incumbent, remains, of course, free to request the Board to find that a particular facility is no longer a bottleneck (throughout its service territory or in more narrowly defined geographies)." In re New England Telephone & Telegraph Co., 172 Vt. 405, 779 A.2d 693 (2001).

Cited. Wendland v. Green Mountain Power Corp., 132 Vt. 320, 318 A.2d 668 (1974); In re Allied Power & Light Co., 132 Vt. 354, 321 A.2d 7 (1974); Moore v. Gilbert, 132 Vt. 365, 321 A.2d 13 (1974); New Hampshire-Vermont Physician Service v. Commissioner, 132 Vt. 592, 326 A.2d 163 (1974); New Hampshire-Vermont Hospitalization Service v. Commissioner, 133 Vt. 333, 339 A.2d 453 (1975); In re Allied Power & Light Co., 133 Vt. 586, 350 A.2d 360 (1975); In re Village of Morrisville Water & Light Dept., 134 Vt. 428, 365 A.2d 525 (1976); In re New England Telephone & Telegraph Co., 135 Vt. 527, 382 A.2d 826 (1977); Davison v. Morrisville Water & Light Dept., 137 Vt. 120, 400 A.2d 989 (1979); In re Telesystems, Corp., 143 Vt. 504, 469 A.2d 1169 (1983); Washington Electric Coop. v. Massachusetts Municipal Wholesale Electric Co., 922 F.2d 92 (2d Cir. 1990); In re Tariff Filing of Cent. Vt. Pub. Serv. Corp., 172 Vt. 14, 769 A.2d 668 (2001).

§ 218a. Permanent telecommunications relay service.

    1. The Department of Public Service shall develop the necessary standards for the establishment of a permanent, statewide telecommunications relay service and for an associated equipment program. (a) (1)  The Department of Public Service shall develop the necessary standards for the establishment of a permanent, statewide telecommunications relay service and for an associated equipment program.
    2. The standards developed by the Department shall be equal to or exceed those standards mandated by the Americans With Disabilities Act of 1990 (Public Law 101-336, 104 Stat. 327 (1990)) and expressly require that the designated provider of Vermont's telecommunications relay services comply, as expeditiously as possible, with any additional federal regulations that may be promulgated by the Federal Communications Commission in accordance with the provisions of this section.
  1. The Department of Public Service shall issue a request for proposal seeking competitive bids from qualified vendors to provide telecommunications relay services and competitive bids from qualified vendors to provide telecommunications equipment in accordance with the provisions of this section, including the standards developed under subsection (a) of this section. The term of any contract shall not exceed four years.
  2. The Department of Public Service may contract with the qualified bidder offering the most favorable proposal, giving due consideration to costs, to quality of service, and to the interests of the community of people who are deaf, hard of hearing, or have speech limitations.
    1. The Department of Public Service shall establish the Vermont Telecommunications Relay Service Advisory Council composed of the following members: one representative of the Department of Public Service designated by the Commissioner of Public Service; one representative of the Department of Disabilities, Aging, and Independent Living; two representatives of the deaf community; one member of the community of people who are hard of hearing or have a speech limitation; one representative of a company providing local exchange service within the State; and one representative of an organization currently providing telecommunications relay services. (d) (1)  The Department of Public Service shall establish the Vermont Telecommunications Relay Service Advisory Council composed of the following members: one representative of the Department of Public Service designated by the Commissioner of Public Service; one representative of the Department of Disabilities, Aging, and Independent Living; two representatives of the deaf community; one member of the community of people who are hard of hearing or have a speech limitation; one representative of a company providing local exchange service within the State; and one representative of an organization currently providing telecommunications relay services.
      1. The Council shall elect from among its members a chair and vice chair. Meetings shall be convened at the call of the Chair or a majority of the members of the Council. The Council shall meet not more than six times a year. (2) (A) The Council shall elect from among its members a chair and vice chair. Meetings shall be convened at the call of the Chair or a majority of the members of the Council. The Council shall meet not more than six times a year.

      The members of the Council who are not officers or employees of the State shall receive per diem compensation and expense reimbursement in amounts authorized by 32 V.S.A. § 1010(b) . The costs of the compensation and reimbursement and any other necessary administrative costs shall be included within the contract entered into under subsection (c) of this section.

    2. The Council shall advise the Department of Public Service and the contractor for telecommunications relay services on all matters concerning the implementation and administration of the State's telecommunications relay service, including the telecommunications equipment grant program established pursuant to subsection (e) of this section.
    1. The Department shall propose and the Commission shall establish by rule or order a telecommunications equipment grant program to assist persons who are deaf, deaf-blind, hard of hearing, have a speech limitation, and persons with physical disabilities that limit their ability to use standard telephone equipment to communicate by telephone. (e) (1)  The Department shall propose and the Commission shall establish by rule or order a telecommunications equipment grant program to assist persons who are deaf, deaf-blind, hard of hearing, have a speech limitation, and persons with physical disabilities that limit their ability to use standard telephone equipment to communicate by telephone.
    2. Pursuant to this program, a person who is deaf, deaf-blind, hard of hearing, has a speech limitation, or a person with a physical disability that limits his or her ability to use standard telephone equipment whose modified adjusted gross income as defined in 32 V.S.A. § 5829(b)(1) for the preceding taxable year was less than 200 percent of the official poverty line established by the U.S. Department of Health and Human Services for a family of six or the actual number in the family, whichever is greater, published as of October 1 of the preceding taxable year, may be eligible for a benefit toward the purchase, upgrade, or repair of equipment used to access the relay service or otherwise communicate by telephone. The total benefits allocable under this subsection shall not exceed $75,000.00 per year.

      In adopting rules, the Commission shall consider the following:

      prior benefits;

      degree of functional need;

      income;

      number of applicants;

      disposition of equipment upon change of residence; and

      appropriate limits on per person benefit levels based on the equipment needed and the income level of the applicant.

  3. The costs of the State's telecommunications relay service and any equipment benefit under subsection (e) of this section shall be included as part of the Vermont Universal Service Fund Program.

    Added 1991, No. 6 , § 2, eff. March 20, 1991; amended 1997, No. 135 (Adj. Sess.), § 4; 1999, No. 67 (Adj. Sess.), § 2; 1999, No. 157 (Adj. Sess.), § 6; 2001, No. 93 (Adj. Sess.), § 1; 2005, No. 171 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 59; 2013, No. 96 (Adj. Sess.), § 192; 2017, No. 118 (Adj. Sess.), § 1, eff. May 2, 2018; 2019, No. 128 (Adj. Sess.), § 14.

History

Reference in text. The Federal Communications Commission, referred to in subsec. (a), is codified as 47 U.S.C. § 151 et seq.

The federal Department of Health and Human Services, referred to in subsec. (e), is codified as 21 U.S.C. § 371 et seq.

The Americans With Disabilities Act of 1990 (Public Law 101-336, 104 Stat. 327 (1990)), referred to in subsec. (a), is codified as 29 U.S.C. § 706; 42 U.S.C. § 12101 et seq. and 47 U.S.C. §§ 152, 221, 225 and 611.

32 V.S.A. § 5829(b)(1), referred to in this section, was repealed by 1993, No. 210 (Adj. Sess.), § 40, eff. January 1, 1994.

Editor's note. The text of this section is based on a correlation of two amendments. During the 2005 session, this section was amended twice, by Act Nos. 171 and 174, resulting in two versions of this section. In order to reflect all of these changes, the text of Act Nos. 171 and 174 were merged to arrive at a single version of this section. The changes which each of the amendments made are described in amendment notes set out below.

Amendments--2019 (Adj. Sess.). Subsec. (a): Added the subdiv. (a)(1) and (a)(2) designations; and substituted "that" for "which" following "federal regulations" in subdiv. (a)(2).

Subsec. (d): Added the subdiv. (d)(1), (d)(2)(A), (d)(2)(B), and (d)(3) designations; and inserted ", including the telecommunications equipment grant program established pursuant to subsection (e) of this section" in subdiv. (d)(3).

Subsec. (e): Added the subdiv. (e)(1), (e)(2), and (e)(3) designations; substituted "subsection" for "section" in the last sentence of subdiv. (e)(2); and redesignated former subdivs. (e)(1) through (e)(6) as subdivs. (e)(3)(A) through (e)(3)(F).

Amendments--2017 (Adj. Sess.). Subsec. (d): In the first sentence, deleted "who shall act as chair and who shall be" preceding "designated by the Commissioner of Public Service" and "who shall act as vice chair" following "Independent Living"; added the second, third, and fourth sentences; and substituted "the compensation" for "such compensation" in the sixth sentence.

Amendments--2013 (Adj. Sess.). Amended subsecs. (c), (d), and (e) generally.

Amendments--2005 (Adj. Sess.). Act No. 171 amended the section generally.

Subsec. (d): Act No. 174 inserted "disabilities" preceding "aging" and substituted "independent living" for "disabilities".

Amendments--2001 (Adj. Sess.) Subsec. (e): In the second sentence, substituted "200 percent" for "175 percent", "six" for "two" preceding "or the actual number in the family" and deleted "of no more than $400.00" preceding "towards the purchase", added subdiv. (e)(6), and made minor stylistic changes.

Amendments--1999 (Adj. Sess.). Subsec. (c): Act No. 157 inserted "opportunity for" preceding "hearing".

Subsec. (e): Act No. 67 rewrote the introductory paragraph.

Amendments--1997 (Adj. Sess.). In subsec. (a), added "and for an associated equipment program" at the end of the first sentence; in subsec. (b), inserted "and competitive bids from qualified vendors to provide telecommunications equipment" in the first sentence and "or contracts" in the second sentence; added subsec. (e) and redesignated former subsec. (e) as subsec. (f); and in subsec. (f), inserted "and any equipment benefit under subsection (e) of this section".

Legislative findings and intent. 1991, No. 6 , § 1, eff. March 20, 1991, provided:

"The general assembly finds that:

"(1) The state's telecommunications network must be universally accessible by all Vermonters.

"(2) The deaf, hearing impaired and speech impaired citizens of Vermont are generally unable to utilize the traditional telecommunications network. Similarly, the hearing population of Vermont cannot use the traditional telecommunications network to communicate with deaf, hearing impaired and speech impaired Vermonters.

"(3) On July 26, 1990, President Bush signed the Americans With Disabilities Act (ADA) [29 U.S.C. § 706; 42 U.S.C. § 12101 et seq. and 47 U.S.C. §§ 152, 221, 225 and 611] which mandates that telecommunications relay services be made available for deaf, hearing impaired and speech impaired persons on both an interstate and intrastate basis no later than July 1, 1993.

"(4) Pursuant to Public Act No. 152 of the Acts of 1990 [29 U.S.C. § 706; 42 U.S.C. § 12101 et seq. and 47 U.S.C. §§ 152, 221, 225 and 611], a transitional telecommunications relay service is currently operating within Vermont providing limited telecommunications services to the state's deaf, hearing impaired and speech impaired citizens. Without further action by the general assembly this essential service will be discontinued on July 1, 1991.

"(5) It is the intent of this act to authorize the establishment of a permanent, statewide telecommunications relay service for the state's deaf, hearing impaired and speech impaired citizens by July 1, 1991 when the state's transitional service is discontinued."

Approval of initial contract. 1991, No. 6 , § 3, eff. March 20, 1991, provided:

"This section shall govern the process of approval of the first contract for telecommunications relay services under this act.

"(1) The department of public service shall issue, within 30 days of the effective date of this act [March 20, 1991], a request for proposal seeking competitive bids from qualified vendors to provide telecommunications relay services in accordance with the provisions of this act. Competitive bids shall be filed with the department within 14 days thereafter. Not later than 21 days after receipt of such bids, the department shall file its recommendations and any proposed contract with the public service board for review and approval.

"(2) The public service board, after notice and hearing, may approve the proposed contract, or a modified version thereof, if it is just and reasonable, giving due consideration to costs, quality of service and the interests of the deaf, hearing impaired and speech impaired community. Notwithstanding the provisions of section 10 of Title 30, and any other provision of law to the contrary, the board may provide such notice and conduct hearings in such a manner as to ensure that telecommunications relay services are provided in this state in accordance with the provisions of this act beginning no later than July 1, 1991."

§ 218b. Farm customers; energy efficiency; electric energy generation.

Each Vermont electric distribution utility shall develop and implement comprehensive energy efficiency programs for its livestock and domestic fowl farm customers. Such programs shall include all program measures that the Public Utility Commission determines will be cost-effective as part of the utility's least-cost integrated plan. Utilities shall file such proposed programs by August 1, 1991. The Commission shall require each utility to deliver approved program measures to farm customers as rapidly as possible thereafter, taking into consideration the need for these services, utility financial constraints, and cost-effective delivery mechanisms.

Added 1991, No. 98 ; amended 1997, No. 124 (Adj. Sess.), § 5, eff. April 21, 1998.

History

Amendments--1997 (Adj. Sess.). Added "electric energy generation" to the section catchline and substituted "livestock and domestic fowl" for "dairy" in the first sentence.

§ 218c. Least-cost integrated planning.

    1. A "least-cost integrated plan" for a regulated electric or gas utility is a plan for meeting the public's need for energy services, after safety concerns are addressed, at the lowest present value life cycle cost, including environmental and economic costs, through a strategy combining investments and expenditures on energy supply, transmission, and distribution capacity, transmission and distribution efficiency, and comprehensive energy efficiency programs. Economic costs shall be assessed with due regard to: (a) (1)  A "least-cost integrated plan" for a regulated electric or gas utility is a plan for meeting the public's need for energy services, after safety concerns are addressed, at the lowest present value life cycle cost, including environmental and economic costs, through a strategy combining investments and expenditures on energy supply, transmission, and distribution capacity, transmission and distribution efficiency, and comprehensive energy efficiency programs. Economic costs shall be assessed with due regard to:
      1. the greenhouse gas inventory developed under the provisions of 10 V.S.A. § 582 ;
      2. the State's progress in meeting its greenhouse gas reduction goals;
      3. the value of the financial risks associated with greenhouse gas emissions from various power sources; and
      4. consistency with section 8001 (renewable energy goals) of this title.
    2. "Comprehensive energy efficiency programs" shall mean a coordinated set of investments or program expenditures made by a regulated electric or gas utility or other entity as approved by the Commission pursuant to subsection 209(d) of this title to meet the public's need for energy services through efficiency, conservation, or load management in all customer classes and areas of opportunity which is designed to acquire the full amount of cost-effective savings from such investments or programs.
  1. Each regulated electric or gas company shall prepare and implement a least-cost integrated plan for the provision of energy services to its Vermont customers. At least every third year on a schedule directed by the Public Utility Commission, each such company shall submit a proposed plan to the Department of Public Service and the Public Utility Commission. The Commission, after notice and opportunity for hearing, may approve a company's least-cost integrated plan if it determines that the company's plan complies with the requirements of subdivision (a)(1) of this section and of sections 8004 and 8005 of this title and is consistent with the goals of the Comprehensive Energy Plan issued under section 202b of this title.
  2. [Repealed.]
    1. Least-cost transmission services shall be provided in accordance with this subsection. On or before July 1, 2006, any electric company that does not have a designated retail service territory and that owns or operates electric transmission facilities within the State of Vermont, in conjunction with any other electric companies that own or operate these facilities, jointly shall prepare and file with the Department of Public Service and the Public Utility Commission a Transmission System Plan that looks forward for a period of at least 10 years. A copy of the plan shall be filed with each of the following: the House Committees on Commerce and Economic Development and on Energy and Technology and the Senate Committees on Finance and on Natural Resources and Energy. The objective of the Plan shall be to identify the potential need for transmission system improvements as early as possible, in order to allow sufficient time to plan and implement more cost-effective nontransmission alternatives to meet reliability needs, wherever feasible. The Plan shall: (d) (1)  Least-cost transmission services shall be provided in accordance with this subsection. On or before July 1, 2006, any electric company that does not have a designated retail service territory and that owns or operates electric transmission facilities within the State of Vermont, in conjunction with any other electric companies that own or operate these facilities, jointly shall prepare and file with the Department of Public Service and the Public Utility Commission a Transmission System Plan that looks forward for a period of at least 10 years. A copy of the plan shall be filed with each of the following: the House Committees on Commerce and Economic Development and on Energy and Technology and the Senate Committees on Finance and on Natural Resources and Energy. The objective of the Plan shall be to identify the potential need for transmission system improvements as early as possible, in order to allow sufficient time to plan and implement more cost-effective nontransmission alternatives to meet reliability needs, wherever feasible. The Plan shall:
      1. identify existing and potential transmission system reliability deficiencies by location within Vermont;
      2. estimate the date, and identify the local or regional load levels and other likely system conditions at which these reliability deficiencies, in the absence of further action, would likely occur;
      3. describe the likely manner of resolving the identified deficiencies through transmission system improvements;
      4. estimate the likely costs of these improvements;
      5. identify potential obstacles to the realization of these improvements; and
      6. identify the demand or supply parameters that generation, demand response, energy efficiency, or other nontransmission strategies would need to address to resolve the reliability deficiencies identified.
    2. Prior to the adoption of any Transmission System Plan, a utility preparing a Plan shall host at least two public meetings at which it shall present a draft of the Plan and facilitate a public discussion to identify and evaluate nontransmission alternatives. The meetings shall be at separate locations within the State, in proximity to the transmission facilities involved or as otherwise required by the Commission, and each shall be noticed by at least two advertisements, each occurring between one and three weeks prior to the meetings, in newspapers having general circulation within the State and within the municipalities in which the meetings are to be held. Copies of the notices shall be provided to the Public Utility Commission, the Department of Public Service, any entity appointed by the Public Utility Commission pursuant to subdivision 209(d)(2) of this title, the Agency of Natural Resources, the Division for Historic Preservation, the Department of Health, the Agency of Transportation, the Attorney General, the chair of each regional planning commission, each retail electricity provider within the State, and any public interest group that requests, or has made a standing request for, a copy of the notice. A verbatim transcript of the meetings shall be prepared by the utility preparing the Plan, shall be filed with the Public Utility Commission and the Department of Public Service, and shall be provided at cost to any person requesting it. The Plan shall contain a discussion of the principal contentions made at the meetings by members of the public, by any State agency, and by any utility.
    3. Prior to the issuance of the Transmission Plan or any revision of the Plan, the utility preparing the Plan shall offer to meet with each retail electricity provider within the State, with any entity appointed by the Public Utility Commission pursuant to subdivision 209(d)(2) of this title, and with the Department of Public Service, for the purpose of exchanging information that may be relevant to the development of the Plan.
      1. A Transmission System Plan shall be revised: (4) (A) A Transmission System Plan shall be revised:
        1. within nine months of a request to do so made by either the Public Utility Commission or the Department of Public Service; and
        2. in any case, at intervals of not more than three years.
      2. If more than 18 months shall have elapsed between the adoption of any version of the Plan and the next revision of the Plan, or since the last public hearing to address a proposed revision of the Plan and facilitate a public discussion that identifies and evaluates nontransmission alternatives, the utility preparing the Plan, prior to issuing the next revision, shall host public meetings as provided in subdivision (2) of this subsection, and the revision shall contain a discussion of the principal contentions made at the meetings by members of the public, by any State agency, and by any retail electricity provider.
    4. On the basis of information contained in a Transmission System Plan, obtained through meetings held pursuant to subdivision (2) of this subsection, or obtained otherwise, the Public Utility Commission and the Department of Public Service shall use their powers under this title to encourage and facilitate the resolution of reliability deficiencies through nontransmission alternatives, where those alternatives would better serve the public good. The Public Utility Commission, upon such notice and hearings as are otherwise required under this title, may enter such orders as it deems necessary to encourage, facilitate, or require the resolution of reliability deficiencies in a manner that it determines will best promote the public good.
    5. The retail electricity providers in affected areas shall incorporate the most recently filed Transmission Plan in their individual least-cost integrated planning processes, and shall cooperate as necessary to develop and implement joint least-cost solutions to address the reliability deficiencies identified in the Transmission Plan.
    6. Before the Department of Public Service takes a position before the Commission concerning the construction of new transmission or a transmission upgrade with significant land use ramifications, the Department shall hold one or more public meetings with the legislative bodies or their designees of each town, village, or city that the transmission lines cross, and shall engage in a discussion with the members of those bodies or their designees and the interested public as to the Department's role as public advocate.

      Added 1991, No. 99 , § 2; amended 1999, No. 60 , § 2, eff. June 1, 1999; 1999, No. 157 (Adj. Sess.), § 7; 2005, No. 61 , § 9; 2007, No. 209 (Adj. Sess.), § 13; 2011, No. 62 , § 25; 2011, No. 170 (Adj. Sess.), § 11; 2015, No. 40 , § 30; 2015, No. 56 , § 17; 2017, No. 113 (Adj. Sess.), § 173b; 2017, No. 139 (Adj. Sess.), § 9.

History

2008. In subdiv. (a)(1)(A), substituted "10 V.S.A. § 582" for "10 V.S.A. § 580" due to the redesignation of that section.

Revision note - This section, which was originally enacted as section 218a of this title, was redesignated in order to avoid conflict with existing 30 V.S.A. § 218a and in view of the enactment of 30 V.S.A. § 218b by 1991, No. 98 .

Amendments--2017 (Adj. Sess.) Subsec. (b): Act 139 added "and is consistent with the goals of the Comprehensive Energy Plan issued under section 202b of this title" in the third sentence.

Subdiv. (d)(1): Act 113 substituted "On or before" for "Not later than" preceding "July 1, 2006" in the second sentence, and substituted "Energy and Technology" for "Natural Resources and Energy" in the third sentence.

Amendments--2015. Subsec. (b): Act No. 56 substituted "of sections 8004 and 8005" for "is reasonably consistent with achieving the goals and targets of subsection 8005(d)(2017 SPEE D goal; total renewables targets)" in the last sentence.

Subdiv. (d)(2): Act No. 40 deleted "the Byways Advisory Council" following "Department of Health" in the third sentence.

Amendments--2011 (Adj. Sess.). Substituted "assessed" for "determined" in the last sentence in the introductory language of subdiv. (a)(1); added subdiv. (a)(1)(D); and in subsec. (b), substituted "At least every third year on a schedule directed by the public service board, each such company shall submit a proposed plan to the department" for "Proposed plans shall be submitted to the department" in the second sentence, and added "and is reasonably consistent with achieving the goals and targets of subsection 8005(d) (2017 SPEED goal; total renewables targets) of this title" at the end of the last sentence.

Amendments--2011. Subdiv. (d)(2): Substituted "byways advisory" for "scenery preservation" preceding "council" in the third sentence.

Amendments--2007 (Adj. Sess.). Subdiv. (a)(1): Added the last sentence, including subdivs. (A) through (C).

Amendments--2005 Subsec. (d): Added.

Amendments--1999 (Adj. Sess.) Subsec. (b): Inserted "opportunity for" preceding "hearing" in the third sentence.

Amendments--1999. Subdiv. (a)(2): Inserted "or other entity as approved by the board pursuant to subsection 209(d) of this title" after "gas utility".

Subsec. (c): Repealed.

Applicability--1999 amendment. 1999, No. 60 , § 3, provided that this act [which amended this section and § 209 of this title] shall apply to the pending proceeding in docket 5980 before the Public Service Board and to any pending challenges to the Board's jurisdiction to authorize and fund an entity, independent of the electric utilities, to deliver energy efficiency programs.

§ 218d. Alternative regulation of electric and natural gas companies.

  1. Notwithstanding section 218 and sections 225-227 of this title, upon petition of an electric or natural gas company, upon request of the Department of Public Service, or on its own initiative, the Public Utility Commission may, after opportunity for hearing, approve alternative forms of regulation for an electric or natural gas company; provided, however, in the case of a municipal plant or department formed under local charter or chapter 79 of this title or an electric cooperative formed under chapter 81 of this title, any alternative forms of regulation approved by the Commission shall also be approved by a majority of the voters of a municipality or cooperative voting upon the question at a duly warned annual or special meeting held for that purpose. Before doing so, the Commission shall find that the proposed form of alternative regulation will:
    1. establish a system of regulation in which such companies have clear incentives to provide least cost energy service to their customers;
    2. provide just and reasonable rates for service to all classes of customers;
    3. deliver safe and reliable service;
    4. offer incentives for innovations and improved performance that advance state energy policy such as increasing reliance on Vermont-based renewable energy and decreasing the extent to which the financial success of distribution utilities between rate cases is linked to increased sales to end use customers and may be threatened by decreases in those sales;
    5. promote improved quality of service, reliability, and service choices;
    6. encourage innovation in the provision of service;
    7. establish a reasonably balanced system of risks and rewards that encourages the company to operate as efficiently as possible using sound management practices; and
    8. provide a reasonable opportunity, under sound and economical management, to earn a fair rate of return, provided such opportunity must be consistent with flexible design of alternative regulation and with the inclusion of effective financial incentives in such alternatives.
  2. If savings result from alternative regulation, the savings shall be shared with ratepayers as determined by the Commission.
  3. In the case of a municipal plant or department formed under local charter or chapter 79 of this title or an electric cooperative formed under chapter 81 of this title, alternative regulation may include authority for local elected officials to set and revise rates.
  4. Alternative regulation may include such changes or additions to, waivers of, or alternatives to, traditional rate-making procedures, standards, and mechanisms, including substantive changes to rate base-rate of return rate setting, as the Commission finds will promote the public good and will support the required findings in subsection (a) of this section. In addition, the Commission shall not allow a company to set aside funds collected from ratepayers for the purpose of supporting a future expansion or upgrade of its transmission or distribution network except after notice and opportunity for hearing and only if all of the following apply:
    1. There is a cost estimate for the expansion or upgrade that the company demonstrates is consistent with the principles of least-cost integrated planning as defined in section 218c of this title.
    2. The amount of such funds does not exceed 20 percent of the estimated cost of the expansion or upgrade.
    3. Interest earned on the funds is credited to the ratepayers.
    4. The funds are not disbursed to the company until after expansion or upgrade is in service.
    5. The funds are not used to defray any portion of the costs of expansion or upgrade in excess of the cost estimate described in subdivision (1) of this subsection.
  5. The Public Utility Commission may establish, by rule or order, requirements governing the filing of a petition to approve an alternative regulation plan.
  6. The Commission shall act on the petition within 12 months of the filing of a petition that complies with the Commission's rules.
  7. An alternative regulation plan shall take effect not sooner than 30 days following its approval by the Commission.
  8. The Commission may establish, by rule or order, and may amend from time to time standards and procedures by which the effectiveness of the alternative form of regulation can be determined.
  9. The Commission, on its own motion or the motion of the Department of Public Service or a company operating under an alternative regulation plan pursuant to this section, may investigate any alternative regulation plan that is in effect. Following notice and an opportunity for hearing, the Commission may terminate or modify the alternative regulation plan upon a finding of good cause. Where the Commission revokes prior approval, the Commission shall determine whether the company's current rates are just and reasonable, and, if not, shall establish new rates that are just and reasonable.
  10. Notwithstanding any provision of this section, a company may file for rates determined under and in accordance with sections 218, 225, 226, and 227 of this title to be effective at the time of the termination of any approved alternative regulation plan.
  11. In the case of a municipal utility, the Commission shall approve an alternative regulation plan only if the Commission finds that the plan will:
    1. Permit the municipal plant or department to fulfill all of its obligations, including its obligations to the holders of bonds issued under local charter or State law.
    2. Not violate existing covenants in outstanding municipal bonds or in contracts securing bonds issued by the Vermont Public Power Supply Authority.
    3. Not impair the municipality's access to capital, including that in the municipal bond market. The Commission will consider the opinion of the utility's bond counsel in making this decision.
    4. Not impair the municipal utility's ability to participate in future bond issues by the Authority as contemplated by chapter 84 of this title. The Commission will consider the opinion of the Vermont Public Power Supply Authority in making this decision.
  12. In the case of an electric cooperative, the Commission shall approve an alternative regulation plan only if the Commission finds the plan will not violate covenants in existing mortgages or impair the cooperative's access to capital.
  13. In the case of an investor-owned company, the Commission shall approve an alternative regulation plan, only if the Commission finds the plan will:
    1. not have an adverse impact on the electric company's eligibility for rate-regulated accounting in accordance with generally accepted accounting standards if applicable; and
    2. reasonably preserve the availability of equity and debt capital resources to the company on favorable terms and conditions.
    1. Notwithstanding subsection (a) of this section and sections 218, 225, 226, 227, and 229 of this title, a municipal company formed under local charter or under chapter 79 of this title and an electric cooperative formed under chapter 81 of this title shall be authorized to change its rates for service to its customers if the rate change is: (n) (1)  Notwithstanding subsection (a) of this section and sections 218, 225, 226, 227, and 229 of this title, a municipal company formed under local charter or under chapter 79 of this title and an electric cooperative formed under chapter 81 of this title shall be authorized to change its rates for service to its customers if the rate change is:
      1. applied to all customers equally;
      2. not more than two percent during any twelve-month period;
      3. cumulatively not more than 10 percent from the rates last approved by the Commission; and
      4. not going to take effect more than 10 years from the last approval for a rate change from the Commission.
    2. The municipal company or electric cooperative shall provide written notice of a rate change pursuant to this subsection to its customers, the Department of Public Service, and the Commission at least 45 days prior to implementing the rate change. Included with the submission shall be a rate analysis describing the rationale for the rate change. Unless an objection to the rate change is filed by the Department of Public Service with the Commission within 45 days of this notice or the Commission orders an investigation on its own motion, the municipal company or electric cooperative may implement the rate change.
    3. If the Department does not object to the change within 30 days, five persons adversely affected by the change may apply at their own expense to the Commission by petition alleging why the change is unreasonable and unjust and asking that the Commission investigate the matter and make such orders as justice and law require.
    4. A municipal company or electric cooperative shall be eligible to change its rates pursuant to this subsection only if it has received approval for a rate change from its governing body at a duly warned meeting held for such purpose prior to filing its written notice with the Department and the Commission.
    5. The Commission shall establish, by rule or order, standards and procedures for implementing this subsection.
    1. Notwithstanding subsections (a) and (n) of this section and sections 218, 225, 226, 227, and 229 of this title, a municipal company formed under local charter or under chapter 79 of this title and an electric cooperative formed under chapter 81 of this title shall be authorized to offer innovative rates or services to their customers as pilot programs without obtaining prior approval from the Commission if the rate or service: (o) (1)  Notwithstanding subsections (a) and (n) of this section and sections 218, 225, 226, 227, and 229 of this title, a municipal company formed under local charter or under chapter 79 of this title and an electric cooperative formed under chapter 81 of this title shall be authorized to offer innovative rates or services to their customers as pilot programs without obtaining prior approval from the Commission if the rate or service:
      1. is designed to satisfy the requirements of subdivision 8005(a)(3) of this title or to advance the goals of the State Comprehensive Energy Plan;
      2. has a duration of 18 months or less; and
      3. shall not result in:
        1. additions of more than two percent of the municipal company's or electric cooperative's net asset; or
        2. an increase in the municipal company's or electric cooperative's overall cost-of-service by more than two percent.
    2. The municipal company or electric cooperative shall provide written notice of an innovative rate or service to its customers, the Department of Public Service, and the Commission at least 45 days prior to offering the innovative rate or service to its customers. Included with the submission shall be the terms and conditions of service. Unless an objection to the innovative rate or service is filed with the Commission within 45 days of this notice or the Commission orders an investigation on its own motion, the municipal company or electric cooperative may commence offering the innovative rate or service to its customers.
    3. The municipal company or electric cooperative shall provide written notice to the Department of Public Service and the Commission at least 45 days prior to the end of an innovative rate or service duration period with any proposed modifications to the terms and conditions. Unless an objection to the innovative rate or service is filed with the Commission within 45 days of this notice or the Commission orders an investigation on its own motion, the municipal company or electric cooperative may continue offering the innovative rate or service to its customers. The Commission may allow for the innovative rate or service to remain in effect pending the outcome of an investigation into the notice filing.
    4. The Commission may establish, by rule or order, standards and procedures for implementing and interpreting this section.

      Added 2003, No. 69 , § 2, eff. June 17, 2003; amended 2005, No. 61 , § 11; 2015, No. 174 (Adj. Sess.), § 15a; 2021, No. 13 , § 1.

History

Amendments--2021. Subsecs. (n), (o): Added.

Amendments--2015 (Adj. Sess.). Subsec. (d): Rewritten.

Amendments--2005 Subsec. (a): Inserted "upon request of the department of public service, or on its own initiative" in the first sentence, and in subdiv. (4) substituted "increasing" for "increased" preceding "reliance" and added "and decreasing the extent to which the financial success of distribution utilities between rate cases is linked to increased sales to end use customers and may be threatened by decreases in those sales".

§ 218e. Implementing State energy policy; manufacturing.

To give effect to the policies of section 202a of this title to provide reliable and affordable energy and assure the State's economic vitality, it is critical to retain and recruit manufacturing and other businesses and to consider the impact on manufacturing and other businesses when issuing orders, adopting rules, and making other decisions affecting the cost and reliability of electricity and other fuels. Implementation of the State's energy policy should:

  1. encourage recruitment and retention of employers providing high-quality jobs and related economic investment and support the State's economic welfare; and
  2. appropriately balance the objectives of this section with the other policy goals and criteria established in this title.

    Added 2013, No. 199 (Adj. Sess.), § 12.

§ 219. Service.

Each company subject to supervision under this chapter shall be required to furnish reasonably adequate service, accommodation, and facilities to the public. The charge made by any such company for any product or service shall be reasonable and without discrimination, except as provided in this chapter.

History

Source. V.S. 1947, § 9369. P.L. § 6094. G.L. § 5063. 1908, No. 116 , § 11.

Prior law. 30 V.S.A. § 217.

ANNOTATIONS

1. Inadequate service.

Where water supply was inadequate but not totally valueless, Public Service Board did not abuse its discretion by refusing to suspend payment of water rents. Arlington Selectmen v. Arlington Water Co., 136 Vt. 495, 394 A.2d 1130 (1978).

Cited. Wendland v. Green Mountain Power Corp., 132 Vt. 320, 318 A.2d 668 (1974); In re Allied Power & Light Co., 132 Vt. 354, 321 A.2d 7 (1974); Moore v. Gilbert, 132 Vt. 365, 321 A.2d 13 (1974); In re Allied Power & Light Co., 133 Vt. 586, 350 A.2d 360 (1975); In re Village of Morrisville Water & Light Dept., 134 Vt. 428, 365 A.2d 525 (1976); In re New England Telephone & Telegraph Co., 135 Vt. 527, 382 A.2d 826 (1977).

§ 219a. Repealed. 2013, No. 99 (Adj. Sess.), § 10(c), effective January 1, 2017.

History

Former § 219a. Former § 219a, relating to self-generation and net metering, was derived from 1997, No. 136 (Adj. Sess.), § 2 and amended by 1999, No. 157 (Adj. Sess.), § 17; 2001, No. 145 (Adj. Sess.), § 5; 2005, No. 208 (Adj. Sess.), § 12; 2007, No. 92 (Adj. Sess.), § 14; 2009, No. 159 (Adj. Sess.), § 1; 2011, No. 47 , § 1; 2011, No. 125 (Adj. Sess.), § 1; 2011, No. 125 (Adj. Sess.), §§ 1, 3, 4, 5; and 2013, No. 99 (Adj. Sess.), § 1. The subject matter is now covered by section 8010 of this title.

Applicability of 2013 (Adj. Sess.) amendment. 2013, No. 99 (Adj. Sess.), § 10(c) provides: "Sec. 2 (repeal of 30 V.S.A. §§ 219a, 219b) shall take effect on January 1, 2017. However, nothing in this section or in the repeal of 30 V.S.A. § 219a or 219b shall affect the validity or terms of a certificate of public good issued for a net metering system prior to that date. A solar net metering system receiving a mandatory incentive under 30 V.S.A. § 219a(h)(1)(K) shall continue to receive that incentive through the end of the 10-year period set forth in that subdivision."

Governance of applications for net metering systems. 2013, No. 99 (Adj. Sess.), § 10(f) provides: "30 V.S.A. § 219a and rules adopted under that section shall govern applications for net metering systems filed prior to January 1, 2017."

§ 219b. Repealed. 2013, No. 99 (Adj. Sess.), § 10(c), effective January 1, 2017.

History

Former § 219b. Former § 219b, relating to net metering program expansion, was derived from 2005, No. 208 (Adj. Sess.), § 13. The subject matter is now covered by section 8010 of this title.

§ 220. Repealed. 1975, No. 56, § 2.

History

Former § 220, relating to water rates and arrears, was derived from 1953, No. 36 , § 2; V.S. 1947, § 9370; P.L. § 6095; 1923, No. 87 , § 1.

§ 221. Forms; orders.

The Commission may prescribe the forms of all books, accounts, papers, and records of any public utility over which it has jurisdiction and such public utility shall keep and render its books, accounts, papers, and records accurately and faithfully in the manner and form prescribed by the Commission and comply with all orders and directions of the Commission relating to such books, accounts, papers, and records.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1985, No. 224 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 9371. P.L. § 6096. 1929, No. 85 , § 1.

Amendments--1985 (Adj. Sess.). Deleted "other than railroads" following "any public utility".

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Prior law. 30 V.S.A. § 219.

§ 222. Exceptions.

Public utilities under the jurisdiction of a federal commission shall not be required to keep any system of accounts and records that would conflict with any requirement of such federal commission.

History

Source. V.S. 1947, § 9372. 1935, No. 161 . P.L. § 6097. 1929, No. 85 , § 2.

Prior law. 30 V.S.A. § 220.

§ 223. Appeal from municipal authorities.

A person or corporation aggrieved by an order or decision of the municipal authorities made under the provisions of any statute, relative to the granting of a license or permit for location, may appeal therefrom to the Commission at any time within 30 days from the date of such order or decision. After notice and public hearing of all parties interested, as provided in section 208 of this title, the decision of the Commission thereon shall be final, subject to a right to transfer such cause to the Supreme Court as provided by section 12 of this title.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. V.S. 1947, § 9373. 1947, No. 202 , § 9504. P.L. § 6098. G.L. § 5064. 1908, No. 116 , § 4.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "at any time" in the first sentence and "thereon" in the second sentence.

Prior law. 30 V.S.A. § 221.

§ 224. Special authority to municipality, to be under supervision of Commission.

Any statute conferring authority upon municipalities to supervise or to make any order or regulation respecting any location, business, or company, subject to the provisions of this chapter, shall be construed as giving such municipalities jurisdiction without authority to alter or modify any order, judgment, decree, or regulation made by the Public Utility Commission.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. V.S. 1947, § 9374. P.L. § 6099. G.L. § 5065. 1908, No. 116 , § 17.

2016. Deleted "Public Service" before "Board" in catchline.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "public service" in the catchline and text.

Prior law. 30 V.S.A. § 222.

ANNOTATIONS

Analysis

1. Construction.

Local municipalities should play a secondary role where a clash of authority appears to exist between State control and local control of a public utility furnishing a Statewide service. City of South Burlington v. Vermont Electric Power Co., 133 Vt. 438, 344 A.2d 19 (1975).

Public Service Board orders preempt municipal orders in the area outlined by this section. City of South Burlington v. Vermont Electric Power Co., 133 Vt. 438, 344 A.2d 19 (1975).

2. Zoning permits.

Power company with certificate of public good issued by Public Service Board for construction of electrical transmission line and substation did not have to obtain a municipal zoning permit. City of South Burlington v. Vermont Electric Power Co., 133 Vt. 438, 344 A.2d 19 (1975).

3. Court actions.

Where Public Service Board had subject matter jurisdiction over power company's action for a declaratory judgment that city could not exercise zoning authority over proposed electrical transmission line and substation, and city then sought Superior Court declaratory judgment that company must obtain a zoning permit before construction could begin, Court abused its discretion as a matter of law in not honoring company's request for a continuance pending Board action. City of South Burlington v. Vermont Electric Power Co., 133 Vt. 438, 344 A.2d 19 (1975).

§ 225. Rate schedules.

  1. Within a time to be fixed by the Commission, each company subject to the provisions of this chapter shall file with the Department, with separate filings to the Directors for Regulated Utility Planning and Public Advocacy, schedules which shall be open to public inspection, showing all rates, including joint rates, for any service performed or any product furnished by it within the State, and as a part thereof shall file the rules and regulations that in any manner affect the tolls or rates charged or to be charged for any such service or product. Those schedules, or summaries of the schedules approved by the Department, shall be published by the company in two newspapers with general circulation in the State within 15 days after such filing. A change shall not thereafter be made in any such schedules, including schedules of joint rates or in any such rules and regulations, except upon 45 days' notice to the Commission and to the Department of Public Service, and such notice to parties affected by such schedules as the Commission shall direct. The Commission shall consider the Department's recommendation and take action pursuant to sections 226 and 227 of this title before the date on which the changed rate is to become effective. All such changes shall be plainly indicated upon existing schedules, or by filing new schedules in lieu thereof 45 days prior to the time the same are to take effect. Subject only to temporary increases, rates may not thereafter be raised without strictly complying with the notice and filing requirements set forth in this section. In no event may a company 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 opportunity for hearing, the company demonstrates that such a change in filing or proof is necessary for the purpose of providing adequate and efficient service. However, upon application of any company subject to the provisions of this chapter, and with the consent of the Department of Public Service, the Commission may for good cause shown prescribe a shorter time within which such change may be made; but a change which in effect decreases such tolls or rates may be made upon five days' notice to the Commission and the Department of Public Service and such notice to parties affected as the Commission shall direct.
  2. Immediately upon receipt of notice of a change in a rate schedule filed by a company, the Department shall investigate the justness and reasonableness of that change. Within 30 days of receipt of this notice, the Department shall either report to the Commission the results of its investigations together with its recommendation for acceptance of the change, or it shall notify the Commission and other parties that it opposes the change. If the Department of Public Service reports its acceptance of the change in rates, the Commission may accept the change, or it may on its own motion conduct an investigation into the justness and reasonableness of the change, or it may order the Department to appear before it to justify its recommendation to accept the change. In no event shall a change go into effect without the approval of the Commission, except when a rate change is suspended and temporary or permanent rates are allowed to go into effect pursuant to subsection 226(a) or 227(a) of this title. The Commission shall consider the Department's recommendation and take action pursuant to sections 226 and 227 of this title within 45 days of receipt of notice of a change in a rate schedule. In the event that the Department opposes the change, the Commission shall hear evidence on the matter and make such orders as justice and law require. In any hearing on a change in rates, whether or not opposed by the Department, the Commission may request the appearance of the Attorney General or appoint a member of the Vermont bar to represent the public or the State.
  3. [Repealed.]

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 263 , § 2, eff. July 31, 1961; 1979, No. 204 (Adj. Sess.), § 28, eff. Feb. 1, 1981; 1981, No. 226 (Adj. Sess.), §§ 1, 2, eff. May 6, 1982; 1985, No. 224 (Adj. Sess.), § 8; 1999, No. 157 (Adj. Sess.), § 8; 2019, No. 31 , § 18.

History

Source. V.S. 1947, § 9375. P.L. § 6100. 1931, No. 100 . 1929, No. 83 . 1925, No. 87 . 1923, No. 92 , § 1. 1919, No. 129 , § 1. G.L. § 5066. 1908, No. 116 , § 18.

Amendments--2019. Subsec. (b): Substituted "Within 30 days of receipt of this notice" for "At least 15 days prior to the date on which the change is to become effective" at the beginning of the second sentence, and substituted "within 45 days of receipt of notice of a change in a rate schedule" for "before the date on which the changed rate is to become effective" at the end of the fifth sentence.

Amendments--1999 (Adj. Sess.) Subsec. (a): Substituted "45 days" for "forty-five days" in the third and fifth sentences and inserted "opportunity for" preceding "hearing" in the seventh sentence.

Amendments--1985 (Adj. Sess.). Subsec. (c): Repealed.

Amendments--1981 (Adj. Sess.). Subsec. (a): Inserted the sixth and seventh sentences.

Subsec. (b): Added "except when a rate change is suspended and temporary or permanent rates are allowed to go into effect pursuant to § 226(a) or § 227(a)" following "Board" at the end of the fourth sentence.

Amendments--1979 (Adj. Sess.). Section amended generally.

Amendments--1961. Deleted "which in effect increases such tolls or rates" preceding "shall not" in the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Prior law. 30 V.S.A. § 223.

Cross References

Cross references. Universal service charge imposed on retail telecommunications services, see § 7521 of this title.

ANNOTATIONS

Analysis

1. Constitutionality.

The fact that subsection (a) of this section allows the Public Service Board to grant utility rate increase without specific prior notice to ratepayers does not deprive ratepayers of due process of law contrary to Fourteenth Amendment guarantees, since due process protections apply strictly only to agency determinations which are adjudicative in nature, and ratemaking proceedings that affect customers of a utility generally are legislative in nature. Ratepayers Coalition of Rochester v. Rochester Electric Light & Power Co., 153 Vt. 327, 571 A.2d 606 (1989).

2. Construction with other laws.

Where appellants did not contend that utility's filings and notices failed to comport with this section, and appellants plainly had notice of proposed rate redesign and opportunity to present evidence, cross-examine witnesses, and file briefs, this was all the process that was due. In re Central Vermont Public Service Corp., 167 Vt. 626, 711 A.2d 1158 (mem.) (1998).

Water company's requested rate increase did not go into effect by default because Public Service Board failed to deny increase 45 days after company had filed its application; for purpose of computing seven-month period within which Board could issue its ruling under section 227(a) of this title, "date that the change otherwise would have gone into effect" was first billing date more than 45 days after filing. In re Quechee Water Co., 159 Vt. 122, 615 A.2d 1026 (1992).

3. Effect of filing.

The rates a utility can lawfully charge a consumer are governed by its schedule of tariffs filed in accordance with the provisions of this section, and when the schedule becomes effective, those rates are established as the lawful rate which the utility can charge and which the consumer is required to pay to obtain service. North v. City of Burlington Electric Light Dept., 125 Vt. 240, 214 A.2d 82 (1965).

Promulgation and publication of rates for water service and for electricity constitutes an offer to furnish such services to all eligible persons who may apply therefor; continuing contract is effected when such offer is accepted by any such eligible persons. Hall v. Village of Swanton, 113 Vt. 424, 35 A.2d 381 (1944).

Rate schedules filed pursuant to this section become lawful rates which remain in force until changed in the manner prescribed by this section. Jones v. Montpelier & Barre Light & Power Co., 96 Vt. 397, 120 A. 103 (1923); Carpenter v. Home Telephone Co., 122 Vt. 50, 163 A.2d 838 (1960).

4. Adjustment clauses.

Insertion of purchase power and fuel adjustment clause into rate schedule of power company was a new rate filing subject to the requirements of this section. In re Allied Power & Light Co., 132 Vt. 354, 321 A.2d 7 (1974).

Purchase power and fuel adjustment clause which was subject to indefinite and irregular variation without the advance notice called for in this section could not be treated as a fixed part of a rate schedule. In re Allied Power & Light Co., 132 Vt. 354, 321 A.2d 7 (1974).

5. Rules and regulations.

This section has no relation to regulations affecting precedent conditions, substantial compliance with which may be made essential to an applicant's right of service, but pertains solely to subject matter of rates. Hawkins v. Vermont Hydro-Electric Corp., 98 Vt. 176, 126 A. 517 (1924).

6. Notice.

Subsec. (a) of this section does not require that ratepayers be given notice of a proposed rate increase. Ratepayers Coalition of Rochester v. Rochester Electric Light & Power Co., 153 Vt. 327, 571 A.2d 606 (1989).

Determination of Public Service Board that filing rate schedule changes pursuant to this section is sufficient public notice must be sustained unless illegal or improper. In re Allied Power & Light Co., 133 Vt. 586, 350 A.2d 360 (1975).

7. Dismissal of proposed increase.

Power company's proposed rate increase could not be dismissed, prior to the time for presentation of evidence by company, for failure to accompany the proposal with sufficient substantiating evidence. In re Green Mountain Power Corp., 139 Vt. 368, 428 A.2d 1134 (1981).

Where power company filed two separate and different proposed rate increases, the second asking for a rate increase in addition to that asked for by the first, separate rights accrued to the company under each filing and the rights in regard to the first filing could fail for lack of support in the evidence, but Public Service Board had no authority to extinguish them by treating the second filing as a substitute for the first, without support from proof or agreement of the parties. In re Green Mountain Power Corp., 139 Vt. 368, 428 A.2d 1134 (1981).

8. Orders.

The fact that monthly calculations filed by electric utilities using purchased power and fuel adjustment clause were not intended as rate filings under this section was not of critical or controlling importance where the filings were based upon a then presumably valid order of the Public Service Board. In re Allied Power & Light Co., 133 Vt. 586, 350 A.2d 360 (1975).

Cited. In re Milton Water Corp., 125 Vt. 487, 218 A.2d 710 (1966); In re Green Mountain Power Corp., 131 Vt. 284, 305 A.2d 571 (1973); In re New England Telephone & Telegraph Co., 131 Vt. 310, 305 A.2d 598 (1973); Moore v. Gilbert, 132 Vt. 365, 321 A.2d 13 (1974); In re Vermont Welfare Rights Organization, 132 Vt. 622, 326 A.2d 828 (1974); In re Central Vermont Public Service Corp., 141 Vt. 284, 449 A.2d 904 (1982); In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983); In re Central Vermont Public Service Corp., 144 Vt. 46, 473 A.2d 1155 (1984); In re New England Telephone & Telegraph Co., 145 Vt. 309, 488 A.2d 746 (1985); In re Green Mountain Power Corp., 147 Vt. 509, 519 A.2d 595 (1986).

§ 226. Rates, hearings, bond.

  1. Except in the case of municipal companies formed under local charter or under chapter 79 and cooperatives formed under chapter 81 of this title, upon six days' notice to the company affected, the Commission may suspend a rate change until it makes a final determination on the request for a rate change. However, if it shall be made to appear to the satisfaction of the Commission, that the public interest requires a change in rates, charges, or services, or that such change is necessary for the purpose of providing adequate and efficient service or for the preservation of the property of the public service company devoted to public use, the Commission, after public notice and preliminary hearing, shall authorize upon such terms, conditions, or safeguards as it deems proper an immediate reasonable temporary increase in such price pending the final determination of the price to be thereafter charged by any such public service company and the Commission may as a condition of its order allowing such temporary increase, require the petitioning company to file with the Commission a bond running to the Commission members and their successors in office in amount and with sureties approved by the Commission, conditioned that within a reasonable time prescribed by the Commission after the termination of such proceedings, the company shall, with interest, repay to or may credit the account of the persons from whom such changed rates shall be collected all sums collected in excess of the rate in force at the time such changes are filed or of such rate as shall be determined to be just and reasonable. If the Commission fails to determine the application for temporary rates, if requested, within 30 days after it is made or within 45 days after suspension, whichever is later, the requested temporary rates shall take effect subject to refund as provided in this subsection.
  2. In the case of municipal companies formed under local charter or under chapter 79 and cooperatives formed under chapter 81 of this title, the Public Utility Commission shall not be empowered to suspend a change in the rates of a municipality or of a cooperative pending final determination as to the justness or reasonableness of such change, but the Commission shall require that the municipality or cooperative refund revenues collected in excess of those which are finally determined to be just and reasonable.  Any increase in the rates of a municipality or cooperative shall be implemented by means of an identical percentage increase to each class or division of ratepayers under rate design tariffs previously approved by the Public Utility Commission until such time as the Public Utility Commission shall specifically approve an alteration in such rate design and corresponding tariffs.
  3. If the Department does not oppose the change as provided in section 225 of this title, five persons adversely affected by the change, or, if the change adversely affects fewer than five persons, any one person so affected may apply at their own expense to the Commission by petition alleging why the change is unreasonable and unjust and asking that the Commission investigate the matter and make such orders as justice and law require. The petition shall be filed within 38 days of the date of the notice of rate change that was filed pursuant to section 225 of this title. The Commission may suspend the rates as a result of the petition. The Commission may hold a hearing on the petition. Whether or not a hearing is held, the Commission shall make such orders as justice and law require.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 263 , § 3, eff. July 31, 1961; 1979, No. 204 (Adj. Sess.),§§ 29, 30, eff. Feb. 1, 1981; 1981, No. 226 (Adj. Sess.), §§ 3, 4, eff. May 6, 1982; 2019, No. 31 , § 19.

History

Source. 1951, No. 196 , § 1. 1949, No. 222 , § 1. V.S. 1947, § 9376. P.L. § 6101. 1931, No. 100 . 1929, No. 83 . 1925, No. 87 . 1923, No. 92 , § 1. 1919, No. 129 , § 1. G.L. § 5066. 1908, No. 116 , § 18.

2017. In subsec. (a), in the last sentence, replaced "above" with "in this subsection".

Revision note - In the second sentence of subsec. (c), substituted "become" for "became" preceding "effective" to correct an apparent typographical error.

Amendments--2019. Subsec. (c): Substituted "fewer" for "less" in the first sentence, and substituted "within 38 days of the date of the notice of rate change that was filed pursuant to section 225 of this title" for "at least seven days before the date the rates become effective" in the second sentence.

Amendments--1981 (Adj. Sess.). Subsecs. (a) and (b): Amended generally.

Amendments--1979 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (c): Added.

Amendments--1961. Subsec. (a): Amended generally.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Cross References

Cross references. Filing of evidence to be introduced at hearing on rate suspension, see § 11 of this title.

Time for determination on suspended rate change, see § 227(a) of this title.

Prior law. 30 V.S.A. § 224.

ANNOTATIONS

Analysis

1. Suspension of rates.

Public Service Board, having ordered that filed rates not go into effect until final determination of the proceedings, did not have authority under subsec. (a) of this section to extend by its own order the suspension of those filed rates beyond the time period authorized by section 227(a) of this title. In re New England Telephone & Telegraph Co., 131 Vt. 310, 305 A.2d 598 (1973).

2. Temporary rates .

The essence of temporary rates is that they be promptly put in place, subject only to a basic concern for reasonableness. In re Green Mountain Power Corp., 142 Vt. 373, 455 A.2d 823 (1983).

*3. Purpose.

Provision of subsec. (a) of this section dealing with temporary rate increases does not require compelling and necessitous circumstances to justify awarding of temporary rate relief; section 227 of this title, authorizing a utility to put proposed rates in place if the Public Service Board fails to make its determination within a specified time, compels an inference that the temporary rate provision is intended to permit the Board to deal with a pressing situation that does not justify allowing the proposed rates to take effect, but justifies some affirmative action before final disposition can assuredly be had. In re Green Mountain Power Corp., 142 Vt. 373, 455 A.2d 823 (1983).

*4. Authority of Commission.

Subsec. (a) of this section does not require compelling and necessitous circumstances to justify the awarding of temporary rate relief; the logic and language of the subsection, taken in connection with the general regulatory purpose of the legislative scheme, indicate that nothing by way of special standards of need or financially critical circumstances relating to a utility need be demonstrated in order to justify the exercise of the discretionary power of the Board to award temporary rate relief, subject to the overriding constant that the rate be "just and reasonable." In re Green Mountain Power Corp., 142 Vt. 373, 455 A.2d 823 (1983).

Public Service Board had authority to grant a second temporary rate increase even though a first temporary rate increase was still in effect. In re Green Mountain Power Corp., 133 Vt. 107, 329 A.2d 372 (1974).

*5. Hearing.

The use of adjectives "immediate," modifying "temporary rate increase," and "preliminary," modifying "hearing," in subsec. (a) of this section indicates that the temporary rate hearing is not by any means intended to require the full and detailed explanation of the supporting and opposing issues related to the usual rate increase. In re Green Mountain Power Corp., 142 Vt. 373, 455 A.2d 823 (1983).

*6. Termination.

Since the language of subsec. (a) of this section expresses the imposition of temporary rates as an alternative available to the board to its prohibition of the taking effect of a filed rate change, and it is that prohibition that supports the implementation of filed rates after the time period prescribed in § 227(a) of this title, such implementation is not available where the Board's order provides for temporary rate increases, and a utility may be required to operate under such temporary rates until termination of the proceedings. In re New England Telephone & Telegraph Co., 131 Vt. 310, 305 A.2d 598 (1973).

*7. Retroactive adjustments.

This section, which permits retroactive adjustments in utility rates, by providing that if a temporary rate increase is placed in effect pending final determination of a rate case the utility must refund, with interest, all sums collected in excess of the rate finally determined to be just and reasonable, and section 227 of this title, providing similar relief to ratepayers when the Public Service Board initiates a rate investigation on its own motion and eventually determines that rates should be reduced, are designed to insure that rate changes that are the subject of a rate case take effect in seasonable time so that neither the utility nor the ratepayers are prejudiced by the delays involved in deciding the case. In re Central Vermont Public Service Corp., 144 Vt. 46, 473 A.2d 1155 (1984).

*8. Appeal.

Absent evidence of egregiously unreasonable and unfair action regarding temporary rate increases, orders of the Public Service Board will be upheld. In re Green Mountain Power Corp., 142 Vt. 373, 455 A.2d 823 (1983).

Cited. Carpenter v. Home Telephone Co., 122 Vt. 50, 163 A.2d 838 (1960); In re Milton Water Corp., 125 Vt. 487, 218 A.2d 710 (1966); In re Green Mountain Power Corp., 131 Vt. 284, 305 A.2d 571 (1973); In re Allied Power & Light Co., 132 Vt. 354, 321 A.2d 7 (1974); Moore v. Gilbert, 132 Vt. 365, 321 A.2d 13 (1974); In re Allied Power & Light Co., 133 Vt. 586, 350 A.2d 360 (1975); In re Village of Morrisville Water & Light Dept., 134 Vt. 428, 365 A.2d 525 (1976); In re Village of Stowe Electric Dept., 134 Vt. 559, 367 A.2d 1056 (1976); In re Burlington Electric Light Dept., 135 Vt. 114, 373 A.2d 514 (1977); In re New England Telephone & Telegraph Co., 135 Vt. 527, 382 A.2d 826 (1977); In re Green Mountain Power Corp., 136 Vt. 170, 385 A.2d 1110 (1978); In re Green Mountain Power Corp., 139 Vt. 368, 428 A.2d 1134 (1981); In re New England Telephone & Telegraph Co., 139 Vt. 578, 433 A.2d 263 (1981); In re Central Vermont Public Service Corp., 141 Vt. 284, 449 A.2d 904 (1982); In re Vermont Electric Cooperative, Inc., 141 Vt. 595, 451 A.2d 1110 (1982); In re Central Vermont Public Service Corp., 143 Vt. 120, 463 A.2d 525 (1983); In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983); In re New England Telephone & Telegraph Co., 145 Vt. 309, 488 A.2d 746 (1985); In re Green Mountain Power Corp., 147 Vt. 509, 519 A.2d 595 (1986); Washington Electric Coop. v. Massachusetts Municipal Wholesale Electric Co., 922 F.2d 92 (2d Cir. 1990).

§ 226a. Contracts regarding basic exchange telecommunications services.

  1. As used in this section, "basic exchange telecommunications service" shall mean the provision of publicly switched, voice grade interactive telecommunications services between or among two or more end users, where a single central office provides that service to those two or more end users.  The term may also, at the Commission's discretion, include services which are or have been tariffed at rates equivalent to local service rates for basic exchange services.
  2. The Department is authorized to negotiate, and upon approval of the Commission may execute on behalf of the State, a contract for a fixed term with any company providing basic exchange telecommunications services.  Any such contract shall provide for:
    1. specified basic exchange rates during the life of the contract;
    2. minimum plant and equipment modernization schedules;
    3. specified service quality levels for telecommunications services, including those offered to competitors, measured by objective standards;
    4. furnishing such technical information as may be needed by a competitor in order for the competitor to offer and provide competitive services which require access to or utilize the company's regulated basic exchange services in a manner technically equivalent to the company's use of those regulated services;
    5. rates, terms, and conditions for access charges for use of the company's facilities by competitors, that are established by order of the Commission unless otherwise approved under this section by the Commission;
    6. elimination or reduction of regulatory requirements under subsection 218(a) and sections 225, 226, 227, and 229 of this title, including rate of return requirements; and
    7. such other rates, terms, and conditions as the Department and company may agree upon and the Commission approves, provided that the parties to the contract affirmatively demonstrate and the Commission finds that such rates, terms, and conditions are consistent with the State telecommunications purposes established under section 202c of this title and after its adoption with the State Telecommunications Plan established under section 202d of this title.
  3. Any contract made pursuant to this section shall be written, signed by the parties, and filed with the Commission.  At the time of filing a contract with the Commission, the company also shall file with the Commission for public inspection all information made available to the Department during the negotiations.  After public notice and no less than 45 days after the parties have filed a contract with it, the Commission shall hold a hearing to determine whether it should approve the contract.  In such proceedings, the public contract advocate appointed by the Attorney General under 3 V.S.A. § 165 shall represent the interests of the public and the State, and any interested party may intervene.  The Commission shall grant approval only if it finds that a contract in its entirety is just and reasonable giving due consideration to the services and price levels covered and any risk of cross-subsidization, promotes the general good of the State, supports reasonable competition, contains fair and equitable provisions for the treatment of customer privacy interests, and takes into consideration any State Telecommunications Plan or policy adopted pursuant to section 202d of this title.  The Commission shall render its decision within seven and one-half months from the date of filing of a contract.  If the Commission does not grant approval, it may recommend modifications to the contract.  Within 30 days after issuance of the Commission's order, the company and the Department may file with the Commission, with service on parties to the proceeding, a modified contract, incorporating the Commission's recommended modifications.  Within 20 days after such filing, the Commission on its motion may conduct, or other substantially affected parties may request that the Commission conduct hearings or other proceedings on the proposed modifications.  Such requests shall be granted only if the Commission finds that the proposed modifications deviate in substance from those recommended by the Commission or that the public interest requires that hearings be held. If no such requests are made or if the requests are denied, the Commission shall make a final decision approving or disapproving the modified contract within 45 days after the modified contract was filed.  If the Commission conducts hearings, it shall make a final decision within 90 days after the modified contract was filed.
  4. The Commission shall retain jurisdiction over any contract under this section and shall hear and resolve any disputes or claims which may arise regarding its application. During the period of any contract under this section, a company shall continue to file with the Commission and the Department its rates, tariffs, and tolls for any service provided, including any service subject to the contract, and shall also file on a monthly basis its rate of return under the contract.
  5. If at any time, after notice and opportunity for hearing, the Commission determines that changes in federal regulatory law, unforeseen and significant economic shifts, or changes in technology have created either extremely severe economic hardships for the company or a condition that is severely detrimental and contrary to the public good, the Commission shall order the Department and the company to renegotiate relevant portions of a contract negotiated under this section, and any renegotiated provisions shall be subject to the Commission's approval under the procedures of subsection (c) of this section. If at any time the General Assembly is concerned that such conditions exist, it may, by joint resolution, direct the Commission to conduct a hearing and make a determination thereon. If the Department and the company fail to reach a negotiated agreement within four months of receipt of an order to negotiate from the Commission, the Commission shall hold a hearing to determine the appropriate content of the relevant portions of the contract. In such proceedings, the public contract advocate shall represent the interests of the public and the State, and any interested party may intervene. The Commission shall complete its hearings and render its decision within four months from the date that the Department and the company failed to agree under an order to negotiate. If the Department and the company agree within 14 days of the Commission's decision to accept the Commission's determination of the appropriate content of the contract, the contract shall continue in effect as modified until its termination date. If the Department or the company does not accept the Commission's determination, the contract shall terminate under the terms specified in subsection (f) of this section 30 days after the date of the Commission's decision.
  6. Any contract under this section shall extend for no more than five years, and this section and any contract shall terminate December 31, 1997.  Upon expiration or termination of a contract, the rates, terms, and conditions then in effect under the contract shall continue in effect as duly filed and approved rates and schedules under this title and shall thereafter be subject to all of the provisions of this title.

    Added 1987, No. 87 , § 6, eff. June 9, 1987; amended 1991, No. 63 ; 1999, No. 157 (Adj. Sess.), § 9; 2003, No. 98 (Adj. Sess.), § 3; 2009, No. 33 , § 59.

History

2013. In subsec. (a), "As used in" substituted for "For the purpose of".

Amendments--2009. Subsec. (d): Deleted the third and fourth sentences.

Amendments--2003 (Adj. Sess.). Subdiv. (b)(6): Deleted "and" preceding "227" and inserted "and 229" following "227".

Amendments--1999 (Adj. Sess.) Subsec. (e): Inserted "opportunity for" preceding "hearing" in the first sentence.

Amendments--1991. Subsec. (c): Inserted "contains fair and equitable provisions for the treatment of customer privacy interests" following "competition" in the fifth sentence, substituted "seven" for "eight" preceding "and one half months" in the sixth sentence, and added the seventh through twelfth sentences.

Subsec. (e): Deleted "and a new contract containing such revisions as the board may order shall go into effect immediately" following "negotiate" in the fifth sentence and added the sixth and seventh sentences.

Subsec. (f): Substituted "1997" for "1992" in the first sentence.

Suspension of action on telecommunications agreements; deadline for approval or modification of pending contracts. 1991, No. 188 (Adj. Sess.), § 2, eff. May 19, 1992, provided:

"(a) Notwithstanding any other provision of law to the contrary, the public service board shall suspend formal action upon any telecommunications agreement under 30 V.S.A. § 226a between May 1, 1992 and the adoption of the final state telecommunications plan by the department of public service, in order to permit the joint legislative committee on telecommunications to review and make findings and recommendations concerning the proposed plan.

"(b) Notwithstanding the provisions of 30 V.S.A. § 226a, relating to the public service board rendering its decision within seven and one-half months from the date of filing of a contract, the board shall render its decision approving, disapproving, or recommending modifications to any pending contract, in accordance with all other provisions of 30 V.S.A. § 226a, on or before April 1, 1993. The board shall not render its decision before the final state telecommunications plan is adopted by the department of public service in accordance with the provisions of this act, and in accordance with the provisions of 30 V.S.A. § 202d."

1991, No. 188 (Adj. Sess.), § 4, eff. May 19 1992, provided in part that section 2 of this act, set out in this note above, shall apply retroactively and prospectively in accordance with its terms.

Date for approval and execution of contracts. 1987, No. 87 , § 10, provided that no contract may be approved by the Board and executed prior to July 1, 1987.

ANNOTATIONS

Analysis

1. Approval of contracts.

The Public Service Board may grant approval of a telecommunications contract only if it finds that the contract in its entirety is just and reasonable giving due consideration to the services and price levels covered and any risk of cross-subsidization, promotes the general good of the State, supports reasonable competition, and takes into consideration any state telecommunications plan or policy. In re New England Telephone & Telegraph Co., 159 Vt. 459, 621 A.2d 232 (1993).

Findings supported conclusions of Public Service Board that telecommunications contract was just and reasonable: price levels were reasonable because they were lower than they would otherwise have been; rate increase as only substantive change supported conclusion that it would promote the general good, and although Board did not explicitly state that contract supported reasonable competition, that conclusion was apparent when reading Board's order in conjunction with prior orders. In re New England Telephone & Telegraph Co., 159 Vt. 459, 621 A.2d 232 (1993).

2. Specified rates.

Public Service Board did not violate statutory requirement that telecommunications contracts shall provide for specified basic exchange rates during life of the contract; rates under telecommunications contract were specified and fixed for three-year life of contract and new rates under subsequent extended version of contract were also specified and fixed for its one-year life. In re New England Telephone & Telegraph Co., 159 Vt. 459, 621 A.2d 232 (1993).

3. Consideration of State Telecommunications Plan or policy.

Public Service Board's finding that no Telecommunications Plan was in existence at time of approval of telecommunications contract supported its conclusion that contract took into consideration any State Telecommunications Plan or policy. In re New England Telephone and Telegraph Co., 159 Vt. 459, 621 A.2d 232 (1993).

§ 226b. Incentive regulation of basic exchange telecommunications providers.

  1. Upon petition of a basic exchange telecommunications service provider, upon request of the Department of Public Service, or on its own initiative, the Public Utility Commission may approve alternative forms of regulation other than the traditional methods based upon cost of service, rate base, and rate of return.
  2. As used in this section:
    1. "Alternative forms of regulation" include incentive regulation, earnings sharing, categorization of services for the purpose of pricing, price caps, price indexing formulae, ranges of authorized returns, detariffing, and reduction or suspension of regulatory requirements.
    2. "Basic exchange telecommunications service" has the same meaning as under section 226a of this title.
  3. The Commission shall approve alternative forms of regulation only if it finds, after notice and hearing, that such regulation, in its entirety:
    1. promotes the general good of the State;
    2. is consistent with the State telecommunications purposes established under section 202c of this title;
    3. is consistent with the State Telecommunications Plan adopted by the Department of Public Service under section 202d of this title, or there exists good cause to approve alternative forms of regulation notwithstanding this inconsistency;
    4. is consistent with the public's interests relating to appropriate quality telecommunications services;
    5. is consistent with the goal of protecting or promoting universal service to residential users of telecommunications;
    6. provides reasonable incentives for the creation of a modern telecommunications infrastructure and the appropriate implementation of new cost-effective technologies;
    7. reasonably supports economic development in the affected service territory;
    8. adequately protects consumer privacy interests;
    9. supports reasonable competition;
    10. includes adequate safeguards to ensure that charges for noncompetitive services do not subsidize competitive services; and
    11. is just and reasonable and would not produce unjust discrimination between users of the public switched network in the pricing, quality, or availability of the network functions or services offered.
  4. Prior to approving, modifying, or renewing an alternative form of regulation with respect to a specific basic exchange telecommunications provider, the Commission shall establish, and may amend from time to time, standards and procedures by which the effectiveness of the alternative form of regulation can be determined.
  5. In reviewing a petition to approve alternative forms of regulation, the Commission shall follow procedures substantially similar to those contained in sections 225, 226, and 227 of this title, except that if the Commission has not acted on the petition within nine months after the Commission has ordered suspension and investigation, the petition shall be deemed granted. By rule, the Commission may prescribe the minimum contents of a filing under this section.
  6. Where a petition for alternative forms of regulation has been filed by the Department or a basic exchange telecommunications service provider, and the Commission determines that the proposal does not satisfy the requirements of this section, it may either reject the proposal or issue a proposed order approving alternative regulation with such modifications as the Commission determines necessary to satisfy the requirements of this section. Within 20 days after issuance of a proposed order under this section, any party may submit comments and may offer to provide additional evidence concerning the proposed order. After review of such comments, and after conducting any additional hearings that the Commission determines to be necessary, the Commission shall issue a final order with such modifications as the Commission determines to be necessary to satisfy the requirements of this section. If the Commission determines that evidence offered by a party reasonably should have been introduced at hearings prior to the proposed order, the Commission may exclude such evidence. The Commission shall issue its final order within 45 days after the proposed order is issued, or within 90 days after the proposed order is issued if further hearings have been held.
  7. Any final order approving or modifying alternative forms of regulation shall, by its terms, take effect not sooner than 30 days following its issuance.
  8. An order establishing an alternative form of regulation may include:
    1. exemption from or reduction of the requirements of subsection 218(a) and sections 225, 226, 227, and 229 of this title, including rate of return requirements;
    2. terms and conditions for establishing new services, withdrawing services, price changes to services, and services by contract to individual customers; and
    3. other rates, terms, and conditions that the Commission finds to be consistent with the general considerations and standards under subsections (c) and (d) of this section.
  9. While an order approving alternative forms of regulation is in effect, the Department of Public Service and the Public Utility Commission may conduct investigations into the effectiveness of the alternative forms of regulation, and whether a traditional form of regulation should be restored. Following notice and an opportunity for hearing, the Public Utility Commission may terminate an order establishing an alternative form of regulation and restore a traditional form of regulation, or it may modify the order approving alternative forms of regulation.
  10. If at any time an order establishing an alternative form of regulation has been in effect for seven years without having been renewed, the order shall be deemed of no further force or effect and the waiver of statutory requirements under this title shall expire. All tariffs then in effect shall remain in effect until further order of the Commission.
  11. A basic exchange telecommunications service provider operating under an alternative form of regulation, the Department of Public Service, or the Public Utility Commission may initiate a proceeding to renew an order approving an alternative form of regulation. The provisions of this section shall apply to a proposed renewal of an alternative form of regulation. The Commission may issue orders approving, denying, or modifying the proposed renewal. In reviewing a proposed renewal of an alternative form of regulation, the Commission may consider the basic exchange telecommunications service provider's performance for the duration of the alternative form of regulation in effect at the time the renewal is initiated. Nothing in this section shall require the Commission to conduct cost of service, rate base, or rate of return analyses.
  12. The Commission shall have the discretionary authority to provide an expedited process under this section for a basic exchange telecommunications provider with less than 10 percent of the access lines in this State. The process shall include notice and opportunity for hearing and may include simplified procedures. Nothing in this section requires the Commission to conduct a cost of service, rate base, or rate of return analysis for such companies as a precondition to alternative regulation.

    Added 1993, No. 84 , § 1; amended 1995, No. 182 (Adj. Sess.), § 3, eff. May 22, 1996; 2003, No. 98 (Adj. Sess.), § 4.

History

2016. In subdiv. (b)(1), deleted ", but are not limited to," following "include" in accordance with 2013, No. 5 , § 4.

Amendments--2003 (Adj. Sess.). Subdiv. (h)(1): Deleted "and" preceding "227" and inserted "and 229" following "227".

Subsec. ( l ): Added.

Amendments--1995 (Adj. Sess.) Subsec. (d): Deleted "or" following "Prior to approving" and inserted "or renewing" following "modifying".

Subsec. (f): Amended generally.

Subsec. (g): Amended generally.

Subsec. (j): Substituted "seven years" for "48 months" following "in effect for" in the first sentence.

Subsec. (k): Added.

Adoption of emergency rules. 1993, No. 84 , § 2, provided: "In order to have rules in effect under this act [which enacted this section] on November 1, 1993, the Public Service Board may adopt emergency rules under this act."

Cross References

Cross references. Procedure for adoption of administrative rules generally, see 3 V.S.A. § 801 et seq.

§ 227. Suspension, refund.

  1. If the Commission orders that a change shall not go into effect until final determination of the proceedings, it shall proceed to hear the matter as promptly as possible and shall make its determination within seven months from the date that it orders the investigation. If a company files for a change in rate design among classes of ratepayers, and the company has a rate case pending before the Commission, the Commission shall make its determination on the rate design change within seven months after the rate case is decided by the Commission. If the Commission fails to make its determination within the time periods set by this subsection, the changed rate schedules filed by the company shall become effective and final.
  2. The Commission, on its own motion, may order an investigation and hearing on the justness and reasonableness of existing rates of a company, subject to supervision under this chapter.  The Commission shall proceed to hear the matter as promptly as possible and shall make every effort to make its determination within seven months from the date the proceeding was instituted.  If the Commission does make its determination within such seven months then its final order shall be retroactive to the day that the proceedings were instituted and such final order shall contain a directive that the company, other than a common carrier of passengers by motor vehicle, shall repay to the persons from whom collected between the time the proceedings were instituted and the final order all sums which the Commission determines are in excess of the rates ultimately found to be just and reasonable.  If the Commission does not make its determination within seven months of the institution of the proceedings then its final order when made shall be retroactive only to a date seven months after the institution of the proceedings and the final order shall contain a directive that the company shall repay to persons from whom collected between the date seven months after the institution of the proceedings and the determination thereof all sums which the Commission determines are in excess of the rates ultimately found to be just and reasonable.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 263 , § 4, eff. July 31, 1961; 1981, No. 226 (Adj. Sess.), § 5, eff. May 6, 1982; 1995, No. 182 (Adj. Sess.), § 17, eff. May 22, 1996; 2019, No. 31 , § 20.

History

Source. 1949, No. 222 , § 2.

Editor's note. As to functions of the Public Utility Commission, see note set out under § 101 of this title.

Amendments--2019. Subsec. (a): Substituted "it orders the investigation" for "the change otherwise would have gone into effect" at the end of the first sentence.

Amendments--1995 (Adj. Sess.) Subsec. (a): Amended generally.

Amendments--1981 (Adj. Sess.). Subsec. (a): Substituted "seven" for "six" preceding "months" in the first sentence and rewrote the second sentence.

Subsec. (b): Substituted "seven" for "six" preceding "months" wherever it appeared and inserted "which the Board determines are" preceding "in excess" in the third and fourth sentences.

Amendments--1961. Designated existing provisions of section as subsec. (a), substituted "change" for "changed rate" preceding "otherwise" in the first sentence of that subsec. and added subsec. (b).

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Prior law. 30 V.S.A. § 225.

Cross References

Cross references. Filing of evidence to be introduced at hearing on rate suspension, see § 11 of this title.

ANNOTATIONS

Analysis

1. Construction.

When setting rates for a utility subject to its jurisdiction, Public Service Board is guided by statutory requirement that ratepayers pay just and reasonable rates only. In re Vermont Telephone Co., 169 Vt. 476, 739 A.2d 671 (1999).

Water company's requested rate increase did not go into effect by default because Public Service Board failed to deny increase 45 days after company had filed its application; for purpose of computing seven-month period within which Board could issue its ruling under subsection (a) of this section, "date that the change otherwise would have gone into effect" was first billing date more than forty-five days after filing. In re Quechee Water Co., 159 Vt. 122, 615 A.2d 1026 (1992).

In imposing a seven month limit for the Public Service Board to decide cases under this section, the legislature must be deemed to have given the Board sufficient control over matters brought before it to enable such proceedings to be completed within the time prescribed; the Board therefore is not obligated to litigate issues of enormous complexity under circumstances where no probability has been demonstrated that the exploration of those issues will have any effect whatsoever on the outcome of the case. In re Green Mountain Power Corp., 147 Vt. 509, 519 A.2d 595 (1986).

2. Construction with other laws.

Section 226 of this title, dealing with temporary rate increases, does not require compelling and necessitous circumstances to justify awarding of temporary rate relief; subsection (a) of this section, authorizing a utility to put proposed rates in place if the Public Service Board fails to make its determination within a specified time, compels an inference that the temporary rate provision is intended to permit the Board to deal with a pressing situation that does not justify allowing the proposed rates to take effect, but justifies some affirmative action before final disposition can assuredly be had. In re Green Mountain Power Corp., 142 Vt. 373, 455 A.2d 823 (1983).

Public Service Board, having ordered that filed rates not go into effect until final determination of the proceedings, did not have authority under § 226(a) of this title to extend by its own order the suspension of those filed rates beyond the time period authorized by subsection (a) of this section. In re New England Telephone & Telegraph Co., 131 Vt. 310, 305 A.2d 598 (1973).

Since the language of § 226(a) of this title authorizing temporary rates expresses the imposition of such rates as an alternative available to the Board to its prohibition of the taking effect of a filed rate change, and it is that prohibition that supports the implementation of filed rates after the time period prescribed in subsection (a) of this section, such implementation is not available where the Board's order provides for temporary rate increases. In re New England Telephone & Telegraph Co., 131 Vt. 310, 305 A.2d 598 (1973).

3. Retroactive adjustments.

Section 226 of this title, which permits retroactive adjustments in utility rates, by providing that if a temporary rate increase is placed in effect pending final determination of a rate case the utility must refund, with interest, all sums collected in excess of the rate finally determined to be just and reasonable, and this section, providing similar relief to ratepayers when the Public Service Board initiates a rate investigation on its own motion and eventually determines that rates should be reduced, are designed to insure that rate changes that are the subject of a rate case take effect in seasonable time so that neither the utility nor the ratepayers are prejudiced by the delays involved in deciding the case. In re Central Vermont Public Service Corp., 144 Vt. 46, 473 A.2d 1155 (1984).

4. Acquisition costs.

Public Service Board did not err in ordering telephone company to eliminate from its rate base, over a 10-year amortization period, amounts relating to a ratepayer-generated tax account maintained by a predecessor corporation; Board's findings were sufficient to support its conclusion that $1.8 million of amount paid by telephone company to acquire portion of predecessor corporation represented cost-free capital that ratepayers had provided to predecessor, and that this was a cost of acquisition ratepayers should not rightfully bear. In re Vermont Telephone Co., 169 Vt. 476, 739 A.2d 671 (1999).

5. Practice and procedure.

Neither collateral estoppel nor res judicata precluded Public Service Board from ordering telephone company to eliminate from its rate base amounts relating to a ratepayer-generated tax account maintained by a predecessor corporation, since effect of tax account on rate base was not at issue during proceedings surrounding company's acquisition of predecessor, but was specifically deferred until a later date. In re Vermont Telephone Co., 169 Vt. 476, 739 A.2d 671 (1999).

Cited. In re Milton Water Corp., 125 Vt. 487, 218 A.2d 710 (1966); In re Green Mountain Power Corp., 131 Vt. 284, 305 A.2d 571 (1973); In re Allied Power & Light Co., 132 Vt. 354, 321 A.2d 7 (1974); Moore v. Gilbert, 132 Vt. 365, 321 A.2d 13 (1974); In re Allied Power & Light Co., 133 Vt. 586, 350 A.2d 360 (1975); In re New England Telephone & Telegraph Co., 135 Vt. 527, 382 A.2d 826 (1977); In re New England Telephone & Telegraph Co., 139 Vt. 578, 433 A.2d 263 (1981); In re Central Vermont Public Service Corp., 141 Vt. 284, 449 A.2d 904 (1982); In re Vermont Electric Cooperative, Inc., 141 Vt. 595, 451 A.2d 1110 (1982); In re New England Telephone & Telegraph Co., 145 Vt. 309, 488 A.2d 746 (1985); Washington Electric Coop. v. Massachusetts Municipal Wholesale Electric Co., 922 F.2d 92 (2d Cir. 1990); In re Tariff Filing of Cent. Vt. Pub. Serv. Corp., 172 Vt. 14, 769 A.2d 668 (2001).

§ 227a. Pricing of competitive telecommunications services.

  1. In addition to the Commission's authority to reduce or suspend any regulatory requirements as part of a contract negotiated under section 226a of this title, the Commission may also suspend or reduce such requirements in a competitive market under this section.  If, after hearing, the Commission determines that a competitive market exists for the provision of any telecommunications service offered by a company subject to its jurisdiction, the Commission may suspend or reduce any or all of the regulatory requirements otherwise applicable to the provision of such service under subsection 218(a) and sections 225, 226, and 227 of this title.  In determining whether a competitive market exists, the Commission shall find:
    1. that no competitor offering such service has sufficient market power to set prices for the service; taking into consideration whether competitors to any dominant market provider offer a sufficient quantity of similar or equivalent services, whether there is reasonable ease of entry into the market for providers of these services, and any other relevant indicator of market power;
    2. that the competition in the market will afford the public at least as much protection as the applicable regulatory requirements being suspended or reduced;
    3. that adequate safeguards exist to assure that any services provided by a competitor which continue to be regulated are not supporting or subsidizing any services offered in the competitive market, and that no company shall allocate revenues from regulated activities to unregulated activities nor allocate costs from unregulated activities to regulated activities and, upon request, shall provide the Commission and the Department with information, including cost studies indicating whether any regulated services are supporting any services which are deregulated; and
    4. that adequate safeguards exist to ensure that access to any regulated basic exchange services or any other regulated services that must be utilized to provide the competitive service is available at the same rates, terms, and conditions at which they are provided by the company to its own unregulated affiliates or charged to its own unregulated accounts.
  2. Nothing in this section shall limit the existing authority of the Commission or Department to require provision of or access to information required by this title.
  3. The Commission shall upon petition of the Department, and may upon its own initiative, investigate whether it should reimpose any regulatory requirements which it has suspended or reduced in accordance with subsection (a) of this section; and if the Commission finds that it is in the public interest to reapply any such regulatory provisions, it may do so if it determines that the standards in subsection (a) are no longer met.  Pending any final order, the Commission may reimpose any regulatory requirements on a preliminary basis as it determines is just and reasonable.  The Commission shall rule on any request by the Department for a preliminary order within 60 days.  The Commission shall make a final decision on reimposition of regulatory requirements within seven months of the Department's request or of the date of commencement of its own investigation.  A preliminary or final order shall be after public notice and hearing.

    Added 1987, No. 87 , § 7.

History

2016. In subdiv. (a)(3), ", but not limited to," was deleted following "including" in accordance with 2013, No. 5 , § 4. In subdiv. (a)(4), replaced "assure" with "ensure" to conform to V.S.A. style.

Cross References

Cross references. Regulation of pay-per-call services, see 9 V.S.A. § 2501 et seq.

§ 227b. Wireless telecommunications.

    1. The Secretary of Administration is designated as the exclusive agent for the State of Vermont to contract for the use of State-owned buildings, structures, and land for wireless, two-way interactive telecommunications facilities. The Secretary is granted the power to contract or grant a lease or license of up to 25 years for such buildings, structures, and land for such purposes. The provisions of this section shall apply to all State-owned buildings, structures, and land, including such property owned or managed by the Department of Buildings and General Services, the Agency of Transportation, the Department of Public Safety, and the Agency of Natural Resources. (a) (1)  The Secretary of Administration is designated as the exclusive agent for the State of Vermont to contract for the use of State-owned buildings, structures, and land for wireless, two-way interactive telecommunications facilities. The Secretary is granted the power to contract or grant a lease or license of up to 25 years for such buildings, structures, and land for such purposes. The provisions of this section shall apply to all State-owned buildings, structures, and land, including such property owned or managed by the Department of Buildings and General Services, the Agency of Transportation, the Department of Public Safety, and the Agency of Natural Resources.
    2. The Secretary is granted all powers necessary to carry out his or her responsibilities under this section. Notwithstanding any other provision of law, the powers granted to the Secretary under this section relating to wireless telecommunications facilities shall supersede the authority granted to any other State official or agency relating to such facilities. The powers granted by this section shall not affect the Secretary's duty, and any duty of the facility owner, to seek and obtain any applicable gubernatorial, quasi-judicial, or legislative review, approval, or permit required by law, including as necessary permits under 10 V.S.A. chapter 151 (Act 250), local planning and zoning permits, a certificate of public good under section 248a of this title, and legislative approval under 29 V.S.A. § 166 (sale or long-term lease of State lands), 10 V.S.A. § 2606 (exchange or lease of State forests and parks), or 10 V.S.A. § 2606 a (State-owned mountaintop use as communications sites). A decision by the Secretary to contract or enter into or renew a lease or license for the use of a State-owned building, structure, or land for a wireless telecommunications facility shall have no presumptive or binding effect with respect to the facility's compliance with the standards or criteria used in determining whether to grant any such required approval or permit.
    3. The Secretary shall consult with all affected State officials and agencies concerning each proposed use of State properties for wireless telecommunications facilities to determine the compatibility of the particular building, structure, or parcel of land to accommodate such facilities, and to determine and give due consideration to the compatibility of the proposed use with the approved long-term management plan for the property under consideration, but the approval of such officials or agencies is not required for the Secretary to exercise his or her powers under this section. In the case of lands managed by the Agency of Natural Resources, the Secretary shall determine that the use is consistent with any management plan to which the lands are subject.
  1. The Secretary of Administration shall develop a standard contract and a standard contracting procedure for the use of State-owned buildings and land for wireless telecommunications facilities. The contract and contracting procedure shall provide for:
    1. criteria and procedures for making a wireless facility development proposal;
    2. final consideration of each completed facility development proposal within 60 days of the proposal's submission in the manner prescribed by the Secretary;
    3. appropriate public benefits as compensation for the use of State properties, including public use of increased telecommunications capacity, direct compensation, or other public benefits;
    4. in the event that a wireless telecommunications facility is abandoned, the restoration of the site to a natural state within 12 months following abandonment. For the purpose of this subdivision, "natural state" does not require the removal of equipment and material buried more than 12 inches below natural grade if the equipment and material do not constitute hazardous material as defined under 10 V.S.A. § 6602(16) , and the Secretary concludes that in the context of a particular site, removal of such equipment and material is not necessary to satisfy the purposes of this subsection. Nothing in this subdivision shall constitute authority to dispose of or bury waste or other material in contradiction of applicable law;
    5. encouragement of competition in wireless telecommunications, including requirements for open access for competing providers;
    6. encouragement of the use of advanced technology, and the collocation of facilities whenever feasible, in order that the number of wireless telecommunications facilities can be minimized or reduced;
    7. terms and conditions requiring certification by the owners of wireless telecommunications facilities on State-owned buildings, structures, or land that such facilities have been installed, operated, and maintained in accordance with applicable federal and State safety standards; and
    8. the retaining of a portion of revenues accruing from the lease of State-owned buildings, structures, or lands, as determined by the Secretary of Administration, by departments with management responsibility for such buildings, structures, or lands in order to cover operating and maintenance costs associated with two-way, interactive telecommunications facilities.
  2. By January 15, 2012, and by January 15 in the next succeeding three years, the Secretary of Administration shall report to the Chairs of the House Committee on Commerce and Economic Development and the Senate Committee on Finance concerning the Secretary's activities under this section.
  3. In the event of a conflict between the provisions of this section and any other provision of law relating to the use of State-owned buildings, structures, and land, including the provisions of 29 V.S.A. § 165 , and 19 V.S.A. § 26a , the provisions of this section shall control.

    Added 1995, No. 168 (Adj. Sess.), § 1; amended 1997, No. 150 (Adj. Sess.), § 21; 2011, No. 53 , § 13, eff. May 27, 2011.

History

2008. In subdiv. (a)(2), substituted "29 V.S.A. § 166" for "29 V.S.A. § 104" due to the redesignation of that section and for purposes of clarity.

Amendments--2011. Section amended generally.

Amendments--1997 (Adj. Sess.). Subsec. (d): Added.

§ 227c. Nondominant carriers.

  1. The Commission may modify, reduce, or suspend the requirements under this title as applied to nondominant providers of telecommunications service. The Commission may act by rule, or, after notice and opportunity for hearing, it may act by order. The modifications, reductions, or suspensions may apply to one or more classes of nondominant providers, and may apply differently to each class. The Commission may modify, suspend, or reduce any or all of the regulatory requirements under sections 104, 105, 107-109, 225, 226, subsection 227(a), and sections 229 and 311 of this title.
  2. In determining whether a carrier or class of carriers is nondominant, the Commission shall consider whether the carriers have sufficient market power to set prices for the market.
  3. In determining whether to modify, reduce, or suspend regulatory requirements, the Commission shall consider whether competition in the market combined with the remaining requirements under this title:
    1. will be sufficient to ensure that the charges, practices, classifications, or regulations related to the service are just and reasonable, and are not unjustly or unreasonably discriminatory; and
    2. will afford the public at least as much protection as the applicable regulatory requirements being suspended or reduced.
  4. Upon petition of the Department, the Commission shall, and upon its own initiative the Commission may, investigate whether it should reimpose any regulatory requirements which it has modified, suspended, or reduced under this section. If the Commission finds, after notice and an opportunity for hearing, and after considering the factors identified in subsection (c) of this section, that the public is not sufficiently protected, the Commission may reimpose any regulatory provisions that the Commission deems necessary. Pending any final order, the Commission may reimpose any regulatory requirements on a temporary basis as it determines is just and reasonable.

    Added 1999, No. 67 (Adj. Sess.), § 3.

§ 227d. Small eligible telecommunications carriers.

  1. A carrier which serves fewer than 10 percent of subscriber lines installed in the aggregate statewide and has been designated as an eligible telecommunications carrier in a service area where a competitive eligible telecommunications carrier has also been designated may, by providing written notice to the Public Utility Commission and to the Department of Public Service, elect to be exempted from one or more of the regulatory requirements under sections 104, 105, 108, 225, 226, 227, 229, and 230 of this title, except for purposes of E-911 services, for switched or dedicated access to the local exchange by providers of long distance telephone service or for rates for utility pole attachments. For the purposes of this subsection, "eligible telecommunications carrier" means a telecommunications carrier designated eligible pursuant to 47 U.S.C. § 214(e) .
  2. For any carrier that elects exemption under subsection (a) of this section:
    1. The carrier shall provide notice of its election to its existing customers within 30 days of its election and to any new customer at the time the new customer requests service from the carrier.
    2. The carrier shall maintain rate schedules and upon request shall provide notice of any change to such rate schedules to the Commission and the Department for informational purposes only.
      1. Notice of increases of rates for services offered by the carrier on or before June 30, 2005, shall be made at least 30 days in advance to the Commission and Department.
      2. The carrier shall not withdraw any service subject to the jurisdiction of the Commission which it offered on June 30, 2005, without at least 30 days' advance notice to customers, the Commission, and the Department.
      3. Rate schedules which are exempted from approval by the Commission under this section shall not have the effect of a tariff.
    3. The Commission shall have continuing regulatory authority over any matter under its jurisdiction for which the authority of the Commission is not specifically limited by this section.
    4. The carrier shall not condition the purchase of basic exchange telecommunications service upon the purchase or subscription to bundles of or any combination of telecommunication services other than the one access line required for the provision of such service.
    5. The carrier shall limit its prices as follows:
      1. the carrier shall not increase its price for basic exchange telecommunications service during the first year following such election; during the second and third years following the end of the year in which the carrier has made such election, the carrier shall not increase its price for basic exchange telecommunications service by more than nine percent or by $1.50, whichever is less; and during the fourth and fifth years following the end of the year in which the carrier has made such election, the carrier shall not increase its price for basic exchange telecommunications service by more than 11 percent or by $2.00, whichever is less;
      2. the carrier shall not increase its prices for local measured service during the first two years following such election;
      3. the carrier shall not increase its price for nonbasic telecommunications services by more than nine percent during the first two years following such election; provided that, for the purposes of this section, nonbasic telecommunications services shall mean any optional telecommunications services other than basic exchange telecommunications services and local measured service that were included in the carrier's intrastate tariff at the time of the election;
      4. the carrier shall not increase its intrastate switched access rates for the three years following the end of the year in which the carrier has made such election.
    6. The maximum prices established under subdivision (5) of this subsection may be exceeded only when it is necessary for the carrier to address an exogenous event. As used in this subsection, the term "exogenous event" means an event beyond the control of the carrier which is limited to:
      1. changes in tax laws that are unique to the telecommunications industry which materially increase the costs or reduce the revenues of local exchange services in excess of 10 percent in a single year, except if costs or revenue changes are less than 10 percent, then as may be approved by the Commission;
      2. changes in generally accepted accounting principles that apply specifically to telecommunications carriers or changes in the Federal Communications Commission's Uniform System of Accounts which materially increase the costs or reduce the revenues of local exchange services in excess of 10 percent in a single year, except if costs or revenue changes are less than 10 percent, then as may be approved by the Commission;
      3. changes in the Federal Communications Commission's rules pertaining to jurisdictional separations which materially increase the costs or reduce the revenues of local exchange services in excess of 10 percent in a single year, except if less than 10 percent, then as may be approved by the Commission;
      4. regulatory, judicial, or legislative changes affecting telecommunications carriers, including rules and orders that are necessary to implement such changes, including intercarrier compensation, universal service support, and revenue-neutral restructuring of a regulated intrastate telecommunications product or service which materially increase the costs or reduce the revenues of local exchange services in excess of 10 percent in a single year, except if costs or revenue changes are less than 10 percent, then as may be approved by the Commission; or
      5. changes in inflation, changes in the economy, or the effects of competition that produce an increase in costs or a decrease in revenues in excess of 15 percent in a single year.
    7. If the carrier responds to an exogenous event with a price increase that exceeds the maximum prices defined in subdivision (5) of this subsection, the carrier shall provide notice of such change to the Public Utility Commission and to the Department of Public Service. The Commission, upon its own motion or upon the recommendation of the Department, may initiate an investigation. If the Commission does not initiate an investigation within a 30-day period, the price increase shall take effect. If the Commission determines to initiate an investigation, it shall give notice of that decision to the carrier and to the Department and may suspend the portion of the price that exceeds the cap. The Commission shall conclude its investigation within 120 days of issuance of its notice of investigation or within such shorter period as it deems appropriate. If the Commission fails to issue a decision within that 120-day period, the price increase shall become effective upon the 121st day without retroactive rate adjustments.
    8. Regulated intrastate telecommunications products or services that were not offered under the carrier's rate schedules effective at the time of the election for exemption under subsection (a) of this section shall constitute new products and services and, as such, shall not be subject to the caps described in subdivision (5) of this subsection. The carrier shall file rate schedules for new products and services and special contracts with the Commission and the Department of Public Service, which shall take effect upon filing. New products and services may include:
      1. services that were not technologically feasible prior to the carrier's election;
      2. any combination of new or existing products or services;
      3. promotional offerings;
      4. bundles of services, regardless of whether such bundles are comprised of regulated or unregulated services or a combination thereof;
      5. special contracts that are offered to individuals or groups of customers and executed after the carrier elects the exemption provided under subsection (a) of this section.
  3. Upon petition by the Department, the Commission shall and upon its own initiative the Commission may investigate whether it should impose or reimpose any regulatory requirements which the carrier has elected out of pursuant to subsection (a) of this section. If the Commission finds, after notice and an opportunity for hearing, and, after considering the factors identified in subsection 227c(c) of this title, that the public is not sufficiently protected, the Commission may impose or reimpose any of the regulatory provisions listed in subsection (a) of this section. Pending any final order and subject to the provisions of section 12 of this title, the Commission may impose or reimpose any of the regulatory provisions listed in subsection (a) of this section on a temporary basis as it determines is just and reasonable. Upon petition of the carrier and after notice and opportunity for hearing, the Commission may modify, reduce, or suspend any regulatory requirement it has reimposed on the carrier.

    Added 2005, No. 73 , § 1; amended 2007, No. 79 , §§ 17a, 17b, eff. June 9, 2007; 2007, No. 95 (Adj. Sess.), § 1, eff. May 24, 2008.

History

2016. In subdiv. (b)(6)(D), ", without limitation," after the first instance of "including" and ", but not limited to," after the second instance of "including" were deleted, and in subdiv. (b)(8), ", without limitation" after the word "include" was deleted, in accordance with 2013, No. 5 , § 4.

Amendments--2007 (Adj. Sess.). Subsec. (a): Inserted "104, 105, 108," preceding "225", "and" preceding "230"; deleted ", and 247" preceding "of this title"; and inserted ", except for purposes of E-911 services, for switched or dedicated access to the local exchange by providers of long distance telephone service or for rates for utility pole attachments" following "of this title".

Subdiv. (b)(2): Deleted "the" preceding "rate", "that were required prior to the carrier's election" following "schedules" and inserted "upon request" preceding "shall" and added subdivs. (A)-(C).

Subdiv. (b)(3): Amended generally.

Subdiv. (b)(5)(A): Inserted "and during the fourth and fifth years following the end of the year in which the carrier has made such election, the carrier shall not increase its price for basic exchange telecommunications service by more than 11 percent or by $2.00, whichever is less;" following "less;".

Subsec. (c): Added the present fourth sentence.

Amendments--2007. Subdiv. (b)(5): Added "the end of the year in which the carrier has made" preceding "such election" in subdivs. (A) and (D).

Repeal of sunset. 2005, No. 73 , § 2, as amended by 2007, No. 79 , § 17b, effective June 9, 2007, provided for the repeal of this section, effective December 31, 2008. However, pursuant to 2007, No. 95 (Adj. Sess.), § 2, the sunset of this section was repealed.

§ 227e. Leasing or licensing of State land; public notice.

  1. Beginning July 1, 2011, State land may not be leased or licensed for the purpose of construction or installation of a wireless telecommunications facility, as defined in subsection 248a(b) of this title, unless authorized by the Secretary of Administration pursuant to the requirements of this section. For purposes of this section, "State land" means land owned in fee or interests in land owned by the Agency of Natural Resources. No initial lease or license, including any renewal thereof, entered into pursuant to this section shall exceed 25 years.
  2. Prior to entering into or renewing a lease or license, the Secretary shall:
    1. publish notice of the proposed telecommunications facility site in one daily newspaper of general circulation in the region of the proposed site and on the website maintained by the Agency of Administration, with appropriate hyperlinks to that website on all relevant, State-maintained websites; and
    2. send by certified mail, return receipt requested, a written notice of the proposed lease or license or renewal to the legislative body of each municipality in which such leased or licensed land is located. The notice shall include a description of the land to be leased or licensed and of the proposed telecommunications facility to be sited on the land, including the facility's height and location.

      Added 2011, No. 53 , § 12, eff. May 27, 2011.

§ 228. Copy of schedules.

Each company, subject to the provisions of this chapter, shall keep on file in every station or office thereof where payments are made by consumers or users a copy printed in plain type of so much of its schedules as the Commission shall deem necessary. Such copy shall be in such form and place as to be readily accessible to inspection by the public.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. V.S. 1947, § 9377. P.L. § 6102. G.L. § 5067. 1908, No. 116 , § 19. P.S. § 4865. V.S. § 4251. R.L. § 3657. 1863, No. 16 , §§ 3, 4.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "shall deem" in the first sentence.

Prior law. 30 V.S.A. § 226.

ANNOTATIONS

Cited. Ratepayers Coalition of Rochester v. Rochester Electric Light & Power Co., 153 Vt. 327, 571 A.2d 606 (1989).

§ 229. Rebates; exceptions.

A public service company shall not directly or indirectly or by any special rate, rebate, drawback, or other device or method make any deviation from the rates, fares, charges, or prices for any service rendered by it or in services rendered or to be rendered in connection therewith, as specified in its schedules of charges in effect at the time such service was rendered. No public service company may enter into any contract, agreement, or arrangement relating to the furnishing or rendering of any special product or special service not provided for or covered in the schedule without the prior approval of the Commission. However, nothing herein shall prohibit the giving by any such public service company of free or reduced rate service to its employees, or in case of public emergency, or to the classes defined and provided for in the act of Congress entitled "An act to regulate commerce" and acts amendatory thereof. Subject to the approval of the Commission, it shall be lawful for any public utility to make a contract for a definite term for its product or service.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 263 , § 5, eff. July 31, 1961.

History

Source. V.S. 1947, § 9378. P.L. § 6103. 1929, No. 84 , § 1.

Reference in text. The "act to regulate commerce", referred to in this section, is the Interstate Commerce Act, which is codified as 49 U.S.C. § 10101 et seq.

Editor's note. As to functions of the Public Utility Commission, see note set out under § 101 of this title.

Amendments--1961. Inserted "or in services rendered or to be rendered in connection therewith" following "rendered by it" in the first sentence and inserted the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "approval of the" in the last sentence.

Prior law. 30 V.S.A. § 227.

Cross References

Cross references. Penalty for special rate or rebate, see § 230 of this title.

ANNOTATIONS

1. Approval of agreements.

Based on its conclusion that services of a local telephone exchange carrier were not special, but simply volume discounts, the Public Service Board did not err in ruling that, as such, they should not be offered in special contracts but should be offered in tariffed volume-based discounts available to all customers to ensure that rates do not unjustly discriminate between similarly situated customers. In re New England Telephone & Telegraph Co., 172 Vt. 405, 779 A.2d 693 (2001).

Public Service Board's order that public utility file a revised new rate schedule proposal, including a new schedule or contract with a major contract customer whose contract had expired, did not constitute prior approval of the filed contract within the meaning of this section, and absent formal approval the Board would not be deemed to have approved the contract. In re Village of Morrisville Water & Light Dept., 134 Vt. 428, 365 A.2d 525 (1976).

Cited. Flanders Lumber & Building Supply Co. v. Town of Milton, 128 Vt. 38, 258 A.2d 804 (1969); Wendland v. Green Mountain Power Corp., 132 Vt. 320, 318 A.2d 668 (1974); In re Central Vermont Public Service Corp., 144 Vt. 46, 473 A.2d 1155 (1984).

§ 230. Special rate or rebate; penalty.

Except as provided in section 229 of this title, an officer or employee of such public service company who grants a special rate or rebate or knowingly consents thereto shall be subject to a civil penalty imposed by the Commission, after notice and an opportunity for hearing, of not less than $100.00 nor more than $1,000.00. In addition, such company granting a special rate or rebate shall be subject to a civil penalty imposed by the Commission, after notice and opportunity for hearing, of not more than the larger of $10,000.00 or five times the amount of the benefit or rebate.

Amended 1961, No. 263 , § 6, eff. July 31, 1961; 1995, No. 99 (Adj. Sess.), § 8.

History

Source. V.S. 1947, § 9379. P.L. § 6104. 1929, No. 84 , § 2.

Revision note. Reference to "section 227" of this title changed to "section 229" to conform reference to renumbering of such section.

Amendments--1995 (Adj. Sess.) Section amended generally.

Amendments--1961. Inserted "nor more than $1,000.00 and such company granting a rebate shall be fined not less than $500.00 nor more than $5,000.00" following "$100.00".

Prior law. 30 V.S.A. § 228.

Cross References

Cross references. Penalties generally, see § 247 of this title.

§ 231. Certificate of public good; abandonment of service; hearing.

  1. A person, partnership, unincorporated association, or previously incorporated association that desires to own or operate a business over which the Public Utility Commission has jurisdiction under the provisions of this chapter shall first petition the Commission to determine whether the operation of such business will promote the general good of the State, and shall at that time file a copy of any such petition with the Department. The Department, within 12 days, shall review the petition and file a recommendation regarding the petition in the same manner as is set forth in subsection 225(b) of this title. Such recommendation shall set forth reasons why the petition shall be accepted without hearing or shall request that a hearing on the petition be scheduled. If the Department requests a hearing on the petition, or, if the Commission deems a hearing necessary, it shall appoint a time and place in the county where the proposed corporation is to have its principal office for hearing the petition. At least 12 days before this hearing, notice of the hearing shall be published on the Commission's website and once in a newspaper of general circulation in the county in which the hearing will occur. The website notice shall be maintained through the date of the hearing. The newspaper notice shall include an Internet address where more information regarding the petition may be viewed. The Director for Public Advocacy shall represent the public at the hearing. If the Commission finds that the operation of such business will promote the general good of the State, it shall give such person, partnership, unincorporated association, or previously incorporated association a certificate of public good specifying the business and territory to be served by such petitioners. For good cause, after opportunity for hearing, the Commission may amend or revoke any certificate awarded under the provisions of this section. If any such certificate is revoked, the person, partnership, unincorporated association, or previously incorporated association shall no longer have authority to conduct any business which is subject to the jurisdiction of the Commission whether or not regulation thereunder has been reduced or suspended, under section 226a or 227a of this title.
  2. A company subject to the general supervision of the Public Utility Commission under section 203 of this title may not abandon or curtail any service subject to the jurisdiction of the Commission or abandon all or any part of its facilities if it would in doing so effect the abandonment, curtailment, or impairment of the service, without first obtaining approval of the Public Utility Commission, after notice and opportunity for hearing, and upon finding by the Commission that the abandonment or curtailment is consistent with the public interest; provided, however, this section shall not apply to disconnection of service pursuant to valid tariffs or to rules adopted under subsections 209(b) and (c) of this title.
  3. An energy storage aggregator that operates an energy storage facility is subject to this section only if the aggregator is not a retail electric provider.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1975, No. 212 (Adj. Sess.), § 2; 1979, No. 204 (Adj. Sess.), § 34, eff. Feb. 1, 1981; 1987, No. 87 , § 8; 1995, No. 99 (Adj. Sess.), § 9; 1999, No. 157 (Adj. Sess.), § 10; 2017, No. 53 , § 6; 2021, No. 54 , § 8.

History

Source. V.S. 1947, § 9380. 1947, No. 202 , § 9511. P.L. § 6105. 1931, No. 101 , § 1.

Amendments--2021. Subsec. (c): Added.

Amendments--2017. Subsec. (a): Substituted "that" for ", which" following "incorporated association" in the first sentence; rewrote the fourth sentence; added the fifth through seventh sentences; and substituted "the" for "such" preceding "hearing" in the eighth sentence.

Amendments--1999 (Adj. Sess.) Subsec. (b): Inserted "opportunity for" preceding "hearing".

Amendments--1995 (Adj. Sess.) Subsec. (a): Substituted "opportunity for" for "a" preceding "hearing" in the seventh sentence.

Amendments--1987. Subsec. (a): Amended generally.

Subsec. (b): Substituted "section 209(b) and (c) of this title" for "30 V.S.A. section 209(b) and (c)" following "adopted under" at the end of the subsec.

Amendments--1979 (Adj. Sess.). Subsec. (a): Substituted "director for public advocacy" for "attorney general or state's attorney of the county" preceding "shall represent the" in the third sentence and "public" for "state" thereafter.

Amendments--1975 (Adj. Sess.). Inserted "abandonment of service" in the catchline, designated existing provisions of section as subsec. (a) and added subsec. (b).

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Prior law. 30 V.S.A. § 229.

ANNOTATIONS

Analysis

1. Findings.

The Public Service Board did not err by granting the purchaser of an electric generation station a certificate of public good where the service territory served by the facility was defined as the entire State of Vermont and the electricity manufactured by the facility was ultimately to be used by ratepayers of electric utilities in Vermont under the power purchase agreement approved by the Board as part of the sale. In re Proposed Sale of Vermont Yankee Nuclear Power Station, 175 Vt. 368, 829 A.2d 1284 (2003).

Where the Public Service Board, which rejected a hearing examiner's recommendation that appellant be granted a certificate of public good to provide cable television service, reviewed the record developed below, took additional evidence at a subsequent hearing and rendered its decision accordingly, it was acting within its authority under this section and committed no error in making findings of its own in place of the contradictory findings by the examiner. In re Telesystems, Corp., 143 Vt. 504, 469 A.2d 1169 (1983).

2. Matters considered.

In a dispute involving the continued operation of a Vermont nuclear power plant, Act 160, 2006 Vt. Acts & Resolves 204 and a single provision of Act 74, 2005 Vt. Acts & Resolves 599, requiring affirmative legislative approval under 10 V.S.A. § 6522(b)(4) for storage of spent nuclear fuel at the Vermont Yankee nuclear plant after March 21, 2012, were held preempted by the Atomic Energy Act, 42 U.S.C.S. § 2011 et seq. Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 733 F.3d 393 (2d Cir. 2013).

In determining whether to grant a certificate of public good (CPG) to a public utility that had formerly been private, the Board was entitled to consider the past management practices of the utility. The Board's consideration of past acts did not violate any constitutional rights nor constitute retroactive application of 30 V.S.A. § 203(6); any CPG applicant must expect the Board to consider past incidents of mismanagement in making its decision and the utility had no vested property right to conduct a business that could be affected by the Board's denial. In re Quechee Service Co., 166 Vt. 50, 690 A.2d 354 (1996).

3. Common-law franchise.

The Legislature has given the Board statutory authority to grant a franchise, in the form of a "certificate of public good," only after a period of public notice and an opportunity for a public hearing to determine whether the award of such a franchise promotes the good of the State. In re Vermont Electric Power Producers, Inc., 165 Vt. 282, 683 A.2d 716 (1996).

Cited. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 231a. Registration of billing aggregators.

  1. Definitions.  As used in this section, unless the context otherwise indicates:
    1. "Bill" means a direct statement of payments due and any other form of notice soliciting payment.
    2. "Billing agent" means a local exchange carrier or other person offering telecommunications service who includes in a bill it sends to a customer a charge for a product or service offered by a service provider.
    3. "Billing aggregator" means any person, other than a service provider, who forwards the charge for a product or service offered by a service provider to a billing agent.
    4. "Service provider" means any person, other than the billing agent, that offers a product or service to a customer, the charge for which appears on the bill of a billing agent.
    5. "Telecommunications carrier" means a company subject to the jurisdiction of the Public Utility Commission under subdivision 203(5) of this title.
    6. "Unauthorized service" means the provision of any service or product by a service provider that a customer has not authorized, and for which a charge appears on the customer's telephone bill. Charges for collect calls shall be exempt from this section.
  2. Registration requirements.  Except as provided in this subsection, no billing aggregator may forward charges for a service or product offered by a service provider to a billing agent for presentation to a customer, unless the billing aggregator is registered with the Public Utility Commission. A registration properly filed with the Public Utility Commission takes effect 14 days after the filing date, unless the Department of Public Service objects to the registration and provides notice of its objection to the registrant within the 14 days. If the Department of Public Service objects to the registration, the registration does not become effective, unless expressly approved by the Public Utility Commission. The Public Utility Commission shall offer a person whose registration has been rejected an opportunity for a hearing. A registration, once effective, remains effective until revoked by the Public Utility Commission or surrendered by the holder. A company that provides telecommunications service in this State pursuant to a certificate of public good or equivalent authority under this title is not required to be registered under this subsection.
  3. Revocation of registration; notice.
    1. After opportunity for hearing, the Public Utility Commission may revoke the registration of a billing aggregator who has:
      1. provided false or deceptive information in registering under this section;
      2. knowingly, negligently, or repeatedly forwarded a charge to a billing agent for a product or service that the consumer did not authorize;
      3. failed to provide a notice to customers as required by rule or order of the Public Utility Commission, or otherwise failed to comply with a rule or order of the Public Utility Commission; or
      4. engaged in any other false or deceptive practices.
    2. Immediately following a revocation of registration under this subsection, the Public Utility Commission shall provide notice of the revocation, in a form and manner established by the Public Utility Commission by rule, to all telecommunications carriers doing business in this State.
  4. Procedure upon complaint.  If a customer of a telecommunications carrier claims that a charge for an unauthorized service has been included in the customer's telephone bill, the telecommunications carrier shall immediately suspend collection efforts on that portion of the customer's bill. The telecommunications carrier shall either cease collection efforts entirely with regard to the disputed charge or request evidence from the billing aggregator that the customer authorized the service for which payment is sought. If the telecommunications carrier ceases collection efforts or sufficient evidence of customer authorization is not presented to the telecommunications carrier within a reasonable time, the telecommunications carrier shall immediately remove any charges associated with the unauthorized service from the customer's bill and refund to the customer any amounts paid for the unauthorized service that were billed by the telecommunications carrier during the six months prior to the customer's complaint. If sufficient evidence of customer authorization is provided to the telecommunications carrier, the telecommunications carrier may restore the charges on the customer's bill and reinstitute collection efforts. The customer or the billing aggregator may appeal the telecommunications carrier's determination to the Public Utility Commission.
  5. Enforcement authority.  In addition to any other authority the Public Utility Commission may have pursuant to other law, the Public Utility Commission may enforce the provisions of this section in accordance with this subsection:
    1. In an adjudicatory proceeding, the Public Utility Commission may impose an administrative penalty upon the following entities for the following violations:
      1. a billing aggregator who forwards charges to a billing agent for an unauthorized product or service;
      2. a billing aggregator who is required to be registered under subsection (b) of this section and who is not properly registered pursuant to that subsection and who forwards charges for a product or service that appear on the bill of a billing agent;
      3. a billing agent who knowingly bills on behalf of a billing aggregator who is required to be registered under subsection (b) of this section and who is not properly registered pursuant to that subsection at the time the bill which is to be sent to the customer is generated, except that a billing agent who bills on behalf of a billing aggregator whose registration has been revoked shall not be subject to administrative penalty if the bill which is to be sent to the customer was generated within 14 days of the revocation of the registration and the billing agent did not have actual notice of the revocation;
      4. a telecommunications carrier that, without having first obtained evidence of authorization that the telecommunications carrier believed in good faith to be sufficient, does not remove the charges for any service which is the subject of a complaint under subsection (d) of this section and does not refund to the customer any amounts paid for the unauthorized service that were billed by the telecommunications carrier during the six months prior to the customer's complaint. For purposes of this section, evidence that a call was dialed from the number that is the subject of the charge shall be considered sufficient evidence of authorization for that call.
    2. The amount of any administrative penalty imposed under subdivision (1) of this subsection may not exceed $1,000.00 per violation arising out of the same incident or complaint, and must be based on:
      1. the severity of the violation, including the intent of the violator, the nature, circumstances, extent, and gravity of any prohibited acts;
      2. the history of previous violations; and
      3. the amount necessary to deter future violations.
  6. Rulemaking.  The Public Utility Commission shall adopt such rules as it deems necessary to implement this section.

    Added 1999, No. 67 (Adj. Sess.), § 4.

History

Application. 1999, No. 67 (Adj. Sess.), § 6, provided that this section shall take effect on July 1, 2000, except that no person shall suffer a penalty under subsec. (d) of this section as to any telecommunications billing for a service rendered before October 1, 2000.

§ 232. Sales, leases, pledges, bonds, notes; hearings.

  1. Except in connection with replacement or exchange, an individual, partnership, or unincorporated association conducting such public service business shall not make a sale or lease or series of sales or leases in any one calendar year constituting 10 percent or more of its property located within this State and actually used in or required for public service operations or mortgage or pledge any of its property or issue any bonds, notes, or other evidences of indebtedness without the consent of the Public Utility Commission, given on petition and after opportunity for hearing and a finding that the same will promote the general good of the State. Notice of such hearing shall be given as the Commission directs.
  2. Notwithstanding subsection (a) of this section, an individual, partnership, or unincorporated association may issue evidences of indebtedness payable within one year from date of issue without such consent provided such borrowing is necessary as an emergency to restore service immediately after disaster or provided its total evidences of indebtedness so payable within one year do not exceed 20 percent of its total assets. If such evidences of indebtedness in an amount which would cause its total evidences of indebtedness so payable within one year to exceed 20 percent of its total assets, then it shall give the Commission notice in writing of its intention so to do at least 10 days before the date of the proposed issue. If the Commission determines after considering the notice and the said individual, partnership, or unincorporated association's report to the Commission that further inquiry is warranted, it shall order such individual, partnership, or unincorporated association not to issue such evidences of indebtedness under this subsection without the consent of the Commission given after opportunity for hearing, provided, however, that if the Commission does not make such an order within 10 days from the time it receives such notice under this subsection, then the individual, partnership, or unincorporated association may issue such evidences of indebtedness without the consent of the Public Utility Commission, and the Commission shall so notify such individual, partnership, or unincorporated association in writing.
  3. Nothing in this section shall restrict the right of a common carrier by motor vehicle to issue evidences of indebtedness payable within one year from the date of issue without prior notice to or consent by the Commission.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1993, No. 21 , § 9, eff. May 12, 1993.

History

Source. 1949, No. 137 , § 4. V.S. 1947, § 9381. 1947, No. 202 , § 9512. P.L. § 6106. 1933, No. 113 . 1931, No. 101 , § 3.

Editor's note. As to functions of the Public Utility Commission, see note set out under § 101 of this title.

Amendments--1993. Section amended generally.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Prior law. 30 V.S.A. § 230.

Cross References

Cross references. Sales and leases by corporations subject to the jurisdiction of the Public Utility Commission, see § 109 of this title.

§ 233. Repealed. 1995, No. 99 (Adj. Sess.), § 16(1).

History

Former § 233. Former § 233, which related to penalties for violation of the certificate of public good and abandonment of service, was derived from V.S. 1947, § 9382; P.L. § 6107; and 1931, No. 101 , § 4.

§ 234. Appeal.

A person, partnership, or unincorporated association aggrieved by any act or order of the Public Utility Commission may transfer such cause to the Supreme Court under the provisions of section 12 of this title.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. V.S. 1947, § 9383. 1947, No. 202 , § 9514. P.L. § 6108. 1931, No. 101 , § 2.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "Public Service".

Prior law. 30 V.S.A. § 232.

ANNOTATIONS

1. Right to appeal.

Under both statutes regarding appeals from Public Service Board [now Public Utility Commission] orders, appellant, which tried unsuccessfully to intervene in the action, had no right to appeal the merits of the certificate-of-public-good order. In re GMPSolar-Richmond, LLC, 206 Vt. 220, 179 A.3d 1232 (2017).

§ 235. Heating and process fuel efficiency program.

  1. After consultation with fuel dealers, any appointed efficiency entity, financial institutions, the Commission, representatives of the weatherization program, and other stakeholders, the Department of Public Service shall propose, develop, solicit, and monitor any combination of energy efficiency and conservation programs, measures, and compensation mechanisms to provide fuel efficiency services on a statewide basis for Vermont heating or process fuel consumers. The Department shall select one or more service providers as needed and pursuant to a competitive bidding process to implement those programs, measures, or compensation mechanisms by means of performance-based contracts that are based upon verified savings in energy usage and demand, and other performance targets. The contracts entered into during the first year after March 19, 2008 shall be for a period of time of no greater than three years. Those programs, measures, and compensation mechanisms shall include fuel efficiency services that:
    1. produce whole building and process heat efficiency, regardless of the fuel type used;
    2. facilitate appropriate fuel switching; and
    3. promote coordination, to the fullest practical extent, with the electric efficiency programs established and administered pursuant to this chapter, as well as with low-income weatherization programs and any utility energy efficiency programs.
  2. Prior to the Department of Public Service entering a contract with service providers under this section and after such notice and hearings as it may require, the Public Utility Commission shall review the programs, measures, and compensation mechanisms selected by the Department to determine whether these programs, measures, and compensation mechanisms promote the public good. The Commission may alter or impose conditions on any combination of these programs, measures, or compensation mechanisms as it deems necessary to promote the public good. If the Department thereafter changes the programs, measures, or compensation mechanisms, it shall request review under this section by the Commission prior to implementing those changes.
  3. Funding for the program established under this section shall be provided from the Fuel Efficiency Fund established under section 203a of this title. During fiscal year 2009, any contracts or grants to be made from the Fund for other than administrative purposes shall be subject to appropriation by the General Assembly. The Department shall provide the Joint Fiscal Committee, at the Committee's November 2008 meeting, with a preliminary report on the program to be presented to the Public Utility Commission.
  4. The Department, subject to the oversight of the Commission, shall:
    1. Ensure that all retail consumers, regardless of retail electricity, gas, or heating or process fuel provider, will have an opportunity to participate in and benefit from a comprehensive set of cost-effective energy efficiency programs and initiatives designed to overcome barriers to participation.
    2. Require that continued or improved efficiencies be made in the production, delivery, and use of energy efficiency services, including the use of compensation mechanisms that are based upon verified savings in energy usage and demand, and other performance targets specified by the Commission. The linkage between compensation and verified savings in energy usage and demand (and other performance targets) shall be reviewed and adjusted not less than triennially by the Commission.
    3. Build on the energy efficiency expertise and capabilities that have developed or may develop in the State.
    4. Promote program initiatives and market strategies that address the needs of persons or businesses facing the most significant barriers to participation.
    5. Promote coordinated program delivery, including coordination with low-income weatherization programs, other efficiency programs, and utility programs.
    6. Consider innovative approaches to delivering energy efficiency, including strategies to encourage third-party financing and customer contributions to the cost of efficiency measures.
    7. Provide a reasonably stable multiyear budget and planning cycle in order to promote program improvement, program stability, enhanced access to capital and personnel, improved integration of program designs with the budgets of regulated companies providing energy services, and maturation of programs and delivery resources.
    8. Develop and approve programs, measures, and delivery mechanisms that reasonably reflect current and projected market conditions, technological options, and environmental benefits.
    9. Provide for delivery of these programs as rapidly as possible, taking into consideration the need for these services, and cost-effective delivery mechanisms.
    10. Provide for the independent evaluation of programs delivered under this section.
    11. Require that any service provider under this section deliver programs in an effective, efficient, timely, and competent manner and meet standards that are consistent with those in section 218c of this title, the Board's orders in Public Service Board docket 5270, and any relevant Board orders in subsequent energy efficiency proceedings.
    12. Require verification, on or before January 1, 2011, and every three years thereafter, by an independent auditor of the reported energy and capacity savings and cost-effectiveness of programs delivered by any entity selected to be a service provider under this section.
    13. Ensure that any energy efficiency program implemented under this section shall be reasonable and cost-effective.
    14. Consider the impact of programs delivered under this section on the amount of fuel used, fuel prices, and fuel bills.
    15. Ensure that the energy efficiency programs implemented under this section are designed to make continuous and proportional progress toward attaining the overall State building efficiency goals established by 10 V.S.A. § 581 , by promoting all forms of energy end-use efficiency and comprehensive sustainable building design.
  5. Any disputes under this section shall be resolved by the Commission.

    Added 2007, No. 92 (Adj. Sess.), § 15.

History

2017. In subdiv. (d)(11), references to the former name of the Public Utility Commission ("Public Service Board" or "Board") are retained for historical accuracy because they refer to orders issued under that former name.

- 2016. In subsec. (a), substituted "March 19, 2008" for "the effective date of this act".

Former § 235. Former § 235, relating to exemption of common carriers by bus or motor truck from the provisions of §§ 231, 233 and 234 of this title, was derived from V.S. 1947, § 9384; P.L. § 6109; 1931, No. 101 , § 5 and was previously repealed by 1985, No. 224 (Adj. Sess.), § 8.

§§ 236-245. Repealed. 1985, No. 224 (Adj. Sess.), § 8.

History

Former §§ 235-245. Former § 235, relating to exemption of common carriers by bus or motor truck from the provisions of §§ 231, 233 and 234 of this title, was derived from V.S. 1947, § 9384; P.L. § 6109; 1931, No. 101 , § 5.

Former § 236, relating to definition of a motor bus, was derived from V.S. 1947, § 9385; P.L. § 6110; 1923, No. 91 , § 1. The subject matter is now covered by 5 V.S.A. § 1820.

Former § 237, relating to definition of a common carrier, was derived from V.S. 1947, § 9386; P.L. § 6111; 1925, No. 74 , § 1; 1923, No. 91 , § 2 and amended by 1985, No. 105 (Adj. Sess.), § 1. The subject matter is now covered by 5 V.S.A. § 1821.

Former § 238, relating to jurisdiction over common carriers, was derived from V.S. 1947, § 9387; P.L. § 6112; 1925, No. 74 , § 1; 1923, No. 91 , § 2 and amended by 1959, No. 329 (Adj. Sess.), § 39(b). The subject matter is now covered by 5 V.S.A. § 1822.

Former § 239, relating to certificate of public good for motor buses, was derived from V.S. 1947, § 9388; 1947, No. 202 , § 9519; P.L. § 6113; 1925, No. 74 , § 2 and amended by 1959, No. 329 (Adj. Sess.), § 39(b); 1985, No. 105 (Adj. Sess.), § 2. The subject matter is now covered by 5 V.S.A. § 1823.

Former § 240, relating to application for a certificate of public good, was derived from V.S. 1947, § 9389; 1937, No. 167 , § 1; P.L. § 6114; 1925, No. 74 , § 2 and amended by 1959, No. 329 (Adj. Sess.), § 39(b); 1961, No. 263 , § 7. The subject matter is now covered by 5 V.S.A. § 1824.

Former § 241, relating to investigation of common carriers, was derived from V.S. 1947, § 9390; P.L. § 6115; 1925, No. 74 , § 2 and amended by 1959, No. 329 (Adj. Sess.), § 39(b); 1961, No. 263 , § 8. The subject matter is now covered by 5 V.S.A. § 1825.

Former § 242, relating to display of certificate of public good, was derived from V.S. 1947, § 9391; P.L. § 6116; 1931, No. 89 ; 1925, No. 74 , § 3 and amended by 1959, No. 329 (Adj. Sess.), § 39(b); 1985, No. 105 (Adj. Sess.), § 3. The subject matter is now covered by 5 V.S.A. § 1826.

Former § 243, relating to jurisdiction of the commissioner of motor vehicles, was derived from V.S. 1947, § 9392; P.L. § 6117; 1925, No. 74 , § 4 and amended by 1985, No. 105 (Adj. Sess.), § 4. The subject matter is now covered by 5 V.S.A. § 1827.

Former § 244, relating to markers, was derived from V.S. 1947, § 9393; P.L. § 6118; 1925, No. 74 , § 5.

Former § 245, relating to safe operation of motor busses, was derived from V.S. 1947, § 9394; P.L. § 6119; 1923, No. 91 , § 3. The subject matter is now covered by 5 V.S.A. § 1828.

§ 246. Temporary siting of meteorological stations.

  1. As used in this section, a "meteorological station" consists of one temporary tower, which may include guy wires, and attached instrumentation to collect and record wind speed, wind direction, and atmospheric conditions.
  2. The Public Utility Commission shall establish by rule or order standards and procedures governing application for, and issuance or revocation of, a certificate of public good for the temporary installation of one or more meteorological stations under the provisions of section 248 of this title. A meteorological station shall be deemed to promote the public good of the State if it is in compliance with the criteria of this section and the Commission's rules or orders. An applicant for a certificate of public good for a meteorological station shall be exempt from the requirements of subsection 202(f) of this title.
  3. In developing rules or orders, the Commission:
    1. Shall develop a simple application form and shall require that the applicant first file the application with the Commission and that, within two business days of notification from the Commission that the application is complete, the applicant serve copies of the complete application on the Department of Public Service, the Agency of Natural Resources, the Agency of Transportation, and the municipality in which the meteorological station is proposed to be located.
    2. Shall require that if no objections are filed within 30 days of the date of service of the complete application under subdivision (1) of this subsection, and the Commission determines that the applicant has met all of the requirements of section 248 of this title, the certificate of public good shall be issued for a period that the Commission finds reasonable, but in no event for more than five years. Upon request of an applicant, the Commission may renew a certificate of public good. Upon expiration of the certificate, the meteorological station and all associated structures and material shall be removed, and the site shall be restored substantially to its preconstruction condition.
    3. May waive the requirements of section 248 of this title that are not applicable to meteorological stations, including criteria that are generally applicable to public service companies as defined in this title. The Commission shall not waive review regarding whether construction will have an undue adverse effect on aesthetics, historic sites, air and water purity, the natural environment, and the public health and safety.
    4. Shall seek to simplify the application and review process, as appropriate, in conformance with this section.
  4. A proposal for decision shall be issued within five months of when the Commission receives a completed application for a certificate of public good for the temporary installation of one or more meteorological stations under the provisions of section 248 of this title.
  5. Notwithstanding any contrary provisions of this section, the holder of a certificate of public good for a constructed meteorological station may apply under section 248a of this title or 10 V.S.A. chapter 151 to convert the station to a wireless telecommunications facility, provided the application is filed at least 90 days before the expiration of the certificate for the station. Any such application shall constitute a new application to be reviewed under the facts and circumstances as they exist at the time of the review.

    Added 2007, No. 92 (Adj. Sess.), § 17; amended 2011, No. 62 , § 35; 2015, No. 41 , § 13, eff. June 1, 2015; 2017, No. 53 , § 2.

History

Former § 246, relating to supervision of common carriers, was derived from V.S. 1947, § 9395; P.L. § 6120; 1925, No. 74 , § 8; 1923, No. 91 , § 4 and amended by 1959, No. 329 (Adj. Sess.), § 39(b); 1961, No. 263 , § 9 and was previously repealed by 1985, No. 224 (Adj. Sess.), § 8.

2013. In subsec. (a), substituted "As used in" for "For purposes of" preceding "this section".

Amendments--2017. Subdiv. (c)(1): Amended generally.

Subdiv. (c)(2): Substituted "date of service of the complete application under subdivision (1) of this subsection," for "Board's receipt of a complete application" in the first sentence.

Amendments--2015. Subsec. (e): Added.

Amendments--2011. Subdiv. (c)(1): Inserted "the agency of transportation," following "resources".

ANNOTATIONS

Analysis

1. Applicability.

Legislature intended for the statute governing temporary siting of meteorological stations to govern whether and how to obtain a certificate of public good for temporary meteorological towers as an independent statutory scheme, and the statute governing new gas and electric purchases, investments, and facilities does not apply except as incorporated within the statute governing meteorological stations. In re Constr. & Operation of a Meteorological Tower, 210 Vt. 27, 210 A.3d 1230 (2019).

2. Authority of commission.

Application of the "reasonably related" standard in the context of proceedings under the statute governing temporary siting of meteorological stations comports with Public Utility Commission (PUC) precedent and the history of the relationship between it and the statute governing new gas and electric purchases, investments, and facilities. A temporary meteorological tower is within PUC jurisdiction under the statute governing meteorological stations if it is "reasonably related" to construction or establishment of a grid-connected wind generation facility. In re Constr. & Operation of a Meteorological Tower, 210 Vt. 27, 210 A.3d 1230 (2019).

3. Violations.

Establishment of a temporary meteorological tower without obtaining a certificate of public good is a violation of the statute governing temporary siting of meteorological stations; therefore, section (a)(2) of the penalty statute, not section (a)(1), provides the appropriate civil penalty. In re Constr. & Operation of a Meteorological Tower, 210 Vt. 27, 210 A.3d 1230 (2019).

4. Particular cases.

Based on appellant's statements, actions, and outward manifestations of intent, including a declaration of planned community in which he stated that he might develop an electrical generation wind farm on his property, his consultations for a proposal to install a meteorological tower on the property, and his stated interest in determining what type of wind was available on the ridgeline for wind turbines, his tower was reasonably related to determining the site's suitability for a grid-connected wind turbine, and thus met the definition of a "temporary meteorological station" and required a certificate of public good prior to its construction. In re Constr. & Operation of a Meteorological Tower, 210 Vt. 27, 210 A.3d 1230 (2019).

To establish that a temporary meteorological tower satisfies the "reasonably related" standard and is within Public Utility Commission jurisdiction under the statute governing temporary siting of meteorological stations, an objective review of the circumstances must demonstrate that the tower was constructed or installed to help determine the site's suitability for a grid-connected wind turbine. Such inquiries will be fact intensive and determined on a case-by-case basis. In re Constr. & Operation of a Meteorological Tower, 210 Vt. 27, 210 A.3d 1230 (2019).

To demonstrate that a temporary meteorological tower was established to help determine a site's suitability for a grid-connected wind turbine, the reviewer may rely on a host of factors, including - but not limited to - the station's size and scope, the project proponent's actions and outward manifestations of intent, the project proponent's statements of subjective intent, the existence of plans for a grid-connected wind turbine, and subsequent development of a grid-connected project. In re Constr. & Operation of a Meteorological Tower, 210 Vt. 27, 210 A.3d 1230 (2019).

§ 247. Penalty.

In addition to any civil penalty imposed under section 30 and section 230 of this title, any person, partnership, unincorporated association, company, or corporation, or the officers of any unincorporated association, company, or corporation who violates section 230 or section 248 of this title shall be fined not more than $100.00 or imprisoned not more than 60 days, or both.

Amended 1995, No. 99 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 9396. P.L. § 6121. 1925, No. 74 , § 7. 1923, No. 91 , § 6.

Amendments--1995 (Adj. Sess.) Section amended generally.

Prior law. 30 V.S.A. § 245.

ANNOTATIONS

Cited. First National Bank of White River Junction v. Reed, 306 F.2d 481 (2d Cir. 1962).

§ 248. New gas and electric purchases, investments, and facilities; certificate of public good.

    1. No company, as defined in section 201 of this title, may: (a) (1)  No company, as defined in section 201 of this title, may:
      1. in any way purchase electric capacity or energy from outside the State:
        1. for a period exceeding five years, that represents more than three percent of its historic peak demand, unless the purchase is from a plant as defined in section 8002 of this title that produces electricity from renewable energy as defined under section 8002; or
        2. for a period exceeding 10 years, that represents more than 10 percent of its historic peak demand, if the purchase is from a plant as defined in section 8002 of this title that produces electricity from renewable energy as defined under section 8002; or
      2. invest in an electric generation facility, energy storage facility, or transmission facility located outside this State unless the Public Utility Commission first finds that the same will promote the general good of the State and issues a certificate to that effect.
    2. Except for the replacement of existing facilities with equivalent facilities in the usual course of business, and except for electric generation or energy storage facilities that are operated solely for on-site electricity consumption by the owner of those facilities and for hydroelectric generation facilities subject to licensing jurisdiction under the Federal Power Act, 16 U.S.C. chapter 12, subchapter 1:
      1. no company, as defined in section 201 of this title, and no person, as defined in 10 V.S.A. § 6001 (14), may begin site preparation for or construction of an electric generation facility, energy storage facility, or electric transmission facility within the State that is designed for immediate or eventual operation at any voltage; and
      2. no such company may exercise the right of eminent domain in connection with site preparation for or construction of any such transmission facility, energy storage facility, or generation facility, unless the Public Utility Commission first finds that the same will promote the general good of the State and issues a certificate to that effect.
    3. No company, as defined in section 201 of this title, and no person, as defined in 10 V.S.A. § 6001 (14), may in any way begin site preparation for or commence construction of any natural gas facility, except for the replacement of existing facilities with equivalent facilities in the usual course of business, unless the Public Utility Commission first finds that the same will promote the general good of the State and issues a certificate to that effect pursuant to this section.
      1. For the purposes of this section, the term "natural gas facility" shall mean any natural gas transmission line, storage facility, manufactured-gas facility, or other structure incident to any such line or facility.  For purposes of this section, a "natural gas transmission line" shall include any feeder main or any pipeline facility constructed to deliver natural gas in Vermont directly from a natural gas pipeline facility that has been certified pursuant to the Natural Gas Act, 15 U.S.C. § 717 et seq.
      2. For the purposes of this section, the term "company" shall not include a "natural gas company" (including a "person which will be a natural gas company upon completion of any proposed construction or extension of facilities"), within the meaning of the Natural Gas Act, 15 U.S.C. § 717 et seq.; provided however, that the term "company" shall include any "natural gas company" to the extent it proposes to construct in Vermont a natural gas facility that is not solely subject to federal jurisdiction under the Natural Gas Act.
      3. The Public Utility Commission shall have the authority to, and may in its discretion, conduct a proceeding, as set forth in subsection (h) of this section, with respect to a natural gas facility proposed to be constructed in Vermont by a "natural gas company" for the purpose of developing an opinion in connection with federal certification or other federal approval proceedings.
      1. With respect to a facility located in the State, in response to a request from one or more members of the public or a party, the Public Utility Commission shall hold a nonevidentiary public hearing on a petition for such finding and certificate in at least one county in which any portion of the construction of the facility is proposed to be located. The Commission in its discretion may hold a nonevidentiary public hearing in the absence of any request from a member of the public or a party. From the comments made at a public hearing, the Commission shall derive areas of inquiry that are relevant to the findings to be made under this section and shall address each such area in its decision. Prior to making findings, if the record does not contain evidence on such an area, the Commission shall direct the parties to provide evidence on the area. This subdivision does not require the Commission to respond to each individual comment. (4) (A) With respect to a facility located in the State, in response to a request from one or more members of the public or a party, the Public Utility Commission shall hold a nonevidentiary public hearing on a petition for such finding and certificate in at least one county in which any portion of the construction of the facility is proposed to be located. The Commission in its discretion may hold a nonevidentiary public hearing in the absence of any request from a member of the public or a party. From the comments made at a public hearing, the Commission shall derive areas of inquiry that are relevant to the findings to be made under this section and shall address each such area in its decision. Prior to making findings, if the record does not contain evidence on such an area, the Commission shall direct the parties to provide evidence on the area. This subdivision does not require the Commission to respond to each individual comment.
      2. The Public Utility Commission shall hold evidentiary hearings at locations that it selects in any case conducted under this section in which contested issues remain or when any party to a case requests that an evidentiary hearing be held. In the event a case is fully resolved and no party requests a hearing, the Commission may exercise its discretion and determine that an evidentiary hearing is not necessary to protect the interests of the parties or the public, or for the Commission to reach its decision on the matter.
      3. Within two business days of notification from the Commission that the petition is complete, the petitioner shall serve copies of the complete petition on the Attorney General and the Department of Public Service, and, with respect to facilities within the State, the Department of Health; Agency of Natural Resources; Historic Preservation Division; Agency of Transportation; Agency of Agriculture, Food and Markets; and to the chair or director of the municipal and regional planning commissions and the municipal legislative body for each town and city in which the proposed facility will be located.
      4. Notice of the public hearing shall be published and maintained on the Commission's website for at least 12 days before the day appointed for the hearing. Notice of the public hearing shall be published once in a newspaper of general circulation in the county or counties in which the proposed facility will be located, and the notice shall include an Internet address where more information regarding the proposed facility may be viewed.
      5. The Agency of Natural Resources shall appear as a party in any proceedings held under this subsection, shall provide evidence and recommendations concerning any findings to be made under subdivision (b)(5) of this section, and may provide evidence and recommendations concerning any other matters to be determined by the Commission in such a proceeding.
      6. The following shall apply to the participation of the Agency of Agriculture, Food and Markets in proceedings held under this subsection:
        1. Subdivision (a)(4)(F)(i) effective December 31, 2022; see also subdivision (a)(4)(F)(i) until effective December 31, 2022 set out above.  In any proceeding regarding an electric generation facility that will have a capacity greater than 500 kilowatts or an energy storage facility that will have a capacity greater than 1 megawatt and will be sited on a tract containing primary agricultural soils as defined in 10 V.S.A. § 6001, the Agency shall appear as a party and provide evidence and recommendations concerning any findings to be made under subdivision (b)(5) of this section on those soils, and may provide evidence and recommendations concerning any other matters to be determined by the Commission in such a proceeding.
        2. In a proceeding other than one described in subdivision (i) of this subdivision (4)(F), the Agency shall have the right to appear and participate.
      7. The regional planning commission for the region in which the facility is located shall have the right to appear as a party in any proceedings held under this subsection. The regional planning commission of an adjacent region shall have the same right if the distance of the facility's nearest component to the boundary of that planning commission is within 500 feet or 10 times the height of the facility's tallest component, whichever is greater.
      8. The legislative body and the planning commission for the municipality in which a facility is located shall have the right to appear as a party in any proceedings held under this subsection. The legislative body and planning commission of an adjacent municipality shall have the same right if the distance of the facility's nearest component to the boundary of that adjacent municipality is within 500 feet or 10 times the height of the facility's tallest component, whichever is greater.
      9. When a person has the right to appear as a party in a proceeding before the Commission under this chapter, the person may exercise this right by filing a letter with the Commission stating that the person appears through the person's duly authorized representative, signed by that representative.
      10. Subdivision (a)(4)(J) effective until December 31, 2022; see also subdivision (a)(4)(J) effective December 31, 2022 set out below.  This subdivision (J) applies to an application for an electric generation facility with a capacity that is greater than 50 kilowatts, unless the facility is located on a new or existing structure the primary purpose of which is not the generation of electricity. In addition to any other information required by the Commission, the application for such a facility shall include information that delineates:
        1. the full limits of physical disturbance due to the construction and operation of the facility and related infrastructure, including areas disturbed due to the creation or modification of access roads and utility lines and the clearing or management of vegetation;
        2. the presence and total acreage of primary agricultural soils as defined in 10 V.S.A. § 6001 on each tract to be physically disturbed in connection with the construction and operation of the facility, the amount of those soils to be disturbed, and any other proposed impacts to those soils;
        3. all visible infrastructure associated with the facility; and
        4. all impacts of the facility's construction and operation under subdivision (b)(5) of this section, including impacts due to the creation or modification of access roads and utility lines and the clearing or management of vegetation.

          (J) Subdivision (a)(4)(J) effective December 31, 2022; see also subdivision (a)(4)(J) effective until December 31, 2022 set out above. This subdivision (J) applies to an application for an electric generation facility with a capacity that is greater than 50 kilowatts and to an application for an energy storage facility that is greater than 1 megawatt, unless the facility is located on a new or existing structure the primary purpose of which is not the generation of electricity. In addition to any other information required by the Commission, the application for such a facility shall include information that delineates:

          (i) the full limits of physical disturbance due to the construction and operation of the facility and related infrastructure, including areas disturbed due to the creation or modification of access roads and utility lines and the clearing or management of vegetation;

          (ii) the presence and total acreage of primary agricultural soils as defined in 10 V.S.A. § 6001 on each tract to be physically disturbed in connection with the construction and operation of the facility, the amount of those soils to be disturbed, and any other proposed impacts to those soils;

          (iii) all visible infrastructure associated with the facility; and

          (iv) all impacts of the facility's construction and operation under subdivision (b)(5) of this section, including impacts due to the creation or modification of access roads and utility lines and the clearing or management of vegetation.

    4. The Commission shall adopt rules regarding standard conditions on postconstruction inspection and maintenance of aesthetic mitigation and on decommissioning to be included in certificates of public good for in-state facilities approved under this section. The purpose of these standard conditions shall be to ensure that all required aesthetic mitigation is performed and maintained and that facilities are removed once they are no longer in service.
    5. In any certificate of public good issued under this section for an in-state plant as defined in section 8002 of this title that generates electricity from wind, the Commission shall require the plant to install radar-controlled obstruction lights on all wind turbines for which the Federal Aviation Administration (FAA) requires obstruction lights, if the plant includes four or more wind turbines and the FAA allows the use of radar-controlled lighting technology.
      1. Nothing in this subdivision shall allow the Commission to approve obstruction lights that do not meet FAA standards.
      2. The purpose of this subdivision (6) is to reduce the visual impact of wind turbine obstruction lights on the environment and nearby properties. The General Assembly finds that wind turbine obstruction lights that remain illuminated through the night create light pollution. Radar-controlled obstruction lights are only illuminated when aircraft are detected in the area, and therefore the use of these lights will reduce the negative environmental impacts of obstruction lights.
    6. When a certificate of public good under this section or amendment to such a certificate is issued for an in-state electric generation or energy storage facility with a capacity that is greater than 15 kilowatts, the certificate holder within 45 days shall record a notice of the certificate or amended certificate, on a form prescribed by the Commission, in the land records of each municipality in which a facility subject to the certificate is located and shall submit proof of this recording to the Commission. The recording under this subsection shall be indexed as though the certificate holder were the grantor of a deed. The prescribed form shall not exceed one page and shall require identification of the land on which the facility is to be located by reference to the conveyance to the current landowner, the number of the certificate, and the name of each person to which the certificate was issued, and shall include information on how to contact the Commission to view the certificate and supporting documents.
  1. Before the Public Utility Commission issues a certificate of public good as required under subsection (a) of this section, it shall find that the purchase, investment, or construction:
    1. With respect to an in-state facility, will not unduly interfere with the orderly development of the region with due consideration having been given to the recommendations of the municipal and regional planning commissions, the recommendations of the municipal legislative bodies, and the land conservation measures contained in the plan of any affected municipality. However:
      1. With respect to a natural gas transmission line subject to Commission review, the line shall be in conformance with any applicable provisions concerning such lines contained in the duly adopted regional plan; and, in addition, upon application of any party, the Commission shall condition any certificate of public good for a natural gas transmission line issued under this section so as to prohibit service connections that would not be in conformance with the adopted municipal plan in any municipality in which the line is located.
      2. With respect to a ground-mounted solar electric generation facility, the facility shall comply with the screening requirements of a municipal bylaw adopted under 24 V.S.A. § 4414(15) or a municipal ordinance adopted under 24 V.S.A. § 2291(28) , and the recommendation of a municipality applying such a bylaw or ordinance, unless the Commission finds that requiring such compliance would prohibit or have the effect of prohibiting the installation of such a facility or have the effect of interfering with the facility's intended functional use.
      3. With respect to an in-state electric generation facility, the Commission shall give substantial deference to the land conservation measures and specific policies contained in a duly adopted regional and municipal plan that has received an affirmative determination of energy compliance under 24 V.S.A. § 4352 . In this subdivision (C), "substantial deference" means that a land conservation measure or specific policy shall be applied in accordance with its terms unless there is a clear and convincing demonstration that other factors affecting the general good of the State outweigh the application of the measure or policy. The term shall not include consideration of whether the determination of energy compliance should or should not have been affirmative under 24 V.S.A. § 4352 .
    2. Is required to meet the need for present and future demand for service that could not otherwise be provided in a more cost-effective manner through energy conservation programs and measures and energy-efficiency and load management measures, including those developed pursuant to the provisions of subsection 209(d), section 218c, and subsection 218(b) of this title. In determining whether this criterion is met, the Commission shall assess the environmental and economic costs of the purchase, investment, or construction in the manner set out under subdivision 218c(a)(1) (least cost integrated plan) of this title and, as to a generation facility, shall consider whether the facility will avoid, reduce, or defer transmission or distribution system investments.
    3. Will not adversely affect system stability and reliability.
    4. Will result in an economic benefit to the State and its residents.
    5. With respect to an in-state facility, will not have an undue adverse effect on aesthetics, historic sites, air and water purity, the natural environment, the use of natural resources, and the public health and safety, with due consideration having been given to the criteria specified in 10 V.S.A. §§ 1424a(d) and 6086(a)(1) through (8) and (9)(K), impacts to primary agricultural soils as defined in 10 V.S.A. § 6001 , and greenhouse gas impacts.
    6. With respect to purchases, investments, or construction by a company, is consistent with the principles for resource selection expressed in that company's approved least-cost integrated plan.
    7. Except as to a natural gas facility that is not part of or incidental to an electric generating facility, is in compliance with the electric energy plan approved by the Department under section 202 of this title, or that there exists good cause to permit the proposed action.
    8. Does not involve a facility affecting or located on any segment of the waters of the State that has been designated as outstanding resource waters by the Secretary of Natural Resources, except that with respect to a natural gas or electric transmission facility, the facility does not have an undue adverse effect on those outstanding resource waters.
    9. With respect to a waste to energy facility:
      1. is included in a solid waste management plan adopted pursuant to 24 V.S.A. § 2202a , which is consistent with the State Solid Waste Management Plan; and
      2. is included in a solid waste management plan adopted pursuant to 24 V.S.A. § 2202a for the municipality and solid waste district from which 1,000 tons or more per year of the waste is to originate, if that municipality or district owns an operating facility that already beneficially uses a portion of the waste.
    10. Except as to a natural gas facility that is not part of or incidental to an electric generating facility, can be served economically by existing or planned transmission facilities without undue adverse effect on Vermont utilities or customers.
    11. With respect to an in-state generation facility that produces electric energy using woody biomass, will:
      1. comply with the applicable air pollution control requirements under the federal Clean Air Act, 42 U.S.C. § 7401 et seq.;
      2. achieve the highest design system efficiency that is commercially available, feasible, and cost-effective for the type and design of the proposed facility; and
      3. comply with harvesting procedures and procurement standards that ensure long-term forest health and sustainability. These procedures and standards at a minimum shall be consistent with the guidelines and standards developed pursuant to 10 V.S.A. § 2750 (harvesting guidelines and procurement standards) when adopted under that statute.
    1. Except as otherwise provided in subdivision (j)(3) of this section, in the case of a municipal plant or department formed under local charter or chapter 79 of this title or a cooperative formed under chapter 81 of this title, any proposed investment, construction, or contract subject to this section shall be approved by a majority of the voters of a municipality or the members of a cooperative voting upon the question at a duly warned annual or special meeting to be held for that purpose. However, in the case of a cooperative formed under chapter 81 of this title, an investment in or construction of an in-state electric transmission facility shall not be subject to the requirements of this subsection if the investment or construction is solely for reliability purposes and does not include new construction or upgrades to serve a new generation facility. (c) (1)  Except as otherwise provided in subdivision (j)(3) of this section, in the case of a municipal plant or department formed under local charter or chapter 79 of this title or a cooperative formed under chapter 81 of this title, any proposed investment, construction, or contract subject to this section shall be approved by a majority of the voters of a municipality or the members of a cooperative voting upon the question at a duly warned annual or special meeting to be held for that purpose. However, in the case of a cooperative formed under chapter 81 of this title, an investment in or construction of an in-state electric transmission facility shall not be subject to the requirements of this subsection if the investment or construction is solely for reliability purposes and does not include new construction or upgrades to serve a new generation facility.
    2. The municipal department or cooperative shall provide to the voters or members, as the case may be, written assessment of the risks and benefits of the proposed investment, construction, or contract that were identified by the Public Utility Commission in the certificate issued under this section. The municipal department or cooperative also may provide to the voters an assessment of any other risks and benefits.
  2. Nothing in this section shall be construed to prohibit a company from executing a letter of intent or entering into a contract before the issuance of a certificate of public good under this section, provided that the company's obligations under that letter of intent or contract are made subject to compliance with the requirements of this section.
    1. Before a certificate of public good is issued for the construction of a nuclear energy generating plant within the State, the Public Utility Commission shall obtain the approval of the General Assembly and the Assembly's determination that the construction of the proposed facility will promote the general welfare. The Public Utility Commission shall advise the General Assembly of any petition submitted under this section for the construction of a nuclear energy generating plant within this State, by written notice delivered to the Speaker of the House of Representatives and to the President of the Senate. The Department of Public Service shall submit recommendations relating to the proposed plant, and shall make available to the General Assembly all relevant material. The requirements of this subsection shall be in addition to the findings set forth in subsection (b) of this section. (e) (1)  Before a certificate of public good is issued for the construction of a nuclear energy generating plant within the State, the Public Utility Commission shall obtain the approval of the General Assembly and the Assembly's determination that the construction of the proposed facility will promote the general welfare. The Public Utility Commission shall advise the General Assembly of any petition submitted under this section for the construction of a nuclear energy generating plant within this State, by written notice delivered to the Speaker of the House of Representatives and to the President of the Senate. The Department of Public Service shall submit recommendations relating to the proposed plant, and shall make available to the General Assembly all relevant material. The requirements of this subsection shall be in addition to the findings set forth in subsection (b) of this section.
    2. No nuclear energy generating plant within this State may be operated beyond the date permitted in any certificate of public good granted pursuant to this title, including any certificate in force as of January 1, 2006, unless the General Assembly approves and determines that the operation will promote the general welfare, and until the Public Utility Commission issues a certificate of public good under this section. If the General Assembly has not acted under this subsection by July 1, 2008, the Commission may commence proceedings under this section and under 10 V.S.A. chapter 157, relating to the storage of radioactive material, but may not issue a final order or certificate of public good until the General Assembly determines that operation will promote the general welfare and grants approval for that operation.
  3. However, plans for the construction of such a facility within the State must be submitted by the petitioner to the municipal and regional planning commissions no less than 45 days prior to application for a certificate of public good under this section, unless the municipal and regional planning commissions shall waive such requirement.
    1. The municipal or regional planning commission may take one or more of the following actions:
      1. Hold a public hearing on the proposed plans. The planning commission may request that the petitioner or the Department of Public Service, or both, attend the hearing. The petitioner and the Department each shall have an obligation to comply with such a request. The Department shall consider the comments made and information obtained at the hearing in making recommendations to the Commission on the application and in determining whether to retain additional personnel under subdivision (1)(B) of this subsection.
      2. Request that the Department of Public Service exercise its authority under section 20 of this title to retain experts and other personnel to review the proposed facility. The Department may commence retention of these personnel once the petitioner has submitted proposed plans under this subsection. The Department may allocate the expenses incurred in retaining these personnel to the petitioner in accordance with section 21 of this title. Granting a request by a planning commission pursuant to this subdivision shall not oblige the Department or the personnel it retains to agree with the position of the commission.
      3. Make recommendations to the petitioner within 40 days of the petitioner's submittal to the planning commission under this subsection.
      4. Once the petition is filed with the Public Utility Commission, make recommendations to the Commission by the deadline for submitting comments or testimony set forth in the applicable provision of this section, Commission rule, or scheduling order issued by the Commission.
    2. The petitioner's application shall address the substantive written comments related to the criteria of subsection (b) of this section received by the petitioner within 45 days of the submittal made under this subsection and the substantive oral comments related to those criteria made at a public hearing under subdivision (1) of this subsection.
  4. Notwithstanding the 45 days' notice required by subsection (f) of this section, plans involving the relocation of an existing transmission line within the State must be submitted to the municipal and regional planning commissions no less than 21 days prior to application for a certificate of public good under this section.
  5. The position of the State of Vermont in federal certification or other approval proceedings for natural gas facilities shall be developed in accordance with this subsection.
    1. A natural gas facility requiring federal approval shall apply to the Public Utility Commission for an opinion under this section (on or before the date on which the facility applies for such federal approval in the case of a facility that has not applied for federal approval before January 16, 1988). Any opinion issued under this subsection shall be developed based upon the criteria established in subsection (b) of this section.
    2. If the Commission conducts proceedings under this subsection, the Department shall give due consideration to the Commission's opinion as to facilities of a natural gas company, and that opinion shall guide the position taken before federal agencies by the State of Vermont, acting through the Department of Public Service under section 215 of this title.
    3. If the Commission conducts proceedings under this subsection, it may consolidate them, solely for purposes of creating a common record, with any related proceedings conducted under subdivision (a)(3) of this section.
    1. No company, as defined in sections 201 and 203 of this title, without approval by the Commission, after giving notice of such investment, or filing a copy of that contract, with the Commission and the Department at least 30 days prior to the proposed effective date of that contract or investment: (i) (1)  No company, as defined in sections 201 and 203 of this title, without approval by the Commission, after giving notice of such investment, or filing a copy of that contract, with the Commission and the Department at least 30 days prior to the proposed effective date of that contract or investment:
      1. may invest in a gas-production facility located outside this State; or
      2. may execute a contract for the purchase of gas from outside the State, for resale to firm-tariff customers, that:
        1. is for a period exceeding five years; or
        2. represents more than 10 percent of that company's peak demand for resale to firm-tariff customers.
    2. The Department and the Commission shall consider within 30 days whether to investigate the proposed investment or contract.
    3. The Commission, upon its own motion, or upon the recommendation of the Department, may determine to initiate an investigation. If the Commission does not initiate an investigation within such 30-day period, the contract or investment shall be deemed to be approved. If the Commission determines to initiate an investigation, it shall give notice of that decision to the company proposing the investment or contract, the Department, and such other persons as the Commission determines are appropriate. The Commission shall conclude its investigation within 120 days of issuance of its notice of investigation, or within such shorter period as it deems appropriate. If the Commission fails to issue a decision within that 120-day period, the contract or investment shall be deemed to be approved. The Commission may hold informal, public, or evidentiary hearings on the proposed investment or contract.
    4. Nothing in this subsection shall prohibit a company from negotiating or adjusting periodically the price of other terms of supply through a supplement to such a contract, provided that the supplement falls within the terms specified in such a contract, as approved. The Commission's authority to investigate such adjustments under other authorities of this title shall not be impaired. Such a company shall file with the Department and the Commission a copy of any such supplement to the contract or other documentation that states any terms that have been renegotiated or adjusted by the company at least 30 days prior to the effective date of the renegotiated or adjusted price or other terms.
    5. Nothing in this subsection shall be construed to prohibit a gas company from executing a development contract, a contract for design and engineering, a contract to seek regulatory approvals for a gas-production facility, or a letter of intent for such purchase of gas that makes the company's obligations under that letter of intent subject to the requirements of this subsection, prior to the filing with the Commission and Department of such notice or proposed contract or pending any investigation under this subsection.
    1. The Commission may, subject to such conditions as it may otherwise lawfully impose, issue a certificate of public good in accordance with the provisions of this subsection and without the notice and hearings otherwise required by this chapter if the Commission finds that: (j) (1)  The Commission may, subject to such conditions as it may otherwise lawfully impose, issue a certificate of public good in accordance with the provisions of this subsection and without the notice and hearings otherwise required by this chapter if the Commission finds that:
      1. approval is sought for construction of facilities described in subdivision (a)(2) or (3) of this section;
      2. such facilities will be of limited size and scope;
      3. the petition does not raise a significant issue with respect to the substantive criteria of this section; and
      4. the public interest is satisfied by the procedures authorized by this subsection.
    2. Any party seeking to proceed under the procedures authorized by this subsection shall file a proposed certificate of public good and proposed findings of fact with its petition. Within two business days of notification by the Commission that the filing is complete, the party shall serve copies of the complete filing on the parties specified in subdivision (a)(4)(C) of this section and the party shall give written notice of the proposed certificate and of the Commission's determination that the filing is complete to those parties, to any public interest organization that has in writing requested notice of applications to proceed under this subsection, and to any other person found by the Commission to have a substantial interest in the matter. The notice shall request comment within 30 days of the date of service of the complete filing on the question of whether the petition raises a significant issue with respect to the substantive criteria of this section. If the Commission finds that the petition raises a significant issue with respect to the substantive criteria of this section, the Commission shall hear evidence on any such issue.
    3. The construction of facilities authorized by a certificate issued under this subsection shall not require the approval of voters of a municipality or the members of a cooperative, as would otherwise be required under subsection (c) of this section.
    1. Subdivision (k)(1) effective until December 31, 2022; see also subdivision (k)(1) effective December 31, 2022 set out below.  Notwithstanding any other provisions of this section, the Commission may waive, for a specified and limited time, the prohibitions contained in this section upon site preparation for or construction of an electric transmission facility or a generation facility necessary to ensure the stability or reliability of the electric system or a natural gas facility, pending full review under this section. (k) (1)  Subdivision (k)(1) effective until December 31, 2022; see also subdivision (k)(1) effective December 31, 2022 set out below.  Notwithstanding any other provisions of this section, the Commission may waive, for a specified and limited time, the prohibitions contained in this section upon site preparation for or construction of an electric transmission facility or a generation facility necessary to ensure the stability or reliability of the electric system or a natural gas facility, pending full review under this section.
    2. A person seeking a waiver under this subsection shall file a petition with the Commission and shall provide copies to the Department of Public Service and the Agency of Natural Resources. Upon receiving the petition, the Commission shall conduct an expedited preliminary hearing, upon such notice to the governmental bodies listed in subdivision (a)(4)(C) of this section as the Commission may require.
    3. An order granting a waiver may include terms, conditions, and safeguards, including the posting of a bond or other security, as the Commission deems proper, considering the scope and duration of the requested waiver.
    4. A waiver shall be granted only upon a showing that:
      1. good cause exists because an emergency situation has occurred;
      2. the waiver is necessary to provide adequate and efficient service or to preserve the property of the public service company devoted to public use;
      3. measures will be taken, as the Commission deems appropriate, to minimize significant adverse impacts under the criteria specified in subdivisions (b)(5) and (8) of this section; and
      4. taking into account any terms, conditions, and safeguards that the Commission may require, the waiver will promote the general good of the State.
    5. Upon the expiration of a waiver, if a certificate of public good has not been issued under this section, the Commission shall require the removal, relocation or alteration of the facilities subject to the waiver, as it finds will best promote the general good of the State.

    (k) (1) Subdivision (k)(1) effective December 31, 2022; see also subdivision (k)(1) effective until December 31, 2022 set out above. Notwithstanding any other provisions of this section, the Commission may waive, for a specified and limited time, the prohibitions contained in this section upon site preparation for or construction of an electric transmission facility, a generation facility, or an energy storage facility as necessary to ensure the stability or reliability of the electric system or a natural gas facility, pending full review under this section.

  6. Subsection (l) effective until December 31, 2022; see also subsection (l) effective December 31, 2022 set out below.  Notwithstanding other provisions of this section, and without limiting any existing authority of the Governor, and pursuant to 20 V.S.A. § 9 (10) and (11), when the Governor has proclaimed a state of emergency pursuant to 20 V.S.A. § 9 , the Governor, in consultation with the Chair of the Public Utility Commission and the Commissioner of Public Service or their designees, may waive the prohibitions contained in this section upon site preparation for or construction of an electric transmission facility or a generation facility necessary to ensure the stability or reliability of the electric system or a natural gas facility. Waivers issued under this subsection shall be subject to such conditions as are required by the Governor and shall be valid for the duration of the declared emergency plus 180 days or such lesser overall term as determined by the Governor. Upon the expiration of a waiver under this subsection, if a certificate of public good has not been issued under this section, the Commission shall require the removal, relocation, or alteration of the facilities, subject to the waiver, as the Commission finds will best promote the general good of the State.

    ( l ) Subsection (l) effective December 31, 2022; see also subsection (l) effective until December 31, 2022 set out above. Notwithstanding other provisions of this section, and without limiting any existing authority of the Governor, and pursuant to 20 V.S.A. § 9(10) and (11), when the Governor has proclaimed a state of emergency pursuant to 20 V.S.A. § 9, the Governor, in consultation with the Chair of the Public Utility Commission and the Commissioner of Public Service or their designees, may waive the prohibitions contained in this section upon site preparation for or construction of an electric transmission facility, a generation facility, or an energy storage facility as necessary to ensure the stability or reliability of the electric system or a natural gas facility. Waivers issued under this subsection shall be subject to such conditions as are required by the Governor and shall be valid for the duration of the declared emergency plus 180 days or such lesser overall term as determined by the Governor. Upon the expiration of a waiver under this subsection, if a certificate of public good has not been issued under this section, the Commission shall require the removal, relocation, or alteration of the facilities, subject to the waiver, as the Commission finds will best promote the general good of the State.

  7. In any matter with respect to which the Commission considers the operation of a nuclear energy generating plant beyond the date permitted in any certificate of public good granted under this title, including any certificate in effect as of January 1, 2006, the Commission shall evaluate the application under current assumptions and analyses and not an extension of the cost benefit assumptions and analyses forming the basis of the previous certificate of public good for the operation of the facility.
    1. No company as defined in section 201 of this title and no person as defined in 10 V.S.A. § 6001(14) may place or allow the placement of wireless communications facilities on an electric transmission or generation facility located in this State, including a net metering system, without receiving a certificate of public good from the Public Utility Commission pursuant to this subsection. The Public Utility Commission may issue a certificate of public good for the placement of wireless communications facilities on electric transmission and generation facilities if such placement is in compliance with the criteria of this section and Commission rules or orders implementing this section. In developing such rules and orders, the Commission: (n) (1)  No company as defined in section 201 of this title and no person as defined in 10 V.S.A. § 6001(14) may place or allow the placement of wireless communications facilities on an electric transmission or generation facility located in this State, including a net metering system, without receiving a certificate of public good from the Public Utility Commission pursuant to this subsection. The Public Utility Commission may issue a certificate of public good for the placement of wireless communications facilities on electric transmission and generation facilities if such placement is in compliance with the criteria of this section and Commission rules or orders implementing this section. In developing such rules and orders, the Commission:
      1. may waive the requirements of this section that are not applicable to wireless telecommunication facilities, including criteria that are generally applicable to public service companies as defined in this title;
      2. may modify notice and hearing requirements of this title as it deems appropriate;
      3. shall seek to simplify the application and review process as appropriate; and
      4. shall be aimed at furthering the State's interest in ubiquitous mobile telecommunications and broadband service in the State.
    2. Notwithstanding subdivision (1)(B) of this subsection, if the Commission finds that a petition filed pursuant to this subsection does not raise a significant issue with respect to the criteria enumerated in subdivisions (b)(1), (3), (4), (5), and (8) of this section, the Commission shall issue a certificate of public good without a hearing. If the Commission fails to issue a final decision or identify a significant issue with regard to a completed petition made under this section within 60 days of its filing with the Clerk of the Commission and service to the Director of Public Advocacy for the Department of Public Service, the petition is deemed approved by operation of law. The rules required by this subsection shall be adopted within six months of the effective date of this section, and rules under this section may be adopted on an emergency basis to comply with the dates required by this section. As used in this subsection, "wireless communication facilities" include antennae, related equipment, and equipment shelter, but do not include equipment used by utilities exclusively for intra- and inter-utility communications.
  8. The Commission shall not reject as incomplete a petition under this section for a wind generation facility on the grounds that the petition does not specify the exact make or dimensions of the turbines and rotors to be installed at the facility as long as the petition provides the maximum horizontal and vertical dimensions of those turbines and rotors and the maximum decibel level that the turbines and rotors will produce as measured at the nearest residential structure over a 12-hour period commencing at 7:00 p.m.
  9. An in-state generation facility receiving a certificate under this section that produces electric energy using woody biomass shall annually disclose to the Commission the amount, type, and source of wood acquired to generate energy.
    1. A certificate under this section shall be required for a plant using methane derived from an agricultural operation as follows: (q) (1)  A certificate under this section shall be required for a plant using methane derived from an agricultural operation as follows:
      1. With respect to a plant that constitutes farming pursuant to 10 V.S.A. § 6001(22)(F) , only for the equipment used to generate electricity from biogas, the equipment used to refine biogas into natural gas, the structures housing such equipment used to generate electricity or refine biogas, and the interconnection to electric and natural gas distribution and transmission systems. The certificate shall not be required for the methane digester, the digester influents and non-gas effluents, the buildings and equipment used to handle such influents and non-gas effluents, or the on-farm use of heat and exhaust produced by the generation of electricity, and these components shall not be subject to jurisdiction under this section.
      2. With respect to a plant that does not constitute farming pursuant to 10 V.S.A. § 6001(22)(F) but which receives feedstock from off-site farms, for all on-site components of the plant, for the transportation of feedstock to the plant from off-site contributing farms, and the transportation of effluent or digestate back to those farms. The certificate shall not regulate any farming activities conducted on the contributing farms that provide feedstock to a plant or use of effluent or digestate returned to the contributing farms from the plant.
    2. Notwithstanding 1 V.S.A. § 214 and Commission Rule 5.408, if the Commission issued a certificate to a plant using methane derived from an agricultural operation prior to July 1, 2013, such certificate shall require an amendment only when there is a substantial change, pursuant to Commission Rule 5.408, to the equipment used to generate electricity from biogas, the equipment used to refine biogas into natural gas, the structures housing such equipment used to generate electricity or refine biogas, or the interconnection to electric and natural gas distribution and transmission systems. The Commission's jurisdiction in any future proceedings concerning such a certificate shall be limited pursuant to subdivision (1) of this subsection.
    3. This subsection shall not affect the determination, under section 8005a of this title, of the price for a standard offer to a plant using methane derived from an agricultural operation.
    4. As used in this section, "biogas" means a gas resulting from the action of microorganisms on organic material such as manure or food processing waste.
  10. The Commission may provide that, in any proceeding under subdivision (a)(2)(A) of this section for the construction of a renewable energy plant, a demonstration of compliance with subdivision (b)(2) of this section, relating to establishing need for the plant, shall not be required if all or part of the electricity to be generated by the plant is under contract to one or more Vermont electric distribution companies and if no part of the plant is financed directly or indirectly through investments, other than power contracts, backed by Vermont electricity ratepayers. In this subsection, "plant" and "renewable energy" shall be as defined in section 8002 of this title.
  11. This subsection sets minimum setback requirements that shall apply to in-state ground-mounted solar electric generation facilities approved under this section, unless the facility is installed on a canopy constructed on an area primarily used for parking vehicles that is in existence or permitted on the date the application for the facility is filed.
    1. The minimum setbacks shall be:
      1. from a State or municipal highway, measured from the edge of the traveled way:
        1. 100 feet for a facility with a plant capacity exceeding 150 kW; and
        2. 40 feet for a facility with a plant capacity less than or equal to 150 kW but greater than 15 kW.
      2. From each property boundary that is not a State or municipal highway:
        1. 50 feet for a facility with a plant capacity exceeding 150 kW; and
        2. 25 feet for a facility with a plant capacity less than or equal to 150 kW but greater than 15 kW.
    2. This subsection does not require a setback for a facility with a plant capacity equal to or less than 15 kW.
    3. On review of an application, the Commission may:
      1. require a larger setback than this subsection requires;
      2. approve an agreement to a smaller setback among the applicant, the municipal legislative body, and each owner of property adjoining the smaller setback; or
      3. require a setback for a facility constructed on an area primarily used for parking vehicles, if the application concerns such a facility.
    4. In this subsection:
      1. "kW" and "plant capacity" shall have the same meaning as in section 8002 of this title.
      2. "Setback" means the shortest distance between the nearest portion of a solar panel or support structure for a solar panel, at its point of attachment to the ground, and a property boundary or the edge of a highway's traveled way.
  12. Notwithstanding any contrary provision of the law, primary agricultural soils as defined in 10 V.S.A. § 6001 located on the site of a solar electric generation facility approved under this section shall remain classified as such soils, and the review of any change in use of the site subsequent to the construction of the facility shall treat the soils as if the facility had never been constructed. Each certificate of public good issued by the Commission for a ground-mounted solar generation facility shall state the contents of this subsection.
  13. Subsection (u) effective until December 31, 2022; see also subsection (u) effective December 31, 2022 set out below.  A certificate under this section shall only be required for an energy storage facility that has a capacity of 500 kW or greater.

    (u) Subsection (u) effective December 31, 2022; see also subsection (u) effective until December 31, 2022 set out above. For an energy storage facility, a certificate under this section shall only be required for a stationary facility exporting to the grid that has a capacity of 100 kW or greater, unless the Commission establishes a larger threshold by rule. The Commission shall establish a simplified application process for energy storage facilities subject to this section with a capacity of up to 1 MW, unless it establishes a larger threshold by rule. For facilities eligible for this simplified application process, a certificate of public good will be issued by the Commission by the forty-sixth day following filing of a complete application, unless a substantive objection is timely filed with the Commission or the Commission itself raises an issue. The Commission may require facilities eligible for the simplified application process to include a letter from the interconnecting utility indicating the absence or resolution of interconnection issues as part of the application.

    Added 1969, No. 69 , § 1, eff. April 18, 1969; amended 1969, No. 207 (Adj. Sess.), § 12, eff. March 24, 1970; 1971, No. 208 (Adj. Sess.), eff. March 31, 1972; 1975, No. 23 ; 1977, No. 11 , §§ 1, 2; 1979, No. 204 (Adj. Sess.), § 31, eff. Feb. 1, 1981; 1981, No. 111 (Adj. Sess.); 1983, No. 45 ; 1985, No. 48 , § 1; 1987, No. 65 , § 1, eff. May 28, 1987; 1987, No. 67 , § 14; 1987, No. 273 (Adj. Sess.) § 1, eff. June 21, 1988; 1989, No. 256 (Adj. Sess.), § 10(a), eff. Jan. 1, 1991; 1991, No. 99 , §§ 3, 4; 1991, No. 259 (Adj. Sess.), §§ 6, 7; 1993, No. 21 , § 10, eff. May 12, 1993; 1993, No. 159 (Adj. Sess.), § 1a, eff. May 19, 1994; 2003, No. 42 , § 2, eff. May 27, 2003; 2003, No. 82 (Adj. Sess.), §§ 2, 3; 2005, No. 160 (Adj. Sess.), §§ 2, 3; 2007, No. 79 , § 16, eff. June 9, 2007; 2009, No. 6 , §§ 1, 2, 3, eff. April 30, 2009; 2009, No. 45 , § 7, eff. May 27, 2009; 2009, No. 146 (Adj. Sess.), § F30; 2011, No. 47 , § 5; 2011, No. 62 , § 26; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012; 2011, No. 170 (Adj. Sess.), § 12, eff. May 18, 2012; 2013, No. 24 , § 4, eff. May 13, 2013; 2013, No. 88 , § 1; 2015, No. 23 , § 151; 2015, No. 40 , § 31; 2015, No. 51 , § F.9, eff. June 3, 2015; 2015, No. 56 , §§ 19, 20; 2015, No. 56 , §§ 26a, 26b, 26c, eff. June 11, 2015; 2015, No. 174 (Adj. Sess.), § 11, eff. June 13, 2016; 2017, No. 53 , §§ 1, 3, 4; 2017, No. 74 , § 125; 2017, No. 163 (Adj. Sess.), § 1; 2019, No. 31 , §§ 17, 25; 2021, No. 42 , § 6; 2021, No. 54 , § 9, eff. Dec. 31, 2022.

History

Reference in text. The Natural Gas Act, referred to in subdivs. (a)(3)(A) and (a)(3)(B), is codified as 15 U.S.C. § 717 et seq.

"Commission Rule 5.048", used in subdiv. (q)(2), refers to a rule of the Public Utility Commission.

2017. In subdiv. (a)(3)(A), in the first sentence, after "incident to any", replaced "of the above" with "such line or facility" to clarify the reference.

- 2016. In subdiv. (a)(1)(A), revised the cross-references to 30 V.S.A. § 8002 in light of the amendments to that section by 2013, No. 99 (Adj. Sess.), § 3 and 2015, No. 56 , § 25. In subdiv. (k)(1) and subsec. ( l ), in the first sentence, replaced "assure" with "ensure" to conform to V.S.A. style. In subdiv. (n)(1), replaced "net-metered system" with "net metering system" so that terminology is consistent with chapter 89 of this title.

- 2013. In subdivs. (b)(2) and (n)(1)(A), deleted "but not limited to" following "including" in accordance with 2013, No. 5 , § 4, and in the second sentence of subdiv. (n)(2), substituted "As used in" for "For purposes of" preceding "this subsection".

- 2006. For purposes of grammatical and contextual accuracy, relocated the phrase "without approval by the board, after giving notice of such investment, or filing a copy of that contract, with the board and the department at least 30 days prior to the proposed effective date of that contract or investment" from following subdiv. (i)(1)(B)(ii) to the conclusion of the introductory paragraph of subdiv. (i)(1).

Revision note - The text of subsec. (b) of this section is based upon a correlation of two amendments. During the 1987 Session this subsection was amended twice, by Act Nos. 65 and 67 resulting in two different versions of the subsec. The amendment to former subdivs. (b)(4)-(b)(6) by Act No. 67 were incorporated in the text of present subdivs. (b)(5)-(b)(7) and former subdiv. (b)(7), as added by Act No. 67, was redesignated as present subdiv. (b)(8) in view of the redesignation of former subdivs. (b)(4)-(b)(6) as present subdivs. (b)(5)-(b)(8) by Act No. 65. The changes which each of the amendments made in the language of the subsec. are described in amendment notes set out below.

Reference to "historic sites board" in subsec. (a) changed to "historic preservation division" pursuant to 3 V.S.A. § 2473.

2017. The text of this section is based on a correlation of two amendments. During the 2017 session, this section was amended twice, by Act Nos. 53 and 74, resulting in two versions of this section. In order to reflect all of the changes enacted by the General Assembly during the 2017 session, the text of Act Nos. 53 and 74 were merged to arrive at a single version of this section. The changes which each of the amendments made are described in amendment notes set out below.

2003 (Adj. Sess.). 2003, No. 82 (Adj. Sess.), § 1 provided: "The general assembly finds there is a remote possibility that sets of circumstances could occur causing sudden problems with electric power transmission or generating systems or natural gas facilities. In addition, there is the possibility a terrorist incident elsewhere could create difficulties with energy distribution within Vermont. These situations require a faster process than the required statutory process for obtaining a certificate of public good before commencing work. Even when the governor declares a state of emergency because of anything other than an enemy attack on Vermont, existing statutes could seriously slow the repair of electric or natural gas systems in the State. This act provides an expedited process to keep these essential systems operating in these emergency situations, while still providing for a subsequent review process to determine the repairs are in the public good."

Amendments--2021. Subdiv. (a)(4)(F)(i): Act No. 54 inserted "or an energy storage facility that will have a capacity greater than 1 megawatt" following "kilowatts".

Subdiv. (a)(4)(J): Act No. 54 inserted "and to an application for an energy storage facility that is greater than 1 megawatt" following "kilowatts".

Subdiv. (j)(2): Act No. 42, in the second sentence, substituted "party" for "Commission" preceding the second instance of "shall" and "of the Commission's" for "its" preceding "determination"; and, in the third sentence, substituted "The" for "Such" preceding "notice" and deleted "also shall be published on the Commission's website within two days of issuing the determination that the filing is complete and" following "notice".

Subdiv. (k)(1): Act No. 54 deleted "or" following "transmission facility," and inserted ", or an energy storage facility as" preceding "necessary".

Subsec. ( l ): Act No. 54, in the first sentence, deleted "or" following "transmission facility," and inserted ", or an energy storage facility as" preceding "necessary".

Subsec. (u): Amended generally by Act No. 54.

Amendments--2019. Subdiv. (a)(1)(B): Inserted "facility, energy storage facility," following "electric generation".

Subdiv. (a)(2): Inserted "energy storage" preceding "facilities that".

Subdiv. (a)(2)(A): Inserted ", energy storage facility," following "electric generation facility".

Subdiv. (a)(2)(B) Inserted "facility, energy storage facility," following "such transmission".

Subdiv. (a)(4)(A): Inserted "in response to a request from one or more members of the public or a party," preceding "the Public Utility Commission", substituted "nonevidentiary" for "nontechnical" preceding "public hearing" and substituted "a" for "each" preceding "petition" in the first sentence; added the second sentence; and substituted "a" for "the" preceding "public hearing" , following "comments made at" in the third sentence.

Subdiv. (a)(4)(B): Substituted "evidentiary" for "technical" preceding "hearings" and added "in any case conducted under this section in which contested issues remain or when any party to a case requests that an evidentiary hearing be held" in first sentence, and added the second sentence.

Subdiv. (a)(7): Inserted "or energy storage" preceding "facility with a capacity" in the first sentence.

Subdiv. (i)(3): Substituted "evidentiary" for "technical" preceding "hearings" in the last sentence.

Subsec. (u): Added.

Amendments--2017 (Adj. Sess.). Subsec. (s): Added ", unless the facility is installed on a canopy constructed on an area primarily used for parking vehicles that is in existence or permitted on the date the application for the facility is filed."

Subdiv. (s)(3)(C): Added.

Amendments--2017. Subdivs. (a), (b), and (c): Act No. 74 Substituted "that" for "which" in multiple locations.

Subdiv. (a)(4)(A): Act No. 53 added the second through fourth sentences.

Subdiv. (a)(4)(C): Act No. 53 substituted "Within two business days of notification from the Board that the petition is complete, the petitioner shall serve copies of the complete petition on" for "At the time of filing its application with the Board, copies shall be given by the petitioner to" preceding "the Attorney General".

Subdivs. (a)(4)(G) and (H): Act No. 74 inserted "within" preceding "500 feet" in the second sentence.

Subdiv. (c)(1): Act No. 74 deleted "which is" preceding "subject to this" in the first sentence.

Subdiv. (f)(1): Amended generally by Act No. 53.

Subdiv. (j)(2): Act No. 53 rewrote the second and third sentences.

Amendments--2015 (Adj. Sess.). Subdiv. (a)(2): Added "and for hydroelectric generation facilities subject to licensing jurisdiction under the Federal Power Act, 16 U.S.C. chapter 12 subchapter 1".

Subdiv. (a)(4): Added new subdivs. (F) and (G), redesignated former subdiv. (F) as subdiv. (H) and added the second sentence in that subdiv., and added subdivs. (I) and (J).

Subdiv. (a)(5) through (7): Added.

Subdiv. (b)(1): Inserted "the facility" preceding "shall comply" in subdiv. (B) and added subdiv. (C).

Subdiv. (b)(5): Substituted "aesthetics" for "esthetics" preceding "historic sites" and inserted "impacts to primary agricultural soils as defined in 10 V.S.A. § 6001" preceding "and greenhouse gas".

Subsec. (f): Added the subdiv. (1) designation and subdiv. (2).

Subsec. (t): Added.

Amendments--2015. Subdiv. (a)(4)(C): Act No. 40 substituted "Chair" for "chairperson" in the first sentence, and deleted the former second sentence.

Subdiv. (a)(4)(F): Added by Act No. 56.

Subdiv. (b)(1): Act No. 56 added the subdiv. (A) designation and subdiv. (B).

Subdiv. (b)(9): Act No. 56 added the subdiv. (A) designation and added subdiv. (B).

Subsec. (g): Act No. 23 substituted "Notwithstanding the 45 days' notice required by subsection (f) of this section" for "However, notwithstanding the above".

Subsec. (q): Amended generally by Act No. 51.

Subsec. (r): Added by Act No. 56.

Subsec. (s): Added by Act No. 56.

Amendments--2013. Subdiv. (b)(11): Act No. 24 amended subdivs. (B) and (C) generally.

Subsec. (q): Added by Act No. 88.

Amendments--2011 (Adj. Sess.). Subdiv. (b)(2): Act No. 170 added the last sentence.

Subdiv. (b)(5): Act No. 170 added ", the use of natural resources," and "and greenhouse gas impacts".

Subdiv. (b)(8): Per Act No. 138 changed "water resources board" to "secretary of natural resources".

Subdiv. (b)(11): Act No. 170 added.

Subsec. (p): Act No. 170 added.

Amendments--2011. Subdiv. (a)(1)(A)(i): Designated existing provision as subdiv. (i); substituted "three" for "one" preceding "percent" and inserted ", unless the purchase is from a plant as defined in subdivision 8002(12) of this title that produces electricity from renewable energy as defined under subdivision 8002(2); or" following "demand".

Subdiv. (a)(1)(A)(ii): Added by Act No. 47.

Subdiv. (a)(4)(C): Act No. 62 deleted "scenery preservation council, state planning office," preceding "agency of transportation" and added the last sentence.

Subdiv. (c)(1): Act No. 47 added the second sentence.

Amendments--2009 (Adj. Sess.) Subdiv. (a)(4)(D): Substituted "and maintained on the board's website for" for "in a newspaper of general circulation in the county or counties in which the proposed facility will be located two weeks successively, the last publication to be" and added the second sentence.

Subdiv. (j)(2): Rewrote the former third and fourth sentences as the present third sentence.

Amendments--2009. Subsec. (c): Act No. 6 substituted "Except as otherwise provided in subdivision (j)(3) of this section, in" for "In" at the beginning of the subsec.

Subdiv. (n)(2): Act No. 6 inserted "but do not include equipment used by utilities exclusively for intra- and inter-utility communications" following "shelter" at the end of the subdiv.

Subdiv. (j)(3): Act No. 6 added.

Subsec. (o): Act No. 45 added.

Amendments--2007. Subsec. (n): Added.

Amendments--2005 (Adj. Sess.). Added the subdiv. (e)(1) designation and therein twice substituted "nuclear energy generating plant" for "nuclear fission plant" and added subdiv. (e)(2) and subsec. (m).

Amendments--2003 (Adj. Sess.). Subsec. (k): Amended generally.

Subsec. ( l ): Added.

Amendments--2003. Substituted "agency of agriculture, food and markets" for "department of agriculture" in subdiv. (a)(4)(C).

Amendments--1993 (Adj. Sess.). Subsec. (k): Added.

Amendments--1993. Subdiv. (a)(4)(C): Substituted "at the time of filing its application with the board, copies" for "notice" preceding "shall be given", inserted "by the petitioner" thereafter and deleted "by certified mail shall be given" following "food and markets and" and "not less than 30 days prior to the hearing" following "located".

Amendments--1991 (Adj. Sess.). Subsec. (b): Substituted "218c" for "218a" following "sections 209(d)" in subdiv. (2) and added subdiv. (6).

Amendments--1991. Subsec. (b): Inserted "218a" following "209(d)" in subdiv. (2).

Subsec. (j): Added.

Amendments--1989 (Adj. Sess.). Subdiv. (a)(4)(C): Substituted "department of agriculture, food and markets" for "department of agriculture".

Amendments--1987 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Amended generally.

Subsec. (h): Added.

Subsec. (i): Added.

Amendments--1987. Subsec. (b): Act No. 65 deleted "and economic factors" following "reliability" at the end of subdiv. (3), added present subdiv. (4), and redesignated former subdivs. (4)-(6) as present subdivs. (5)-(7).

Act No. 67 added "with due consideration having been given to the criteria specified in 10 V.S.A. § 1424a(d)" following "safety" in subdiv. (4), deleted "and" following "section" at the end of subdiv. (5), added "and" following "action" at the end of subdiv. (6), and added subdiv. (7).

Amendments--1985. Section amended generally.

Amendments--1983. Subsec. (a): Inserted "the department of agriculture" following "agency of transportation" in the third sentence.

Amendments--1981 (Adj. Sess.). Subsec. (a): Substituted "department" for "operators" preceding "of Public Service" in the third sentence.

Amendments--1979 (Adj. Sess.). Subsec. (a): Inserted "and the operators of public service" following "attorney general" and substituted "agency of transportation" for "Vermont aeronautics board" following "state planning office" in the third sentence.

Subdiv. (b)(6): Added.

Amendments--1977. Subdiv. (b)(5): Added.

Subsecs. (d) and (e): Added.

Amendments--1975. Subsec. (c): Added.

Amendments--1971 (Adj. Sess.). Subsec. (a): In the first sentence, deleted "in excess of 48 KV" following "voltage" and "facilities" preceding "with equivalent" and in the third sentence, substituted "department" for "departments" preceding "of health", "agency of environmental conservation" for "forests and parks, water resources, fish and game" thereafter and "state planning office" for "Vermont planning council" following "scenery preservation council".

Amendments--1969 (Adj. Sess.). Designated existing provisions of section as subsecs. (a) and (b) and made minor changes in phraseology.

Prior law. 30 V.S.A. § 246.

Condition for issuance of certificate to utility without approved least-cost integrated plan. 1991, No. 259 (Adj. Sess.), § 8, provided: "Sec. 7 of this act [which added subdiv. (b)(6) of this section] does not prohibit the public service board from granting a certificate of public good under 30 V.S.A. § 248 for a utility which does not have an approved least cost integrated plan; provided that the board shall consider in its review under that section those environmental effects which the utility must consider in developing a least cost integrated plan."

Department of Public Service; certificate of public good; complaint protocol. 2015, No. 130 (Adj. Sess.), § 5c provides: "(a) Not later than September 1, 2016, the Commissioner of Public Service shall establish and implement a protocol for handling complaints concerning the alleged failure of a company to comply with the terms and conditions of a certificate of public good issued by the Public Service Board under 30 V.S.A. § 248 or 248a. The Commissioner may revise the protocol at any time to achieve a more effective and satisfactory response to complaints.

"(b) The purpose of this section is to create a single location within State government for receipt and tracking of all complaints described in subsection (a) of this section. The protocol shall include a process for filing, investigating, and responding to complaints in a timely manner, as well as a procedure for tracking the number and nature of complaints received and a summary of actions taken by the Department of Public Service in response to each complaint, which information shall be aggregated and reported annually to the General Assembly beginning on January 1, 2017, notwithstanding 2 V.S.A. § 20(d). In addition, the Department shall keep a record of complaints filed under the protocol. A summary of the record shall be published on a website maintained by the Department to increase public awareness and transparency, which may reduce the occurrence of redundant complaint filings. The Commissioner's protocol shall include standards and procedures for consolidating complaints of a similar nature involving the same company and procedures under which a company receiving a complaint informs the Department of the complaint and its nature and such information as the Commissioner determines is necessary to track its progress and response.

"(c) A complainant shall not be required to direct a complaint to a company prior to submitting a complaint with the Department of Public Service pursuant to the complaint protocol established under this section.

"(d) The Commissioner may retain experts and other personnel as identified in 30 V.S.A. § 20 to investigate complaints, and may allocate the reasonable expenses incurred in retaining such personnel to the company as provided under 30 V.S.A. § 21.

"(e) The complaint protocol established under this section shall be in addition to any procedure established under 30 V.S.A. § 208. Unresolved complaints may be considered by the Public Service Board pursuant to its authority under Title 30, including 30 V.S.A. § 8(f), and Public Service Board Rules."

"(f) With its report filed under this section on or before January 1, 2018, the Commissioner shall make recommendations regarding the establishment of and payment for an ongoing process for monitoring a company's compliance with a certificate of public good for the purpose of reducing the filing of individual complaints under this section."

Effective date of 2021 amendments. 2021, No. 54 , § 22 provides that the amendments to subdivs. (a)(4)(F)(i), (a)(4)(J), (k)(1), and subsecs. ( l ) and (u) of this section by 2021, No. 54 , § 9 shall take effect on December 31, 2022.

ANNOTATIONS

Analysis

1. Construction with other laws.

Application of the "reasonably related" standard in the context of proceedings under the statute governing temporary siting of meteorological stations comports with Public Utility Commission (PUC) precedent and the history of the relationship between it and the statute governing new gas and electric purchases, investments, and facilities. A temporary meteorological tower is within PUC jurisdiction under the statute governing meteorological stations if it is "reasonably related" to construction or establishment of a grid-connected wind generation facility. In re Constr. & Operation of a Meteorological Tower, 210 Vt. 27, 210 A.3d 1230 (2019).

Legislature intended for the statute governing temporary siting of meteorological stations to govern whether and how to obtain a certificate of public good for temporary meteorological towers as an independent statutory scheme, and the statute governing new gas and electric purchases, investments, and facilities does not apply except as incorporated within the statute governing meteorological stations. In re Constr. & Operation of a Meteorological Tower, 210 Vt. 27, 210 A.3d 1230 (2019).

In a dispute involving the continued operation of a Vermont nuclear power plant, 2006 Vt. Acts and Resolves No. 160 and a single provision of 2005 Vt. Acts and Resolves No. 74, requiring affirmative legislative approval under 10 V.S.A. § 6522(b)(4) for storage of spent nuclear fuel at the Vermont Yankee nuclear plant after March 21, 2012, were held preempted by the Atomic Energy Act, 42 U.S.C.S. § 2011 et seq. Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 733 F.3d 393 (2d Cir. 2013).

Federal law did not preempt Public Service Board review of agreement between cogenerator and Vermont Power Exchange for sale of electrical energy generated by proposed cogeneration facility, since such review furthered federal objective of ensuring that rates be just and reasonable to electric consumers and cogenerator had extensive notice that its proposed project would need certificate of public good, which requires clearing Public Service Board review. In re East Georgia Cogeneration Limited Partnership, 158 Vt. 525, 614 A.2d 799 (1992).

Public Service Board's modification of order under this section with respect to number and percentage of tons of wood fuel that could be brought to electric generating station by truck, without a hearing on the merits, was invalid under 3 V.S.A. § 809(c). In re Burlington Electric Department, 151 Vt. 543, 563 A.2d 264 (1989).

This section effectively prohibits an electric utility from exercising the power of eminent domain conferred by section 110 of this title until it secures a certificate of public good. Auclair v. Vermont Electric Power Co., 133 Vt. 22, 329 A.2d 641 (1974).

2. Discretion of Commission.

Legislature has granted the Public Utility Commission the powers of a court of record in the determination and adjudication of all matters over which it is given jurisdiction, including the power to render judgments, make orders and decrees, and enforce the same by any suitable process issuable by courts in the state. The statutory grant of power does include the authority to order the Agency of Natural Resources, as a party to a certificate of public good proceeding, to refund some or all of the fee allocated the Agency. In re Swanton Wind LLC, 209 Vt. 224, 204 A.3d 635 (2018).

It was not an abuse of discretion for the Public Service Board to dismiss an application for a wind turbine net metering system when the applicant failed to provide evidence that he had taken significant steps to minimize the negative effects that the project would have on the view of a neighbor, and he also failed to present specific evidence supporting his contentions that siting the turbine at alternative locations caused problems and increased costs associated with the project. In re Halnon, 174 Vt. 514, 811 A.2d 161 (mem.) (2002).

Applicant for a wind turbine net metering system failed in his claim that the Public Service Board's denial of his application was inconsistent with its decision in another case because the proposal in that case was for a turbine site in a significantly dissimilar environment, and it was not abuse of discretion for the Board to find the proposal in the instant case offensive or shocking to the average person. In re Halnon, 174 Vt. 514, 811 A.2d 161 (mem.) (2002).

In a section 248 proceeding, Public Service Board is engaged in a legislative, policy-making process; a strong presumption of validity is given to orders of the Board. In re Twenty-Four Electric Utilities, 160 Vt. 227, 627 A.2d 355 (1993).

In view of the broad section 248 criteria in optimizing Hydro-Quebec allocations to local utilities, since the amounts involved were relatively small and Public Service Board could rely on the resale requirements in its initial order for future reallocation, allowing an allocation above the optimum was within the Board's discretion based on "non-need" factors including unexpected outages of existing and planned supply resources and uncertainties in the magnitude and availability of nonutility generation, as well as risks in the economy. In re Twenty-Four Electric Utilities, 160 Vt. 227, 627 A.2d 355 (1993).

3. Scope of proceedings.

The Public Service Board was not required to review the sale of a nuclear power facility under the provision requiring it to weigh the costs and benefits to Vermont of hosting a nuclear power plant that sells most of its power to entities outside Vermont because the claim that the proposed sale meant a change in use of the facility had no support in the Board's unchallenged fact findings. In re Proposed Sale of Vermont Yankee Nuclear Power Station, 175 Vt. 368, 829 A.2d 1284 (2003).

Provision of this section pertaining to the review of purchase and sale agreements of electric generation facilities by the Public Service Board enumerates just two events that trigger its application: (1) "site preparation for" or (2) "construction of" an electric transmission or generation facility; thus, if the facility already exists, the provision applies only if the site preparation or construction is outside the usual course of business and involves new facilities that are neither replacement facilities nor equivalent to those that currently exist. In re Proposed Sale of Vermont Yankee Nuclear Power Station, 175 Vt. 368, 829 A.2d 1284 (2003).

Language of this section pertaining to the review of purchase and sale agreements of electric generation facilities by the Public Service Board evinces no intent to require the owner or operator of an existing electric generation plant to seek such review before changing its sales portfolio or selling its ownership interest. In re Proposed Sale of Vermont Yankee Nuclear Power Station, 175 Vt. 368, 829 A.2d 1284 (2003).

Although allegedly not signed by all requisite utilities, waiver and release provision of electric power agreement between Vermont utilities and Canadian power company was ripe for review by Public Service Board. In re Twenty-Four Vermont Utilities, 159 Vt. 363, 618 A.2d 1309 (1992).

Even assuming that Public Service Board was statutorily required to review waiver and release provision of electric power agreement between Vermont utilities and Canadian power company, it was not required to reconsider entire agreement, since the Board was not required to amend its prior approval, which was based on the pre-modification agreement, or to reopen the evidence related to the prior approval. In re Twenty-Four Vermont Utilities, 159 Vt. 363, 618 A.2d 1309 (1992).

When deciding whether to approve electric power purchase contracts, the Public Service Board is engaged in a legislative, policy-making process in which it uses its discretion to weigh alternatives presented, utilizing particular expertise and informed judgment. In re Twenty-Four Vermont Utilities, 159 Vt. 339, 618 A.2d 1295 (1992).

The necessity of taking an individual's property or an interest therein is not an issue in a proceeding under this section; the sole issue is the determination of whether or not under the criteria set forth in this section the proposal for which the certificate was sought advances the public interest. Auclair v. Vermont Electric Power Co., 133 Vt. 22, 329 A.2d 641 (1974); Vermont Electric Power Co. v. Bandel, 135 Vt. 141, 375 A.2d 975 (1977).

4. Factors considered.

Public Utility Commission (PUC) did not violate the statute governing administrative decisions and orders by failing to make a ruling on the applicant's proposed findings regarding the alleged economic benefit of a net-metered solar electric-generation facility and by failing to consider whether the project would promote the general good of the state, as it had found that the project did not satisfy two of the other criteria for a certificate of public good (CPG), and all of the criteria had to be satisfied for a CPG to issue. In re Derby GLC Solar, 211 Vt. 144, 221 A.3d 777 (2019).

"General good of the state" required by one section of the statute regarding certificates of public good is a broader concern than the call for some, albeit possibly limited, positive impact amounting to "an economic benefit" required by another section of the statute. In re Amended Petition of UPC Vt. Wind, LLC, 185 Vt. 296, 969 A.2d 144 (2009).

Under the plain terms of the statute regarding certificates of public good, the Public Service Board need only give "due consideration" to the recommendations of the municipal and regional planning commissions in deciding if a project will not unduly interfere with the orderly development of the region. In re Amended Petition of UPC Vt. Wind, LLC, 185 Vt. 296, 969 A.2d 144 (2009).

In denying a certificate of public good for a wind turbine net metering system, the Public Service Board did not err by relying exclusively on observations made during its site visit, where, besides the site visit, the Board made 60 other findings based on testimony regarding the nature and scale of the turbine and the surrounding area and the project. In re Halnon, 174 Vt. 514, 811 A.2d 161 (mem.) (2002).

In denying certificate of public good for proposed cogeneration facility, Public Service Board did not commit error in favoring concern for ratepayers over concern for return on utility's investment, where proposed project sought rates higher than those mandated by federal law. In re East Georgia Cogeneration Limited Partnership, 158 Vt. 525, 614 A.2d 799 (1992).

Public Service Board's adoption of rate schedule did not preclude its review of whether proposed cogeneration facility, at requested rates, would provide needed power and economic benefits to State of Vermont. In re East Georgia Cogeneration Limited Partnership, 158 Vt. 525, 614 A.2d 799 (1992).

Public Service Board finding that electric power contract would not adversely effect power system reliability was sufficiently supported by evidence presented, which showed that power and energy under contract could be supplied without new supplier facilities, contract only extended in time current level of power reliably being provided Vermont utilities by supplier, and contract itself provided for substantial compensation in event supplier was unable to meet contract requirements because of termination or modification of licenses or permits. In re Twenty-Four Vermont Utilities, 159 Vt. 339, 618 A.2d 1295 (1992).

Public Service Board could approve electric power contract based on general statewide need for the energy without a showing of specific need for allocation assigned to each utility, and Board could analyze allocations in a separate proceeding. In re Twenty-Four Vermont Utilities, 159 Vt. 339, 618 A.2d 1295 (1992).

Public Service Board is statutorily required to look at the effects of a purchase of imported power on people and the environment outside Vermont only insofar as they directly affect the state of Vermont or its people, environment or economy. In re Twenty-Four Vermont Utilities, 159 Vt. 339, 618 A.2d 1295 (1992).

To approve an electric power agreement, the Public Service Board need not find the contract absolutely reliable; it need only find that the contract will not have an adverse effect on the reliability of the power system. In re Twenty-Four Vermont Utilities, 159 Vt. 339, 618 A.2d 1295 (1992).

5. Local enactments.

Requirement of subdivision (b)(1) of this section that due consideration be given recommendations of municipal and regional planning commissions and municipal legislative bodies before issuance of a certificate of public good at least impliedly postulates that municipal enactments in the specific area are advisory rather than controlling. City of South Burlington v. Vermont Electric Power Co., 133 Vt. 438, 344 A.2d 19 (1975).

Power company with certificate of public good issued by Public Service Board for construction of electrical transmission line and substation did not have to obtain a municipal zoning permit. City of South Burlington v. Vermont Electric Power Co., 133 Vt. 438, 344 A.2d 19 (1975).

6. Routing of lines.

This section does not require Public Service Board to certify a specific rather than a general route for requested new power line. In re Vermont Electric Power Co., 131 Vt. 427, 306 A.2d 687 (1973).

Parties interested in requested new power line route were not denied an opportunity to be heard where three alternative general routes were proposed, Public Service Board certified one of the routes, but did not declare a specific path, and the Board gave the parties two weeks to comment to the Board. In re Vermont Electric Power Co., 131 Vt. 427, 306 A.2d 687 (1973).

7. Landowners.

At hearing on question of whether proposed power line would serve the public good, individual landowners were entitled to neither personal notice nor a decision as to whether it was necessary to build the line on their land. Auclair v. Vermont Electric Power Co., 133 Vt. 22, 329 A.2d 641 (1974).

8. Particular cases.

Public Utility Commission did not err in finding that a solar net-metering system would not have an undue adverse effect, as any project-related sound impacts would be temporary, the project would not unduly interfere with the orderly development of the region in that regardless of whether an initial letter of support was signed by a majority, the selectboard and the planning commission had ratified their support for the project, there was evidence supporting the findings as to air pollution, greenhouse gas, wetlands, water supply, soil erosion, and transportation, and a construction staging area was not subject to setbacks. In re Acorn Energy Solar 2, LLC, - Vt. - , 251 A.3d 899 (Jan. 15, 2021).

Public Utility Commission did not err in finding that a net-metered solar electric-generation facility would have an adverse economic impact because it would add to an overburdened system, increase costs to ratepayers, and offer no relative benefits such as providing cleaner or more reliable generation. Furthermore, the historical reasons for the curtailment situation in the area were outside the scope of the proceeding. In re Derby GLC Solar, 211 Vt. 144, 221 A.3d 777 (2019).

Applicant for a certificate of public good, which argued that the interpretation of the statute governing such certificates by the Public Utility Commission (PUC) conflicted with past agency interpretations of the statute, had not identified any previous PUC decisions to support this contention and therefore failed to meet its burden of showing that the PUC had inconsistently applied the statute. Furthermore, the PUC could consider changed circumstances in assessing whether new applications complied with a Comprehensive Energy Plan. In re Derby GLC Solar, 211 Vt. 144, 221 A.3d 777 (2019).

Public Utility Commission (PUC) had not engaged in improper burden shifting in denying the applicant a certificate of public good. The record showed that the other parties presented evidence to support their position that the project would not advance the goals of the Comprehensive Energy Plan and would cause undue adverse impacts on Vermont utilities and ratepayers; the applicant essentially was arguing that the PUC should have accepted its version of the facts instead. In re Derby GLC Solar, 211 Vt. 144, 221 A.3d 777 (2019).

Conclusion by the Public Utility Commission (PUC) that the proposed project would not unduly interfere with orderly development of the region rested on findings that did not support it. The select board's decision not to oppose the project as violating the town plan, on which the PUC heavily relied, did not necessarily mean anything; in fact, the town had taken no position as to the project's overall compliance with the town plan. In re Petition of Apple Hill Solar LLC, 211 Vt. 54, 219 A.3d 1295 (2019).

Public Utility Commission erred in concluding that a project would not have an unduly adverse aesthetic effect, as the record did not support the threshold determination that the town plan did not constitute a clear, written community standard intended to protect aesthetics. The significance of the town's decision not to oppose the project based on the town plan was minimal; counsel's statements did not support a finding of inconsistent application of the town plan standards; and a town planner's testimony did not support the finding of inconsistent application. In re Petition of Apple Hill Solar LLC, 211 Vt. 54, 219 A.3d 1295 (2019).

The only way an applicant could start the streamlined certificate of public good approval process was by filing a registration form with the Public Utility Commission. Here, petitioner stipulated that it had installed at least 134 systems without first filing the appropriate registration forms; by failing to do so, petitioner failed to take advantage of the net-metering approval process and failed to obtain the necessary certificates of public good prior to beginning construction, in violation of the statute that prohibited any corporation from constructing a new electric-generation facility without first obtaining a certificate of public good, and a civil penalty was appropriate. In re Investigation into Solarcity Corp., 210 Vt. 51, 210 A.3d 1255 (2019).

Failure to file registration forms for a net-metering system was not a clerical error, but was a substantive violation of the statute that prohibited any corporation from constructing a new electric-generation facility without first obtaining a certificate of public good. Accordingly, the Public Utility Commission did not err in finding a violation regardless of whether petitioner's error was unintentional. In re Investigation into Solarcity Corp., 210 Vt. 51, 210 A.3d 1255 (2019).

With regard to a certificate of public good for a solar electric generation facility, there was support, including an independent analysis by the Vermont Division for Historic Preservation, for the Public Service Board's finding that the project would not have an undue adverse impact on historic sites. In re Petition of Rutland Renewable Energy, LLC, 202 Vt. 59, 147 A.3d 621 (2016).

In granting a certificate of public good for a solar electric generation facility, the Public Service Board properly found that the project would not have an undue adverse impact on aesthetics, as setback requirements in the municipal plan and could not be considered a community standard because they would allow the town rather than the State to control solar generation and did not identify specific areas or resources for protection, the Board considered the neighbors' perspective and required extensive screening to mitigate that impact, and the neighbors did not offer a fully formed proposal for an alternative setback requirement. In re Petition of Rutland Renewable Energy, LLC, 202 Vt. 59, 147 A.3d 621 (2016).

In granting a certificate of public good for a solar electric generation facility, the Public Service Board properly found the assertion of regional impact inadequate and not persuasive, as there was no actual evidence of regional impact aside from a prediction of future replication. In re Petition of Rutland Renewable Energy, LLC, 202 Vt. 59, 147 A.3d 621 (2016).

In awarding a certificate of public good to construct a wind-electric generation facility, the Public Service Board properly found that the project complied with noise standards to protect public health. The Board imposed absolute noise standards and required the implementation of a comprehensive noise-monitoring plan; its operating conditions effectively ensured that the project would comply with the Board's sound standard, regardless of the precise accuracy of the noise-level estimates in the testimony. In re Joint Petition of Green Mountain Power Corp., 192 Vt. 429, 60 A.3d 654 (2012).

In awarding a certificate of public good to construct a wind-electric generation facility, the Public Service Board acted well within its discretion in classifying a certain restriction as a technical error. It was readily apparent from the Board's order that it approved up to a twenty-one turbine wind-generation facility and that it expressly approved a particular turbine model. In re Joint Petition of Green Mountain Power Corp., 192 Vt. 429, 60 A.3d 654 (2012).

With regard to an application for a certificate of public good to construct a wind-electric generation facility, the record supported the Public Service Board's finding that mitigation and decommissioning measures would limit the impacts of clearing to being adverse in nature, rather than unduly adverse. While it was true that at the time of his prefiled testimony, a witness believed that the impacts to these forests would be unduly adverse, he stated in his live testimony that the project's effects on the two state-significant forest types had been mitigated such that they were adverse but not unduly so. In re Joint Petition of Green Mountain Power Corp., 192 Vt. 429, 60 A.3d 654 (2012).

Towns failed to meet their burden of demonstrating that the Public Service Board violated their constitutional right to due process by not holding an evidentiary hearing on whether a utility's efforts were sufficient to address the damage caused to easement parcels. The Board informed the parties in advance of the process to be followed, and it would create substantial procedural expense for the parties and for the Board to hold a full-blown technical hearing every time there was a post-certification claim that any number of conditions had not been complied with. In re Joint Petition of Green Mountain Power Corp., 192 Vt. 429, 60 A.3d 654 (2012).

In determining whether a condition to granting a certificate of public good had been satisfied, the Public Service Board did not err in finding that remediation and mitigation were sufficient to counter the otherwise undue adverse impacts to the natural environment posed by the project. The Board concluded that a utility remediated the tree cutting activities on the original easement parcels to the fullest extent possible, and further that the additional conservation easements obtained as supplemental mitigation - when combined with the original easements subject to additional restrictions - would provide a greater degree of wildlife protection than the original easements alone. In re Joint Petition of Green Mountain Power Corp., 192 Vt. 429, 60 A.3d 654 (2012).

Public Service Board properly denied towns' motion to revoke a certificate of public good (CPG). The Board did not make the commencement of construction by a certain date a condition of the CPG, nor did it condition the CPG on a utility obtaining tax credits. In re Joint Petition of Green Mountain Power Corp., 192 Vt. 429, 60 A.3d 654 (2012).

Public Service Board properly found that a solar energy farm would not have an "undue adverse effect" on aesthetics. The record, including testimony by a land-use planner about the project's visibility and its consistency with town and county plans, supported its decision. In re Petition of Cross Pollination, 191 Vt. 631, 47 A.3d 1285 (mem.) (2012).

Public Service Board's determination that the general good would not be promoted unless approval of a project was conditioned upon the requirement that the applicant make further efforts to enter into stably priced contracts with Vermont utilities did not detract from its explicit finding that the project demonstrated economic benefits. The promotion of the general good of the State can plainly encompass the potential for even greater economic benefit from taking advantage of a particular efficiency, such as a sustainable no-cost fuel source, as envisioned by the Board's decision. In re Amended Petition of UPC Vt. Wind, LLC, 185 Vt. 296, 969 A.2d 144 (2009).

Given a project's not insignificant impacts, it was fully within the Public Service Board's purview to condition approval on the applicant making further efforts to exploit its advantage to reach stably priced contracts for the sale of electricity insulated from market fluctuations so as to enhance the project's benefit to the utility ratepayers at large. In imposing this requirement, the Board did not ignore a substantive issue mandated by statute for consideration; instead, it fulfilled its statutory mandate, finding that the project, with conditions, satisfied the applicable statutory requirements, provided benefits greater than its adverse impacts, and, accordingly, promoted the general good of the state. In re Amended Petition of UPC Vt. Wind, LLC, 185 Vt. 296, 969 A.2d 144 (2009).

Public Service Board did not err in finding that a project would not unduly interfere with the orderly development of the region. The Board acknowledged that the project was inconsistent with some provisions in the regional plan, but found that the plan did not prohibit the project and, in fact, that it encouraged development of wind power; the plan did not prohibit the development of commercial-scale wind energy; and it was not unreasonable for the Board to find that the project would affect only a small portion of the land designated as rural under the regional plan. In re Amended Petition of UPC Vt. Wind, LLC, 185 Vt. 296, 969 A.2d 144 (2009).

It is elemental that each case turns on its own facts, and determining the degree of adverse aesthetic effect is a matter of weighing the evidence, a role for the Public Service Board rather than for the court. Because the Board applied the appropriate standard in evaluating the aesthetic impact of a project, its conclusion was supported by its findings, and its findings were supported by the record, the court would not disturb the Board's assessment of the weight of the evidence on appeal. In re Amended Petition of UPC Vt. Wind, LLC, 185 Vt. 296, 969 A.2d 144 (2009).

9. Intervention.

Public Utility Commission properly granted permissive intervention to a homeowners' association and a country club on the ground that they articulated potential aesthetic injuries that fell within the scope of the interests protected by the statute governing certificates of public good and that were uniquely felt by them, as they raised concerns resulting from increased noise and wind and the effect on their views. In re Chelsea Solar LLC, - Vt. - , - A.3d - (Apr. 16, 2021).

Public Utility Commission (PUC) properly denied appellant's motion to intervene as of right in a certificate of public good proceeding, as the Court deferred to the PUC's interpretation of its own rule to require that a substantial interest be a sufficiently particularized one, and the concerns that appellant raised about the utility's compliance with the statutory criteria were purely generalized ones that were theoretically shared by every ratepayer in Vermont. In re Green Mt. Power Corp., 208 Vt. 349, 198 A.3d 36 (2018).

Appellant was not entitled to intervene in a certificate of public good (CPG) proceeding as a supplier of electric power and a competitor of the utility, as the Court deferred to the Public Utility Commission's interpretation of the rule regarding intervention as of right as applied to a CPG proceeding to require that a substantial interest be one within the scope of the CPG proceeding. In re Green Mt. Power Corp., 208 Vt. 349, 198 A.3d 36 (2018).

Because appellant did not have any substantial interest in a certificate of public good proceeding under the Public Utility Commission's understanding of the term, it was not eligible to be granted permissive intervention. Thus, if the Commission and its hearing officer failed to give explicit consideration to appellant's request for permissive intervention, this was harmless error. In re Green Mt. Power Corp., 208 Vt. 349, 198 A.3d 36 (2018).

Cited. Auclair v. Vermont Electric Power Co., 132 Vt. 519, 323 A.2d 578 (1974); Board of Electric Light Commissioners v. McCarren, 563 F. Supp. 374 (D. Vt. 1982), affirmed, 725 F.2d 176 (2d Cir. 1983); In re Burlington Electric Dept., 141 Vt. 540, 450 A.2d 1131 (1982); In re General Order 45, 149 Vt. 285, 542 A.2d 288 (1988); In re Department of Public Service, 157 Vt. 120, 596 A.2d 1303 (1991); In re New England Telephone & Telegraph Co., 159 Vt. 459, 621 A.2d 232 (1993).

Law review commentaries

Law review. Antinuclear Demonstrations and the Necessity Defense, see 5 Vt. L. Rev. 103 (1980).

§ 248a. Certificate of public good for communications facilities.

  1. Certificate.  Notwithstanding any other provision of law, if the applicant seeks approval for the construction or installation of telecommunications facilities that are to be interconnected with other telecommunications facilities proposed or already in existence, the applicant may obtain a certificate of public good issued by the Public Utility Commission under this section, which the Commission may grant if it finds that the facilities will promote the general good of the State consistent with subsection 202c(b) of this title. A single application may seek approval of one or more telecommunications facilities. An application under this section shall include a copy of each other State and local permit, certificate, or approval that has been issued for the facility under a statute, ordinance, or bylaw pertaining to the environment or land use.
  2. Definitions.  As used in this section:
    1. "Ancillary improvements" means telecommunications equipment and site improvements that are primarily intended to serve a telecommunications facility, including wires or cables and associated poles to connect the facility to an electric or communications grid; fencing; equipment cabinets or shelters; emergency backup generators; and access roads.
    2. "De minimis modification" means the addition, modification, or replacement of telecommunications equipment, antennas, or ancillary improvements on a telecommunications facility or existing support structure, whether or not the structure was constructed as a telecommunications facility, or the reconstruction of such a facility or support structure, provided:
      1. the height and width of the facility or support structure, excluding equipment, antennas, or ancillary improvements, are not increased;
      2. the total amount of impervious surface, including access roads, surrounding the facility or support structure is not increased by more than 300 square feet;
      3. the addition, modification, or replacement of an antenna or any other equipment on a facility or support structure does not extend vertically more than 10 feet above the facility or support structure and does not extend horizontally more than 10 feet from the facility or support structure; and
      4. the additional equipment, antennas, or ancillary improvements on the support structure, excluding cabling, does not increase the aggregate surface area of the faces of the equipment, antennas, or ancillary improvements on the support structure by more than 75 square feet.
    3. "Good cause" means a showing of evidence that the substantial deference required under subdivision (c)(2) of this section would create a substantial shortcoming detrimental to the public good or the State's interests in section 202c of this title.
      1. "Limited size and scope" means: (4) (A) "Limited size and scope" means:
        1. a new telecommunications facility, including any ancillary improvements, that does not exceed 140 feet in height; or
        2. an addition, modification, replacement, or removal of telecommunications equipment at a lawfully constructed telecommunications facility or on an existing support structure, and ancillary improvements, that would result in a facility of a total height of less than 200 feet and does not increase the width of the existing support structure by more than 20 feet.
      2. For construction described in subdivision (3)(A) of this subsection (b)to be of limited size and scope, it shall not disturb more than 10,000 square feet of earth. As used in this subdivision, "disturbed earth" means the exposure of soil to the erosive effects of wind, rain, or runoff.
    4. "Substantial deference" means that the plans and recommendations referenced under subdivision (c)(2) of this section are presumed correct, valid, and reasonable.
    5. "Telecommunications facility" means a communications facility that transmits and receives signals to and from a local, State, national, or international network used primarily for two-way communications for commercial, industrial, municipal, county, or State purposes and any associated support structure that is proposed for construction or installation which is primarily for communications purposes, and any ancillary improvements that are proposed for construction or installation and are primarily intended to serve the communications facilities or support structure. An applicant may seek approval of construction or installation of a telecommunications facility whether or not the telecommunications facility is attached to an existing structure.
    6. "Wireless service" means any commercial mobile radio service, wireless service, common carrier wireless exchange service, cellular service, personal communications service (PCS), specialized mobile radio service, paging service, wireless data service, or public or private radio dispatch service.
  3. Findings.  Before the Public Utility Commission issues a certificate of public good under this section, it shall find that:
    1. The proposed facility will not have an undue adverse effect on aesthetics, historic sites, air and water purity, the natural environment, and the public health and safety, and the public's use and enjoyment of the I-89 and I-91 scenic corridors or of any highway that has been designated as a scenic road pursuant to 19 V.S.A. § 2501 or a scenic byway pursuant to 23 U.S.C. § 162, with due consideration having been given to the relevant criteria specified in 10 V.S.A. §§ 1424a(d) and 6086(a)(1) through (8) and (9)(K). However, with respect to telecommunications facilities of limited size and scope, the Commission shall waive all criteria of this subdivision other than 10 V.S.A. § 6086(a)(1)(D) (floodways) and (a)(8) (aesthetics, scenic beauty, historic sites, rare and irreplaceable natural areas; endangered species; necessary wildlife habitat). Such waiver shall be on condition that:
      1. the Commission may determine, pursuant to the procedures described in subdivision (j)(2)(A) of this section, that a petition raises a significant issue with respect to any criterion of this subdivision; and
      2. a telecommunications facility of limited size and scope shall comply, at a minimum, with the requirements of the Low Risk Site Handbook for Erosion Prevention and Sediment Control issued by the Department of Environmental Conservation, regardless of any provisions in that handbook that limit its applicability.
    2. Unless there is good cause to find otherwise, substantial deference has been given to the plans of the affected municipalities; to the recommendations of the municipal legislative bodies and the municipal planning commissions regarding the municipal plans; and to the recommendations of the regional planning commission concerning the regional plan. Nothing in this section or other provision of law shall prevent a municipal body from basing its recommendations to which substantial deference is required under this subdivision (2) on an ordinance adopted under 24 V.S.A. § 2291(19) or bylaw adopted under 24 V.S.A. chapter 117 by the municipality in which the facility is located. A rebuttable presumption respecting compliance with the applicable plan shall be created by a letter from an affected municipal legislative body or municipal planning commission concerning compliance with the municipal plan and by a letter from a regional planning commission concerning compliance with the regional plan.
    3. If the proposed facility relates to the provision of wireless service, the proposed facility reasonably cannot be colocated on or at an existing telecommunications facility, or such colocation would cause an undue adverse effect on aesthetics.
      1. If a proposed new support structure for a new telecommunications facility that provides wireless service will exceed 50 feet in height in a cleared area or will exceed 20 feet in height above the average treeline measured within a 100-foot radius from the structure in a wooded area, the application shall identify all existing telecommunications facilities within the area to be served by the proposed structure and, for each such existing facility, shall include a projection of the coverage and an estimate of additional capacity that would be provided if the applicant's proposed telecommunications equipment were located on or at the existing facility. The applicant also shall compare each such projection and estimate to the coverage and capacity that would be provided at the site of the proposed structure.
      2. To obtain a finding that a proposed facility cannot reasonably be colocated on or at an existing telecommunications facility, the applicant must demonstrate that:
        1. colocating on or at an existing facility will result in a significant reduction of the area to be served or the capacity to be provided by the proposed facility or substantially impede coverage or capacity objectives for the proposed facility that promote the general good of the State under subsection 202c(b) of this title;
        2. the proposed antennas and equipment will exceed the structural or spatial capacity of the existing or approved tower or facility, and the existing or approved tower or facility cannot be reinforced, modified, or replaced to accommodate planned or equivalent equipment, at a reasonable cost, to provide coverage and capacity comparable to that of the proposed facility;
        3. the owner of the existing facility will not provide space for the applicant's proposed telecommunications equipment on or at that facility on commercially reasonable terms; or
        4. the proposed antennas and equipment will cause radio frequency interference that will materially impact the usefulness of other existing or permitted equipment at the existing or approved tower or facility and such interference cannot be mitigated at a reasonable cost.
  4. Existing permits.  When issuing a certificate of public good under this section, the Commission shall give due consideration to all conditions in an existing State or local permit and shall harmonize the conditions in the certificate of public good with the existing permit conditions to the extent feasible.
  5. Notice.  No less than 60 days prior to filing an application for a certificate of public good under this section, the applicant shall serve written notice of an application to be filed with the Commission pursuant to this section to the legislative bodies and municipal and regional planning commissions in the communities in which the applicant proposes to construct or install facilities; the Secretary of Natural Resources; the Secretary of Transportation; the Division for Historic Preservation; the Commissioner of Public Service and its Director for Public Advocacy; the Natural Resources Board if the application concerns a telecommunications facility for which a permit previously has been issued under 10 V.S.A. chapter 151; and the landowners of record of property adjoining the project sites. In addition, at least one copy of each application shall be filed with each of these municipal and regional planning commissions. The notices to the legislative body and planning commission of the municipality shall attach a statement that itemizes the rights and opportunities available to those bodies under subdivisions (c)(2) and (e)(2) of this section and under subsections (m), (n), and (o) of this section and informs them of the guide published under subsection (p) of this section and how to obtain a copy of that guide.
    1. Upon motion or otherwise, the Public Utility Commission shall direct that further public or personal notice be provided if the Commission finds that such further notice will not unduly delay consideration of the merits and that additional notice is necessary for fair consideration of the application.
    2. On the request of the municipal legislative body or the planning commission, the applicant shall attend a public meeting with the municipal legislative body or planning commission, or both, within the 60-day notice period before filing an application for a certificate of public good. The Department of Public Service shall attend the public meeting on the request of the municipality. The Department shall consider the comments made and information obtained at the meeting in making recommendations to the Commission on the application and in determining whether to retain additional personnel under subsection (o) of this section.
    3. With the notice required under this subsection, the applicant shall include a written assessment of the colocation requirements of subdivision (c)(3) of this section, as they pertain to the applicant's proposed telecommunications facility. On the request of the municipal legislative body or the planning commission, the Department of Public Service, pursuant to its authority under subsection (o) of this section, shall retain an expert to review the applicant's colocation assessment and to conduct further independent analysis, as necessary. Within 45 days of receiving the applicant's notice and colocation assessment, the Department shall report its own preliminary findings and recommendations regarding colocation to the applicant and to all persons required to receive notice of an application for a certificate of public good under this subsection (e).
  6. Review period.  If the Public Utility Commission determines that an application does not raise a significant issue, the Commission shall issue a final determination on an application filed pursuant to this section within 60 days of its filing or, if the original filing did not substantially comply with the Public Utility Commission's rules, within 60 days of the date on which the Clerk of the Commission notifies the applicant that the filing is complete. If the Commission rules that an application raises a significant issue, it shall issue a final determination on an application filed pursuant to this section within 180 days of its filing or, if the original filing did not substantially comply with the Public Utility Commission's rules, within 180 days of the date on which the Clerk of the Commission notifies the applicant that the filing is complete.
  7. Letter of intent.  Nothing in this section shall be construed to prohibit an applicant from executing a letter of intent or entering into a contract before the issuance of a certificate of public good under this section, provided that the obligations under that letter of intent or contract are made subject to compliance with the requirements of this section.
  8. Exemptions from other law.
    1. An applicant using the procedures provided in this section shall not be required to obtain a permit or permit amendment or other approval under the provisions of 24 V.S.A. chapter 117 or 10 V.S.A. chapter 151 for the facilities subject to the application or to a certificate of public good issued pursuant to this section. This exemption from obtaining a permit or permit amendment under 24 V.S.A. chapter 117 shall not affect the substantial deference to be given to a plan or recommendation based on a local land use bylaw under subdivision (c)(2) of this section.
    2. An applicant using the procedures provided in this section shall not be required to obtain an approval from the municipality under an ordinance adopted pursuant to 24 V.S.A. § 2291(19) or a municipal charter that would otherwise apply to the construction or installation of facilities subject to this section. This exemption from obtaining an approval under such an ordinance shall not affect the substantial deference to be given to a plan or recommendation based on such an ordinance under subdivision (c)(2) of this section.
    3. Disputes over jurisdiction under this section shall be resolved by the Public Utility Commission, subject to appeal as provided by section 12 of this title. An applicant that has obtained or been denied a permit or permit amendment under the provisions of Title 24 or 10 V.S.A. chapter 151 for the construction of a telecommunications facility may not apply for approval from the Commission for the same or substantially the same facility, except that an applicant may seek approval for a modification to such a facility.
  9. Sunset of Commission authority.  Effective on July 1, 2023, no new applications for certificates of public good under this section may be considered by the Commission.
  10. Telecommunications facilities of limited size and scope.
    1. The Commission may, subject to such conditions as it may otherwise lawfully impose, issue a certificate of public good in accordance with the provisions of this subsection and without the notice and hearings required by any provision other than subdivision (2) of this subsection if the Commission finds that such facilities will be of limited size and scope, and the application does not raise a significant issue with respect to the substantive criteria of this section. The Commission may make findings based on the application and the supporting evidence submitted by the applicant. If an applicant requests approval of multiple telecommunications facilities in a single application under this section, the Commission may issue a certificate of public good in accordance with the provisions of this subsection for all or some of the telecommunications facilities described in the application.
      1. Any person seeking to proceed under the procedures authorized by this subsection shall file a proposed certificate of public good and proposed findings of fact with its application. Within two business days of notification from the Commission that the filing is complete, the applicant shall serve notice and a copy of the application, proposed certificate of public good, and proposed findings of fact on the Commissioner of Public Service and its Director for Public Advocacy, the Secretary of Natural Resources, the Division for Historic Preservation, the Natural Resources Board if the application concerns a telecommunications facility for which a permit previously has been issued under 10 V.S.A. chapter 151, and each of the legislative bodies and municipal and regional planning commissions in the communities in which the applicant proposes to construct or install facilities. Within two business days of notification from the Commission that the filing is complete, the applicant also shall serve written notice of the proposed certificate on the landowners of record of property adjoining the project site or sites unless the Commission has previously determined on request of the applicant that good cause exists to waive or modify the notice requirement with respect to such landowners. Such notice shall request comment to the Commission within 30 days of the date of service on the question of whether the application raises a significant issue with respect to the substantive criteria of this section. If the Commission finds that an application raises a significant issue with respect to the substantive criteria of this section, the Commission shall hear evidence on any such issue. (2) (A) Any person seeking to proceed under the procedures authorized by this subsection shall file a proposed certificate of public good and proposed findings of fact with its application. Within two business days of notification from the Commission that the filing is complete, the applicant shall serve notice and a copy of the application, proposed certificate of public good, and proposed findings of fact on the Commissioner of Public Service and its Director for Public Advocacy, the Secretary of Natural Resources, the Division for Historic Preservation, the Natural Resources Board if the application concerns a telecommunications facility for which a permit previously has been issued under 10 V.S.A. chapter 151, and each of the legislative bodies and municipal and regional planning commissions in the communities in which the applicant proposes to construct or install facilities. Within two business days of notification from the Commission that the filing is complete, the applicant also shall serve written notice of the proposed certificate on the landowners of record of property adjoining the project site or sites unless the Commission has previously determined on request of the applicant that good cause exists to waive or modify the notice requirement with respect to such landowners. Such notice shall request comment to the Commission within 30 days of the date of service on the question of whether the application raises a significant issue with respect to the substantive criteria of this section. If the Commission finds that an application raises a significant issue with respect to the substantive criteria of this section, the Commission shall hear evidence on any such issue.
      2. An applicant seeking a waiver or modification of notice to adjoining landowners under this subsection shall file a request for such a waiver or modification with the Public Utility Commission not later than 30 days prior to serving written notice under subsection (e) of this section, together with a description of the project and its location, the applicant's reasons for seeking a waiver or modification, and the applicant's demonstration that the standard for granting a waiver or modification is met. Any granting of such a waiver or modification shall be based on a determination that the landowners subject to the waiver or modification could not reasonably be affected by one or more of the proposed facilities, and that notice to such landowners would constitute a significant administrative burden without corresponding public benefit. The Commission shall rule on a waiver or modification request under this subsection within 21 days of the filing of the request.
      3. If the Commission accepts a request to consider an application under the procedures of this subsection, then unless the Public Utility Commission subsequently determines that an application raises a significant issue, the Commission shall issue a final determination on an application within 60 days of the date on which the Clerk of the Commission notifies the applicant that the filing is complete. If, subsequent to acceptance of an application under this subsection, the Commission rules that an application raises a significant issue, it shall issue a final determination on an application filed pursuant to this subsection within 90 days of the date on which the Clerk of the Commission notifies the applicant that the filing is complete.
      4. If the Commission denies a request to consider an application under the procedures of this subsection, a filing made under this subsection that the Commission has found to be complete shall be deemed to satisfy notice requirements of subsection (e) of this section, and the periods stated under subsection (f) of this section shall run from the date of the Commission's denial of such request.
  11. De minimis modifications.  An applicant intending to make a de minimis modification of a telecommunications facility shall provide written notice of its intent, including a description of the de minimis modification, its plans for the de minimis modification, and its certification that the project constitutes a de minimis modification under this section, to the following: the landowner of record of the property on which the facility is located; the legislative body of the municipality in which the applicant proposes to undertake such limited modifications to the facility; and the Commissioner of Public Service and his or her Director for Public Advocacy. Unless an objection to the classification of a proposed project as a de minimis modification is filed with the Commission within 30 days of this notice, a certificate of public good shall be issued. Objections may be filed only by persons entitled to notice of this proposed project pursuant to this subsection. If an objection of the classification of the proposed project as a de minimis modification is timely filed with the Commission, the Commission may determine whether the intended project meets the definition of de minimis modification established in subdivision (b)(2) of this section.
  12. Rules.  The Public Utility Commission may issue rules or orders implementing and interpreting this section. In developing such rules and orders, the Commission shall seek to simplify the application and review process as appropriate. Subject to the provisions of subdivision (c)(1) of this section regarding waiver of the substantive criteria set forth in that subdivision, the Commission may by rule or order waive the requirements of this section that the Commission determines are not applicable to telecommunications facilities of limited size or scope. Determination by the Commission that an application raises a substantial issue with regard to one or more substantive criteria of this section shall not prevent the Commission from waiving other substantive criteria that it has determined are not applicable to such a telecommunications facility.
  13. Municipal bodies; participation.  The legislative body and the planning commission for the municipality in which a telecommunications facility is located shall have the right to appear and participate on any application under this section seeking a certificate of public good for the facility.
  14. Municipal recommendations.  The Commission shall consider the comments and recommendations submitted by the municipal legislative body and planning commission. The Commission's decision to issue or deny a certificate of public good shall include a detailed written response to each recommendation of the municipal legislative body and planning commission.
  15. Retention; experts.  The Department of Public Service may retain experts and other personnel as identified in section 20 of this title to provide information essential to a full consideration of an application for a certificate of public good under this section. The Department may allocate the expenses incurred in retaining these personnel to the applicant in accordance with section 21 of this title. The Department may commence retention of these personnel once the applicant has filed the 60-day notice under subsection (e) of this section. A municipal legislative body or planning commission may request that the Department retain these personnel. Granting such a request shall not oblige the Department or the personnel it retains to agree with the position of the municipality.
  16. Review process; guide.  The Department of Public Service, in consultation with the Commission, shall create, maintain, and make available to the public a guide to the process of reviewing telecommunications facilities under this section for use by local governments and regional planning commissions and members of the public who seek to participate in the process. On or before September 1, 2014, the Department shall complete the creation of this guide and make it publicly available.
    1. Emergency waiver.  Notwithstanding any other provisions of this section, when the Governor has declared a state of emergency pursuant to 20 V.S.A. § 9 and for 180 days after the declared state of emergency ends, the Commission may waive, for a specified and limited time, the prohibitions contained in this section upon site preparation for or construction of a temporary telecommunications facility necessary for maintaining or improving access to telecommunications services. Waivers issued under this subsection shall be valid for a period not to exceed the duration of the declared emergency plus 180 days. (q) (1)  Emergency waiver.  Notwithstanding any other provisions of this section, when the Governor has declared a state of emergency pursuant to 20 V.S.A. § 9 and for 180 days after the declared state of emergency ends, the Commission may waive, for a specified and limited time, the prohibitions contained in this section upon site preparation for or construction of a temporary telecommunications facility necessary for maintaining or improving access to telecommunications services. Waivers issued under this subsection shall be valid for a period not to exceed the duration of the declared emergency plus 180 days.
    2. A person seeking a waiver under this subsection shall file a petition with the Commission and shall provide copies to the Department of Public Service and the Agency of Natural Resources. The Commission shall require that additional notice be provided to those listed in subsection (e) of this section and any affected communications union districts. Upon receipt of the petition, the Commission shall conduct an expedited preliminary hearing.
    3. An order granting a waiver may include terms, conditions, and safeguards to mitigate significant adverse impacts, including the posting of a bond or other security, as the Commission deems proper, based on the scope and duration of the requested waiver.
    4. A waiver shall be granted only when the Commission finds that:
      1. good cause exists due to an emergency situation;
      2. the waiver is necessary to maintain or provide access to wireless telecommunications services;
      3. procedures will be followed to minimize significant adverse impacts under the criteria specified in subdivision (c)(1) of this section; and
      4. taking into account any terms, conditions, and safeguards that the Commission may require, the waiver will promote the general good of the State.
    5. Upon the expiration of a waiver, if a certificate of public good has not been issued under this section, the Commission shall require the removal, relocation, or alteration of the facilities subject to the waiver, as it finds will best promote the general good of the State.

      Added 2007, No. 79 , § 17, eff. June 9, 2007; amended 2009, No. 54 , § 44, eff. June 1, 2009; 2011, No. 53 , § 2, eff. May 27, 2011; 2013, No. 167 (Adj. Sess.), § 31; 2013, No. 190 (Adj. Sess.), § 17, eff. June 16, 2014; 2013, No. 199 (Adj. Sess.), § 27; 2015, No. 130 (Adj. Sess.), § 5a, eff. May 25, 2016; 2017, No. 32 , § 1; 2017, No. 53 , § 5; 2019, No. 125 (Adj. Sess.), § 1.

History

Amendments--2019 (Adj. Sess.). Subsec. (i): Substituted "2023" for 2020".

Subsec. (q): Added.

Amendments--2017. Subsec. (e): Act No. 32 added the third sentence.

Subsec. (i): Act No. 32 substituted "July 1, 2020" for "July 1, 2017".

Subdiv. (j)(2)(A): Amended generally by Act No. 53.

Subdiv. (j)(2)(C): Section amended generally.

Subsec. (k): Act No. 53 substituted "30 days" for "21 days" preceding "of this notice" in the third sentence.

Subsec. ( o ): Act No. 53 substituted "60-day notice" for "45-day notice" following "has filed the" in the fourth sentence.

Amendments--2015 (Adj. Sess.). Subsec. (b): Added subdivs. (3) and (5) and renumbered other subdivs. accordingly; in subdiv. (4)(B), substituted "As used in" for "For purposes of" preceding "this subdivision".

Subdiv. (c)(2): Amended generally.

Subdiv. (c)(3): Added subdivs. (A) and (B).

Subsec. (e): Substituted "60" for "45" preceding "prior to filing" in the first sentence; in subdiv. (2), substituted "60-day" for "45-day" preceding "notice period"; added subdiv. (3).

Subsec. (h): Amended generally.

Amendments--2013 (Adj. Sess.). Subsec. (b): Acts No. 190 and 199 substituted "As used in" for "For the purposes of" preceding "this section".

Subsec. (e): Acts Nos. 167, 190, and 199 inserted "the Secretary of Transportation;" following "the Secretary of Natural Resources;".

Subsec. (i): Acts Nos. 190 and 199 substituted "on July 1, 2017" for "July 1, 2014".

Subdiv. (e)(2) and subsecs. (m)-(p): Added by Acts No. 190 and 199.

Amendments--2011. Subsec. (a): Added the present third sentence.

Subsec. (b): Rewrote the subsec.

Subdiv. (c)(1): Inserted "and the public's use and enjoyment of the I-89 and I-91 scenic corridors or of any highway that has been designated as a scenic road pursuant to 19 V.S.A. § 2501 or a scenic byway pursuant to 23 U.S.C. § 162," following "safety," and added the last sentence.

Subdivs. (c)(1)(A) and (B): Added.

Subdiv. (c)(2): Added the present third sentence.

Subdiv. (c)(3): Added.

Subsec. (e): Substituted "an application" for "a petition" following "filing"; inserted "the division for historic preservation;" following "resources;" and "the natural resources board if the application concerns a telecommunications facility for which a permit previously has been issued under 10 V.S.A. chapter 151" following "advocacy;".

Subsec. (f): Substituted "If" for "Unless", "determines" for "identifies", "does not raise" for "raises", and "60" for "90" in two places.

Subsec. (i): Substituted "July 1, 2014" for "July 1, 2011".

Subdiv. (j)(1): Substituted "Telecommunications facilities of limited size and scope" for "Minor applications" and "application" for "petition" in two places, and added the present second sentence.

Subdiv. (j)(2)(A): Substituted "application" for "petition" throughout the subdiv.; deleted "the department of" preceding "public"; inserted "the division for historic preservation, the natural resources board if the application concerns a telecommunications facility for which a permit previously has been issued under 10 V.S.A. chapter 151" following "resources"; substituted "At the same time the applicant files the documents specified in this subdivision with the board, the" for "The" preceding "applicant".

Subdiv. (j)(2)(B): Substituted "An applicant seeking a" for "Any" preceding "waiver"; inserted "file a request for such a waiver or modification with the public service board not later than 30 days prior to serving written notice under subsection (e) of this section, together with a description of the project and its location, the applicant's reasons for seeking a waiver or modification, and the applicant's demonstration that the standard for granting a waiver or modification is met. Any granting of such a waiver or modification shall be" preceding "based" and added the last sentence.

Subsec. (k): Added and redesignated former subsec. (k) as present subsec. ( l ).

Amendments--2009. Catchline: Deleted "multiple" preceding "communications facilities".

Subsec. (a): Deleted "in a single application" preceding "seeks approval", substituted "of telecommunications facilities" for "within three years of three or more telecommunications facilities as part of an interconnected network", inserted "that are to be interconnected with other telecommunications facilities proposed or already in existence", and added the last sentence.

Subsec. (b): Rewrote subdivs. (1) and (2).

Subsec. (c): Deleted "in the aggregate" from the end of the introductory paragraph, substituted "facility" for "facilities" in subdiv. (1), inserted "municipal legislative bodies and the" and added the last sentence in subdiv. (2).

Subsec. (f): Substituted "significant" for "substantial" in two places.

Subsec. (h): Substituted "permit or permit amendment or other approval" for "local zoning permit or a permit", inserted "chapter 117 of Title 24 or" and added the last sentence.

Subsec. (i): Substituted "July 1, 2011" for "July 1, 2010".

Subsec. (j): Added.

Department of Public Service; certificate of public good; complaint protocol. 2015, No. 130 (Adj. Sess.), § 5c directs the Commissioner of Public Service to "establish and implement a protocol for handling complaints concerning the alleged failure of a company to comply with the terms and conditions of a certificate of public good issued by the Public Service Board under 30 V.S.A. § 248 or 248a." For full text see history note under 30 V.S.A. § 248.

Extension of section 248a notice period during COVID-19 state of emergency. 2019, No. 125 (Adj. Sess.), § 3 provides: "Notwithstanding any contrary provision of law, during the declared state of emergency under 20 V.S.A. chapter 1 due to COVID-19, when an applicant provides notice that it will be filing an application for a certificate of public good under 30 V.S.A. § 248a, a municipal legislative body or a planning commission may request, and the Public Utility Commission shall grant, a 30 day extension to the original notice period for a total 90 day notice period. This extended notice period shall be available on any notice of application for a certificate of public good pursuant to 30 V.S.A. § 248a filed during the declared state of emergency under 20 V.S.A. chapter 1 due to COVID-19, except those for de minimis modifications."

ANNOTATIONS

Analysis

1. Proceedings.

Statute relating to certificates of public good for communications facilities does not call for findings or analysis of the proposed project that are tied to the specific interests of adjoining landowners; rather, the statute requires the Public Service Board to consider a host of enumerated factors relating to aesthetics, historic sites, air and water purity, the natural environment, and the public health and safety, with due consideration to the relevant criteria in referenced statutes. The statute does require that substantial deference be given to the plans and recommendations of municipal legislative bodies and regional planning commissions, but does not require any consideration of the interests of adjoining or neighboring landowners per se. In re New Cingular Wireless PCS, 192 Vt. 20, 54 A.3d 141 (2012).

Like certificate of public good proceedings pursuant to a closely analogous statute, the statute pertaining to new gas and electric purchases, proceedings pursuant to the statute relating to certificates of public good for communications facilities relate only to the issues of public good, not to the interests of private landowners who are or may be involved. In re New Cingular Wireless PCS, 192 Vt. 20, 54 A.3d 141 (2012).

Although the statute relating to certificates of public good for communications facilities does provide for notice to adjoining (but not nonadjoining, neighboring) landowners, the statute does not afford adjoining neighbors automatic party status. Rather, an adjoining landowner stands in the same shoes as any member of the public with respect to intervention; the landowner can file an application to intervene, and may be allowed intervention as of right or permissive intervention if the landowner makes the requisite showing. In re New Cingular Wireless PCS, 192 Vt. 20, 54 A.3d 141 (2012).

Statute relating to certificates of public good for communications facilities requires only that, upon filing its petition, the applicant notify the adjoining landowners that it has done so; it need not even provide the adjoining landowners with a final copy of the petition as filed. In re New Cingular Wireless PCS, 192 Vt. 20, 54 A.3d 141 (2012).

2. Constitutional issues.

Notice requirement of the statute relating to certificates of public good for communications facilities was not sufficiently robust to confer upon adjoining landowners a property right protected under the Fourteenth Amendment; likewise, a grant of permissive intervention was expressly limited to the concerns expressed in the respective motions to intervene, and was granted solely in the discretion of the Public Service Board pursuant to its rules. These factors were not sufficient to support a legitimate claim of entitlement to a particular outcome in the proceeding, as opposed to a unilateral expectation. In re New Cingular Wireless PCS, 192 Vt. 20, 54 A.3d 141 (2012).

3. Grant of certificate proper.

In granting a certificate of public good for a telecommunications facility, the Public Service Board properly found that appellants failed to raise a significant issue under the criteria entitling them to a hearing on the merits, as the Board gave due consideration to the project's aesthetic impacts and made findings, supported by the evidence, that the project involved a relatively short tower in a heavily wooded area, that the tower would be minimally visible, and that it would avoid any additional clearing by using an existing access road. Although appellants contended that the Board erred in dismissing as irrelevant the project's aesthetic impact on private parties, it appeared that the Board considered appellants' argument but found that it lacked sufficient weight to raise a significant issue requiring a hearing on the merits. In re Petition of VTel Wireless, Inc., 201 Vt. 1, 134 A.3d 1227 (2015).

§ 248b. Fees; Agency of Natural Resources; participation in siting proceedings.

  1. Establishment.  This section establishes fees for the purpose of supporting the role of the Agency of Natural Resources (the Agency) in reviewing applications for in-state facilities under sections 248 and 248a of this title.
  2. Payment.  The applicant shall pay the fee into the State Treasury at the time the application for a certificate of public good is filed with the Public Utility Commission in an amount calculated in accordance with this section. The fee shall be deposited into the Natural Resources Management Fund and allocated to the Agency.
  3. Definitions.  In this section:
    1. "kW," "MW," and "plant capacity" shall have the same meaning as in section 8002 of this title.
    2. "Natural gas facility" shall have the same meaning as in section 248 of this title.
    3. "Telecommunications facility" shall have the same meaning as in section 248a of this title.
  4. Electric and natural gas facilities.  This subsection sets fees for applications under section 248 of this title.
    1. There shall be no fee for an electric generation facility less than or equal to 50 kW in plant capacity, for roof-mounted photovoltaic systems of any capacity up to and including 500 kW, or for an application filed under subsection 248(k), (l), or (n) of this title.
    2. The fee for electric generation facilities greater than 50 kW through five MW in plant capacity shall be calculated as follows, except that in no event shall the fee exceed $15,000.00:
      1. An electric generation facility from 51 kW through 139 kW in plant capacity, $2.00 per kW.

        An electric generation facility from 140 kW through 450 kW in plant capacity, $3.00 per kW.

        An electric generation facility from 451 kW through 2.2 MW in plant capacity, $4.00 per kW.

        An electric generation facility from 2.201 MW through five MW in plant capacity, $5.00 per kW.

    3. The fee shall be equal to $2.50 for each $1,000.00 of construction costs, but in no event greater than $100,000.00 per application, for a new electric generation facility greater than five MW in capacity, and for a new electric transmission facility or new natural gas facility not eligible for treatment under subsection 248(j) of this title.
    4. The fee shall be $2,500.00 for an application under subsection 248(j) of this title for a facility that is not electric generation and for an application or that portion of an application under section 248 of this title that consists of upgrading an existing facility within its existing development footprint, reconductoring of an electric transmission line on an existing structure, or the addition of an electric transmission line to an existing structure.
  5. Telecommunications facilities.  For an application under section 248a of this title proposing a wireless telecommunications facility that includes a new support structure, the fee shall be equal to $2.50 for each $1,000.00 of construction costs, but in no event greater than $15,000.00.
  6. Exercise of duties.  The Agency of Natural Resources shall exercise its duties under this title in a manner consistent with implementation of State policy and goals under sections 202a and 202c and chapter 89 of this title. In exercising its duties, the Agency shall establish procedures and work flow goals for the timely review of applications under sections 248 and 248a of this title. On or before the third Tuesday of each annual legislative session, the Agency shall submit a report to the General Assembly by electronic submission. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to this report. The report shall: list the fees collected under this section during the preceding fiscal year; discuss the Agency's performance in exercising its duties under this title during that year; identify areas that hinder the Agency's effective performance of these duties and summarize changes made to improve such performance; and, with respect to the Agency's exercise of these duties, discuss the Agency's staffing needs during the coming fiscal year and the future goals and objectives of the Agency.

    Added 2015, No. 57 , § 17; amended 2017, No. 163 (Adj. Sess.), § 2.

History

Amendments--2017 (Adj. Sess.). Subdiv. (d)(1): Substituted "50 kW" for "139 kW" and added ", for roof-mounted photovoltaic systems of any capacity up to and including 500 kW,".

Subdiv. (d)(2)(A): Added.

Subdivs. (d)(2)(B)-(D): Redesignated former subdivs. (d)(2)(A) through (C) as (d)(2)(B) through (D).

ANNOTATIONS

1. Refunds.

Legislature has granted the Public Utility Commission the powers of a court of record in the determination and adjudication of all matters over which it is given jurisdiction, including the power to render judgments, make orders and decrees, and enforce the same by any suitable process issuable by courts in the State. The statutory grant of power does include the authority to order the Agency of Natural Resources, as a party to a certificate of public good proceeding, to refund some or all of the fee allocated the Agency. In re Swanton Wind LLC, 209 Vt. 224, 204 A.3d 635 (2018).

Petitioner, which voluntarily dismissed its petition for a certificate of public good, was incorrect in asserting that the Agency of Natural Resources was entitled to none of the fee because it had not yet presented evidence; however, the Agency could not retain the full fee based on generalized assertions regarding its review. Accordingly, remand to the Public Utility Commission was required so that it could order the Agency to provide an account of its activities in petitioner's proceeding and evidence of the reasonable cost of those activities; after reviewing the Agency's evidence, the Commission could then exercise its discretion to order a refund of that portion of the fee, if any, which the Agency could not reasonably justify retaining. In re Swanton Wind LLC, 209 Vt. 224, 204 A.3d 635 (2018).

§ 248c. Fees; Department of Public Service and Public Utility Commission; participation in certification and siting proceedings.

  1. Establishment.  This section establishes fees for the purpose of supporting the role of the Department of Public Service (Department) and the Public Utility Commission (Commission) in reviewing applications for in-state facilities under section 248 of this title. Companies that pay the gross receipts tax as provided in section 22 of this title shall not be subject to the fees established in this section.
  2. Payment.  The applicant shall pay the fee into the State Treasury at the time the application for a certificate of public good is filed with the Commission in an amount calculated in accordance with this section. The fee shall be deposited into the gross revenue fund. Of the fees deposited into the gross revenue fund, 60 percent shall be allocated to the Department and 40 percent shall be allocated to the Commission.
  3. Definitions.  As used in this section, "kW" and "plant capacity" have the same meaning as in section 8002 of this title.
  4. Electric and natural gas facilities.  This subsection sets fees for applications under section 248 of this title.
    1. There shall be a registration fee of $100.00 for each electric generation facility less than or equal to 50 kW in plant capacity, or for a rooftop project, or for a hydroelectric project filing a net metering registration, or for an application filed under subsection 248(n) of this title.
    2. There shall be a fee of $25.00 for modifications for each electric generation facility less than or equal to 50 kW in plant capacity, or for a rooftop project, or for a hydroelectric project filing a net metering registration, or for an application filed under subsection 248(n) of this title.
    3. There shall be a fee for electric generation facilities that do not qualify for the lower fees in subdivisions (1) and (2) of this subsection, calculated as follows:
      1. $5.00 per kW; and
      2. $100.00 for modifications.
  5. Report.  On or before the third Tuesday of each annual legislative session, the Department and Commission shall jointly submit a report to the General Assembly by electronic submission. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to this report. The report shall list the fees collected and refunds approved, if any, under this section and under section 248d of this title during the preceding fiscal year.

    Added 2019, No. 70 , § 10.

§ 248d. Fee refund.

If an applicant withdraws an application and seeks a fee refund, then a written request for an application fee refund shall be submitted to the Public Utility Commission (Commission) within 90 days of the withdrawal of the application.

  1. As used in this section, "agency" means the Agency of Natural Resources, the Department of Public Service, or the Commission.
  2. In the event that an application is withdrawn before any agency has filed comments expressing a position on any part of the application, filed testimony, or filed a stipulated agreement with the Commission in the context of a certificate of public good proceeding, the Commission shall, upon request of the applicant, refund 50 percent of the fee paid to each agency above the first $100.00; however, in no instance shall the agency retain more than $20,000.00.
  3. In the event that an application is withdrawn after any agency has filed comments expressing a position on any part of the application, filed testimony, or filed a stipulated agreement with the Commission in the context of a certificate of public good proceeding, the Commission shall, upon request of the applicant, refund 25 percent of the fee paid to each agency above the first $100.00.
  4. Commission decisions regarding application fee refunds may be appealed to the Vermont Supreme Court.
  5. In no event may an application fee or a portion thereof be refunded after the Commission has issued a final decision on the merits of an application, whether the decision is to grant or deny the application in whole or in part.
  6. No interest will be due or payable on any money refunded under this section.

    Added 2019, No. 70 , § 11.

§ 249. Service territories; Commission jurisdiction.

  1. The Public Utility Commission shall have jurisdiction to establish service territories for companies subject to its supervision which are engaged in the distribution of electrical energy in the State and to alter those territories from time to time as conditions warrant.  In establishing or in altering service territories, the Commission shall give consideration to:
    1. existing service areas;
    2. any voluntary agreements between or among two or more such companies filed with the Commission which define service territories of the companies;
    3. consistency with the orderly development of the region;
    4. natural geographical boundaries;
    5. compatibility with the interests of all consumers; and
    6. all other relevant factors.
  2. The Commission shall have power to exercise the jurisdiction conferred in this section only after due notice to all interested parties and an opportunity for a hearing, and after making findings that the service territories established or altered are consistent with the general good of Vermont. If a hearing is requested by a party or by any customer who is potentially affected by the proposed change, the Commission shall hold a hearing.
  3. In establishing service territories, the Commission may declare that specified areas are not within the service territory of any company, and may leave the assignment of such areas for later determination.

    Added 1969, No. 257 (Adj. Sess.), § 3; amended 2021, No. 42 , § 7.

History

Revision note. This section was enacted as § 247 but was redesignated as § 249 to conform to the renumbering of sections of this chapter.

Amendments--2021. Subsec. (b): Inserted "an opportunity for a" preceding "hearing" and added the second sentence.

Declaration of policy. 1969, No. 257 (Adj. Sess.), § 2 provided: "It is hereby declared to be the policy of the state that the public interest requires that the public be protected from over-lapping conditions in the distribution of electrical energy by the establishment of service territories which will eliminate or prevent conditions leading to unnecessary duplication of service and economic waste in the distribution of electrical energy."

ANNOTATIONS

1. Municipal utilities.

The right and power to determine the establishment of a municipal electric utility are granted exclusively to the voters of that municipality, as long as the provisions of sections 2901-2923 of this title, the General Municipal Plant Enabling Act, are duly complied with, and the Public Service Board is without jurisdiction under this section either to review or deny such determination. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

Public Service Board improperly denied town's petition to condemn private electric distribution facilities located within the town where the town fully complied with the provisions of sections 2901-2923 of this title, the General Municipal Plant Enabling Act, as part of its plan to establish a municipal electric utility, since this section, which gave the Board jurisdiction to establish and alter utility service territories, did not give it jurisdiction to review or deny the town's determination. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

Cited. Wendland v. Green Mountain Power Corp., 132 Vt. 320, 318 A.2d 668 (1974); In re EHV-Weidmann Industries, Inc., 173 Vt. 581, 795 A.2d 1185 (mem.) (2002).

§ 249a. Campground submetering.

Notwithstanding the provisions of section 249 of this title or any other provision of this title, a person operating a recreational campground may provide submetered electric service to campground users on a nonprofit basis, if such service is provided in accordance with rules adopted by the Commission, including rules relating to notice of rates and charges, accuracy of electrical submeters, and reasonable billing and complaint procedures.

Added 1995, No. 182 (Adj. Sess.), § 18, eff. May 22, 1996.

§ 250. Application; maps.

Within six months after July 1, 1970, or at such later date as the Public Utility Commission may establish, each company engaged in the distribution of electrical energy in the State shall apply to the Commission for a service territory consisting of the distribution area served by it on July 1, 1970, and any areas not presently served by it or any other electric utility company which it believes it is entitled to serve. After consideration of the factors set forth in section 249 of this title, the Commission shall establish the service territory of each company. The service territory thus established shall be defined on a map or maps approved by the Commission. In the event applications under this section are filed by more than one electric company for an area, the Commission shall, after notice and hearing, determine what part of the area as to which competing claims are filed should be awarded to the respective applicants. In the event the distribution facilities of the competing applicants are so intertwined or commingled as to make establishment of exclusive service territories impracticable, the Commission may authorize two or more companies which have filed competing applications to serve the area in conflict, subject to the provisions of section 251 of this title.

Added 1969, No. 257 (Adj. Sess.), § 4.

History

Revision note. This section was enacted as § 248 but was redesignated as § 250 to conform to the renumbering of sections of this chapter.

Substituted "July 1, 1970" for "the effective date of this section" and "the effective date of the section" for purposes of clarity.

References to sections "247" and "249" of this title changed to sections "249" and "251" respectively to conform the references to the renumbering of such sections.

ANNOTATIONS

Cited. In re EHV-Weidmann Industries, Inc., 173 Vt. 581, 795 A.2d 1185 (mem.) (2002).

§ 251. Areas served by several companies.

  1. In any area which two or more companies distributing electrical energy are authorized to serve, a company shall not construct or extend its facilities, or furnish or offer to furnish its service to any person or property presently served by another public utility, without the written consent of the other public utility, or unless the Public Utility Commission, after notice and hearing, finds and determines that the service rendered by the serving public utility is inadequate and is not likely to be made adequate.
  2. In the event service is requested for premises in an area which two or more companies distributing electrical energy are authorized to serve and have facilities available for service to the property, the public utility company the existing service facilities of which are nearest the metering point on the premises to be served shall, subject to the other applicable provisions of this section, be entitled to serve the premise.
  3. In the event that service is requested for premises not within the service territory of any company, and if more than one other public utility is available for service to the property, the public utility whose existing service facilities are nearest the metering point on the premises to be served shall, subject to the other applicable provisions of this section, be entitled to serve said premises.
  4. A company shall not construct or extend its facilities or furnish or offer to furnish its services to premises within the service territory of another company without being requested to do so by the company in whose territory the premises are located, or unless the Public Utility Commission, upon petition of the person served or to be served, after notice and hearing, finds and determines that the service rendered by such public utility in whose territory and premises are located is inadequate and will not be likely to be made adequate.
  5. In resolving any dispute under subsections (b), (c), and (d) of this section, the Commission shall consider the factors set forth in section 249 of this title.

    Added 1969, No. 257 (Adj. Sess.), § 5.

History

Revision note. This section was enacted as § 249 but was redesignated as § 251 to conform to the renumbering of sections of this chapter.

Reference to "section 247" of this title in subsec. (e) changed to "section 249" to conform reference to the renumbering of such section.

ANNOTATIONS

Analysis

1. Prior law.

For decision under prior provisions relating to the subject matter of this section, see annotations under former sections 2808 and 2809 of this title.

2. Change of service provider.

Where no part of petitioner's real property was situated in a geographic area where the Public Service Board had authorized two electric service providers to serve simultaneously, and there was no part of petitioner's real property that was situated in a geographic area where no electric utility was authorized to serve, subsecs. (b) and (c) of this section and the metering point provisions therein did not apply to allow petitioner to change service providers in the event it moved its metering point from its current location within one provider's service territory to a location within another provider's service territory. In re EHV-Weidmann Industries, Inc., 173 Vt. 581, 795 A.2d 1185 (mem.) (2002).

§ 252. Experts, payment of expense.

The Public Utility Commission may employ technical and professional assistance as may be required in making the service territory determinations under sections 249-251 of this title and may allocate equitably that portion of the expense to the company or companies involved.

Added 1969, No. 257 (Adj. Sess.), § 6.

History

Revision note. This section was enacted as § 250 but was redesignated as § 252 to conform to the renumbering of sections of this chapter.

Reference to "sections 247-249" of this title changed to "sections 249-251" to conform references to the renumbering of such sections.

§ 253. National Environmental Policy Act review.

The Governor may authorize a State agency, including the Public Utility Commission, to participate as a lead agency or a cooperating agency in any environmental review pursuant to the provisions of the National Environmental Policy Act of 1969, as amended, of any natural gas facility, as defined in subdivision 248(a)(3) of this title, which is to be located in Vermont and which requires a federal approval pursuant to the Natural Gas Act.

Added 1987, No. 273 (Adj. Sess.), § 3, eff. June 21, 1988.

History

Reference in text. The National Environmental Policy Act of 1969, referred to in this section, is codified as 42 U.S.C. § 4321 et seq.

The Natural Gas Act, referred to in this section, is codified as 15 U.S.C. § 717 et seq.

§ 254. Construction or extended operation of nuclear plant; public engagement process.

Timelines for approval.

  1. Any petition for approval of construction of a nuclear energy generating plant within the State, or any petition for approval of the operation of a nuclear energy generating plant beyond the date established in a certificate of public good issued under this title, must be submitted to the Public Utility Commission no later than four years before the date upon which the approval may take effect.
  2. Upon receipt of a petition for approval of construction or operation as provided under this section, the Public Utility Commission shall notify the General Assembly of that fact. The Department of Public Service with the review of the Joint Energy Committee, is authorized and directed to arrange for studies to be conducted as appropriate to support the General Assembly in the fact finding and public engagement process established in subsection (b) of this section.
  3. Upon completion of the studies, the Department of Public Service shall provide the studies to the Public Utility Commission and to the Senate Committees on Finance and on Natural Resources and Energy and the House Committees on Commerce and Economic Development and on Energy and Technology, together with other information requested by the General Assembly.

    (b) Public engagement and fact-finding.

    (1) The objectives of the studies to be arranged by the Department of Public Service with the review of the Joint Energy Committee and the objectives of the public engagement process as a whole shall be:

    1. to facilitate public discussion of long-term economic and environmental issues relating to the operation of any nuclear facility in the State;
    2. to identify and assess the potential need for the operation of the facility and its long-term economic and environmental benefits, risks, and costs; and
    3. to assess all practical alternatives to those set forth in the applicant's petition that may be more cost-effective or that otherwise may better promote the general welfare.

      (2) The studies arranged by the Department in consultation with the Joint Energy Committee and the public engagement process, in general, shall:

      (A) identify, collect information on, and provide analysis of long-term accountability and financial responsibility issues, such as:

      1. funding plans for guardianship of nuclear waste after licensure but before removal of nuclear waste from the site;
      2. closure obligations, dates of completion, and assurance of funds to secure fulfillment of those closure obligations;
      3. federal obligations and assurance of funds to provide for any undischarged federal responsibilities;
      4. funding for emergency management requirements and evacuation plans before and after plant closure; and
      5. any other financial responsibility related to any periods in which the facility is out of service.

        (B) identify, collect information on, and provide analysis of long-term environmental, economic, and public health issues, including issues relating to dry cask storage of nuclear waste and decommissioning options.

        (C) identify, collect information on, and provide analysis of current economic issues, in light of the fact that the operation of the nuclear energy generating plant beyond the date permitted in any previous certificate of public good is to be evaluated under present day cost-benefit assumptions and analyses and not as an extension of the cost-benefit assumptions and analyses forming the basis of the previous certificate of public good for the operation of the facility.

        (3) In conducting its part of the public engagement process, the Department shall conduct no less than three public meetings. The meetings shall be at separate locations within the State, in proximity to the nuclear energy generating facilities involved as well as in other locations as determined by the Department, and each shall be noticed by at least two advertisements, each occurring between one and three weeks prior to the meetings, in newspapers having general circulation within the State and within the municipalities in which the meetings are to be held. Copies of the notices shall be provided to the Public Utility Commission, the General Assembly, the Agency of Natural Resources, the Department of Health, the Agency of Transportation, the Attorney General, and each retail electricity provider within the State. During this public engagement and fact-finding process, the Department shall have authority to retain expert witnesses, counsel, advisors, stenographic, and other research assistance it may require. The Department may compensate the same and allocate related costs, as well as the costs of procuring the studies, to the owner of the Vermont Yankee nuclear power station, in the same manner authorized for personnel in particular proceedings under sections 20 and 21 of this title. The Department shall prepare a report of the proceedings containing a discussion of the principal contentions made by members of the public, analyses by any expert witnesses or consultants retained by the Department, presentations by any State agency and by any utility, and shall provide the same to the members of the Senate Committees on Finance and on Natural Resources and Energy and the House Committees on Commerce and Economic Development and on Energy and Technology, and to the public.

  4. The public engagement and fact finding process set forth in this section may be held in conjunction with or separately from the statewide public engagement process on energy planning to be conducted by the Department pursuant to the Energy Security and Reliability Act.
  5. The General Assembly shall conduct proceedings it deems appropriate in order to complete the fact finding and public engagement process.

    (c) Public Utility Commission action. In acting on a petition subject to this section, the Commission shall consider the objectives of the studies to be arranged by the Department, the objectives of the public engagement process as a whole, and the general and specific issues that the studies are required to address, as specified in subsection (b) of this section.

    Added 2005, No. 160 (Adj. Sess.), § 4; amended 2017, No. 113 (Adj. Sess.), § 173c.

History

Amendments--2017 (Adj. Sess.). Subsec. (a): Substituted "Timelines" for "Time lines" in the subsec. heading.

Subdivs. (a)(3) and (b)(3): Substituted "Senate Committees on Finance and on Natural Resources and Energy and the House Committees on Commerce and Economic Development and on Energy and Technology" for "Committees on Natural Resources and Energy, the House Committee on Commerce and Economic Development, and the Senate Committee on Finance".

ANNOTATIONS

1. Federal preemption.

In a dispute involving the continued operation of a Vermont nuclear power plant, 2006 Vt. Acts and Resolves No. 160 and a single provision of 2005 Vt. Acts and Resolves No. 74, requiring affirmative legislative approval under 10 V.S.A. § 6522(b)(4) for storage of spent nuclear fuel at the Vermont Yankee nuclear plant after March 21, 2012, were held preempted by the Atomic Energy Act, 42 U.S.C.S. § 2011 et seq. Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 733 F.3d 393 (2d Cir. 2013).

§ 254a. Joint Fiscal Committee; nuclear energy analysis.

  1. The Joint Fiscal Committee may authorize or retain services or resources to assist the General Assembly:
    1. in any legislative proceeding under or related to subsection 248(e) of this title or 10 V.S.A. chapter 157; or
    2. with respect to any proceedings before any State or federal court concerning a nuclear generating plant in the State and related issues.
  2. Persons retained pursuant to subsection (a) of this section shall work under the direction of a special committee consisting of the Chairs of the House Committees on Energy and Technology and on Natural Resources, Fish, and Wildlife and the Senate Committee on Natural Resources and Energy and the Joint Fiscal Committee.
  3. The Public Utility Commission shall allocate expenses incurred pursuant to subsection (a) of this section to the applicant or the company or companies involved and such allocation and expense may be reviewed by the Public Utility Commission pursuant to section 21 of this title.

    Added 2011, No. 47 , §§ 20p, 20q, eff. May 25, 2011; amended 2017, No. 113 (Adj. Sess.), § 173d.

History

Amendments--2017 (Adj. Sess.). Subsec. (b): Substituted "House Committees on Energy and Technology and on Natural Resources, Fish, and Wildlife and the Senate Committee on Natural Resources" for "House and Senate Committees on Natural Resources".

§ 255. Regional coordination to reduce greenhouse gases.

  1. Legislative findings.  The General Assembly finds:
    1. There is a growing scientific consensus that the increased anthropogenic emissions of greenhouse gases are enhancing the natural greenhouse effect, resulting in changes in the earth's climate.
    2. Climate change poses serious potential risks to human health and terrestrial and aquatic ecosystems globally, regionally, and in Vermont.
    3. A carbon constraint on fossil fuel-fired electricity generation and the development of a CO2 allowance trading mechanism will create a strong incentive for the creation and deployment of more efficient fuel-burning technologies, renewable resources, and end-use efficiency resources and will lead to lower dependence on imported fossil fuels.
    4. Absent federal action, a number of states are taking actions to work regionally to reduce power sector carbon emissions.
    5. Vermont has joined with at least six other states to design the Regional Greenhouse Gas Initiative (RGGI), and, in 2005, Vermont's Governor signed a memorandum of understanding (MOU) signaling Vermont's intention to develop rules and programs to participate in RGGI.
    6. It is crucial to manage Vermont's implementation of RGGI and its consumption of fossil fuels for residential and commercial heating, and industrial processes, so as to maximize the State's contribution to lowering carbon emissions while:
      1. minimizing impacts on electric system reliability and unnecessary costs to Vermont energy consumers; and
      2. minimizing the costs and the emissions resulting from the use of petroleum-based fuels for space heating and process heating for residential, commercial, and industrial purposes.
    7. The accelerated deployment of low-cost process, thermal, and electrical energy efficiency, the strategic use of low- and zero-carbon generation, and the selective use of switching fuel sources are the best means to achieve these goals.
    8. It is crucial that funds made available from operation of a regional carbon credits cap and trade system be devoted to the benefit of Vermont energy consumers through investments in a strategic portfolio of energy efficiency, weatherization, and low-carbon generation resources.
  2. Cap and trade program creation.
    1. The Agency of Natural Resources and the Public Utility Commission shall, through appropriate rules and orders, establish a carbon cap and trade program that will limit and then reduce the total carbon emissions released by major electric generating stations that provide electric power to Vermont utilities and end-use customers.
    2. Vermont rules and orders establishing a carbon cap and trade program shall be designed so as to permit the holders of carbon credits to trade them in a regional market proposed to be established through the RGGI.
  3. Allocation of tradable carbon credits.
    1. The Secretary of Natural Resources, by rule, shall establish a set of annual carbon budgets for emissions associated with the electric power sector in Vermont that are consistent with the 2005 RGGI MOU, including any amendments to that MOU and any reduced carbon cap resulting from a subsequent program review by RGGI, and that are on a reciprocal basis with the other states participating in the RGGI process.
    2. In order to provide the maximum long-term benefit to Vermont consumers, particularly benefits that will result from accelerated and sustained investments in energy efficiency and other low-cost, low-carbon power system, building envelope, and other investments, the Public Utility Commission, by rule or order, shall establish a process to allocate 100 percent of the Vermont statewide budget of tradable power sector carbon credits to one or more trustees acting on behalf of consumers in accordance with the following principles. To the extent feasible, the allocation plan shall accomplish the following goals:
      1. minimize windfall financial gains to power generators as a result of the operation of the cap and trade program, considering both the costs that generators may incur to participate in the program and any power revenue increases they are likely to receive as a result of changes in regional power markets;
      2. employ an administrative structure that will enable program managers to perform any combination of holding, banking, and selling carbon credits in regional, national, and international carbon credit markets in a financially responsible and market-sensitive fashion, and provide funds to defray the reasonable costs of the program trustee or trustees and Vermont's pro rata share of the costs of the RGGI regional organization;
      3. optimize the revenues received from the management and sale of carbon credits for the benefit of Vermont energy consumers and the Vermont economy;
      4. minimize any incentives from operation of the cap and trade program for Vermont utilities to increase the overall carbon emissions associated with serving their customers;
      5. build upon existing regulatory and administrative structures and programs that lower power and heating costs, improve efficiency, and lower the State's carbon profile while minimizing adverse impacts on electric system reliability and unnecessary costs to Vermont energy consumers, and minimizing the costs and the emissions resulting from the use of petroleum-based fuels for space heating and process heating for residential, commercial, and industrial purposes;
      6. ensure that carbon credits allocated under this program and revenues associated with their sale remain public assets managed for the benefit of the State's consumers, particularly benefits that will result from accelerated and sustained investments in energy efficiency and other low-cost, low-carbon power, or heating system or building envelope investments;
      7. where practicable, support efforts recommended by the Agency of Natural Resources or the Department of Public Service to stimulate or support investment in the development of innovative carbon emissions abatement technologies that have significant carbon reduction potential.
  4. Appointment of consumer trustees.  The Public Utility Commission, by rule, order, or competitive solicitation, may appoint one or more consumer trustees to receive, hold, bank, and sell tradable carbon credits created under this program. Trustees may include Vermont electric distribution utilities, the fiscal agent collecting and disbursing funds to support the statewide efficiency utility, or a financial institution or other entity with the expertise and financial resources to manage a portfolio of carbon credits for the long-term benefit of Vermont energy consumers. The net proceeds above costs from the sale of carbon credits shall be deposited into the Electric Efficiency Fund established under subdivision 209(d)(3) of this title. These funds shall be used by the entity or entities appointed under subdivision 209(d)(2)(B) of this title to help meet the building efficiency goals established under 10 V.S.A. § 581 by delivering heating and process-fuel energy efficiency services to Vermont consumers who use such fuel.
  5. Reports.  On or before January 15 of each year, commencing in 2007, the Department of Public Service in consultation with the Agency of Natural Resources and the Public Utility Commission shall provide to the House Committees on Commerce and Economic Development, on Energy and Technology, and on Natural Resources, Fish, and Wildlife and the Senate Committees on Finance and on Natural Resources and Energy a report detailing the implementation and operation of RGGI and the revenues collected and the expenditures made under this section, together with recommended principles to be followed in the allocation of funds. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subsection.
  6. State action offsets.  The State's negotiators to RGGI shall advocate for and negotiate to adjust the rules of the program, as needed, so that greenhouse gas reductions resulting from State investments and other public investments and investments required by State law will not be prohibited from being eligible for offsets under the program.

    Added 2005, No. 123 (Adj. Sess.), § 1; amended 2007, No. 92 (Adj. Sess.), § 18; 2007, No. 209 (Adj. Sess.), § 13b; 2009, No. 54 , § 105, eff. June 1, 2009; 2009, No. 1 (Sp. Sess.), § E.235.2, eff. June 2, 2009; 2011, No. 47 , § 20c, eff. May 25, 2011; 2013, No. 50 , § E.700; 2013, No. 89 , § 4; 2013, No. 142 (Adj. Sess.), § 50; 2017, No. 113 (Adj. Sess.), § 173e.

History

2006. Redesignated as section 255 of this title.

2009. Act No. 3 (Sp. Sess.), § 14(c) provides that No. 54, § 103 "shall supersede and replace" No. 1 (Sp. Sess.), § E.235.

Amendments--2017 (Adj. Sess.). Subsec. (e): Substituted "House Committees on Commerce and Economic Development, on Energy and Technology, and on Natural Resources, Fish, and Wildlife and the Senate Committees on Finance and on Natural Resources and Energy" for "House and Senate Committees on Natural Resources and Energy, the Senate Committee on Finance, and the House Committee on Commerce and Economic Development".

Amendments--2013 (Adj. Sess.). Subsec. (e): Added the second sentence.

Amendments--2013 Subdiv. (c)(1): Act Nos. 50 and 89 added "that are" following "Vermont" and preceding "on a reciprocal basis" at the end of the sentence, and "and any reduced carbon cap resulting from a subsequent program review by RGGI" following "MOU."

Subsec. (d): Act No. 89 amended generally.

Amendments--2011. Subsec. (d): Substituted "heating and process-fuel" for "fossil fuel" preceding "energy"; deleted "heating and process-fuel" preceding "consumers;" and inserted "use such fuel and" following "who".

Amendments--2009. Subsec. (d): Act No. 54 and Act No. 1 (Sp. Sess.) substituted "Fifty percent of the net proceeds above costs" for "Proceeds" in the third sentence and added the last three sentences.

Amendments--2007 (Adj. Sess.). Subdiv. (a)(6): Inserted "and its consumption of fossil fuels for residential and commercial heating, and industrial processes" following "RGGI"; added the (A) designation to subdiv. and in that subdiv. substituted "energy" for "power" following "Vermont"; and added subdiv. (a)(6)(B).

Subdiv. (a)(7): Inserted "process, thermal, and electrical" preceding "energy"; deleted "and" following "efficiency"; and inserted ", and the selective use of switching fuel sources" following "generation".

Subdiv. (a)(8): Substituted "energy" for "power" preceding "consumers" and inserted ", weatherization" following "efficiency".

Subdiv. (c)(2): Deleted "electric" preceding "consumers"; inserted "building envelope, and other" preceding "investments"; and deleted "and the proceeds from the sale of those credits through allocation" following "credits".

Subdiv. (c)(2)(C): Substituted "energy consumers" for "electric customers".

Subdiv. (c)(2)(E): Inserted "and heating" following "power" and "state's" preceding "carbon"; deleted "of the state's power supply" following "profile"; substituted "energy" for "power" preceding "consumers"; and inserted ", and minimizing the costs and the emissions resulting from the use of petroleum-based fuels for space heating and process heating for residential, commercial, and industrial purposes" following "consumers".

Subdiv. (c)(2)(F): Substituted "public" for "power system" preceding "assets", "the state's" for "electric" preceding "consumers"; and inserted "or heating" following "power" and "or building envelop" following "system".

Subdiv. (c)(2)(G): Deleted "power sector" preceding "carbon".

Subsec. (d): Inserted "energy" preceding "consumers" near the end of the second sentence and added the present third sentence.

Subsec. (f): Added.

§ 209c. Electricity affordability program.

Subchapter 2. Emergency Public Motor Bus Transportation

§§ 271-273. [Expired].

History

Former §§ 271-273, relating to payment of subsidies to Burlington Rapid Transit Co., Inc., for the maintenance and operation of a local transit service within certain Chittenden County municipalities, were derived from 1971, No. 216 (Adj. Sess.). Section 2 of 1971, No. 216 (Adj. Sess.) provided that "the act [this subchapter] and all powers granted herein shall expire at midnight on June 30, 1973."

CHAPTER 7. CONSOLIDATION OR MERGER OF CORPORATIONS UNDER JURISDICTION OF COMMISSION

Sec.

§§ 301-310. [Omitted]. History Sections 301-310 have been omitted in view of 1969, No. 286 (Adj. Sess.), § 4, as amended by 1971, No. 51, § 15, which provided that after July 1, 1971, sections 301-310 would not apply to any corporation then or thereafter organized or doing business under the laws of this State. Section 301, relating to sale or lease of assets and merger of solvent corporations, was derived from V.S. 1947, § 9348; 1941, No. 144, § 2; P.L. § 6002; G.L. § 5023; 1917, No. 141, §§ 1, 3 and amended by 1959, No. 329 (Adj. Sess.), § 39(b). Section 302, relating to procedure, was derived from V.S. 1947, § 9349; P.L. § 6003; G.L. § 5023; 1917, No. 141, §§ 1, 3. Section 303, relating to sale of acquired stock, was derived from V.S. 1947, § 9350; P.L. § 6004; G.L. § 5023; 1917, No. 141, §§ 1, 3. Section 304, relating to sale or lease of assets by insolvent corporations, was derived from V.S. 1947, § 9351; P.L. § 6005; G.L. § 5023; 1917, No. 141, §§ 1, 3 and amended by 1959, No. 329 (Adj. Sess.), § 39(b). Section 305, relating to rights of resulting corporation, was derived from V.S. 1947, § 9352; P.L. § 6006; G.L. § 5023; 1917, No. 141, §§ 1, 3. Section 306, relating to rights of creditors and liens, was derived from V.S. 1947, § 9353; P.L. § 6007; G.L. § 5023; 1917, No. 141, §§ 1, 3. Section 307, relating to record of merger, was derived from V.S. 1947, § 9354; P.L. § 6008; G.L. § 5023; 1917 No. 141, §§ 1, 3. Section 308, relating to rights of minority stockholders, was derived from V.S. 1947, § 9355; P.L. § 6009; G.L. § 5024; 1917, No. 141, §§ 2, 3 and amended by 1959, No. 329 (Adj. Sess.), § 39(b). Section 309, relating to appraisers, was derived from V.S. 1947, § 9356; 1947, No. 202, § 9487; P.L. § 6010; G.L. § 5024; 1917, No. 141, §§ 2, 3. Section 310, relating to transfer of stock to corporation, was derived from V.S. 1947, § 9357; P.L. § 6011; G.L. § 5024; 1917, No. 141, §§ 2, 3 and amended by 1959, No. 329 (Adj. Sess.), § 39(b).

A consolidation or merger under the provisions of this chapter shall not become effective without the approval of the Public Utility Commission after due notice and opportunity for hearing, and the finding on its part that such consolidation or merger will not result in obstructing or preventing competition in the purchase or sale of any product, service, or commodity, in the sale, purchase, or manufacture of which such corporations are engaged.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1993, No. 21 , § 11, eff. May 12, 1993.

History

Source. V.S. 1947, § 9358. P.L. § 6012. G.L. § 5025. 1917, No. 141 , § 3.

Amendments--1993. Inserted "opportunity for" following "notice and".

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "public service" in the catchline and text.

Cross References

Cross references. Corporate merger and share exchange, see 11A V.S.A. § 11.01 et seq.

§ 311. Public Utility Commission's authority.

CHAPTER 9. DAMS

Sec.

Cross References

Cross references. Eminent domain proceedings as to dams, see § 112 of this title.

Jurisdiction over dams, see 10 V.S.A. § 1081 and § 203 of this title.

§ 401. Lake Seymour.

The Public Utility Commission shall ascertain and establish the natural maximum and minimum water levels of Lake Seymour at the outlet, excluding from its determination of such levels the effect on natural conditions disturbed by blasting of the barrier, changes in the depth and width of the channel above and below the barrier, as well as the effect the present control dam may have on such levels. When such levels are so established, the Commission shall certify its findings to the Secretary of State and cause the same to be recorded in the offices of the town clerks of the towns of Morgan and Charleston.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. 1951, No. 197 , § 1.

Revision note. "On or before September 15, 1951" was deleted from the beginning of the section as obsolete.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "public service" in the first sentence and preceding "shall certify" in the second sentence.

ANNOTATIONS

1. Construction.

As used in this section, the term "natural" means "normal." In re Lake Seymour, 117 Vt. 367, 91 A.2d 813 (1952).

§ 402. Prohibition.

The waters of Lake Seymour shall not by any artificial means be raised higher or drawn lower, or permitted through neglect to become lower or higher, than the maximum and minimum levels established by the Commission.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. 1951, No. 197 , § 2.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" at the end of the section.

ANNOTATIONS

Cited. In re Lake Seymour, 117 Vt. 367, 91 A.2d 813 (1952).

§ 403. Penalty.

A person, firm, or corporation who violates a provision of sections 401 and 402 of this title shall be subject to the penalty set forth in 10 V.S.A. § 1094 .

History

Source. 1951, No. 197 , § 3.

Reference in text. 10 V.S.A. § 1094, referred to in this section, was repealed by 1981, No. 242 (Adj. Sess.), § 18.

Revision note. Reference to "section 713 of Title 10" changed to "10 V.S.A. § 1094" to conform reference to renumbering of such section.

ANNOTATIONS

Cited. In re Lake Seymour, 117 Vt. 367, 91 A.2d 813 (1952).

§ 404. Great Averill Pond, Little Averill Pond, Norton Lake.

The Public Utility Commission shall establish maximum and minimum water levels of Great Averill Pond, located in the towns of Averill and Norton, and Little Averill Pond, located in the town of Averill, and Norton Lake, located in the town of Norton and in Warren's Gore, at their outlets. The Commission may revise its findings from time to time either on its own motion or on petition of interested parties and, after opportunity for hearing, establish different water levels. When such levels are so established, the Commission shall certify its findings to the Secretary of State and cause the same to be recorded in the office of the town clerk of Norton.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1993, No. 21 , § 12, eff. May 12, 1993.

History

Source. 1957, No. 96 . 1953, No. 273 , § 2.

Revision note. "On or before September 15, 1953" was deleted from the beginning of the section as obsolete.

Amendments--1993. Inserted "opportunity for" preceding "hearing" in the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

§ 405. Prohibition.

The waters of Great Averill and Little Averill ponds and Norton Lake shall not by any artificial means be raised higher or drawn lower, or permitted through neglect to become lower or higher, than the maximum and minimum levels established by the Commission.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. 1953, No. 273 , § 2.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" at the end of the section.

§ 406. Penalty.

A person, firm, or corporation who violates a provision of sections 404 and 405 of this title shall be subject to penalties in the same manner as a violation of 10 V.S.A. chapter 43.

Amended 2017, No. 74 , § 126.

History

Source. 1953, No. 273 , § 3.

Amendments--2017. Section amended generally.

CHAPTER 11. TRANSPORTATION OF EXPLOSIVES, INFLAMMABLE MATERIALS

Sec.

§§ 451-453. Repealed. 1971, No. 205 (Adj. Sess.), § 7, eff. date, see note set out below.

History

Former § 451, relating to powers and duties of the Public Service Board as to explosives, was derived from V.S. 1947, § 9413; 1947, No. 202 , § 9545; P.L. § 6131; 1919, No. 128 , § 2 and amended by 1959, No. 329 (Adj. Sess.), § 39(b).

Former § 452, relating to change in regulations, was derived from V.S. 1947, § 9414; P.L. § 6132; 1919, No. 128 , § 2 and amended by 1959, No. 329 (Adj. Sess.), § 39(b).

Former § 453, relating to effective date of regulations, was derived from V.S. 1947, § 9415; P.L. § 6133; 1919, No. 128 , § 2 and amended by 1959, No. 329 (Adj. Sess.), § 39(b).

Effective date. 1971, No. 205 (Adj. Sess.), § 8 provided in part: "This act shall take full effect July 1, 1973 or at an earlier date which the governor may set by executive order, which shall be not sooner than April 1, 1973."

Preservation of rights. 1971, No. 205 (Adj. Sess.), § 5, provided: "The repeal by this act [ 1971, No. 205 (Adj. Sess.)] of any provision of law shall not affect any act done, liability incurred, or any right accrued or vested, or affect, abate or prevent any suit or prosecution pending or to be instituted to enforce any right or penalty or punish for any offense under the authority of any of the repealed laws, nor shall the repeal affect the validity of any contract to which the state, or any agency of the state, is a party in interest."

CHAPTER 13. CABLE TELEVISION SYSTEMS

Sec.

History

Short title. 1987, No. 271 (Adj. Sess.), § 1, eff. June 21, 1988, provided that the amendments to sections 501-504 and 508 of this chapter and the enactment of sections 506 and 509-515 of this chapter by the act shall be known and may be cited as the "Vermont Cable Reform Television Act of 1988."

Legislative purpose. 1987, No. 271 (Adj. Sess.), § 2, eff. June 21, 1988, provided: "It is the purpose of this act [which amended sections 20 and 110 of this title and sections 501-504 and 508 of this chapter and which enacted sections 506 and 509-515 of this chapter] to implement the state's authority to regulate cable television systems to the full extent allowed under federal law."

Cross References

Cross references. Prohibition against advertising pay-per-call services during air time devoted to children's programming, see 9 V.S.A. § 2508.

System for prevention of damage by excavation to underground utility facilities, see § 7001 et seq. of this title.

ANNOTATIONS

Cited. In re Vermont Electric Power Producers, Inc., 165 Vt. 282, 683 A.2d 716 (1996).

§ 501. Definitions.

As used in this chapter:

  1. "Commission" shall mean the Public Utility Commission.
  2. "Cable television system" means facilities by which television signals are received at a central location and for consideration are transmitted to customers or subscribers by means of cables or wires.
  3. "Company" or "companies" means persons, partnerships, associations, corporations, including a municipality authorized under section 513 of this title, owning or operating a cable television system, except nonprofit systems serving fewer than 100 subscribers.

    Added 1969, No. 167 (Adj. Sess.), § 1, eff. Feb. 10, 1970; amended 1987, No. 271 (Adj. Sess.), § 3, eff. June 21, 1988.

History

Amendments--1987 (Adj. Sess.). Subdiv. (2): Substituted "facilities" for "a system" preceding "by which television", "at a " for "from one or more" preceding "central" and "location" for "locations" thereafter.

Subdiv. (3): Inserted "including a municipality authorized under section 513 of this title" following "corporations" and added "except nonprofit systems serving fewer than 100 subscribers" following "television system".

§ 502. Jurisdiction.

  1. A company subject to supervision under this chapter shall have the privileges provided in and be subject to the provisions of chapters 1 through 7 of this title.
  2. The Commission shall be the franchising authority in the State empowered to grant, renew, and revoke certificates of public good for all cable television systems and shall have all other authority to regulate cable television systems.
  3. In any ratemaking and certification, it shall be the continuing policy of the State of Vermont that the capital investment on which rates shall be based will be the historic original cost of the assets of the company less accumulated depreciation of those assets.

    Added 1969, No. 167 (Adj. Sess.), § 1, eff. Feb. 10, 1970; amended 1979, No. 204 (Adj. Sess.), § 32, eff. Feb. 1, 1981; 1987, No. 271 (Adj. Sess.), § 4, eff. June 21, 1988.

History

Amendments--1987 (Adj. Sess.). Section amended generally.

Amendments--1979 (Adj. Sess.). Inserted "and the department of public service" following "board".

ANNOTATIONS

Cited. , 1970-72 Op. Atty. Gen. 393; In re Telesystems, Corp., 143 Vt. 504, 469 A.2d 1169 (1983); City of Burlington v. Mountain Cable Co., 151 Vt. 161, 559 A.2d 153 (1988).

§ 503. Certification.

  1. No company may own or operate a cable television system unless it holds a certificate of public good issued by the Commission authorizing it to do so.
  2. The Commission shall hear and determine applications in accordance with the criteria of section 504 of this title and the procedures set forth in sections 102 and 231 of this title.
  3. Application for a certificate of public good shall be made in writing to the Commission and shall contain the names of the owners or incorporators of the company, a description of the territory proposed to be served, a statement as to the proposed financing for the company, and such other information as the Commission by rule requires.
  4. Existing certificates of public good shall continue in full force and effect, but shall be deemed to include all terms and conditions imposed by this chapter and by the rules of the Public Utility Commission, and any inconsistent provision of any certificate of public good shall have no force or effect.
  5. Certificates of indefinite duration may be amended to provide for a duration of 11 years and such other terms as the Commission, after opportunity for hearing, may find appropriate.
  6. Revocation for cause: At any time a certificate of public good of a company issued pursuant to this section or section 504 of this title shall be subject to revocation under the provisions of section 509 of this title, regardless of whether it is subject to review, is seeking renewal, is electing not to seek renewal, or has been denied renewal.

    Added 1969, No. 167 (Adj. Sess.), § 1, eff. Feb. 10, 1970; amended 1987, No. 271 (Adj. Sess.), § 5, eff. June 21, 1988; 1993, No. 21 , § 13, eff. May 12, 1993.

History

Revision note. In subdivs. (a)(1) and (2), substituted "February 10, 1970" for "the effective date of this chapter" for purposes of clarity.

Reference to section "229 of this title" at the end of subsec. (b) changed to section "231 of this title" to conform reference to the renumbering of such section.

Amendments--1993. Subsec. (e): Inserted "opportunity for" preceding "hearing".

Amendments--1987 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Deleted "in all other cases" preceding "the Board shall" and inserted "criteria of section 504 of this title and the" preceding "procedures".

Subsec. (d): Added.

Subsec. (e): Added.

Subsec. (f): Added.

Cross References

Cross references. Renewal of certificates, see § 506 of this title.

ANNOTATIONS

Analysis

1. Construction with other laws.

The Public Service Board properly rejected the proposed ruling of an unsuccessful applicant for a franchise to provide cable television service that an applicant awarded a franchise had failed to file a proper application under section 102 of this title, governing petitions for formation of public service corporations, where the successful applicant's petition was submitted on a form provided by the Board, which indicated that the applicant was a proposed corporation seeking a certificate of public good under this section, and where the Board's treatment of the successful applicant's petition as an application for both establishment as a public service corporation and certification constituted an implied ruling on, and rejection of, the unsuccessful applicant's proposed ruling. In re EMCO CATV, Inc., 141 Vt. 385, 449 A.2d 949 (1982).

2. Notice requirements.

Notice published by Public Service Board with regard to applicant's petition for both establishment as a public service corporation and award of a certificate of public good to provide cable television services under this section was not inadequate under the provisions of section 102 of this title, governing notice of the time, place, and subject of hearings relating to proposed public service corporations, and requiring that the notice state the substance of the applicant's petition, because the notice failed to state expressly that one of the issues to be resolved at the hearing would be whether the proposed incorporation would contribute to the general good of the State since establishment as a public service corporation was sought solely for the purpose of securing a certificate of public good for provision of cable television service, both applications involved identical factual issues, and the notice referred directly to the sections involved. In re EMCO CATV, Inc., 141 Vt. 385, 449 A.2d 949 (1982).

3. Municipalities.

A cable television company cannot operate in the State without first securing a license and a certificate from the Board as provided in this section, regardless of any town franchise which it may hold, nor may a town interfere with the operation of a licensed and certified company by refusing to grant a franchise. 1970-72 Op. Atty. Gen. 393.

Cited. In re Telesystems, Corp., 143 Vt. 504, 469 A.2d 1169 (1983).

§ 504. Certificates of public good.

  1. Certificates of public good granted under this chapter shall be for a period of 11 years.
  2. Issuance of a certificate shall be after opportunity for hearing and findings by the Commission that the applicant has complied or will comply with requirements adopted by the Commission to ensure that the system provides:
    1. designation of adequate channel capacity and appropriate facilities for public, educational, or governmental use;
    2. adequate and technically sound facilities and equipment, and signal quality;
    3. a reasonably broad range of public, educational, and governmental programming;
    4. the prohibition of discrimination among customers of basic service; and
    5. basic service in a competitive market, and if a competitive market does not exist, that the system provides basic service at reasonable rates determined in accordance with section 218 of this title.
  3. In addition to the requirements set forth in subsection (b) of this section, the Commission shall ensure that the system provides or utilizes:
    1. a reasonable quality of service for basic, premium, or otherwise, having regard to available technology, subscriber interest, and cost;
    2. construction, including installation, which conforms to all applicable State and federal laws and regulations and the National Electric Safety Code;
    3. a competent staff sufficient to provide adequate and prompt service and to respond quickly and comprehensively to customer and Department complaints and problems;
    4. unless waived by the Commission, an office that shall be open during usual business hours, and a listed, toll-free telephone number so that complaints and requests for repairs or adjustments may be received; and
    5. reasonable rules and policies for line extensions, disconnections, customer deposits, and billing practices.
  4. A certificate granted to a company shall represent nonexclusive authority of that company to build and operate a cable television system to serve customers only within specified geographical boundaries.  Extension of service beyond those boundaries may be made pursuant to the criteria in section 504 of this title, and the procedures in section 231 of this title.

    Added 1969, No. 167 (Adj. Sess.), § 1, eff. Feb. 10, 1970; amended 1987, No. 271 (Adj. Sess.), § 6, eff. June 21, 1988; 1993, No. 21 , § 14, eff. May 12, 1993; 2017, No. 113 (Adj. Sess.), § 174.

History

Reference in text. The National Electric Safety Code, referred to in subdiv. (c)(2), is codified as 42 U.S.C. § 16412.

Amendments--2017 (Adj. Sess.). Subdiv. (c)(4): Substituted "that" for "which" following "and office", "and" for "have" preceding "a listed", and inserted "number" following "telephone".

Amendments--1993. Subsec. (b): Inserted "opportunity for" preceding "hearing" and substituted "ensure" for "insure" preceding "that the system" in the introductory paragraph.

Amendments--1987 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Renewal of certificates, see § 506 of this title.

ANNOTATIONS

Cited. In re Telesystems, Corp., 143 Vt. 504, 469 A.2d 1169 (1983).

§ 505. Service.

No company holding a certificate of public good under this chapter may abandon or curtail any service subject to the jurisdiction of the Commission or abandon all or any part of its facilities if it would thereby effect the abandonment, curtailment, or impairment of the service, without obtaining approval of the Public Utility Commission, after notice and opportunity for hearing, and upon a finding by the Commission that the abandonment or curtailment is consistent with the public interest.

Added 1969, No. 167 (Adj. Sess.), § 1, eff. Feb. 10, 1970; amended 1993, No. 21 , § 15, eff. May 12, 1993.

History

Amendments--1993. Inserted "opportunity for" preceding "hearing".

§ 506. Renewal.

Certificates with a limited duration may be renewed during or at the end of the period, after opportunity for hearing held according to the criteria for the granting of an original certificate in section 504 of this title and after the Commission has made the finding required by that section. As part of the renewal proceedings, the Commission shall hold a public hearing in each county served pursuant to the certificates which are the subject of the renewal proceedings.

Added 1987, No. 271 (Adj. Sess.), § 7, eff. June 21, 1988; amended 1999, No. 157 (Adj. Sess.), § 11.

History

Former § 506, relating to nonprofit corporations, was added by 1969, No. 167 (Adj. Sess.), § 1.

Amendments--1999 (Adj. Sess.) Substituted "opportunity for" for "a" preceding "hearing" in the first sentence.

Cross References

Cross references. Certification generally, see § 503 of this title.

§ 507. Repealed. 1973, No. 147 (Adj. Sess.), § 3.

History

Former § 507. Former § 507, relating to fees, was added by 1969, No. 167 (Adj. Sess.), § 1.

§ 508. Unauthorized operation; penalty.

A person or company rendering service that is subject to the jurisdiction of the Public Utility Commission under this chapter, without holding a certificate of public good issued by the Public Utility Commission for that purpose under this chapter, may be fined not more than $1,000.00 for each day.

Added 1971, No. 202 (Adj. Sess.), § 2, eff. May 1, 1972; amended 1987, No. 271 (Adj. Sess.), § 8, eff. June 21, 1988.

History

Amendments--1987 (Adj. Sess.) Substituted "holding a certificate of public good issued" for "being duly licensed" following "chapter, without" and added "for each day" following "$1,000.00".

§ 509. Amendment and revocation; fines; assurance of discontinuance.

  1. For good cause, after opportunity for hearing, the Commission may amend or revoke any certificate of public good awarded pursuant to section 503 or 504 of this title.
  2. If the Commission finds that a company has violated any material provision of its certificate or this chapter, it shall allow the company a reasonable opportunity to cure the violation. Thereafter, in the event of failure to cure, the Commission may enter an order revoking the certificate.  In addition, the Commission may impose a civil penalty in an amount not to exceed $1,000.00 per day nor a total of $20,000.00 for each violation unless otherwise provided in the certificate of public good, after giving due consideration to the size of the company, severity of the violation, and efforts to cure.
  3. In any case in which the Commission may revoke a certificate, in lieu thereof, the Commission may accept an assurance of discontinuance of any method, act, or practice from any company.  Such assurance may include a stipulation for affirmative action by such company, payment of the costs of investigation, or of an amount to be held in escrow pending the outcome of an action or as restitution to aggrieved consumers, or any of the above.  Any such assurance of discontinuance shall be in writing and may be sought and negotiated by the Department of Public Service, subject to the approval of the Commission.  Proof of a violation of such assurance shall be prima facie evidence of violation of this chapter, or of the terms and conditions of a certificate granted under this chapter.

    Added 1987, No. 271 (Adj. Sess.), § 9, eff. June 21, 1988; amended 1999, No. 157 (Adj. Sess.), § 12.

History

Amendments--1999 (Adj. Sess.) Subsec. (a): Substituted "opportunity for" for "a" preceding "hearing" and "section 503 or 504" for "sections 503 or 504".

§ 510. Notice to subscribers regarding quality of service.

  1. Annually, every company shall cause to be mailed to each of its subscribers a notice which:
    1. states that the Commission and the Department of Public Service desire to hear the views of subscribers regarding the quality of services provided by the cable television system and as to the reasonableness of the terms upon which such services are provided; and
    2. informs subscribers as to how to communicate their views to the Commission, to the Department, and to the company.
  2. The notice required by this section shall be in nontechnical language, comprehensible to the lay public, and in a form approved by the Commission.
  3. On or before January 30 of each year, the company shall certify to the Commission, under oath, that it has distributed the notice during the previous calendar year as required by this section.

    Added 1987, No. 271 (Adj. Sess.), § 10, eff. June 21, 1988.

§ 511. Extensions for transfer or sale.

At the end of a certificate period which was not renewed, or if a certificate is revoked, the Commission may grant the company a period of time, not to exceed one year, to transfer ownership or sell company assets.

Added 1987, No. 271 (Adj. Sess.), § 11, eff. June 21, 1988.

Cross References

Cross references. Acquisition of ownership of company operating cable television system, see § 515 of this title.

§ 512. Assistance to unserved areas.

  1. The legislative body of a municipality unserved by a cable television system, and which desires such service, may request the assistance of the Department of Public Service.  Upon receipt of any request from a municipality in an unserved area, the Department shall analyze and define the service territory, taking particular account of the type of service that may be requested by the municipality, and the service currently provided by companies in contiguous areas.  The Department shall prepare a request for proposals to provide such service and submit the request to all companies which the Department determines would likely serve the areas, and shall advertise in the local trade and press.
  2. Upon receipt of any responses to serve the municipality, the Department shall submit them together with any comment thereon to the municipality, and invite the responding companies to apply for a certificate of public good under this chapter.

    Added 1987, No. 271 (Adj. Sess.), § 12, eff. June 21, 1988.

§ 513. Municipal cable television systems.

  1. A municipality may establish de novo a cable television system in an area otherwise unserved after proceeding under section 512 of this title.  A municipality may do so under this section without obtaining amendments to and General Assembly authorization of its municipal charter for that purpose. However, this section shall not be construed to affect or limit the authority of any municipality to establish and operate a cable television system under authority of a municipal charter or ordinance.
  2. A company established by a municipality under this section, shall obtain a certificate of public good for the construction or operation of a cable television system under this chapter.
  3. For the purpose of this section, a municipality shall mean any city, town, or village within this State.
  4. Prior to establishing a cable television system under this subsection, a municipality must first obtain authorization from its legislative body or voters in the manner prescribed for authorizing municipal electric plants under section 2903 or 2904 of this title.

    Added 1987, No. 271 (Adj. Sess.), § 13, eff. June 21, 1988.

Cross References

Cross references. Certification generally, see § 503 of this title.

§ 514. Annual report.

At the time of filing its annual report under section 22 of this title, each company shall also file with the Commission and the Department the following:

  1. a map sufficiently outlining the company's service territory and describing its existing plant and any extension and replacements planned for commencement or completion within one year from the close of the preceding calendar year or annual period;
  2. a listing of services, the rate charged for each such service as of the date of the filing of the report, a statement of any changes in any such rates from the preceding calendar year or period, and a statement of the revenues derived from each service during such calendar year or annual period;
  3. a statement of significant changes to be implemented during the current calendar year or annual period in the company's business structure, operating procedures, and services to be offered;
  4. a copy of the company's access plan, if any, and a description of its access facilities and services and the use thereof during the preceding calendar year or annual period;
  5. a copy of all written consumer complaints and notations regarding oral and telephonic complaints received during the preceding calendar year or annual period;
  6. a balance sheet, an income statement, a statement of changes in financial condition, and a statement of assets used and useful for the provision of service in Vermont, all as of the close of the preceding calendar year or annual period.

    Added 1987, No. 271 (Adj. Sess.), § 14, eff. June 21, 1988.

§ 515. Acquisition of control of a company subject to the jurisdiction of the Public Utility Commission.

  1. No person, corporation, partnership, or unincorporated association shall acquire ownership of greater than 40 percent of the voting securities in a company as defined in subdivision 501(3) of this title subject to the supervision of the Public Utility Commission without the approval of the Commission after due notice and opportunity for hearing and a finding on its part that such acquisition will not be contrary to the public good.
  2. For the purposes of this section, voting security means any stock or security presently entitling the owner or holder thereof to vote in the direction or management of the affairs of a company or any security issued under or pursuant to any trust, agreement, or arrangement whereby a trustee or trustees or agent or agents for the owner or holder of such a security are presently entitled to vote in the direction or management of the affairs of a company.
  3. A specified per centum of the outstanding voting securities of such company means such amount of outstanding voting securities of such company as entitles the holder or holders thereof to cast said specified per centum of the aggregate votes which the holders of all the outstanding voting securities of such company are entitled to cast in the direction or management of the affairs of such company.

    Added 1987, No. 271 (Adj. Sess.), § 15, eff. June 21, 1988; amended 1999, No. 157 (Adj. Sess.), § 13.

History

Amendments--1999 (Adj. Sess.) Subsec. (a): Substituted "40 percent" for "forty percent" and inserted "opportunity for" preceding "hearing".

Cross References

Cross references. Transfer of ownership on sale of assets upon nonrenewal or revocation of certificate generally, see § 511 of this title.

§ 516. Modification by the Commission of cable television tariff requirements.

  1. The Commission may modify, reduce, or suspend requirements under sections 225 and 226, subsection 227(a), and section 229 of this title if it finds that provisions of federal law have the effect of substantially preventing the Commission from exercising its authority under those sections to investigate or determine if cable television rates are just and reasonable. In exercising its authority under this section, the Commission may adopt such terms and conditions as it finds reasonable and shall ensure that the remaining requirements under this title will afford the public at least as much protection as the applicable regulatory requirements being suspended or reduced.
  2. When exercising its authority under this section, the Commission may act by rule or, after notice and opportunity for hearing, it may act by order. The modifications, reductions, or suspensions may apply to one or more classes of cable television service provider and may apply differently to each class.
  3. Upon petition of the Department, the Commission shall, and upon its own initiative the Commission may, investigate whether it should reimpose any regulatory requirements which it has modified, suspended, or reduced under this section. If the Commission finds, after notice and an opportunity for hearing, and after considering the factors identified in this section, that the public is not sufficiently protected, the Commission may reimpose any regulatory provisions that the Commission deems necessary. Pending any final order, the Commission may reimpose any regulatory requirements on a temporary basis as it determines is just and reasonable. If the federal government allows states to regulate cable television rates, the Commission shall reimpose any regulatory provisions modified, reduced, or suspended pursuant to this section.

    Added 2005, No. 146 (Adj. Sess.), § 1.

§ 517. Line extensions.

  1. A company may enter into agreements under this section with government, nonprofit, or private entities, including projects authorized or affiliated with the Vermont Telecommunications Authority, a municipality or fire district pursuant to 20 V.S.A. § 2601 , or a regional aggregation and deployment project, to satisfy cable television line extension requirements.
  2. Upon petition of a company, the Commission shall modify the line extensions that a company would otherwise be required to construct if the company agrees to undertake alternative actions, including the extension of facilities that support alternative technologies for delivering broadband to users. Copies of the petition shall be filed with the Department and the Vermont Telecommunications Authority. The Commission shall approve such alternative methods of satisfying line extension requirements after notice and opportunity for hearing if it finds the petition promotes the general good of the State. In reaching its determination, the Commission shall consider whether the company's proposal:
    1. is consistent with the activities and initiatives of the Vermont Telecommunications Authority;
    2. is likely to provide broadband access to a greater number of unserved consumers than would the foregone cable television line extension requirements;
    3. supports the expansion of broadband services at prices and service levels comparable to those commonly available throughout the State, but not less than the minimum technical service characteristics required by section 8077 of this title;
    4. provides a fair balancing of the benefits to the public compared to benefits realized by the company; and
    5. the modified line-extension obligations will not unreasonably affect the time at which customers to whom a company would otherwise be obligated to extend cable services will have access to broadband services.
  3. This section shall not apply to line extensions previously identified and planned for construction as of June 9, 2007.
  4. The Commission shall not require a company to overbuild another company, or provide cable television service to locations served by another company or to which another company is required to extend cable television service.
  5. Notwithstanding any other provision of this section, the Commission may require the construction of cable television line extensions when a company receives a bona fide request for service from a reasonable number of verified customers or with reasonable contributions in aid of construction from customers.
  6. Notwithstanding any other provision of this section, the line extension construction obligation for additional miles identified in Paragraph 41 of Comcast Communication's certificate of public good, granted by the Public Utility Commission, of September 27, 2006, may be modified only with the approval of the Commission.

    Added 2007, No. 79 , § 5a, eff. June 9, 2007.

History

2016. In subsecs. (a) and (b), "but not limited to" was deleted following "including" in accordance with 2013, No. 5 , § 4. In subsec. (c), "June 9, 2007" was substituted for "the effective date of this section."

§ 518. Retransmission fees; reporting.

  1. Purpose.  The purpose of this section is to provide the Attorney General with information necessary to investigate certain conduct within the cable and broadcast network industries to determine whether unfair methods of competition are occurring in violation of 9 V.S.A. chapter 63.
  2. Reporting.  Annually, beginning on January 1, 2015, each commercial broadcasting station doing business with a Vermont cable company shall report to the Attorney General any fees charged for program content retransmitted on the cable network under a retransmission consent agreement entered into pursuant to 47 U.S.C. § 325, for the prior calendar year.
  3. Investigations.  The Attorney General may investigate retransmission fees charged by commercial broadcasting stations, pursuant to his or her investigatory powers established under 9 V.S.A. chapter 63.
  4. Public disclosure.  The information received by the Attorney General under subsection (b) of this section shall be kept confidential and is exempt from public inspection and copying under the Public Records Act, unless otherwise ordered by a court.
  5. Enforcement.  A violation of this section constitutes unfair competition under 9 V.S.A. § 2453 .
  6. Rules.  The Attorney General may adopt rules he or she deems necessary to implement this section. The rules, as well as any finding of unfair competition with regard to retransmission consent fees, shall not be inconsistent with the rules, regulations, and decisions of the Federal Communications Commission and the federal courts interpreting the Communications Act of 1934, as amended.

    Added 2013, No. 190 (Adj. Sess.), § 29, eff. June 16, 2014; amended 2015, No. 41 , § 15, eff. June 1, 2015.

History

2016. Added caption "Rules" in subsec. (f) for consistency.

Amendments--2015. Section amended generally.

CHAPTER 14. MUNICIPAL UTILITY ACQUISITION OF FACILITIES AND OTHER ASSETS

Sec.

History

Amendments--2007 (Adj. Sess.). Catchline: Substituted "Municipal Utility Acquisition of Facilities and Other Assets" for "City of Burlington, Village of Lyndonville and Town of Rockingham Acquisition of Facilities".

Amendments--2003 (Adj. Sess.). Deleted "and" following "Burlington" and inserted "and Town of Rockingham" following "Lyndonville" in the catchline pursuant to 2003, No. 121 (Adj. Sess.) § 94.

Confirmation of acquisition. 2007, No. 83 (Adj. Sess.), § 2, eff. January 28, 2008, provided: "A municipality that has acquired any equity ownership in Vermont Transco LLC or Vermont Electric Power Company or both prior to the effective date of this act shall be deemed to have had the authority granted by this chapter to do so."

§ 601. Definitions.

  1. The following words as used in this chapter shall, unless the context otherwise requires, have the meanings provided in subsection (b) of this section.
    1. "New England power pool agreement," a contractual agreement between electric utilities that is open to all electric utilities, whether private or governmental, operating in New England, that provides for cooperation and joint participation in developing and implementing a regional bulk power supply of electricity, that constitutes the central dispatching and primary pooling arrangement for electric utilities in the New England states, and that has been permitted to become effective under the Federal Power Act by the Federal Power Commission. (b) (1)  "New England power pool agreement," a contractual agreement between electric utilities that is open to all electric utilities, whether private or governmental, operating in New England, that provides for cooperation and joint participation in developing and implementing a regional bulk power supply of electricity, that constitutes the central dispatching and primary pooling arrangement for electric utilities in the New England states, and that has been permitted to become effective under the Federal Power Act by the Federal Power Commission.
    2. "New England power pool," is the relationship or organization created by the New England power pool agreement.

      Added 1973, No. 167 (Adj. Sess.), eff. March 25, 1974.

History

Reference in text. The Federal Power Act, referred to in subdiv. (b)(1), is codified as 16 U.S.C. § 791a et seq.

The Federal Power Commission, referred to in subdiv. (b)(1), no longer exists. Its functions have been transferred to the Secretary of Energy and the Federal Energy Regulatory Commission. See 42 U.S.C. §§ 7151(b), 7172(a).

§ 602. Authorization.

The City of Burlington and the Village of Lyndonville acting through its board of trustees are, and each municipality singly is, hereby authorized to enter into a New England power pool agreement and to participate within and outside the State of Vermont in the New England power pool created thereby. Any action taken by the City or such board of trustees in connection with entering into or participating in such pool prior to March 25, 1974, shall be deemed to be as effective as if this chapter had then been in effect.

Added 1973, No. 167 (Adj. Sess.), eff. March 25, 1974; amended 1977, No. 275 (Adj. Sess.), § 17, eff. April 12, 1978; 1977, No. 278 (Adj. Sess.), § 1, eff. Feb. 9, 1978.

History

Revision note. The text of this section is based upon a correlation of two amendments. During the 1977 Adjourned Session this section was amended twice, by Act Nos. 275 and 278. In order to arrive at a single version of the section, the language of which reflects all of the changes which each of the amendments made, as originally amended by Act No. 278, are described in amendment notes set out below.

In the second sentence, substituted "March 25, 1974" for "the effective date of this act" for purposes of clarity and "chapter" for "act" to conform reference to V.S.A. style.

Amendments--1977 (Adj. Sess.). Act No. 275 deleted "acting through its city council and its board of light commissioners" preceding "is hereby" in the first sentence and substituted "the city" for "such board of light commissioners" preceding "in connection" in the second sentence.

Act No. 278 inserted "and the village of Lyndonville acting through its board of trustees are, and each municipality singly" preceding "is hereby" in the first sentence and "or board of trustees" preceding "in connection" in the second sentence.

§ 603. NEPOOL agreement.

The New England power pool agreement may provide for, among other things:

  1. the pooling of power;
  2. coordination of planning, construction, and operation and the manner of establishing and enforcing standards and other requirements;
  3. delegation of authority to administrative committees;
  4. amendments of the agreement by vote or other action of the participants or of committees in the manner specified therein, subject to the right of any participant to withdraw in the event of its nonconcurrence with an amendment;
  5. appointment of representatives to act for one or more participants in regard to amendments and other matters;
  6. the allocation of pool expenses among participants;
  7. the provision of new, altered, improved, or enlarged facilities by the participants subject to such proceedings as may be required by law for undertaking or financing any such project;
  8. limitations on other actions by the participants that might be inconsistent with the agreement or might adversely affect its implementation;
  9. arbitration; and
  10. other matters deemed necessary or desirable in order to carry out the purpose of the agreement.

    Added 1973, No. 167 (Adj. Sess.), eff. March 25, 1974.

§ 604. Additional authority.

  1. Notwithstanding any contrary provision of any general or special law relating to the powers and authorities of electric utilities or any limitation imposed by their charters, the City of Burlington, the Village of Lyndonville acting through its board of trustees, and all other Vermont municipal electric utilities shall each have the following additional powers:
    1. jointly or separately to plan, finance, construct, purchase, operate, maintain, use, share costs of, own, mortgage, lease, sell, dispose of, or otherwise participate in electric power generating and transmission facilities or portions thereof within or outside the State or the product or service therefrom or securities issued in connection with the financing of such facilities or portions thereof;
    2. to enter into and perform contracts for such joint or separate planning, financing, construction, purchase, operation, maintenance, use, sharing costs of, ownership, mortgaging, leasing, sale, disposal of, or other participation in electric power generating and transmission facilities, or portions thereof, within or outside the State of the product or service therefrom, or securities issued in connection with the financing of electric power facilities or portions thereof, including, contracts for the payment of obligations imposed without regard to the operational status of a facility or facilities and contracts for the sale or purchase of electricity from an electric power facility or facilities for long or short periods of time or for the life of a specific electric generating unit or units.
  2. Other electric utilities, whether cooperative, municipal, or privately owned, may enter into and perform contracts with the City of Burlington and all other Vermont municipal electric utilities for the purposes of this section. The provisions of this chapter shall not otherwise affect the jurisdiction of the Public Utility Commission regarding the activities of the Burlington electric light department and of the Village of Lyndonville electric light department, or any municipal utility formed within the State of Vermont.
  3. Cooperative and municipal electric utilities, in accordance with chapter 83 of this title, and other electric utilities may enter into and perform contracts with the City of Burlington, the Village of Lyndonville, and all other Vermont municipal electric utilities for the purposes of this section.
  4. The Town of Rockingham shall have the authority, if duly authorized by its voters in accordance with the procedures set forth in chapter 79 of this title for the formation of a municipal utility, whether such vote or authorization occurs before or after June 8, 2004 and after obtaining a certificate of public good pursuant to section 248 of this title, to acquire, own, and operate the hydroelectric generating facilities located at Bellows Falls, Vermont, notwithstanding the fact the output of such facilities may exceed the electric needs of the Town and its municipal utility, and to sell that portion of the output of such facilities that exceeds the needs of the Town in serving its own municipal utility and such municipal utility's own customers. The Town shall not have the authority to acquire the hydroelectric generating facilities located at Bellows Falls, Vermont by eminent domain for a period of 10 years commencing on January 1, 2005. In selling any of the output of such generating facilities, the Town of Rockingham shall not have the authority to seek or obtain treatment as a "qualifying facility" under 18 C.F.R. § 292.201-207 or subdivision 209(a)(8) of this title, and Rockingham shall not have the authority to own or operate such facilities or a portion of such facilities if such facilities otherwise obtain treatment as a "qualifying facility."
  5. A municipality owning a municipal plant and conducting itself as a utility under chapter 79 of this title shall have the authority to acquire equity ownership of Vermont Transco LLC or Vermont Electric Power Company, or both, and to finance the acquisition of equity ownership by any means permitted under 24 V.S.A. subchapters 1 and 2 or municipal charter. The terms under which equity ownership is acquired pursuant to this subsection shall not include any provision of guaranty, assessment, indemnification, or joint and several liability applicable to any such municipality.

    Added 1973, No. 167 (Adj. Sess.), eff. March 25, 1974; amended 1977, No. 275 (Adj. Sess.), § 18, eff. April 12, 1978; 1977, No. 278 (Adj. Sess.), § 2, eff. Feb. 9, 1978; 2003, No. 121 (Adj. Sess.), § 95, eff. June 8, 2004; 2007, No. 83 (Adj. Sess.), § 1, eff. Jan. 28, 2008.

History

2016. In subdivision (a)(2), after "including," deleted "without limitation," in accordance with 2013, No. 5 , § 4. In subsec. (d), substituted "June 8, 2004" for "the effective date of this section".

Revision note - The text of this section is based upon a correlation of two amendments. During the 1977 Adjourned Session this section was amended twice, by Act Nos. 275 and 278. In order to arrive at a single version of the section, the language of which reflects all of the changes which each of the amendments made, as originally enacted by 1973, No. 167 (Adj. Sess.), are described in amendment notes set out below.

Amendments--2007 (Adj. Sess.). Subsec. (a): Substituted "all other Vermont municipal electric utilities" for "the town of Rockingham".

Subsec. (b): In the first sentence, inserted "and all other Vermont municipal electric utilities" following "city of Burlington" and deleted "by the town of Rockingham" following "utility formed" near the end of the second sentence.

Subsec. (e): Added.

Amendments--2003 (Adj. Sess.). Subsec. (a): Inserted "and the town of Rockingham" following "trustees".

Subsec. (b): Inserted "or any municipal utility formed by the town of Rockingham" following "department".

Subsec. (c): Inserted "and the town of Rockingham" following "Lyndonville".

Subsec. (d): Added.

Amendments--1977 (Adj. Sess.). Subsec. (a): Act No. 275 deleted "acting through its city council and its board of light commissioners" preceding "shall".

Act No. 278 substituted "their charters" for "its charter" preceding "the city" and inserted "and the village of Lyndonville acting through its board of trustees" preceding "shall" and "each" thereafter.

Subdiv. (a)(1): Act No. 275 deleted "and" following the semicolon at the end of the subdiv.

Subsec. (b): Act No. 275 added the first sentence.

Act No. 278 inserted "and of the village of Lyndonville electric light department" preceding "within".

Subsec. (c): Added by Act No. 275.

ANNOTATIONS

Cited. Vermont Department of Public Service v. Massachusetts Municipal Wholesale Electric Co., 151 Vt. 73, 558 A.2d 215 (1988).

§ 605. Contracts.

Contracts under section 604 of this title may be for a term or for an indefinite period; may provide for the sale or other disposition of byproducts of electric power facilities; and may contain provisions for arbitration, delegation, and other matters deemed necessary or desirable to carry out their purposes. Any party, public or private, desiring to purchase or use byproducts of electric power facilities financed, constructed, or operated under this chapter may enter into contracts therefor for short or long terms. The obligation of the city, village, and town under contracts referred to in this section shall not be included in the debt of the city, village, and town for the purpose of ascertaining its borrowing capacity.

Added 1973, No. 167 (Adj. Sess.), eff. March 25, 1974; amended 1977, No. 278 (Adj. Sess.), § 3, eff. Feb. 9, 1978; 2003, No. 121 (Adj. Sess.), § 96, eff. June 8, 2004.

History

Revision note. In the second sentence, substituted "chapter" for "act".

Amendments--2003 (Adj. Sess.). Substituted "byproducts" for "by-products" following "disposition of" and "or use", respectively; deleted "and" preceding "village" in two places and inserted "and town" following "village" in two places.

Amendments--1977 (Adj. Sess.). Inserted "and village" preceding "under contracts" and "for the purpose" in the last sentence.

ANNOTATIONS

Cited. Vermont Department of Public Service v. Massachusetts Municipal Wholesale Electric Co., 151 Vt. 73, 558 A.2d 215 (1988).

§ 606. Tenancy in common.

If the City of Burlington, the Village of Lyndonville, or the Town of Rockingham acquires or owns an interest as a tenant in common with one or more other electric utilities in any electric power facilities, the surrender or waiver by any party of its right to partition such property for a period not exceeding the period for which the property is used or useful for electric utility purposes shall not be invalid or unenforceable by reason of the length of such period, or as unduly restricting the alienation of such property.

Added 1973, No. 167 (Adj. Sess.), eff. March 25, 1974; amended 1977, No. 278 (Adj. Sess.), § 4, eff. Feb. 9, 1978; 2003, No. 121 (Adj. Sess.), § 96, eff. June 8, 2004.

History

Amendments--2003 (Adj. Sess.). Inserted "or the town of Rockingham" following "Lyndonville".

Amendments--1977 (Adj. Sess.). Inserted "or the village of Lyndonville" following "Burlington".

§ 607. Consent to application of laws of other states.

  1. Legislative consent is hereby given to the application of the laws of other states with respect to taxation, payments in lieu of taxes, and the assessment thereof to the City of Burlington, the Village of Lyndonville, or the Town of Rockingham, to the extent that any such municipality acquires or has an interest in an electric power facility, real or personal, situated outside the State or to the extent it owns or operates electric power facilities outside the State pursuant to authority granted in this chapter.
  2. Legislative consent is hereby given to the application of regulatory and other laws of other states and of the United States to the City of Burlington, the Village of Lyndonville, or the Town of Rockingham to the extent it owns or operates electric power facilities outside the State pursuant to authority granted in this chapter.
  3. Any law, municipal bylaw, or ordinance governing contracts awarded by the City of Burlington or the Village of Lyndonville shall not be applicable by reason of the participation of the City of Burlington or the Village of Lyndonville in electric power facilities pursuant to the authority granted in this chapter wherever the City of Burlington or the Village of Lyndonville is not the lead participant.

    Added 1973, No. 167 (Adj. Sess.), eff. March 25, 1974; amended 1977, No. 278 (Adj. Sess.), § 5, eff. Feb. 9, 1978; 2003, No. 121 (Adj. Sess.), § 96, eff. June 8, 2004.

History

Revision note. Substituted "chapter" for "act" wherever it appeared.

Amendments--2003 (Adj. Sess.). Subsec. (a): Inserted "or the town of Rockingham" following "Lyndonville"; substituted "that any such" for "either" and "outside" for "without" in two places.

Subsec. (b): Inserted "or the town of Rockingham" following "Lyndonville".

Amendments--1977 (Adj. Sess.). Subsec. (a): Inserted "or the village of Lyndonville" preceding "to the extent" and substituted "either municipality" for "it" thereafter.

Subsec. (b): Inserted "or the village of Lyndonville" preceding "to the extent".

Subsec. (c): Inserted "or the village of Lyndonville" following "Burlington" wherever it appeared.

§ 608. Bonding authority - City of Burlington.

  1. The City of Burlington, when authorized by a two-thirds vote of all voters present and voting at a meeting called for that purpose, may pledge its credit by issuing the negotiable orders, warrants, notes, or bonds for project costs, or its share of project costs, of electric power facilities authorized pursuant to section 604 of this title.  Such project costs may include all costs, whether incurred prior to or after the issue of bonds or notes hereunder, of acquisition, site development, construction, improvement, enlargement, reconstruction, alteration, machinery, equipment, furnishings, nuclear fuel, demolition or removal of existing buildings or structures, including the cost of acquiring any lands to which such buildings or structures may be moved, financing charges, interest prior to and during the carrying out of any project and for a reasonable period thereafter, planning, engineering, financial advisory and legal services, administrative expenses, prepayments under contracts made pursuant to section 604 of this title, the funding of notes issued for project costs as hereinafter provided, and all other expenses incidental to the determination of the feasibility of any project or to carrying out the project or to placing the project in operation.
  2. The obligations shall be issued in accordance with the charter of the City of Burlington relating thereto.  The amount of obligations issued for such purpose shall not be considered in computing any debt limit applicable to the City.
  3. The March 6, 1973 vote of the voters of the City of Burlington authorizing and empowering the Burlington City Council to pledge the credit of the City by issuing general obligation bonds or notes in an amount not to exceed $6,000,000.00 for the purpose of acquiring joint ownership interests in four nuclear power plants presently designated as the Connecticut 1979 Nuclear Unit, Pilgrim No. 2, and Seabrook Units No. 1 and No. 2, to be constructed and located in the states of Connecticut, Massachusetts, and New Hampshire is hereby ratified, adopted, and validated in all respects.  In addition, any action authorized hereunder taken during the calendar year that commenced January 1, 1974 shall be valid and effective as if this chapter were in effect on January 1, 1974.

    Added 1973, No. 167 (Adj. Sess.), eff. March 25, 1974.

History

Revision note. Added " - City of Burlington" to the catchline in light of the addition of section 609 of this title, relating to bonding authority of the village of Lyndonville.

In the first sentence of subsec. (a), substituted "its" for "the" preceding "credit" to correct a grammatical error and "of this title" for "hereof" following "section 604".

In the last sentence of subsec. (c), substituted "chapter" for "act".

§ 609. Village of Lyndonville.

  1. The Village of Lyndonville, when authorized as provided in 24 V.S.A. chapter 53, may pledge its credit by issuing its negotiable orders, warrants, notes, or bonds for project costs, or its share of project costs, of electric power facilities authorized pursuant to section 604 of this title. Such project costs may include all costs, whether incurred prior to or after the issue of bonds or notes hereunder, of acquisition, site development, construction, improvement, enlargement, reconstruction, alteration, machinery, equipment, furnishings, nuclear fuel, demolition or removal of existing buildings or structures, including the cost of acquiring any lands to which such buildings or structures may be moved, financing charges, interest prior to and during the carrying out of any project and for a reasonable period thereafter, planning, engineering, financial advisory and legal services, administrative expenses, prepayments under contracts made pursuant to section 604 of this title, the funding of notes issued for project costs as hereinafter provided, and all other expenses incidental to the determination of the feasibility of any project or to carrying out the project or to placing the project in operation.
  2. The obligations shall be issued in accordance with 24 V.S.A. chapter 53 and the charter of the Village of Lyndonville relating to said obligations.  The amount of obligations issued for such purpose shall not be considered in computing any debt limit applicable to the Village.
  3. The May 3, 1977 vote of the voters of the Village of Lyndonville authorizing and empowering the Village of Lyndonville Board of Trustees to pledge the credit of the Village by issuing general obligation bonds or notes in an amount not to exceed  $3,800,000.00 for the purpose of acquiring joint ownership interests in four power plants presently designated as the Connecticut 1979 Nuclear Unit, Pilgrim No. 2, and Wyman Unit No. 4 and MMWEC Phase I Intermediate Units and located in the states of Connecticut, Maine, and Massachusetts is hereby ratified, adopted, and validated in all respects.  In addition, any action authorized hereunder taken during the calendar year that commenced January 1, 1977 shall be valid and effective as if this chapter were in effect on January 1, 1977.

    Added 1977, No. 278 (Adj. Sess.), § 6, eff. Feb. 9, 1978.

History

Revision note. Deleted "Bonding authority" from the beginning of the catchline to conform catchline to V.S.A. style.

§ 610. Bonding authority - Town of Rockingham.

  1. The Town of Rockingham, when authorized as provided in 24 V.S.A. chapter 53, may pledge its credit by issuing its negotiable orders, warrants, notes, or bonds for project costs, or its share of project costs, of electric power facilities authorized pursuant to subsection 604(d) of this title. Such project costs may include all costs, whether incurred prior to or after the issue of bonds or notes relating to the acquisition of facilities under this chapter, of acquisition, site development, construction, improvement, enlargement, reconstruction, alteration, machinery, equipment, furnishings, demolition or removal of existing buildings or structures, including the cost of acquiring any lands to which such buildings or structures may be moved, financing charges, interest prior to and during the carrying out of any project and for a reasonable period thereafter, planning, engineering, financial advisory and legal services, administrative expenses, prepayments under contracts made pursuant to section 604 of this title, the funding of notes issued for project costs, and all other expenses incidental to the determination of the feasibility of any project, or to carrying out the project, or to placing the project in operation.
  2. The obligations shall be issued in accordance with 24 V.S.A. chapter 53. The amount of obligations issued for such purpose shall not be considered in computing any debt limit applicable to the Town.
  3. The bonding authority of the Town of Rockingham set forth by this section shall be subject to the following:
    1. The Town of Rockingham shall not incur indebtedness in order to support the acquisition of the hydroelectric facility specified in subsection 604(d) of this title except in the form of bonds issued under 24 V.S.A. chapter 53, subchapter 2, payable solely from the net revenues from that hydroelectric facility, nor shall the Town have the authority to use the Vermont Municipal Bond Bank to assist with the Town's acquisition of that hydroelectric facility; provided, however, the foregoing limitations shall not restrict the Town from using whatever financing options, or combinations of financing options, otherwise legally available to it for purposes of acquiring, repairing, improving, or maintaining any other parts of a municipal plant as defined in chapter 79 of this title, or for purposes of repairing, improving, or maintaining the hydroelectric facility after the Town owns the hydroelectric facility.
    2. Revenue bonds issued for purposes of the Town's acquisition of the hydroelectric facility shall not be deemed to constitute a debt or liability or obligation of the Town, the State, or of any political subdivision of it, nor shall those revenue bonds be deemed to constitute a pledge of the faith and credit of the Town, the State, or of any political subdivision, but shall be payable solely from the revenues from the hydroelectric facility. Any revenue bond issued by the Town to support the Town's acquisition of the hydroelectric facility shall contain on its face a statement to the effect the Town shall not be obligated to pay the same nor the interest on it, except from the revenues or assets pledged for those purposes, and neither the faith and credit nor the taxing power of the Town, the State, or of any political subdivision of it is pledged to the payment of the principal of or the interest on such obligations.
    3. The State does hereby pledge to agree with the holders of the notes and bonds issued under this section that the State will not limit or restrict the rights hereby vested in the Town to perform its obligations and to fulfill the terms of any agreement made with the holders of its bonds or notes. Neither will the State in any way impair the rights and remedies of the holders until the notes and bonds, together with interest on them, and interest on any unpaid installments of interest, are fully met, paid, and discharged. The Town is authorized to execute this pledge and agreement of the State in any agreement with the holders of the notes or bonds.

      Added 2003, No. 121 (Adj. Sess.), § 97, eff. June 8, 2004.

§ 610a. Authorization of indebtedness.

  1. A municipality owning and operating a municipal plant and conducting itself as a utility pursuant to chapter 79 of this title, when authorized as provided in 24 V.S.A. chapter 53, subchapters 1 and 2 or municipal charter, may pledge its credit or the net revenues of its municipal plant by issuing negotiable orders, warrants, notes, or bonds for the acquisition of equity ownership in Vermont Transco LLC or Vermont Electric Power Company or both pursuant to subsection 604(e) of this title. In addition, an acquisition of equity ownership may be effected through any instrument permitted under 24 V.S.A. § 1789 . Acquisition costs may include all costs, whether incurred prior to or after the issue of bonds or notes relating to the acquisition of equity ownership under this chapter. Acquisition of equity ownership is an improvement as defined in 24 V.S.A. § 1751(3) .
  2. The obligations shall be issued in accordance with 24 V.S.A. chapter 53 or municipal charter. The amount of obligations issued for such purpose shall not be considered in computing any debt limit applicable to the municipality.
  3. Any contract entered into and any debt obligation issued under this section for any purpose pursuant to this chapter shall have been issued for an essential government purpose and shall not be deemed to be a pledge of private credit for public benefit nor a delegation of municipal authority, responsibility, or discretion.

    Added 2007, No. 83 (Adj. Sess.), § 1, eff. Jan. 28, 2008.

§ 611. Liability of the State; immunity.

No provision of this chapter shall constitute a waiver of sovereign immunity of the State. The State of Vermont shall not be liable for injury to persons or property or loss of life caused by the negligent or wrongful act or omission of the Town of Rockingham or any of the Town's agents or employees in the maintenance or operation of the hydroelectric facilities specified in subsection 604(d) of this title.

Added 2003, No. 121 (Adj. Sess.), § 98, eff. June 8, 2004.

PART 2 Railroads

CHAPTER 31. GENERAL PROVISIONS

Sec.

§§ 701-711. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

History

Former §§ 701-711. Former §§ 701-711, relating to railroads generally, were recodified as 5 V.S.A. §§ 3421-3431.

CHAPTER 33. POWERS AND DUTIES OF BOARD RELATING TO RAILROADS

Sec.

§§ 801-807. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

History

Former §§ 801-807. Former §§ 801-807, relating to powers and duties of the Public Service Board in relation to railroads, were recodified as 5 V.S.A. §§ 3451-3457 pursuant to 1995, No. 60 , § 37.

§§ 808-810. Repealed. 1995, No. 60, § 38, eff. April 25, 1995.

History

Former § 811. Former § 811, relating to a state plan for rail transportation and local rail services, was recodified as 5 V.S.A. § 3458 pursuant to 1995, No. 60 , § 37.

§ 811. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

CHAPTER 35. INCORPORATION UNDER GENERAL LAW

Sec.

§§ 901-917. Repealed. 1993, No. 172 (Adj. Sess.), § 67(6).

History

Former § 918. Former § 918, relating to the organization of railroad corporations, was recodified as 5 V.S.A. § 3478 pursuant to 1995, No. 60 , § 37.

§ 918. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

CHAPTER 37. ORGANIZATION OF RAILROAD COMPANY

Sec.

§§ 1001-1036. Repealed. 1993, No. 172 (Adj. Sess.), § 67(7).

CHAPTER 39. CONSOLIDATION AND MERGER

Sec.

§§ 1101-1108. Repealed. 1993, No. 172 (Adj. Sess.), § 67(8).

History

Former § 1109. Former § 1109, relating to the liability to taxation of railroad property, was recodified as 5 V.S.A. § 3498 pursuant to 1995, No. 60 , § 37.

§ 1109. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

CHAPTER 41. CHANGE OF NAME

Sec.

§§ 1151-1155. Repealed. 1993, No. 172 (Adj. Sess.), § 67(9).

CHAPTER 43. TRUSTEES AND RECEIVERS; FORECLOSURE

Sec.

§§ 1201-1248. Repealed. 1993, No. 172 (Adj. Sess.), § 67(10).

CHAPTER 45. CONSTRUCTION AND OPERATION OF THE ROAD

Sec.

§§ 1301-1303. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

History

Former §§ 1301-1303. Former §§ 1301-1303, relating to the railroad corporation's preliminary survey, mapping of location of its road, and right to take land and water, were recodified as 5 V.S.A. §§ 3518-3520 pursuant to 1995, No. 60 , § 37.

§ 1304. Repealed. 1993, No. 172 (Adj. Sess.), § 67(11).

History

Former §§ 1305-1330. Former §§ 1305-1330, relating to condemnation and construction of the road, were recodified as 5 V.S.A. §§ 3521-3546 pursuant to 1995, No. 60 , § 37.

§§ 1361-1387. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

History

Former §§ 1361-1387. Former §§ 1361-1387, relating to the crossing of highways and turnpikes by railroads, were recodified as 5 V.S.A. §§ 3566-3592 pursuant to 1995, No. 60 , § 37.

§§ 1431-1438. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

History

Former §§ 1431-1438. Former §§ 1431-1438, relating to railroads crossing or connecting with another railroad, were recodified as 5 V.S.A. §§ 3612-3619 pursuant to 1995, No. 60 , § 37.

§§ 1471-1482. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

History

Former §§ 1471-1482. Former §§ 1471-1482, relating to the maintenance by railroads of farm crossings, cattle guards, fences, and watercourses, were recodified as 5 V.S.A. §§ 3639-3650 pursuant to 1995, No. 60 , § 37.

§ 1501. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

History

Former § 1501. Former § 1501, relating to clearance standards for any railroad structure, was recodified as 5 V.S.A. § 3670 pursuant to 1995, No. 60 , § 37.

§ 1521. Repealed. 1989, No. 246 (Adj. Sess.), § 28.

§§ 1525-1527. Repealed. 1995, No. 60, § 38, eff. April 25, 1995.

§§ 1536-1539. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

History

Former §§ 1536-1539. Former §§ 1536-1539, relating to selectmen's duties with regards to the removal of weeds, thistles, and trees, were recodified as 5 V.S.A. §§ 3671-3674 pursuant to 1995, No. 60 , § 37.

§ 1571. Repealed. 1993, No. 172 (Adj. Sess.), § 67(23).

History

Former §§ 1572-1578. Former §§ 1572-1578, relating to schedules, charges and facilities of railroads, were recodified as 5 V.S.A. §§ 3694-3700 pursuant to 1995, No. 60 , § 37.

§ 1579. Repealed. 1993, No. 172 (Adj. Sess.), § 67(24).

History

Former § 1621. Former § 1621, relating to the regulation of railroads pertaining to blowing whistles and ringing bells, was recodified as 5 V.S.A. § 3720 pursuant to 1995, No. 60 , § 37 and was repealed by 1995, No. 183 (Adj. Sess.), § 9b.

§§ 1622-1628. Repealed. 1993, No. 172 (Adj. Sess.), § 67.

History

Former §§ 1629 and 1630. Former §§ 1629 and 1630, relating to badges for railroad employees and baggage checks respectively, were recodified as 5 V.S.A. §§ 3721 and 3722 pursuant to 1995, No. 60 , § 37.

§ 1631. Repealed. 1959, No. 262, § 37, eff. June 11, 1959.

History

Former §§ 1632-1636. Former §§ 1632-1636, relating to ejectment of passengers from trains, were recodified as 5 V.S.A. §§ 3723-3727 pursuant to 1995, No. 60 , § 37.

§ 1637. Repealed. 1959, No. 262, § 37, eff. June 11, 1959.

History

Former §§ 1638-1643. Former §§ 1638-1643, relating to the employment by railroads of intoxicated persons, the negligence of employees, property held for injuries and engine fire damage, were recodified as 5 V.S.A. §§ 3728-3733 pursuant to 1995, No. 60 , § 37.

§§ 1644-1648. Repealed. 1981, No. 104, § 4.

History

Former §§ 1649 and 1650. Former §§ 1649 and 1650, relating to trespassing on railroad property and the penalties thereof, were recodified as 5 V.S.A. §§ 3734 and 3735 pursuant to 1995, No. 60 , § 37.

§ 1651. Repealed. 1993, No. 172 (Adj. Sess.), § 67(31).

History

Former §§ 1701-1709. Former §§ 1701-1709, relating to railroad police, were recodified as 5 V.S.A. §§ 3755-3763 pursuant to 1995, No. 60 , § 37.

§§ 1305-1330. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

§§ 1522-1524. Repealed. 1989, No. 246 (Adj. Sess.), § 28, and 1993, No. 172 (Adj. Sess.), § 67.

§§ 1528-1535. Repealed. 1993, No. 172 (Adj. Sess.), § 67.

§§ 1572-1578. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

§ 1621. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

§§ 1629, 1630. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

§§ 1632-1636. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

§§ 1638-1643. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

§§ 1649, 1650. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

§§ 1701-1709. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

CHAPTER 47. RAILROAD RATES

Sec.

§§ 1801-1813. Repealed. 1993, No. 172 (Adj. Sess.), § 67(32).

CHAPTER 49. GRADE CROSSINGS

Sec.

§§ 1901, 1902. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

History

Former §§ 1901, 1902. Former §§ 1901, 1902, relating to alteration and expense apportionment of grade crossings, was recodified as 5 V.S.A. §§ 3783 and 3784 pursuant to 1995, No. 60 , § 37.

§§ 1903-1905. Repealed. 1961, No. 267, § 7, eff. Aug. 1, 1961.

History

Former § 1906. Former § 1906, relating to the alteration of crossings ordered by the Public Service Board, was recodified as 5 V.S.A. § 3785 pursuant to 1995, No. 60 , § 37.

§ 1907. Repealed. 1961, No. 267, § 7, eff. Aug. 1, 1961.

History

Former §§ 1908-1912. Former §§ 1908-1912, relating to proceedings for the taking of land, orders of the board and appeals, record of changes and agency approval of allocations, were recodified as 5 V.S.A. §§ 3786-3790 pursuant to 1995, No. 60 , § 37.

§ 1906. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

§§ 1908-1912. Recodified. 1995, No. 60, § 37, eff. April 25, 1995.

CHAPTER 50. STATE ACQUISITION OF RAILROADS

Sec.

§§ 1951-1953. Repealed. 1987, No. 211 (Adj. Sess.), § 2, eff. May 26, 1988.

PART 3 Utility Companies

CHAPTER 71. TELECOMMUNICATIONS AND ELECTRIC WIRES AND POLES ALONG HIGHWAYS, RAILROAD TRACKS, AND CEMETERIES; TRANSPORTATION BOARD AND SELECTBOARD ROLE

Sec.

History

2016. Rewrote the chapter heading to clarify chapter contents.

Cross References

Cross references. System for prevention of damage by excavation to underground utility facilities, see § 7001 et seq. of this title.

§ 2501. Town; duties of certain officers.

As used in this chapter, the word "town" includes an incorporated village or city, and the words "telegraph, telephone, and electric lines or wires" include wires or cables used in conjunction with a cable television system as defined in section 501 of this title. Where powers are given to or duties imposed upon selectboard with reference to a town, the aldermen of a city, or the trustees of a village shall have the same powers and perform like duties in relation to their respective city or village. The powers given or duties imposed by this chapter upon selectboard shall be exercised and performed by the Agency of Transportation in relation to State highways, except those of a regulatory or quasi-judicial nature, which shall be exercised and performed by the Transportation Board.

Amended 1969, No. 167 (Adj. Sess.), § 2, eff. Feb. 10, 1970; 1989, No. 246 (Adj. Sess.), § 30.

History

Source. V.S. 1947, § 9698. P.L. § 6413. 1933, No. 157 , § 6087. 1931, No. 61 , § 5. G.L. § 5648. P.S. § 4836. V.S. § 4223. 1894, No. 162 , § 4087.

2016. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

Amendments--1989 (Adj. Sess.) Substituted "agency of transportation" for "state highway board" preceding "in relation" and added "except those of a regulatory or quasi-judicial nature, which shall be exercised and performed by the transportation board" following "highways" in the third sentence.

§ 2502. Lines of wires along highways; wireless telecommunications facilities; broadband facilities construction; restriction.

Lines of telegraph, telephone, and electric wires, as well as two-way wireless telecommunications facilities and broadband facilities, may, subject to the provisions of 19 V.S.A. § 1111 , be constructed and maintained by a person or corporation upon or under a highway, in such manner as not to interfere with repairs of such highway or the public convenience in traveling upon or using the same.

Amended 1991, No. 175 (Adj. Sess.), § 13, eff. May 15, 1992; 1995, No. 168 (Adj. Sess.), § 3; 2007, No. 79 , § 9, eff. June 9, 2007.

History

Source. V.S. 1947, § 9699. P.L. § 6414. 1927, No. 97 . G.L. § 5649. P.S. § 4837. 1900, No. 65 , § 1. V.S. § 4224. 1888, No. 32 . 1886, No. 89 . 1884, No. 47 . R.L. § 3633. G.S. 88, § 1. 1847, No. 17 , § 1.

Amendments--2007. Added "broadband facilities" preceding "construction" in the section catchline; and added "and broadband facilities" following "telecommunication facilities".

Amendments--1995 (Adj. Sess.) Inserted "wireless telecommunications facilities" preceding "construction" in the section catchline and "as well as two-way wireless telecommunications facilities" following "electric wires" in the text of the section.

Amendments--1991 (Adj. Sess.) Inserted "subject to the provisions of section 19 V.S.A. § 1111" following "wires may".

Cross References

Cross references. Installing pipes and wires in highway, see 19 V.S.A. § 1111(c).

ANNOTATIONS

Analysis

1. Consent.

Legislature intended that telegraph, telephone, and electric companies should have right to erect and maintain lines in and along any highway without obtaining consent to do so from anyone, provided convenience of public in traveling and repairing of highway are not interfered with and same are not erected in front of or near residence. Western Union Telegraph Co. v. Bullard, 65 Vt. 634, 27 A. 322 (1893); Rugg v. Commercial Union Telegraph Co., 66 Vt. 208, 28 A. 1036, 1930-32 Op. Atty. Gen. 170 (1894).

2. Municipal powers.

Statute regarding lines of wires along highways gives utilities a right to locate their transmission facilities either aboveground or below, provided that those facilities do not interfere with repairs or travel. It does not explicitly prohibit municipalities from charging utilities a fee for placing facilities aboveground. City of Burlington v. Fairpoint Communs., 186 Vt. 332, 980 A.2d 226 (2009).

City council may not, without running afoul of the statute regarding lines of wires along highways, arbitrarily deny a permit to one utility for activities it has already allowed another utility to do; however, a municipality may determine where and in what manner transmission facilities may be built or maintained under the statute. City of Burlington v. Fairpoint Communs., 186 Vt. 332, 980 A.2d 226 (2009).

City of Burlington had the power to impose "undergrounding" costs on a utility under a valid ordinance enacted pursuant to the charter; thus, the charter, which was the most specific legislative enactment governing the question, would be given effect, along with the ordinance promulgated pursuant to the charter. The statutory provisions upon which the utility relied, the statute regarding lines of wires along highways and the statutes governing "Utility Relocations in Connection with Certain Highway Projects," were less specific and, to the extent they could be read as conflicting with the charter, had to yield to it. City of Burlington v. Fairpoint Communs., 186 Vt. 332, 980 A.2d 226 (2009).

Cited. Rutland Cable T.V., Inc. v. City of Rutland, 122 Vt. 162, 166 A.2d 191 (1960).

§ 2503. Location by Transportation Board or selectboard; notice.

When it is inconvenient or inexpedient to erect such wires, agreeably to section 2502 of this title, the Transportation Board, after soliciting the advice of the Agency of Transportation, or the selectboard of the town shall determine upon application where and in what manner such wires shall be erected, giving notice to parties interested or their agents, and shall certify their decision and cause the same to be recorded in the town clerk's office, and such decision shall be final.

Amended 1989, No. 246 (Adj. Sess.) § 31.

History

Source. V.S. 1947, § 9700. P.L. § 6415. 1933, No. 157 , § 6089. G.L. § 5650. P.S. § 4838. 1900, No. 65 , § 2. V.S. § 4225. R.L. § 3634. G.S. 88, § 2. 1847, No. 17 , § 2.

2016. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

Amendments--1989 (Adj. Sess.) Substituted "transportation" for "highway" in two places and inserted "after soliciting the advice of the agency of transportation" preceding "or the selectboard".

ANNOTATIONS

Cited. Rutland Cable T.V., Inc. v. City of Rutland, 122 Vt. 162, 166 A.2d 191 (1960).

§ 2504. Transportation Board or selectboard may direct and change manner of crossing highway.

The Transportation Board or the selectboard of a town may direct a line of wires to be placed at a greater height or underground where it crosses a street or highway. If a line of wires is erected or maintained upon, under, or across a street or highway, contrary to the direction of the Transportation Board or the selectboard, or is not changed when directed by them, they may remove such line, and recover the expense thereof from the person or corporation using the same in an action on this statute.

Amended 1989, No. 246 (Adj. Sess.), § 31.

History

Source. V.S. 1947, § 9701. P.L. § 6416. 1933, No. 157 , § 6090. G.L. § 5651. P.S. § 4839. 1900, No. 65 , § 3. V.S. § 4226. 1884, No. 23 , §§ 1, 2.

2016. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

Revision note - Deleted "of tort" following "action" to conform reference to V.R.C.P. 2 pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under 4 V.S.A. § 219.

Amendments--1989 (Adj. Sess.) Substituted "transportation" for "highway" preceding "board" wherever it appeared.

§ 2505. Location near residence.

When a person objects to the erection of a line of wires along a street or highway in front of his or her residence, he or she may apply to the Transportation Board or the selectboard of the town, who, upon notice and hearing, as provided in section 2503 of this title, shall determine upon what streets or highways the same shall pass, or in what manner, if at all, such objection may be obviated. Such decision shall be final.

Amended 1989, No. 246 (Adj. Sess.), § 31.

History

Source. V.S. 1947, § 9702. P.L. § 6417. 1933, No. 157 , § 6091. G.L. § 5652. P.S. § 4840. 1900, No. 65 , § 4. V.S. § 4227. R.L. § 3635. G.S. 88, § 3. 1847, No. 17 , § 3.

2016. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

Amendments--1989 (Adj. Sess.) Inserted "or her" preceding "residence, he" and "or she" thereafter and substituted "transportation" for "highway" preceding "board" in the first sentence.

ANNOTATIONS

1. Consent.

An abutter, who has consented to the erection of a line of telegraph poles along the street in front of his residence, cannot revoke that license after the poles have been set, but before the wires have been strung. Western Union Telegraph Co. v. Bullard, 67 Vt. 272, 31 A. 286 (1895).

By consenting to the erection of a line of telegraph poles along the street in front of his residence, landowner waived any claim he might have for damages. Western Union Telegraph Co. v. Bullard, 67 Vt. 272, 31 A. 286 (1895).

§ 2506. Trees not to be injured; exception; penalty.

A tree within a street or highway shall not be cut or injured in constructing, maintaining, or repairing a line of wires, without the written consent of the adjoining owner or occupant, unless the Transportation Board or the selectboard of the town in which the tree is situated, after due notice to the parties and upon hearing, shall decide that such cutting or injury is necessary. A person or corporation cutting or injuring such trees shall pay the damages, if any, awarded on such hearing, before cutting or injuring the trees. A person or corporation that violates a provision of this section shall be fined not more than $50.00 nor less than $5.00 for each tree so cut or injured.

Amended 1989, No. 246 (Adj. Sess.), § 31.

History

Source. V.S. 1947, § 9703. P.L. § 6418. 1933, No. 157 , § 6092. G.L. § 5653. P.S. § 4841. V.S. § 4228. 1888, No. 32 .

2016. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

Amendments--1989 (Adj. Sess.) Substituted "transportation" for "highway" following "unless the" in the first sentence.

Cross References

Cross references. Injuries to trees, see also § 2527 of this title.

ANNOTATIONS

Cited. Ives v. Central Vermont Public Service Corp., 134 Vt. 67, 349 A.2d 878 (1975).

§ 2507. Poles.

A person or corporation owning or operating a line of wires in a city or village shall cause the poles upon which the wires are strung to be kept suitably painted, to the satisfaction of the aldermen of such city or the trustees of such village, if incorporated, and, if unincorporated, to the satisfaction of the Transportation Board or the selectboard of the town in which such village is situated, and shall substitute straight poles in place of crooked ones.

Amended 1989, No. 246 (Adj. Sess.), § 31.

History

Source. V.S. 1947, § 9704. P.L. § 6419. 1933, No. 157 , § 6093. G.L. § 5654. P.S. § 4842. V.S. § 4229. 1890, No. 44 , § 1. 1882, No. 75 , § 1.

2016. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

Amendments--1989 (Adj. Sess.) Substituted "transportation" for "highway" preceding "board".

ANNOTATIONS

Cited. Village of Hardwick v. Vermont Telephone & Telegraph Co., 70 Vt. 180, 40 A. 169 (1897).

§ 2508. Penalty.

A person or corporation that neglects or refuses, after 20 days' notice in writing given by the Transportation Board, a selectboard member, alderman, or trustee, to paint such poles or substitute straight poles for crooked ones, as provided in section 2507 of this title, shall forfeit $100.00 to the State, town, city, or village, to be recovered in an action on this statute.

Amended 1989, No. 246 (Adj. Sess.), § 31.

History

Source. V.S. 1947, § 9705. P.L. § 6420. 1933, No. 157 , § 6094. G.L. § 5655. P.S. § 4843. V.S. § 4230. 1890, No. 44 , § 2. 1882, No. 75 , § 2.

2016. Substituted "selectboard member" for "selectmen" in accordance with 2013, No. 161 , § 72.

Revision note - Deleted "of tort" following "action" to conform reference to V.R.C.P. 2 pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under 4 V.S.A. § 219.

Amendments--1989 (Adj. Sess.) Substituted "transportation" for "highway" preceding "board".

ANNOTATIONS

1. Notice.

The notice prescribed by this section should indicate where a substitution of poles should be made and what color they should be painted. Village of Hardwick v. Vermont Telephone & Telegraph Co., 70 Vt. 180, 40 A. 169 (1897).

§ 2509. Selectboard's powers; expense.

The Agency of Transportation, selectboard, aldermen, or trustees may cause such poles to be painted, and may substitute straight poles in place of crooked ones, and may recover the expense thereof in an action on this statute, in the name of the State or of such town, city, or village against the person or corporation owning or operating such wires or line of wires.

Amended 1989, No. 246 (Adj. Sess.), § 31.

History

Source. V.S. 1947, § 9706. P.L. § 6421. 1933, No. 157 , § 6095. G.L. § 5656. P.S. § 4844. V.S. § 4231. 1890, No. 44 , § 2. 1882, No. 75 , § 2.

2016. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

Deleted "of tort" following "action" to conform reference to V.R.C.P. 2 pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments--1989 (Adj. Sess.) Substituted "agency of transportation" for "highway board" preceding "selectboard".

§ 2510. Cemeteries.

The owner or operator of a line of wires shall maintain straight and painted poles upon which such wires are strung, whenever the same pass in front of or along a cemetery, to the satisfaction of the cemetery trustees, or the Transportation Board, or the selectboard of the town, aldermen of the city, or trustees of the village in which such cemetery is located if there are no trustees of such cemetery, and such operator or owner shall substitute straight poles in place of crooked ones. The provisions of sections 2508 and 2509 of this title as to notice, penalty, and procedure, shall apply to and be deemed a part of this section.

Amended 1989, No. 246 (Adj. Sess.), § 31.

History

Source. V.S. 1947, § 9707. P.L. § 6422. 1933, No. 157 , § 6096. G.L. § 5657. P.S. § 4845. 1906, No. 133 , §§ 1, 2.

2016. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

Amendments--1989 (Adj. Sess.) Substituted "transportation" for "highway" preceding "board, or" in the first sentence.

§ 2511. Damages; appraisal; payment.

When, in the erection of a line of wires, the owner or occupant of lands or tenements sustains or is likely to sustain damages thereby, the Transportation Board or the selectboard of the town, upon notice to parties interested, shall appraise such damages. The same shall be paid before the line is erected, unless petition is made to the Superior Court on the question of damages as provided in section 2512 of this title.

Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1989, No. 246 (Adj. Sess.), § 31.

History

Source. V.S. 1947, § 9708. P.L. § 6423. 1933, No. 157 , § 6097. G.L. § 5658. P.S. § 4846. V.S. § 4232. R.L. § 3637. G.S. 88, § 5. 1848, No. 31 .

2016. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

Revision note - At the end of the section, substituted "provided in section 2512 of this title" for "hereinafter provided" to conform reference to V.S.A. style.

Amendments--1973 (Adj. Sess.). Substituted "superior" for "county" preceding "court" in the second sentence.

Amendments--1989 (Adj. Sess.) Substituted "transportation" for "highway" preceding "board" in the first sentence.

ANNOTATIONS

1. Construction.

This section gives selectboard power to award damages only in excepted cases in which their permission to erect a line must be obtained. Rugg v. Commercial Union Telegraph Co., 66 Vt. 208, 28 A. 1036 (1894).

Cited. Western Union Telegraph Co. v. Bullard, 67 Vt. 272, 31 A. 286 (1895).

§ 2512. Appeal; proceedings.

When either party is dissatisfied with such appraisal of damages, he or she may apply to the Superior Court by petition in the same manner as is provided for a person dissatisfied with the compensation for damages for the laying out or altering of highway, and thereupon similar proceedings shall be had. The line shall not be erected until such cause is finally decided, unless the party erecting the same files with the clerk of the court to which such application is made, before the line is erected, a bond to the other party, with sureties approved by such clerk, conditioned for the payment of such damages and costs as may finally be awarded.

Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source. V.S. 1947, § 9709. P.L. § 6424. G.L. § 5659. P.S. § 4847. V.S. § 4233. 1894, No. 162 , § 4097.

Amendments--1973 (Adj. Sess.). Substituted "superior" for "county" preceding "court" in the first sentence.

Cross References

Cross references. Appeal from compensation for damages for laying out or altering highway, see 19 V.S.A. § 740 et seq.

§ 2513. Lines along railroad tracks; wireless and other telecommunications facilities.

  1. A company subject to the jurisdiction of the Public Utility Commission may erect and maintain its telecommunications or electric transmission and distribution lines and facilities along the sides of railroad tracks within the limits of lands owned or held by a railroad on paying reasonable compensation to the railroad. If they cannot agree upon the amount of reasonable compensation, it shall be determined by the Transportation Board which shall ascertain the compensation.
  2. Wireless telecommunications and broadband facilities may be erected and maintained within the limits of lands owned or held by a railroad in the same manner as other utility facilities.
  3. For purposes of this section, "broadband" shall have the same definition as in the rules adopted by the Public Utility Commission for purposes of attachment to utility poles.

    Amended 1995, No. 168 (Adj. Sess.), § 4; amended 1997, No. 144 (Adj. Sess.), § 26; 2007, No. 79 , § 7, eff. June 9, 2007.

History

Source. V.S. 1947, § 9710. P.L. § 6425. G.L. § 5660. P.S. § 4848. V.S. § 4234. R.L. § 3638. 1876. No. 28. G.S. 88, § 7. 1854, No. 33 , § 1.

Amendments--2007. Catchline: Inserted "and other" following "wireless".

Subsec. (b): Added "and broadband" preceding "facilities".

Subsec. (c): Added.

Amendments--1997 (Adj. Sess.). Rewrote subsec. (a).

Amendments--1995 (Adj. Sess.) Inserted "wireless telecommunications facilities" in the section catchline, designated the existing text of the section as subsec. (a) and added subsec. (b).

Cross References

Cross references. Appointment of commissioners and appraisal of damages for taking of land by railroads, see 5 V.S.A. §§ 3523-3533.

ANNOTATIONS

Analysis

1. Construction.

Appointment of commissioners and appraisal of damages for taking of land by railroads, see §§ 1307-1317 of this title. Delaware & Hudson Railway v. Central Vermont Public Service Corp., 134 Vt. 322, 360 A.2d 86 (1976).

2. Acquisition of right of way.

Railroad which took land by eminent domain for railroad purposes could sell, by virtue of this section, a right of way for an electric line over the land so taken; if the railroad refused to sell, an electric light company could obtain a right of way by eminent domain. Proctor v. Central Vermont Public Service Corp., 116 Vt. 431, 77 A.2d 828 (1951).

3. Utility easement .

The plain intent of the Legislature in enacting 30 V.S.A. §§ 2513-2514 was to allow utilities to continue to provide electric and telecommunications services within railroad rights-of-way even after railroad operations cease. This statutory right is in the nature of an express easement and thus is subject to an increase-in-burden analysis under the common law. Utilities may continue to use the rights-of-way for their intended purposes so long as the uses do not materially increase the burden for which the landowners or their predecessors-in-title have already been compensated. Preseault v. City of Burlington, 180 Vt. 597, 908 A.2d 419 (mem.) (July 11, 2006).

City, which had installed fiber-optic cables on existing utility poles located on property owners' land, and the State, which was the successor-in-title to the railroad that held a right-of-way on the owners' property, were properly granted summary judgment on the owners' claim that the installation of fiber-optic cable over a portion of their property, without compensation, violated the Takings Clause of Fifth Amendment because (1) 30 V.S.A. §§ 2513-2514 conferred rights in the nature of a common law easement with respect to allowing the placement of utility lines along rights-of-way no longer used for railway services, and the statutory right was construed to mean that the intrusion had to be generally of the type originally contemplated and could not materially burden the landowner beyond what was intended; (2) the District Court applied the correct legal standard to the claim by acknowledging that the owner of an easement could not materially increase the burden of it upon the servient estate, nor impose a new or additional burden thereon; (3) in support of summary judgment, the city and the State submitted evidence that the cable did not affect the owners' view and that the installation was not accompanied by any restriction on any activity; and (4) the owners provided no evidence that any view or activity would be limited or impaired in any significant way beyond the impairment inherent in the preexisting lines. Preseault v. City of Burlington, 464 F.3d 215 (2d Cir. 2006).

Court certified to the Vermont Supreme Court the question of whether the City's right, which remained following the abandonment of the railroad easement, were in the nature of a common law easement or limited to maintaining the lines that existed prior to the abandonment. Preseault v. City of Burlington, 412 F.3d 96 (2d Cir. 2004).

Although the plaintiffs argued the City's right to maintain existing electric lines did not grant it a right to install a fiber optic cable on existing utility poles, read together, 30 V.S.A. §§ 2513(b) and 2515 unequivocally grant the City such a right in this case, regardless of the fact that the utility easement arose as a result of a now defunct railway. Preseault v. City of Burlington, - F. Supp. 2d - (D. Vt. 2004), aff'd, 464 F.3d 215 (2d Cir. Vt. 2006).

§ 2514. Line to remain property of company.

A line erected as authorized in section 2513 of this title shall remain the property of such telegraph, telephone, or electric light company, and shall not pass by sale, transfer, or mortgage made by the railroad corporation, of the lands upon which the line is erected, nor shall the line be liable to attachment or levy of execution against such railroad corporation.

History

Source. V.S. 1947, § 9711. P.L. § 6426. G.L. § 5661. P.S. § 4849. V.S. § 4235. R.L. § 3639. G.S. 88, § 8. 1854, No. 33 , § 2.

Revision note. At the beginning of the section, substituted "a line erected as authorized in section 2513 of this title" for "such line" for purposes of clarity.

ANNOTATIONS

Analysis

1. Abandonment of railroad.

When railroad use is abandoned, the right to maintain a then existing independent electric line continues. Proctor v. Central Vermont Public Service Corp., 116 Vt. 431, 77 A.2d 828 (1951).

2. Utility easement.

The plain intent of the Legislature in enacting 30 V.S.A. §§ 2513-2514 was to allow utilities to continue to provide electric and telecommunications services within railroad rights-of-way even after railroad operations cease. This statutory right is in the nature of an express easement and thus is subject to an increase-in-burden analysis under the common law. Utilities may continue to use the rights-of-way for their intended purposes so long as the uses do not materially increase the burden for which the landowners or their predecessors-in-title have already been compensated. Preseault v. City of Burlington, 180 Vt. 597, 908 A.2d 419 (mem.) (July 11, 2006).

City, which had installed fiber-optic cables on existing utility poles located on property owners' land, and the State, which was the successor-in-title to the railroad that held a right-of-way on the owners' property, were properly granted summary judgment on the owners' claim that the installation of fiber-optic cable over a portion of their property, without compensation, violated the Takings Clause of Fifth Amendment because (1) 30 V.S.A. §§ 2513-2514 conferred rights in the nature of a common law easement with respect to allowing the placement of utility lines along rights-of-way no longer used for railway services, and the statutory right was construed to mean that the intrusion had to be generally of the type originally contemplated and could not materially burden the landowner beyond what was intended; (2) the District Court applied the correct legal standard to the claim by acknowledging that the owner of an easement could not materially increase the burden of it upon the servient estate, nor impose a new or additional burden thereon; (3) in support of summary judgment, the city and the State submitted evidence that the cable did not affect the owners' view and that the installation was not accompanied by any restriction on any activity; and (4) the owners provided no evidence that any view or activity would be limited or impaired in any significant way beyond the impairment inherent in the preexisting lines. Preseault v. City of Burlington, 464 F.3d 215 (2d Cir. 2006).

Cited. Preseault v. City of Burlington, - F. Supp. 2d - (D. Vt. 2004), aff'd, 464 F.3d 215 (2d Cir. Vt. 2006).

§ 2515. Erecting new lines.

When a person or corporation is about to erect a line of telegraph or telephone wires, in and along a highway within a town, in and along which a line of poles has already been erected by another person or corporation for a similar purpose, the Transportation Board or selectboard of such town shall have the right to permit and may require the new line to be attached to the poles already standing, as provided in section 2516 of this title.

Amended 1989, No. 246 (Adj. Sess.), § 32.

History

Source. V.S. 1947, § 9712. P.L. § 6427. 1933, No. 157 , § 6101. G.L. § 5662. P.S. § 4850. V.S. § 4236. R.L. § 3645. 1880, No. 54 , § 1.

2016 Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

Amendments--1989 (Adj. Sess.) Substituted "Transportation" for "highway" preceding "board".

ANNOTATIONS

1. Utility easement.

The plain intent of the Legislature in enacting 30 V.S.A. §§ 2513-2514 was to allow utilities to continue to provide electric and telecommunications services within railroad rights-of-way even after railroad operations cease. This statutory right is in the nature of an express easement and thus is subject to an increase-in-burden analysis under the common law. Utilities may continue to use the right-of-ways for their intended purposes so long as the uses do not materially increase the burden for which the landowners or their predecessors-in-title have already been compensated. Preseault v. City of Burlington, 180 Vt. 597, 908 A.2d 419 (mem.) (July 11, 2006).

Court certified to the Vermont Supreme Court the question of whether the City's right, which remained following the abandonment of the railroad easement, were in the nature of a common law easement or limited to maintaining the lines that existed prior to the abandonment. Preseault v. City of Burlington, 412 F.3d 96 (2d Cir. 2004).

Although the plaintiffs argued the City's right to maintain existing electric lines did not grant it a right to install a fiber optic cable on existing utility poles, read together, 30 V.S.A. §§ 2513(b) and 2515 unequivocally grant the City such a right in this case, regardless of the fact that the utility easement arose as a result of a now defunct railway. Preseault v. City of Burlington, - F. Supp. 2d - (D. Vt. 2004), aff'd, 464 F.3d 215 (2d Cir. Vt. 2006).

§ 2516. Expenses; repairs.

The Transportation Board or selectboard shall ascertain, as near as may be, the original cost of erecting such line of poles, and shall direct such person or corporation as they may require to use such poles, to pay the owners of the line already erected a fair proportion of such expense, not to exceed one-half the estimated original cost of construction. In no case shall the poles be used until the owners of the new line tender to the original owners of such line of poles the amount so directed. When it is necessary to repair or renew the poles used by two or more persons or corporations, the expense thereof shall be borne equally by the parties using the same.

Amended 1989, No. 246 (Adj. Sess.), § 32.

History

Source. V.S. 1947, § 9713. P.L. § 6428. 1933, No. 157 , § 6102. G.L. § 5663. P.S. § 4851. V.S. § 4237. R.L. § 3646. 1880, No. 54 , § 2.

2016 Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

Amendments--1989 (Adj. Sess.) Substituted "transportation" for "highway" preceding "board" in the first sentence.

§ 2517. Notice; copy.

The Transportation Board or selectboard shall give written notice to the proprietors of both the old and new lines of all their requirements in the premises, and shall also lodge a copy of the notice in the town clerk's office, and its decision shall be final.

Amended 1989, No. 246 (Adj. Sess.), § 32.

History

Source. V.S. 1947, § 9714. P.L. § 6429. 1933, No. 157 , § 6103. G.L. § 5664. P.S. § 4852. V.S. § 4238. R.L. §§ 3647, 3649. 1880, No. 54 , §§ 3, 5.

2016 Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

Amendments--1989 (Adj. Sess.) Substituted "transportation" for "highway" preceding "board".

§ 2518. Restriction of right to move poles; action.

The proprietors of a line of poles so required to be used by another person or corporation shall not take down or alter the position of such poles without obtaining permission of all parties who may have acquired a right to use the same, or the permission of the Transportation Board or selectboard. A person or corporation injured by a violation of this section may recover the amount of the injury in an action on this statute.

Amended 1989, No. 246 (Adj. Sess.), § 32.

History

Source. V.S. 1947, § 9715. P.L. § 6430. 1933, No. 157 , § 6104. G.L. § 5665. P.S. § 4853. V.S. § 4239. R.L. § 3648. 1880, No. 54 , § 4.

2016. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

Revision note - Deleted "of tort" following "action" in the second sentence to conform reference to V.R.C.P. 2 pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under 4 V.S.A. § 219.

Amendments--1989 (Adj. Sess.) Substituted "transportation" for "highway" preceding "board" in the first sentence.

§ 2519. No prescriptive rights.

Enjoyment of any length of time of the privilege of maintaining a line of telegraph, telephone, or electric wires, poles, conduits, or other apparatus upon or over the buildings or lands of other persons shall not give a right to the continued enjoyment of such easement or raise a presumption of a grant thereof.

History

Source. V.S. 1947, § 9716. P.L. § 6431. G.L. § 5666. P.S. § 4854. V.S. § 4240. 1894, No. 87 . R.L. § 3640. G.S. 88, § 9. 1851, No. 62 .

ANNOTATIONS

1. Applicability.

Public Service Board properly held that it lacked subject matter jurisdiction to rule on a utility's declaratory judgment petition. The statute relied upon by the utility had no necessary application at all to the declaratory judgment it sought, as the utility did not assert, and had never asserted, a right to maintain the power line in its present location by virtue of adverse possession; that section being the only basis recited for the Board's jurisdiction, there was no error in the Board's determination that it had no power to rule on the declaratory judgment petition. In re Appeal of Morrisville Water & Light Dep't, 184 Vt. 616, 958 A.2d 1191 (mem.) (2008).

Cited. Dodge v. Washington Electric Cooperative, Inc., 134 Vt. 320, 359 A.2d 647 (1976).

§ 2520. Town lines.

For their own use, towns may construct telegraph, telephone, and electric lines upon and along the highways and public roads within their limits, subject to the provisions of this chapter so far as the same are applicable.

History

Source. V.S. 1947, § 9717. P.L. § 6432. G.L. § 5667. P.S. § 4855. V.S. § 4241. R.L. § 3642. 1874, No. 42 , § 1.

§ 2521. Private lines.

The Transportation Board or selectboard may authorize persons, upon such terms as it prescribes and subject to the provisions of this chapter so far as applicable, to construct for private use such lines along the highways of the town.

Amended 1989, No. 246 (Adj. Sess.), § 33.

History

Source. V.S. 1947, § 9718. P.L. § 6433. 1933, No. 157 , § 6107. G.L. § 5668. P.S. § 4856. V.S. § 4242. R.L. § 3643. 1874, No. 42 , § 2.

2016 Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

Amendments--1989 (Adj. Sess.) amendment. Substituted "transportation" for "highway" preceding "board".

§ 2522. Transportation Board or selectboard's control; town's rights.

After the erection of such line, the posts and structures thereof within the highways shall be subject to the regulation and control of the Transportation Board or selectboard, which may at any time require alterations in the location or erection of such poles and structures and may order the removal thereof, having first given the parties notice and an opportunity to be heard. The town may attach wires for its own use to such posts and structures under such terms and conditions as it deems just.

Amended 1989, No. 246 (Adj. Sess.), § 33.

History

Source. V.S. 1947, § 9719. P.L. § 6434. 1933, No. 157 , § 6108. G.L. § 5669. P.S. § 4857. V.S. § 4343. R.L. § 3644. 1874, No. 42 , § 2.

2016 Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

Amendments--1989 (Adj. Sess.) Substituted "transportation" for "highway" preceding "board" in the section catchline and the first sentence.

§ 2523. Court may permit line to be attached to standing poles.

Persons desiring to attach a telephone line to poles of a telegraph company may petition the Superior Court of the county in which such line of poles or part thereof is situated, for permission so to do. The court shall appoint three disinterested persons commissioners to make examination and determine whether the request of the petitioner can be granted without injury to the company owning the poles. If, in their judgment, such permission ought to be given, the commissioners shall so report to the court, and state what, in their opinion, would be a fair annual compensation to be paid for such privilege. The court shall render such judgment thereon as it deems just, or for cause shown may reject the report and appoint new commissioners to reexamine and report.

Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source. V.S. 1947, § 9720. P.L. § 6435. G.L. § 5670. P.S. § 4858. V.S. § 4244. 1882, No. 74 , §§ 1, 2.

Amendments--1973 (Adj. Sess.). Substituted "superior" for "county" preceding "court" in the first sentence.

§ 2524. Court may enforce order.

When, in such cause, it is finally adjudged that the petitioner may attach his or her line to the poles of the telegraph company, if such company hinders or obstructs such use, the compensation decreed to it having been paid or tendered, the court may proceed against it for contempt.

History

Source. V.S. 1947, § 9721. 1947, No. 202 , § 9853. P.L. § 6436. G.L. § 5671. P.S. § 4859. V.S. § 4245. 1882, No. 74 , § 1.

§ 2525. Attachment of wires.

Telephone wires attached to poles of a telegraph company under the provisions of sections 2523 and 2524 of this title shall be attached and maintained so as not to interfere with the wires already thereon.

History

Source. V.S. 1947, § 9722. P.L. § 6437. G.L. § 5672. P.S. § 4860. V.S. § 4246. 1882, No. 74 , § 3.

§ 2526. Fees of certain officers.

When the selectboard members or other officers are called upon to act under the provisions of this chapter, each shall receive his or her necessary expenses and $2.00 a day, to be paid by the party erecting the line of wires or other appurtenances or apparatus.

History

Source. V.S. 1947, § 9723. P.L. § 6438. G.L. § 5673. P.S. § 4861. V.S. § 4247. R.L. §§ 3636, 3649. 1880, No. 54 , § 5. G.S. 88, § 4. 1847, No. 17 , § 4.

2016 Substituted "selectboard members" for "selectmen" in accordance with 2013, No. 161 , § 72.

§ 2527. Penalties; injuries to trees.

A person or corporation maintaining or operating a line of wires, that cuts down, mutilates, or injures the trees standing upon the lands of another, or a person or corporation that affixes or causes to be affixed to the property of another, a post, structure, fixture, wire, or other apparatus for telephonic, telegraphic, or other electrical communication, without first procuring the right to do so by application to and determination of the Transportation Board or the selectboard of the town, agreeably to this chapter, or first obtaining the consent of the owner or lawful agent of the owner of such property, shall be fined not more than $100.00.

Amended 1989, No. 246 (Adj. Sess.), § 34.

History

Source. V.S. 1947, § 9724. P.L. § 6439. 1933, No. 157 , § 6113. G.L. § 5674. P.S. § 4862. V.S. § 4248. 1884, No. 114 .

2016 Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

Amendments--1989 (Adj. Sess.) Substituted "transportation" for "highway" preceding "board".

Cross References

Cross references. Injuries to trees, see also § 2506 of this title.

§ 2528. Injuries to line.

A person who willfully or intentionally injures a wire, post, or other fixture erected or maintained in pursuance of this chapter, or who willfully interferes with the working of the same, or who aids or assists in such offense, shall forfeit to the owner $100.00 to be recovered in an action on this statute and may also be imprisoned not more than five years or fined not more than $500.00, or both.

Amended 1981, No. 223 (Adj. Sess.), § 23.

History

Source. V.S. 1947, § 9725. 1947, No. 202 , § 9857. P.L. § 6440. G.L. § 5675. P.S. § 4863. R. 1906, § 4758. V.S. § 4249. R.L. § 3641. 1874, No. 42 , § 3. G.S. 88, § 6. 1847, No. 17 , § 5.

Revision note. Deleted "of tort" following "action" to conform reference to V.R.C.P. 2 pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under 4 V.S.A. § 219.

Deleted "in the state prison" following "imprisoned" pursuant to 1971, No. 199 (Adj. Sess.), § 17.

Amendments--1981 (Adj. Sess.). Added "or both" following "$500.00" at the end of the section.

ANNOTATIONS

Cited. Western Union Telegraph Co. v. Bullard, 65 Vt. 634, 27 A. 322 (1893); State v. Patch, 145 Vt. 344, 488 A.2d 755 (1985).

§ 2529. Loitering upon telephone property; penalty.

A person who without right loiters or remains in a telephone central office, a public telephone pay station, or approaches thereto, after being requested to leave by a railroad police officer, sheriff, deputy sheriff, constable, or police officer shall be fined not more than $20.00 nor less than $2.00.

History

Source. V.S. 1947, § 9726. 1947, No. 202 , § 9858. P.L. § 6441. G.L. § 5676. 1917, No. 154 , § 1.

2016. Substituted "police officer" for "policeman" in two places.

§ 2530. Telephones in public areas.

The selectboard of a town (or the Agency of Transportation in the case of State highways) may upon written application and after notice to adjacent landowners permit the construction, erection, and maintenance of public telephones, telephone booths, and appurtenances thereto within the limits of public highways, sidewalks, parks, and parking areas when consistent with the public interest under such reasonable rules, regulations, and arrangements as it may prescribe.

1961, No. 55 , eff. April 4, 1961; amended 1989, No. 246 (Adj. Sess.), § 35.

History

2016. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

Amendments--1989 (Adj. Sess.). Inserted "or the agency of transportation in the case of state highways" following "town".

Cross References

Cross references. Pay telephones to permit free 911 calls, see § 7058 of this title.

CHAPTER 73. PROVISIONS APPLICABLE TO EXPRESS AND TELEGRAPH COMPANIES

Sec.

Cross References

Cross references. Jurisdiction of Agency of Transportation and Transportation Board over express companies, see 5 V.S.A. § 1802.

§ 2601. Names of members; filing and record.

Every foreign express or telegraph company shall keep on file and have recorded in the town clerk's office in each town where such express or telegraph company has a place of business a statement of the names and residences of the persons constituting such express or telegraph company.

History

Source. V.S. 1947, § 9727. P.L. § 6442. G.L. § 5677. P.S. § 4864. V.S. § 4250. R.L. § 3656. 1863, No. 16 , § 2.

§ 2602. Charges restricted to tariff rate; excess recoverable.

A telegraph or express company shall be restricted in its charges to the tariff of rates filed as provided by law. When a greater sum than its established rates is paid, the person paying the same may recover the amount so paid above such rates, with 12 percent interest thereon from the time of payment, with full costs, in an action on this statute.

History

Source. V.S. 1947, § 9728. P.L. § 6443. G.L. § 5678. P.S. § 4866. V.S. § 4252. R.L. § 3658. 1863, No. 16 , § 5.

Revision note. Deleted "of contract" following "action" to conform reference to V.R.C.P. 2 pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under 4 V.S.A. § 219.

§ 2603. Lien on goods restricted.

An express company shall not have a lien on goods or property transported by it, after the payment or tender of the amount embraced in the tariff of rates.

History

Source. V.S. 1947, § 9729. P.L. § 6444. G.L. § 5679. P.S. § 4867. V.S. § 4253. R.L. § 3659.

§ 2604. Noncompliance; effect.

An express or telegraph company shall not make contracts within the State, or enforce in the State contracts made out of it, unless such company has complied with the provisions of sections 2601-2603 of this title.

History

Source. V.S. 1947, § 9730. P.L. § 6445. G.L. § 5680. P.S. § 4868. V.S. § 4254. R.L. § 3655. 1863, No. 16 , § 1.

CHAPTER 75. INTERCHANGE OF SERVICE BETWEEN TELEGRAPH AND TELEPHONE COMPANIES

Sec.

§ 2701. Transfer of messages and interchange of service.

Whenever the Commission, after a hearing had upon its own motion or upon complaint, finds that a physical connection can reasonably be made between the lines of two or more telephone companies or two or more telegraph companies whose lines can be made to form a continuous line of communication, by the construction and maintenance of suitable connections, for the transfer of messages or conversations, and that public convenience and necessity will be subserved thereby, or finds that two or more telegraph or telephone companies have failed to establish joint rates, tolls, or charges for service by or over their lines, and that joint rates, tolls, or charges ought to be established, the Commission may, by its order, (a) require that the connection be made, except where the purpose of the connection is primarily to secure the transmission of local messages or conversations between points within the same city or town, and that conversations be transmitted and messages transferred over the connection under such rules and regulations as the Commission may establish, and (b) may prescribe through lines and joint rates, tolls, and charges to be made and to be used, observed, and enforced in the future. If the telephone or telegraph companies do not agree upon the division of the joint rates, tolls, or charges established by the Commission over the through lines, the Commission may, after further hearing, establish the division by supplemental order.

Amended 1961, No. 180 , § 2.

History

Source. V.S. 1947, § 9731. 1947, No. 202 , § 9863. P.L. § 6446. G.L. § 5681. P.S. § 4869. V.S. § 4255. R.L. § 3660. 1880, No. 53 , § 1.

Amendments--1961. Section amended generally.

ANNOTATIONS

1. Applicability.

State jurisdictional statutes granted the Public Service Board the necessary authority to order connections between two companies - telecommunications company and a competitive local exchange carrier - even if a particular combination of unbundled network elements were required to be connected within telecommunications company's network in order to facilitate the overall connection between the competitor's facilities and telecommunications company's network. In re Petition of Verizon New England, Inc., 173 Vt. 327, 795 A.2d 1196 (2002).

§ 2702. Repealed. 1995, No. 99 (Adj. Sess.), § 16(2).

History

Former § 2702. Former § 2702, which related to penalties for failure to comply with the provisions regarding the transfer of messages and the interchange of service between companies, was derived from V.S. 1947, § 9732; P.L. § 6447; G.L. § 5682; P.S. § 4870; 1906, No. 131 , § 1; V.S. § 4256; R.L. § 3661; and 1880, No. 53 , § 2.

§ 2703. Telephone service.

On application of a telegraph or telephone company and upon reasonable terms, a person or corporation owning, controlling, or operating a telephone exchange or service in this State shall furnish such applicant with the use of a telephone or telephones, and telephonic service and connection with the respective exchanges and the subscribers thereto, without discriminating between telegraph or telephone companies as to the connection, service, or use of instruments furnished or charges made.

History

Source. V.S. 1947, § 9733. P.L. § 6448. G.L. § 5683. P.S. § 4871. V.S. § 4257. 1892, No. 73 .

§ 2704. Discrimination prohibited.

On application of a person or corporation and tender of the charges or rental sum usual or customary for the class of service required, without discrimination for the same class of service rendered, a person or corporation owning, controlling, or operating a telephone exchange or service in this State shall furnish the applicant with the use of a telephone and telephonic service and connection with their respective exchanges and subscribers thereto.

Amended 1961, No. 180 , § 3.

History

Source. V.S. 1947, § 9734. P.L. § 6449. G.L. § 5684. P.S. § 4872. V.S. § 4258. 1888, No. 124 , §§ 1, 2.

Amendments--1961. Deleted the second sentence.

Cross References

Cross references. Telephone lifeline program, see § 218(c) of this title.

ANNOTATIONS

1. Arrearage of prior customer.

By requiring new hotel owner to pay telephone arrearage of prior owner in order for service to be reconnected and to retain the same phone numbers, telephone company discriminated against new owner on the basis of a collateral matter and violated both this section and case law as a result; therefore, Public Service Board erred in concluding that the telephone company's demand for payment of the arrearage was valid. Dantos v. New England Telephone & Telegraph Co., 141 Vt. 381, 449 A.2d 953 (1982).

§ 2705. Repealed. 1995, No. 99 (Adj. Sess.), § 16(3).

History

Former § 2705. Former § 2705, which related to penalties for violation of failure to furnish telephone service and discrimination thereof, was derived from V.S. 1947, § 9735; P.L. § 6450; G.L. § 5685; P.S. § 4873; and 1906, No. 132 , § 1.

§ 2706. Transmission of telephone messages.

A person owning, hiring, or leasing a telephone shall have the right to transmit by telephone to any telegraph company using a telephone, a message to be forwarded by telegraph, and also the right to receive from such telegraph company over such telephone wires, messages received by telegraph for such individual.

History

Source. V.S. 1947, § 9736. P.L. § 6451. G.L. § 5686. P.S. § 4874. V.S. § 4259. 1888, No. 124 , § 3.

CHAPTER 77. GAS AND ELECTRIC COMPANIES

Sec.

Cross References

Cross references. Electric cooperatives, see § 3001 et seq. of this title.

Municipal plants, see § 2901 et seq. of this title.

System for prevention of damage by excavation to underground utility facilities see § 7001 et seq. of this title.

ANNOTATIONS

1. Purpose.

This chapter was enacted to meet a growing tendency on the part of public utilities to utilize the water power of the State for generating electricity to be used for commercial purposes outside the State, and to compel those utilities to furnish electricity to consumers located within the State under regulations and rates fixed by the Public Service Commission. Jones v. Montpelier & Barre Light & Power Co., 96 Vt. 397, 120 A. 103 (1923).

This chapter was not intended to supersede or in any way interfere with the general supervisory powers of the Public Service Commission over utilities, including the fixing of rates for electricity sold for public or general use. Jones v. Montpelier & Barre Light & Power Co., 96 Vt. 397, 120 A. 103 (1923).

§ 2801. General duties; rates; powers of Public Utility Commission.

  1. A person, association, company, or corporation engaged in the business of generating in this State electric energy or transmitting in this State electric energy generated from outside the State and distributing it for heating, lighting, or power purposes or for any other public use, if and when requested so to do, at all reasonable times shall sell and distribute the same to any and all persons, companies, associations, cooperatives, and corporations, municipal, public, or private, that desire to use the same within this State for either or any of such purposes.  Such sale and distribution shall be subject, however, to such reasonable limitations as to the amount of energy to be furnished a purchaser, and shall in no case be beyond what is reasonably necessary and also as to the distance from the generating plant or from its lines of transmission that such energy shall be delivered, as the Public Utility Commission may determine after hearing had upon due notice thereof given to the parties interested.  The charges made by a person, company, or corporation for electric energy so sold and distributed, shall be reasonable.  In case the parties do not agree as to the amount of such charges, the Public Utility Commission, upon hearing had after proper notice to both, shall fix and determine the same, and may, upon like notice and hearing, from time to time, change them; and, fixing and determining such charges, the amount sold and the distance from the generating plant or lines of transmission to the place of delivery, and such other conditions as affect the cost of production, transmission, and value shall be considered.
  2. Such charges made by such person, association, company, or corporation for such electric energy shall not include the cost of political activity or political advertising incurred or paid by such person, association, company, or corporation.
  3. For the purposes of this section:
    1. "Activity" means speaking engagements, consultations, and appearances, and all things done or matters performed in preparation for or in connection with such things.
    2. "Political activity" means activity within the definition of "legislative counsel" or "legislative agent" as those terms are defined by 2 V.S.A. § 251 , similar activity before or in connection with other political forums and similar or like activities engaged in for the purpose of influencing public opinion with respect to the election or appointment of public officials, referenda, legislation, or ordinances, or for the purpose of influencing the decisions of public officials, but shall not include such expenditures that are directly related to appearances before regulatory or other governmental bodies in connection with the reporting and defending the existing or proposed rates and operations of such person, association, company, or corporation.
    3. "Advertising" means the commercial use of any media including newspaper and all other forms of print, radio, and television, in order to transmit a message to a substantial number of members of the public or customers of a utility.
    4. "Political advertising" means advertising for the purpose of influencing public opinion with respect to any legislative, executive, administrative, or electoral decision.

      Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 180 , § 4; 1967, No. 66 , § 1; 1977, No. 121 (Adj. Sess.).

History

Source. V.S. 1947, § 9737. P.L. § 6452. G.L. § 5689. 1912, No. 166 , § 1.

Reference in text. 2 V.S.A. § 251, referred to in subdiv. (c)(2), was repealed by 1989, No. 160 (Adj. Sess.), § 1, eff. April. 30, 1990.

2016. In subdiv. (c)(3), deleted ", but not limited to," following "including" in accordance with 2013, No. 5 , § 4.

Amendments--1977 (Adj. Sess.). Designated existing provisions of section as subsec. (a) and added subsecs. (b) and (c).

Amendments--1967. Inserted "cooperatives" preceding "and corporations" in the first sentence.

Amendments--1961. Inserted "or transmitting in this state electric energy generated from without the state" preceding "and distributing" in the first sentence and substituted "it" for "the same for general sale" thereafter.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

Cross References

Cross references. Corporations, partnerships, and associations, generally, see 11 V.S.A. § 42 et seq.

ANNOTATIONS

Analysis

1. Refusal of service.

There is nothing in this section that, directly or by implication, gives a public service corporation the right to refuse to furnish electric service to a customer in its territory because the customer refuses to pay a bill for some collateral service. Ashline v. Public Electric Light Co., 114 Vt. 301, 44 A.2d 164 (1945).

2. Municipal electric plant.

Municipality operating electric plant could not be compelled to furnish electricity to petitioner residing outside its limits unless it could devote its surplus to public use outside its limits and had done so. Valcour v. Village of Morrisville, 110 Vt. 93, 2 A.2d 312 (1938).

3. Rates.

Contract rate could not be changed by public service corporation simply by filing new schedules increasing its rate, but could be changed only by agreement of the parties, or by the Public Service Commission, on due notice and hearing. Rutland Railway Light & Power Co. v. Burditt Brothers, 94 Vt. 421, 111 A. 582 (1920).

Cited. Wendland v. Green Mountain Power Corp., 132 Vt. 320, 318 A.2d 668 (1974); Condosta v. Vermont Electric Cooperative, Inc., 400 F. Supp. 358 (D. Vt. 1975); Devost v. New Hampshire Electric Cooperative, Inc., 134 Vt. 15, 349 A.2d 896 (1975).

§ 2802. Sale and distribution; regulation.

A person, association, company, or corporation, its successors, grantees, lessees, trustees, or receivers by whatever court appointed, that generates electric energy within the State by means of water power, or transmits in this State electric energy generated from outside the State, and which, in the location, construction, or maintenance of its generating plant, including the acquiring of water rights, flowing or ponding rights, within the State or rights-of-way, or in the establishment or maintenance of its lines for transmission of electric energy, confiscates by the exercise of the right of eminent domain, either under the general law, or if a corporation, under the provisions of its charter or general law, or has by the provisions of its charter or general law power so to do, the property of any person or any right, title, interest, easement, or estate therein, or uses a public highway for carrying its transmission lines over or along the same or beneath the surface thereof, at all reasonable times when requested so to do, shall sell and furnish at a reasonable price so much or such an amount of such electric energy as the public convenience or necessity may require to any and all persons, companies, cooperatives, and corporations, municipal, public or private, in this State, desiring to use the same in the State for heating, lighting, or power purposes or for any other public use or purpose. Such sale and distribution shall be subject to such reasonable conditions and limitations in each case as the Public Utility Commission may prescribe upon petition brought and after due notice to all parties.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 180 , § 5; 1967, No. 66 , § 2.

History

Source. V.S. 1947, § 9738. P.L. § 6453. G.L. § 5690. 1912, No. 166 , § 2.

Amendments--1967. Inserted "cooperatives" preceding "and corporations" in the first sentence.

Amendments--1961. Inserted "or transmits in this state electric energy generated from without the State" following "water power" in the first sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "public service" in the second sentence.

ANNOTATIONS

Analysis

1. Purpose.

Legislature intended by this section to impress a dedication to reasonable public service on those generating electricity by water power and availing themselves of the power to take property and rights by eminent domain, or of the use of public highways for their transmission lines, and to restrict the power of eminent domain and such use of highways to those willing to assume a public service. Valcour v. Village of Morrisville, 108 Vt. 242, 184 A. 881 (1936).

2. Use of highway.

One using a public highway for carrying electrical transmission lines erected for private use prior to enactment of this section was not required by this section to furnish energy to anyone desiring it, unless he or she had already voluntarily dedicated himself or herself to public service in the territory through which such lines passed. Valcour v. Village of Morrisville, 108 Vt. 242, 184 A. 881 (1936).

The fact that transmission lines over which a municipal corporation distributes surplus electricity outside its limits cross a highway in one or two places does not bring such corporation within the provisions of this section with respect to such lines, whereby it would be obliged to furnish service to anyone desiring it for certain designated purposes, subject to conditions and limitations imposed by the public service commission [now Board]. Valcour v. Village of Morrisville, 108 Vt. 242, 184 A. 881 (1936).

Cited. Valcour v. Village of Morrisville, 110 Vt. 93, 2 A.2d 312 (1938).

§ 2803. Procedure; petition; recognizance.

When the parties cannot agree, the procedure for carrying out the provisions of sections 2801 and 2802 of this title shall be by petition brought by the person or party seeking to purchase and receive such electric energy against the party generating or transmitting the same to the Public Utility Commission, setting forth the purpose for which the energy is needed, the amount and such other facts as under the provisions of the section relied upon will entitle the petitioner to purchase and receive such electric energy from the petitionee, and praying that the petitionee may be called upon to answer such petition and for relief. The petitioner shall give sufficient security to the petitionee that he or she will prosecute his or her petition to effect, and pay all costs that may be awarded against him or her.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 180 , § 6.

History

Source. V.S. 1947, § 9739. P.L. § 6454. G.L. § 5691. 1912, No. 166 , § 3.

Revision note. In the second sentence, deleted "by way of recognizance as required in a writ of summons" to conform language to V.R.C.P. 3 and 4, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under 4 V.S.A. § 219.

Amendments--1961. Inserted "or transmitting" following "generating" in the first sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "public service" in the first sentence.

§ 2804. Citation; service; hearing.

The petition, with a citation attached, signed by the Chair or one of the other members of the Commission, or its clerk, shall require the petitionee to appear at a certain time and place within not less than 10 days after the date of such citation. The citation, with the petition, shall be served on the petitionee like a summons, not less than six days before the date he or she is required to appear. At the required time and place, the Commission shall hear the parties and their witnesses and such other evidence as they may offer, and determine the facts and thereupon make such order and decree as the law and justice require, which order shall be final unless appealed from. The Commission may adjourn such hearing from time to time and to another place in the county, and may adjourn it elsewhere if the parties consent.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1961, No. 180 , § 7.

History

Source. V.S. 1947, § 9740. P.L. § 6455. G.L. § 5692. 1912, No. 166 , § 4.

Revision note. In the second sentence, deleted "writ of" preceding "summons" to conform language to V.R.C.P. 4, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under 4 V.S.A. § 219.

Amendments--1961. Deleted "at some stated" preceding "place" and "in the county where he resides or where his generating plant is located" thereafter in the first sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

ANNOTATIONS

1. Finality of order.

An order of the Public Service Commission made pursuant to this section unappealed from and not stricken or set aside before the time for appeal has elapsed disposes of the matter on its merits and settles the rights of the parties on the issues made by the pleadings. Moore & Thompson Paper Co. v. Bellows Falls Hydro-Electric Corp., 111 Vt. 222, 13 A.2d 190 (1940).

§ 2805. Appeal; commissioners; hearing on report.

A party to the cause who feels himself or herself aggrieved by the final order or decree of the Commission shall have the right to take the cause to the Supreme Court. Such appeal shall be taken and the cause entered in the Supreme Court for the county where the petition and citation were returnable, in the manner and under the law and rules of procedure that govern such appeals from the Superior Court, and the Supreme Court shall have the same power therein that it has over appeals from such Superior Court. The Supreme Court, if cause is not shown to the contrary, on motion of either party, shall appoint three disinterested freeholders, residents of the county where the appeal is taken, unless otherwise agreed upon by the parties, to be commissioners, who shall appoint a time and place of hearing the matter set forth in the petition and give at least six days' notice thereof to the parties; and, after hearing the parties, the commissioners shall report in writing the facts found by them and such other findings as the Court may direct. Upon the return of the report, either party may object to its acceptance for good cause shown and the Court may set aside the report and order a rehearing; but if the Court accepts and establishes the same, the Court may reverse or affirm the orders or decrees made by the Public Utility Commission, and may remand the cause to the Commission with such mandate as law and equity require; and the Commission shall enter an order or decree in accordance with such mandate.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. V.S. 1947, § 9741. 1947, No. 202 , § 9873. P.L. § 6456. G.L. § 5693. 1912, No. 166 , § 5.

Reference in text. The language "for the county where the petition and citation were returnable" in the second sentence is obsolete. The Supreme Court no longer rides circuit.

Revision note. References to "court of chancery" in the second sentence changed to "superior court" pursuant to 1971, No. 185 (Adj. Sess.), § 236(d) and 1973, No. 193 (Adj. Sess.), § 3. See notes set out under 4 V.S.A. §§ 71 and 219.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

§ 2806. Penalty.

A person or corporation that violates a provision of sections 2801-2805 of this title shall be fined not more than $5,000.00.

History

Source. V.S. 1947, § 9742. P.L. § 6457. G.L. § 5694. 1912, No. 166 , § 6.

§§ 2807-2810. Repealed. 1969, No. 257 (Adj. Sess.), § 7.

History

Former §§ 2807-2810. Former § 2807, relating to duplication of service, was derived from 1957, No. 149 , § 1.

Former § 2808, relating to areas already served by an electric utility, was derived from 1957, No. 149 , § 3 and amended by 1959, No. 329 (Adj. Sess.), § 39(b); 1963, No. 133 , § 1. The subject matter is now covered by § 251 of this title.

Former § 2809, relating to extension of electric service, was derived from 1957, No. 149 , § 4 and amended by 1959, No. 329 (Adj. Sess.), § 39(b). The subject matter is now covered by § 251 of this title.

Former § 2810, relating to appeals and hearings, was derived from 1957, No. 149 , § 5 and amended by 1959, No. 329 (Adj. Sess.), § 39(b).

Annotations From Former § 2808

1. Property presently served.

The fact that one electric company supplied power to a village for its old well site did not preclude another company from providing service to a second and new well site, since the second site was not "property presently served" within the meaning of this section. In re Village of Cabot, 128 Vt. 604, 270 A.2d 158 (1970).

Annotations From Former § 2809

1. Existing service facilities.

The fact that one electric company was presently serving power to a village for its old well site did not preclude another company from being entitled to extend a line, and provide service, to a second and new well where its existing service facilities were nearer to the second well site than those of any other company. In re Village of Cabot, 128 Vt. 604, 270 A.2d 158 (1970).

"Existing service facilities" were to be determined as of the date upon which request for electric service was made, and the right of an electric company with existing service facilities closest to the site to be served to serve that site came into being and was established when another company, to which application had been made for service, recognized that its facilities were not the closest and that it thus was not entitled to supply the service. In re Village of Cabot, 128 Vt. 604, 270 A.2d 158 (1970).

§ 2811. Smart meters; customer rights; reports.

  1. Definitions.  As used in this section, the following terms shall have the following meanings:
    1. "Smart meter" means a wired smart meter or a wireless smart meter.
    2. "Wired smart meter" means an advanced metering infrastructure device using a fixed wire for two-way communication between the device and an electric company.
    3. "Wireless smart meter" means an advanced metering infrastructure device using radio or other wireless means for two-way communication between the device and an electric company.
  2. Customer rights.  Notwithstanding any law, order, or agreement to the contrary, an electric company may install a wireless smart meter on a customer's premises, provided the company:
    1. provides prior written notice to the customer indicating that the meter will use radio or other wireless means for two-way communication between the meter and the company and informing the customer of his or her rights under subdivisions (2) and (3) of this subsection;
    2. allows a customer to choose not to have a wireless smart meter installed, at no additional monthly or other charge; and
    3. allows a customer to require removal of a previously installed wireless smart meter for any reason and at an agreed-upon time, without incurring any charge for such removal.
  3. Reports.  On January 1, 2014 and again on January 1, 2016, the Commissioner of Public Service shall publish a report on the savings realized through the use of smart meters, as well as on the occurrence of any breaches to a company's cyber-security infrastructure. The reports shall be based on electric company data requested by and provided to the Commissioner of Public Service and shall be in a form and in a manner the Commissioner deems necessary to accomplish the purposes of this subsection. The reports shall be submitted to the Senate Committees on Finance and on Natural Resources and Energy and the House Committees on Commerce and Economic Development and on Energy and Technology.
  4. Health report.
    1. On or before January 15, 2013, the Commissioner of Health and the Commissioner of Public Service shall jointly submit a report to the Senate Committee on Finance and the House Committee on Commerce and Economic Development. The report shall include: an update of the Department of Health's 2012 report entitled "Radio Frequency Radiation and Health: Smart Meters"; a summary of the Department's activities monitoring the deployment of wireless smart meters in Vermont, including a representative sample of postdeployment radio frequency level testing; and recommendations relating to evidence-based surveillance on the potential health effects of wireless smart meters.
    2. The Commissioner of Public Service, in consultation with the Commissioner of Health, shall select and retain an independent expert, not an employee of the State, to perform the research and writing of the report identified in subdivision (1) of this subsection. The Commissioner of Public Service may allocate the costs of retaining the independent expert to electric utilities in accordance with sections 20 and 21 of this title (particular proceedings; personnel; assessment of costs).

      Added 2011, No. 170 (Adj. Sess.), § 15, eff. May 18, 2012; amended 2017, No. 113 (Adj. Sess.), § 174a.

History

Former § 2811, relating to definition of a public utility, was derived from 1957, No. 149 , § 2 and was previously repealed by 1969, No. 257 (Adj. Sess.), § 7.

Amendments--2017 (Adj. Sess.). Subsec. (c): Substituted "Economic Development and on Energy and Technology" for "Economic Development and on Natural Resources and Energy" in the last sentence.

Installed wireless smart meters. 2011, No. 170 (Adj. Sess.), § 15a provides: "If an electric company has installed a wireless smart meter as defined in 30 V.S.A. § 2811(a)(3) prior to the effective date of this act [May 18, 2012], the company shall provide notice of the installation to the applicable customers, and such notice shall include a statement of customer rights as described under 30 V.S.A. § 2811(b)."

§ 2812. Meter tests on customer's demand.

Upon demand of any of its customers, a public service company that sells gas or electricity shall test without charge the meters used to measure the gas or electricity sold to such customer, provided that the customer does not request such test more frequently than once in 12 months.

History

Source. V.S. 1947, § 9743. P.L. § 6458. 1933, No. 118 , § 1. 1931, No. 113 , § 1.

§ 2813. Time.

Such company shall test every service meter for correct connection and proper mechanical condition in its permanent position at the time of installation or within 60 days thereafter.

History

Source. V.S. 1947, § 9744. P.L. § 6459. 1931, No. 113 , § 2.

§ 2814. Cost; report.

When a customer requests a meter test within 12 months after the date of the installation or of the last previous test of his or her meter, he or she may be required by the company to make a deposit equal to the reasonable cost of such test. The amount so deposited with the company shall be refunded or credited to the customer if the meter has a positive average error, that is, is fast, in excess of four percent, otherwise such deposit may be retained by the company. A customer may be present when the company tests his or her meter or may select an expert or other representative to be present. A written report, giving the results of such test, shall be made to the customer by the company.

History

Source. V.S. 1947, § 9745. P.L. § 6460. 1931, No. 113 , § 3.

§ 2815. Inaccurate meters.

Such company shall not keep in service a gas or electric service meter that registers upon no load or that has an error in measurement in excess of four percent.

History

Source. V.S. 1947, § 9746. P.L. § 6461. 1933, No. 118 , § 2. 1931, No. 113 , § 4.

§ 2816. Civil penalty for violation of gas safety standards.

  1. Gas pipeline safety program.  Any person who violates any statute, rule, regulation, or order of the Public Utility Commission relating to safety standards or safety practices applicable to transportation of gas through gas pipeline facilities subject to the jurisdiction of the Public Utility Commission is subject to a civil penalty of not more than $200,000.00 for each violation for each day that the violation persists. However, the maximum civil penalty shall not exceed $2,000,000.00 for any related series of violations. The penalty may be imposed by the Commission after notice to the offending person of the alleged violations and opportunity for hearing.
  2. Any civil penalty may be compromised by the Public Utility Commission.  In determining the amount of the penalty, or the amount agreed upon in compromise, the appropriateness of the penalty to the size of the business of the person charged, the gravity of the violation, and the good faith of the person in attempting to achieve compliance, after notification of a violation, shall be considered. The amount of the penalty, when finally determined, or the amount agreed upon in compromise, may be deducted from any sums owing by the State to the person charged or may be recovered in a civil action based upon this section.

    Added 1969, No. 94 ; amended 1991, No. 90 ; 1999, No. 157 (Adj. Sess.), § 14; 2007, No. 145 (Adj. Sess.), § 6; 2013, No. 132 (Adj. Sess.), § 1, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Subsec. (a): Substituted "$200,000.00" for "$100,000.00" following "civil penalty of not more than" and "$2,000,000.00" for "$1,000,000.00" following "civil penalty shall not exceed".

Amendments--2007 (Adj. Sess.). Subsec. (a): Added catchline "Gas Pipeline Safety Program." at the beginning, added a comma following "regulation", inserted "safety" preceding "practices", substituted "$100,000.00" for "$10,000.00"; and substituted "$1,000,000.00" for "$500,000.00" in the second sentence.

Amendments--1999 (Adj. Sess.) Subsec. (a): Inserted "opportunity for" preceding "hearing" in the last sentence.

Amendments--1991. Subsec. (a): Inserted "transportation of gas through" following "applicable to", and substituted "subject to the jurisdiction of the Public Service Board" for "or the transportation of gas" following "facilities" and "$10,000.00" for "$1,000.00" in the first sentence and substituted "$500,000.00" for "$200,000.00" in the second sentence.

Gas pipeline safety rules; best practices. 2013, No. 132 (Adj. Sess.), § 2 provides: "The Public Service Board shall review and consider amending Board Rule 6.100 (Enforcement of Safety Regulations Pertaining to Intrastate Gas Pipelines and Transportation Facilities) to include additional measures or best practices, if any, that exceed the minimum federal safety standards, provided the Board determines such measures or practices are appropriate for Vermont."

CHAPTER 79. MUNICIPAL PLANTS

Sec.

History

Short title. 1941, No. 147 , § 1, provided: "This chapter shall be known as the 'General Municipal Plant Enabling Act'."

Severability of enactment. V.S. 1947, § 9770, derived from 1941, No. 147 , § 19, contained a separability provision applicable to this chapter.

Cross References

Cross references. Consolidation of municipal and cooperative districts, see § 4001 et seq. of this title.

Municipal water works, see 24 V.S.A. § 3301 et seq.

ANNOTATIONS

Analysis

1. Purpose.

This chapter was intended to allow municipalities to fulfill a public need for electric service at economic rates; although a necessary subordinate purpose of this chapter is to allow municipalities to sell surplus power to nonresidents at a profit, the profit motive was not its underlying purpose. In re Ball Mountain Dam Hydroelectric Project, 154 Vt. 189, 576 A.2d 124 (1990).

The purpose in enacting this chapter was to fulfill a need for electric service at economic rates, often in communities not served by private enterprise. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

The profit motive was not the underlying purpose in the enactment of this chapter; rather it was to fulfill a public need for electric services at economical rates, often in communities not served by private enterprise. Hastings v. Village of Stowe, Electric Dept., 125 Vt. 227, 214 A.2d 56 (1965).

2. Establishment .

The right and power to determine the establishment of a municipal electric utility are granted exclusively to the voters of that municipality, as long as the provisions of this chapter are duly complied with, and the Public Service Board is without jurisdiction either to review or deny such determination. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

3. Rates.

Once a town has established a municipal utility pursuant to this chapter, it is subject to determinations of the Public Service Board regarding just and fair rates. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

4. Procedure.

In an attempt by the Village of Derby Line to acquire Vermont Electric Cooperative's facilities serving the Village, the doctrine of laches precluded the electric company's motion to dismiss the proceedings relating to the Village's attempt to acquire the electric facilities on procedural grounds, where six years had elapsed between the time the Village voted in favor of acquiring the power plant and the time the electric company filed its motion to dismiss. In re Vermont Electric Cooperative, Inc., 165 Vt. 634, 687 A.2d 883 (mem.) (1994).

§ 2901. Definitions.

In this chapter, unless the context otherwise requires, the following words shall have the following meanings:

  1. "Commission" means the Public Utility Commission of this State.
  2. "Legal voter" means a person qualified to vote under the provisions of 17 V.S.A. § 2121 .
  3. "Municipal plant" means any plant or system owned and operated by any municipality for the manufacture, distribution, purchase, and sale of electricity or the manufacture, distribution, purchase, and sale of gas.
  4. "Municipality" means any city, town, or village within this State.
  5. "Utility" means any person or corporation engaged in the manufacture, distribution, and sale of gas and electricity in this State.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 2017, No. 113 (Adj. Sess.), § 175.

History

Source. V.S. 1947, § 9748. 1947, No. 202 , § 9880. 1941, No. 147 , § 2.

Reference in text. 24 V.S.A. § 701, referred to in subdiv. (2), was repealed by 1973, No. 172 (Adj. Sess.), § 15, eff. March 27, 1974. For present provisions, see 17 V.S.A. § 2121.

Revision note. Subdiv. designations added to conform section to V.S.A. style.

Amendments--2017 (Adj. Sess.). Inserted "means" in subdivs. (1) through (5), and substituted "17 V.S.A. § 2121" for "24 V.S.A. § 701" in subdiv. (2).

Amendments--1959 (Adj. Sess.). Subdiv. (1): Substituted "board" for "commission" following "public service".

§ 2902. Powers of municipalities.

  1. In accordance with this chapter, a municipality may buy and sell electric current for domestic use and for commercial purposes and construct, purchase or lease, and maintain and operate one or more plants for the manufacture, distribution, purchase, and sale of gas or electricity for the use of such municipality and for the use of the residents of such municipality and for such other customers outside such municipality as the Commission may approve unless otherwise provided for in this chapter.  For such purposes a municipality may purchase and hold in fee simple or otherwise any real or personal estate and any rights therein, including water rights and may do all other things necessary for carrying into effect the purposes of this chapter and may excavate and dig conduits and ditches in any highway or other land or place, and erect poles, place wires, and lay pipes for the transmission and distribution of electricity and gas, in such places as may be deemed necessary and proper and in all such respects such municipality shall have the same privileges and be subject to the same restrictions as are provided for public service corporations in chapters 71, 73, and 75 of this title.  Such municipality may change, enlarge, and extend the same from time to time and maintain the same, having due regard for the safety and welfare of its citizens and security of the public travel.
  2. The obligations of any municipal electric utility under any contract authorized by this section or other applicable law shall not be deemed to constitute an indebtedness or a lending of credit of the municipal electric utility, nor shall such obligations be included in computing the borrowing capacity of any such municipal electric utility.  These obligations of municipal electric utilities shall be treated as expenses of operating their electric plants, and shall constitute special obligations of such municipal electric utilities payable solely from the revenues and other moneys derived by them from their electric departments or systems.  The liability of these municipal electric utilities from other funds is limited to obligations undertaken by them to pay for the electric power and energy used by them.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 1989, No. 112 , § 3a, eff. June 22, 1989.

History

Source. V.S. 1947, § 9749. 1941, No. 147 , § 3.

Amendments--1989 Designated the existing provisions of the section as subsec. (a) and added subsec. (b).

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "may approve" in the first sentence.

ANNOTATIONS

1. Sale to retail venture.

This section requires municipalities to serve their own utility needs and those of its residents before it serves customers outside the municipality. In re Ball Mountain Dam Hydroelectric Project, 154 Vt. 189, 576 A.2d 124 (1990).

Approval of a power purchase agreement between union municipal district and Vermont Power Exchange (VPX) was properly denied by Public Service Board, where intention of union municipal district to sell electrical power through VPX to retail venture directly contravened provisions of this section. In re Ball Mountain Dam Hydroelectric Project, 154 Vt. 189, 576 A.2d 124 (1990).

Cited. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 2903. Authorization by voters; cities.

  1. A city may acquire or construct a plant:
    1. when proposed by a three-fifths vote of its legislative body, subject to the veto power of the mayor under the provisions of its charter; or
    2. when proposed by a petition signed by 10 percent of the voters of the city;

      provided that

    3. within one year from the date of the affirmative vote of the legislative body or the date of submission of the petition, three-fifths of the voters present and voting by Australian ballot at a regular, duly warned annual city meeting approve the acquisition or construction of the plant.
  2. At least 20 days before the annual meeting, the legislative body shall hold a public hearing on the issue of acquisition or construction, giving notice of the public hearing in the same manner as it is given for the annual meeting.  If the date of the affirmative vote of the legislative body or the date of submission of the petition too closely precedes the date of the annual meeting to permit the question to be duly warned at that meeting or to permit the duly warned public hearing before that meeting, the question may be decided at the next annual meeting without another proposal by the legislative body or by the voters.  In case the voters of the city fail to approve the proposal submitted to them, no similar vote shall be taken until the next annual city meeting.

    Amended 1979, No. 183 (Adj. Sess.), § 1.

History

Source. V.S. 1947, § 9750. 1941, No. 147 , § 4.

2016. Divided into subsecs. (a) and (b) for clarity.

Amendments--1979 (Adj. Sess.). Section amended generally.

§ 2904. Towns and villages.

A town or village may acquire or construct a municipal plant, when authorized by three-fifths of the legal voters present and voting by Australian ballot at any annual meeting duly warned. At least 20 days before the annual meeting, the legislative body shall hold a public hearing on the issue of acquisition or construction, giving notice of the public hearing in the same manner as it is given for the annual meeting. In case the voters of the town or village fail to approve the proposal submitted to them, no similar vote shall be taken until the next annual meeting.

Amended 1979, No. 183 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 9751. 1941, No. 147 , § 5.

Amendments--1979 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Cited. In re Central Vermont Public Service Corp., 135 Vt. 432, 378 A.2d 510 (1977); In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 2905. Indebtedness.

A municipality that has voted according to the provisions of this chapter to acquire or construct a municipal plant may incur debt for the purpose of establishing, purchasing, constructing, extending, or enlarging it, but subject to the provisions of law limiting municipal indebtedness. Nothing herein shall be construed to affect the rights of any municipality now or hereafter incurring debt under 24 V.S.A. § 1822 .

History

Source. V.S. 1947, § 9752. 1941, No. 147 , § 6.

Cross References

Cross references. Payment schedule for general obligation bonds, see 24 V.S.A. § 1759(b).

ANNOTATIONS

Cited. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 2906. Existing plants.

Within 30 days after the passage of the ratifying vote provided for in section 2903 of this title or the vote provided for in section 2904 of this title, the mayor of the city, the selectboard of the town, or the trustees of the village shall notify in writing any utility engaged, at the time of the vote required by such sections, in generating or distributing gas or electricity for sale in such municipality, of such vote and request such utility whether it elects to sell and at what price, in the manner hereinafter provided, that portion of its plant and property located within such municipality which is suitable for and used in connection with the business of such utility, and that portion, if any, lying outside such municipality, which such municipality proposes to purchase.

History

Source. V.S. 1947, § 9753. 1941, No. 147 , § 7.

2016. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72, and substituted "outside" for "without" preceding "such municipality" to conform to V.S.A. style.

ANNOTATIONS

1. Notice.

Action of selectboard in authorizing town attorney to communicate to operating utility that town voters had voted to construct a municipal electric plant was formal action, notice of which would not be considered binding on utility where action was taken at executive session rather than at open meeting. In re Central Vermont Public Service Corp., 135 Vt. 432, 378 A.2d 510 (1977).

Cited. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 2907. Utility to accept or reject offer to purchase.

The utility shall reply to such request by delivering its answer in writing to the mayor of the city, the selectboard of the town, or the trustees of the village, within 90 days of the receipt of such request. If the reply is in the negative or if the reply is not made within such period of 90 days as aforesaid, the utility thereby waives any right it may have had to require the purchase of its plant and property by the municipality. If the reply is in the affirmative, it shall, within 90 days, submit the price and terms which it is willing to accept for all such plant and property, together with a detailed schedule of all the plant and property it proposes to sell to such municipality. Such plant and property shall at all reasonable times thereafter be open to the examination of the authorities and experts of the municipality or any other persons or boards charged with the duty of determining the fair value of such property.

History

Source. V.S. 1947, § 9754. 1941, No. 147 , § 7.

2016 Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

ANNOTATIONS

Cited. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 2908. Agreement on price not binding unless ratified.

The mayor and council of a city, the selectboard of a town, or the trustees of a village may negotiate and agree with the utility upon the price to be paid for the plant and property. However, any agreement shall not be binding upon any municipality until ratified by three-fifths of the voters present and voting by Australian ballot at a duly warned annual or special meeting which is preceded by at least 20 days by a public hearing on ratification of the agreement. Notice of the public hearing shall be given in the same manner as it is given for the annual meeting. A ratifying vote shall be had within six months from the date of the filing of the reply provided in section 2907 of this title.

Amended 1979, No. 183 (Adj. Sess.), § 3.

History

Source. V.S. 1947, § 9755. 1941, No. 147 , § 7.

2016. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

Amendments--1979 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Cited. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 2909. Hearing before Commission on failure to agree.

If the municipality does not ratify such agreement for the purchase in the manner provided in section 2908 of this title or if the price cannot be agreed upon or if it cannot be agreed as to how much, if any, of such plant and property lying outside such municipality the public interest requires such municipality to purchase, either the municipality or the utility may petition the Commission for a determination of these questions. The Commission, after proper notice and hearing, shall decide the amount of just compensation and any other matters in dispute, and shall also, when required to fix the price to be paid for such plant and property, determine the amount of damages, if any, caused by the severance of the plant and property proposed to be purchased from the other plant and property of the utility. The Commission shall make its determinations on or before 12 months after the filing of the petition. The Commission may extend the time for determination an additional six months upon agreement of all of the parties or, absent such an agreement, upon a finding by the Commission, after notice and hearing, that such an extension is necessary to prevent injustice to one or more of the parties. From such determinations, there shall be the right of appeal to the Supreme Court on all matters involved as provided in chapter 1 of this title.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; 2003, No. 121 (Adj. Sess.), § 99, eff. June 8, 2004.

History

Source. V.S. 1947, § 9756. 1941, No. 147 , § 7.

Amendments--2003 (Adj. Sess.). Added the present third and fourth sentences.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "for a determination" in the first sentence and "after proper notice" in the second sentence.

ANNOTATIONS

Cited. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 2910. Taking utility property by eminent domain.

If the utility shall have replied in the negative or if it shall have failed to reply within the time prescribed in section 2907 of this title, the municipality, in the event that it shall have passed the votes required in sections 2903 and 2904 of this title, may take such private plant and property by the exercise of the right of eminent domain, paying therefor just compensation determined in the manner provided in section 2909 of this title, or, after the Commission upon proper notice and hearing has determined that it will promote the general good of the State so to do, may construct a municipal plant.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. V.S. 1947, § 9757. 1941, No. 147 , § 7.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "upon proper notice."

ANNOTATIONS

1. Constitutionality.

This section is not unconstitutional since the authority to take is limited to the plant and property owned by the utility located within the town's borders, providing power to the municipality, and the determination of necessity and of the extent of the taking has been made by the Legislature. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 2911. Effect of negative vote for acquisition of utility property.

Within 90 days of the final determination of the price to be paid for the plant and property, as well as the amount of the plant and property to be taken or acquired under the provisions of section 2909 or 2910 of this title, the municipality shall decide whether or not to take the plant or property at that price by a vote taken pursuant to procedures similar to those used in obtaining a ratifying vote as provided in section 2908 of this title. If that vote is in the negative, no other action under this chapter shall be had during the ensuing period of one year.

Amended 1979, No. 183 (Adj. Sess.). § 4.

History

Source. V.S. 1947, § 9758. 1941, No. 147 , § 7.

Amendments--1979 (Adj. Sess.). Substituted "taken pursuant to procedures similar to those used in obtaining a ratifying vote as" for "similar to the ratifying vote" preceding "provided" in the first sentence and "one year" for "two years" following "period of" at the end of the section and made minor stylistic changes throughout the section.

§ 2912. Operation in other municipalities.

A municipality, which has acquired the plant, property, or facilities of a utility in any other municipality in accordance with the provisions of sections 2906-2911 of this title, may thereafter operate therein as a public utility with the same rights and franchises that the owners of such outlying plant had prior to acquisition under the terms of this chapter. Such operation shall be subject to the same jurisdiction, control, and regulation by the Commission as would any other public utility so operating. If the outlying municipality shall itself vote to establish a municipal plant, all the provisions of this chapter shall be applicable.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. V.S. 1947, § 9759. 1941, No. 147 , § 8.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "regulation by the" in the second sentence.

ANNOTATIONS

Cited. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 2913. Extension into other municipalities.

After notice and public hearing, the Commission may authorize a municipality that has acquired or constructed and is operating a municipal plant to extend its mains or lines into an adjoining municipality in order to distribute and sell gas or electricity therein, provided that such outlying municipality is not then being supplied with gas or electricity by a municipal plant or by a utility or provided that the Commission finds that it will promote the general good of the State so to do. Such authorization shall be upon such terms and conditions and with such limitations and restrictions as the Commission finds will promote the general good of the State.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. V.S. 1947, § 9760. 1941, No. 147 , § 9.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

ANNOTATIONS

Cited. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 2914. Condemnation.

When it is necessary that a municipality that has voted to establish a municipal plant should acquire property within this State, or some easement or other limited right in such property in order that it may render adequate service to the public in the operation of its municipal plant, it may condemn such property or right in the manner prescribed for public service corporations in chapter 3 of this title.

History

Source. V.S. 1947, § 9761. 1941, No. 147 , § 10.

ANNOTATIONS

Cited. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 2915. Commissioners.

For the more convenient management of any such municipal plant, any such municipality may vest the construction, management, control, and direction of the same in a board of commissioners to consist of three or more citizens of such municipality, such commissioners to have such powers and duties relating to the construction, management, control, and direction thereof as the municipality may prescribe. Their term of office shall be for three years and until their successors are elected and qualified. The first board of commissioners may be chosen for terms of one, two, and three years, respectively, by the legal voters of the municipality at the same meeting or election at which the provisions of this chapter are accepted, or at any special meeting or election thereafter called for that purpose, and their successors shall be elected thereafter in manner or form as the city or town may determine, provided that the term of service of the commissioners first elected shall be designated at the time of their election.

History

Source. V.S. 1947, § 9762. 1941, No. 147 , § 11.

ANNOTATIONS

Cited. Hastings v. Village of Stowe, Electric Dept., 125 Vt. 227, 214 A.2d 56 (1965).

§ 2916. Appointment.

The commissioners may be appointed by the mayor and board of aldermen or city council or by the selectboard of the town or by the trustees of the village, if the municipality fails to elect or shall vote to authorize the mayor and board of aldermen or city council or selectboard or trustees to appoint. If a vacancy occurs, it may be filled by the legislative branch.

History

Source. V.S. 1947, § 9763. 1941, No. 147 , § 12.

2016. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 , § 72.

§ 2917. Compensation.

The compensation of the commissioners shall be fixed by the legislative body of the municipality. They shall be sworn to the faithful discharge of their duties. They shall annually organize by choosing one of their number as chair of their board. They shall appoint a clerk who shall record the same in his or her records. The commissioners shall fix the compensation of all officers and agents appointed by them.

History

Source. V.S. 1947, § 9764. 1941, No. 147 , § 13.

2016 Substituted "chair" for "chairman" in accordance with 2013, No. 161 , § 72.

ANNOTATIONS

1. Management expense.

This section does not justify an allowance for management expense where management is performed by the legislative body of the municipality without charge. Hastings v. Village of Stowe, Electric Dept., 125 Vt. 227, 214 A.2d 56 (1965).

§ 2918. Reports.

The commissioners shall annually, or when requested by the legislative body, make a report to the municipality, at the time other officers of the municipality report, of the condition of the plant financially and otherwise, showing the funds belonging to their department and the expenses and income thereof with such other facts and information as the voters should have, which report shall be published annually.

History

Source. V.S. 1947, § 9765. 1941, No. 147 , § 14.

§ 2919. Appropriations.

Any municipality having a municipal plant may appropriate money for the maintenance and operation of such plant, specifying that the same shall be taken from the receipts of the department. Where such appropriations are made, the treasurer of the municipality, in advance of the collection of such receipts, may pay bills on account of such appropriations, and any sum so advanced shall be repaid to the municipality from such receipts, when collected, and shall be applied as reimbursement to the municipality or to the payment of any temporary loan made by the municipality in anticipation of revenue of that year.

History

Source. V.S. 1947, § 9766. 1941, No. 147 , § 15.

§ 2920. Abandonment.

A municipality that has established a municipal plant shall not abandon by sale of such plant or otherwise the distribution of gas or electricity to its consumers until such sale or abandonment has been authorized in the manner and by the votes prescribed for the acquisition of such municipal plants by sections 2903 and 2904 of this title and until the Commission, after notice and a public hearing, has determined that the facilities for furnishing and distributing gas and electricity in the territory served by such plant will not thereby be diminished, and that such sale or abandonment and the terms thereof will promote the general good of the State.

Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.

History

Source. V.S. 1947, § 9767. 1941, No. 147 , § 16.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "after notice".

ANNOTATIONS

Cited. In re Town of Springfield, 143 Vt. 483, 469 A.2d 375 (1983).

§ 2921. Effect on special legislation.

All acts or parts of acts authorizing a particular municipality to construct or acquire or maintain or operate a municipal plant shall not be repealed by the provisions of this chapter.

History

Source. V.S. 1947, § 9768. 1941, No. 147 , § 17.

§ 2922. Other municipalities.

Notwithstanding any other provisions of this chapter, after any part of this chapter takes effect, no municipality operating an electric plant or distribution system, whether under authorization of this chapter or any other general law or special act, shall extend its service lines into any area outside its borders where electric service is otherwise then available, except with the consent of the municipality in which such outside area is located. Such consent shall be given only after application therefor to the legislative body of the town or city in which it is sought to extend the lines. Such body shall fix a time and place for hearing on such application and post a notice thereof in the office of the clerk of the town or city, as the case may be, at least 30 days before such time fixed for hearing. At such hearing or some adjourned session thereof such legislative body shall determine whether such consent is in the public interest, and shall issue or withhold its certificate accordingly. However, such legislative body shall not act with reference to the issuance of such certificate contrary to the action, if any, of the legal voters of such municipality, taken at any annual or special meeting thereof duly warned.

History

Source. V.S. 1947, § 9769. 1941, No. 147 , § 18.

§ 2923. Rate of return.

  1. In determining rates charged by a municipal plant, the Public Utility Commission shall allow, in addition to all other factors, a reasonable rate of return on capital investments. The return shall be commensurate with that permitted private utilities having corresponding risks and equivalent to that necessary for private utilities to assure confidence in the financial integrity of the enterprise so as to maintain its credit and attract new capital.
  2. Revenue received as a return on capital investment shall be retained by the municipal utility and held in a contingent fund for use by it in that or any subsequent fiscal year.

    Added 1973, No. 186 (Adj. Sess.), § 1, eff. March 30, 1974.

ANNOTATIONS

Analysis

1. Generally.

The rate of return allowed a public utility should be reasonably sufficient to assure confidence in the financial soundness of the utility and should be adequate, under efficient and economical management, to maintain and support its credit and enable it to raise the money necessary for the proper discharge of its public duties. In re Village of Hardwick Electric Dept., 143 Vt. 437, 466 A.2d 1180 (1983).

2. Reasonableness.

A rate of return of 5.94% was a reasonable rate of return on capital investments of a municipally owned electric system. In re Burlington Electric Light Dept., 135 Vt. 114, 373 A.2d 514 (1977).

3. Capital investments.

The Public Service Board, in proceeding for a utility rate increase for municipally owned electric utility, did not err when it allowed a rate of return on equity by treating retained earnings as capital investment, since subsection (a) of this section authorized a reasonable rate of return on capital investments and did not limit generation of a rate of return to pay bonded debt only. In re Village of Stowe Electric Dept., 134 Vt. 559, 367 A.2d 1056 (1976).

4. Private utilities.

Determination by the Public Service Board of rates to be charged by municipal electric department did not violate provision of subsection (a) of this section requiring the Board to allow municipal utilities a rate of return commensurate with private utilities having corresponding risks where the rate allowed was based on the utility's interest earned ratio rather than on its retained earnings, since the municipal utility did not have the same financial risks as a private utility and the rate allowed was sufficient to assure confidence in the financial soundness of the utility. In re Village of Hardwick Electric Dept., 143 Vt. 437, 466 A.2d 1180 (1983).

5. Profits.

A public utility is entitled to such rates as will permit it to earn a return on the value of the property it employs for the convenience of the public equal to that generally being made at the same time and in the same general part of the country on investments in other business undertakings that are attended by corresponding risks and uncertainties, but it has no constitutional right to profits such as are realized or anticipated in highly profitable enterprises or speculative ventures. In re Village of Hardwick Electric Dept., 143 Vt. 437, 466 A.2d 1180 (1983).

§ 2924. Approval by voters of municipality.

  1. With respect to matters not subject to section 248 of this title, a municipal department established under this chapter or local charter shall obtain the approval of the voters of the municipality before in any way:
    1. purchasing electric capacity or energy from outside the State:
      1. for a period exceeding five years, that represents more than three percent of its historic peak demand, unless the purchase is from a plant that produces electricity from renewable energy; or
      2. for a period exceeding 10 years, that represents more than 10 percent of its historic peak demand, if the purchase is from a plant that produces electricity from renewable energy;
    2. investing in an electric generation or transmission facility located outside this State; or
    3. beginning site preparation for or construction of an electric generation facility within the State, or an electric transmission facility within the State that is designed for immediate or eventual operation at any voltage or exercising the right of eminent domain in connection with site preparation for or construction of any such transmission or generation facility, except for the replacement of existing facilities with equivalent facilities in the usual course of business.
  2. A municipal department shall obtain the approval required by subsection (a) of this section by a vote of a majority of the voters of the municipality voting upon the question at a duly warned annual or special meeting to be held for that purpose. Prior to the meeting, the municipal department may provide to the voters an assessment of any risks and benefits of the proposed action.
  3. In this section, "plant" and "renewable energy" have the same meaning as in section 8002 of this title.

    Added 1985, No. 48 , § 5; amended 2015, No. 130 (Adj. Sess.), § 1.

History

Amendments--2015 (Adj. Sess.). Section amended generally.

§ 2925. Conservation and load management.

  1. Municipal electric utilities may expend their funds, including the proceeds of their notes, bonds, or other obligations, for the purposes of modifying demand for electric capacity or energy through conservation or load management by participation in such facilities, projects, and programs as the legislative body or other governing body of the municipal electric utility determines will effectively accomplish such purposes.  Such facilities, projects, and programs may include providing or financing facilities or programs for conservation or load management, which may be (i) owned or operated by the municipal electric utility or by others, (ii) leased or licensed by the municipal electric utility to others, or financed by loans by the municipal electric utility to others, in either case on such terms and conditions as the legislative body or other governing body of the municipal electric utility may determine.
  2. A municipal electric utility may issue its notes, bonds, or other obligations pursuant to any statutory authority conferring such power for carrying out the purposes of this section.

    Added 1989, No. 112 , § 5, eff. June 22, 1989.

History

2016. In subsec. (a), deleted "without limitation" following "including" and deleted ", but shall not be limited to," following "may include" in accordance with 2013, No. 5 , § 4.

CHAPTER 81. ELECTRIC COOPERATIVES

Sec.

History

Short title. V.S. 1947, § 9771, derived from 1943, No. 116 , § 1, provided that this chapter may be known as the "Electric Cooperative Act."

Severability of enactment. V.S. 1947, § 9813, derived from 1943, No. 116 , § 33, contained a separability provision applicable to this chapter.

Cross References

Cross references. Consolidation of municipal and cooperative districts, see § 4001 et seq. of this title.

Cooperatives, generally, see 11 V.S.A. § 981 et seq.

§ 3001. Definitions.

As used in this chapter, unless the context otherwise requires, the following words shall have the following meanings:

  1. "Cable television" means cable television system as defined in chapter 13 of this title.
  2. "Community development" means the economic and social development of communities through commercial and industrial development, creating job opportunities and training for rural residents, and providing better housing, health, educational, recreational, and other rural community facilities.
  3. "Cooperative" means a corporation organized under this chapter or which becomes subject to this chapter in the manner hereinafter provided.
  4. "Energy" includes electrical, propane, natural gas, fossil fuels, and other forms of energy.
  5. "Interactive media" means communications media that is regularly used to transmit information in two directions.
  6. "Internet" means collectively the computer and telecommunications facilities, including equipment and operating software, that comprise the interconnected network of networks that employ the transmission control protocol/Internet protocol, or any predecessor or successor protocols to such protocol, to communicate information of any kind, whether by wire or wireless means.
  7. "Internet access" means service connecting customers to the Internet.
  8. "Person" means a natural person, firm, association, corporation, business trust, partnership, federal agency, state or political subdivision or agency thereof, or a body politic or other entity.
  9. "Telecommunications" means one or more of the following as defined in chapter 88 of this title:
    1. basic telecommunications service;
    2. private network;
    3. public switched network;
    4. telecommunications service;
    5. telecommunications service provider.

      Amended 1999, No. 143 (Adj. Sess.), § 1.

History

Source. V.S. 1947, § 9772. 1947, No. 202 , § 9904. 1943, No. 116 , § 3.

Revision note. Subdiv. designations added to conform section to V.S.A. style.

Amendments--1999 (Adj. Sess.). Section amended generally.

§ 3001a. Purpose.

Cooperatives may be organized under this chapter for the purpose of creating or supplying energy, cable television, telecommunications, interactive media, and Internet access and facilitating and extending the use thereof, and in addition, any other lawful business not inconsistent with this chapter that utilizes the electric distribution facilities of the cooperative.

Added 1999, No. 143 (Adj. Sess.), § 2.

§ 3002. Powers.

A cooperative shall have power:

  1. To sue and be sued in its corporate name.
  2. To have perpetual existence.
  3. To adopt a corporate seal and alter the same.
  4. To generate, manufacture, purchase, acquire, accumulate, and transmit electric energy; and to distribute, sell, supply, and dispose of energy, cable television, telecommunications, interactive media, and Internet access to its members, to governmental agencies and political subdivisions; provided, however, that in the generation of electric energy by water power, a cooperative shall comply with the provisions of 10 V.S.A. §§ 1081-1099 , relating to the construction and maintenance of dams and, provided further, that a cooperative doing any activity governed by this title shall be regulated hereunder for that activity.
  5. To assist persons to whom electric energy is or will be supplied by the cooperative in wiring their premises and in acquiring and installing, in compliance with all applicable codes, electrical and plumbing appliances, equipment, fixtures, and apparatus by the financing thereof or otherwise, and in connection therewith to wire or cause to be wired, such premises and to purchase, acquire, lease as lessor or lessee, sell, distribute, install, and repair such electric and plumbing appliances, equipment, fixtures, and apparatus with the intention that members of the cooperative make the most efficient use of energy.
  6. To work cooperatively with governmental entities or private sector institutions, or a combination of both, for purposes of economic or community development, to benefit cooperative members in their communities.
  7. To construct, purchase, lease as lessee or lessor, or otherwise acquire, and to equip, maintain, and operate; and to sell, assign, convey, mortgage, pledge, or otherwise dispose of or encumber electric transmission and distribution lines or systems, electric generating plants, electric cold storage or processing plants, lands, buildings, structures, dams, plants, equipment, and any other real or personal property tangible or intangible, which shall be deemed necessary, convenient, or appropriate to accomplish the purpose for which the cooperative is organized. However, in the generation of electric energy by water power, a cooperative shall comply with the provisions of 10 V.S.A. §§ 1081-1099 , relating to the construction and maintenance of dams.
  8. To purchase, lease as lessee, or otherwise acquire and to use and exercise and to sell, assign, convey, mortgage, pledge, or otherwise dispose of or encumber, franchises, rights, privileges, licenses, and easements.
  9. To borrow money and otherwise contract indebtedness and to issue notes, bonds, and other evidences of indebtedness; and to secure the payment thereof by mortgage, pledge, or deed of trust of, or other encumbrance upon, any or all of its then owned or after-acquired real or personal property, assets, franchises, revenues, or income.
  10. To construct, maintain, and operate electric transmission and distribution lines along, upon, under, and across publicly owned land and public thoroughfares, including all roads, highways, streets, alleys, bridges, and causeways in the manner provided by chapters 71, 73, and 75 of this title.
  11. To become a member of one or more other cooperatives formed under this chapter or under the laws of another state or the District of Columbia, to own all or part-ownership interest in a domestic or foreign corporation, and to hold all or part-ownership in a partnership, joint venture, or other entity, provided that such stock or other ownership interest shall be limited to entities with business purposes or operations which are consistent with the purposes set out in section 3001a of this title for which a cooperative may be organized and which will provide products or services to members of the cooperative.
  12. To conduct its business and exercise its powers within or outside this State.
  13. To adopt, amend, and repeal bylaws.
  14. To do and perform any other acts and things and to have and exercise any other powers that may be necessary or appropriate to accomplish the purpose for which the cooperative is organized.
  15. For purposes of providing electric power, to condemn property within the State, or easements or other limited rights therein, in the manner provided for public service corporations by sections 111-124 of this title, when it is necessary in order that it may render adequate electric service.

    Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961; amended 1999, No. 143 (Adj. Sess.), § 3.

History

Source. 1955, No. 208 . V.S. 1947, § 9773. 1947, No. 202 , § 9905. 1943, No. 116 , § 4.

Reference in text. 10 V.S.A. § 1088, referred to in subdivs. (4) and (7), was repealed by 1975, No. 179 (Adj. Sess.), § 6.

10 V.S.A. §§ 1091-1094 and 1096, referred to in subdivs. (4) and (7), were repealed by 1981, No. 242 (Adj. Sess.), § 18.

2016. In subdiv. (10), deleted ", without limitation," following "including" in accordance with 2013, No. 5 , § 4.

Revision note - References to "sections 701-718" of Title 10 in subdivs. (4) and (7) changed to "sections 1081-1099" to conform references to renumbering of such sections.

Reference to "sections 110-123" of this title in subdiv. (15) changed to "sections 111-124" to conform reference to renumbering of such sections.

Amendments--1999 (Adj. Sess.). Subdiv. (4): Amended generally.

Subdiv. (5): Inserted "in compliance with all applicable codes" following "and installing" and added "with the intention that members of the cooperative make the most efficient use of energy" at the end of the paragraph.

Subdiv. (6): Amended generally.

Subdiv. (11): Amended generally.

Subdiv. (15): Substituted "For purposes of providing electric power, to condemn" for "To condemn" and "adequate electric service" for "adequate service to the public in the conduct of its business".

Amendments--1959 (Adj. Sess.). Subdiv. (4): Substituted "board" for "commission" following "public service".

ANNOTATIONS

Cited. 21 Main Street Limited Partnership v. Vermont Electric Cooperative, Inc., 139 Vt. 119, 424 A.2d 1074 (1980); Vermont Department of Public Service v. Massachusetts Municipal Wholesale Electric Co., 151 Vt. 73, 558 A.2d 215 (1988).

§ 3002a. Obligations treated as expenses.

The obligations of any cooperative under any contract authorized under section 3002 of this title shall not be deemed to constitute an indebtedness or a lending of credit of the cooperative, but shall be treated as expenses of operating an electric plant.

Added 1989, No. 112 , § 3b, eff. June 22, 1989.

§ 3003. Name.

The name of a cooperative governed by this chapter shall include the words "energy" or a word designating any specific form of energy such as "electric," "propane," or "natural gas" and "cooperative" and the abbreviation "inc." unless, in an affidavit made by its president or vice president and filed with the Secretary of State, or in an affidavit made by a person signing articles of incorporation, consolidation, merger, or conversion, which relate to such cooperative and filed, together with such articles, with the Secretary of State, it shall appear that the cooperative desires to do business in another state and is or would be precluded therefrom by reason of the inclusion of such words or either thereof in its name. The name of a cooperative shall be distinct from the name of any other cooperative or corporation organized under the laws of, or authorized to do business in, this State.

Amended 1999, No. 143 (Adj. Sess.), § 4.

History

Source. V.S. 1947, § 9774. 1943, No. 116 , § 5.

Amendments--1999 (Adj. Sess.). Inserted "governed by this chapter" following "cooperative" and substituted "'energy' or a word designating any specific form of energy such as 'electric', 'propane' or 'natural gas'" for "'electric'" following "words" and deleted the third sentence.

ANNOTATIONS

1. Existing corporations.

Corporation organized prior to the enactment of this chapter that had in its name the words "electric" and "cooperative" but was not subject to the provisions of this chapter had to change its title so that the words in its name would not conflict with the requirements of this section. 1944-46 Op. Atty. Gen. 201.

§ 3004. Organization, members.

Five or more natural persons, a majority of whom are residents of this State, or two or more cooperatives, may organize a cooperative in the manner hereinafter provided.

History

Source. V.S. 1947, § 9775. 1943, No. 116 , § 6.

§ 3005. Articles of incorporation, contents.

Articles of incorporation of a cooperative shall recite that they are executed pursuant to this chapter and shall state: (1) the name of the cooperative; (2) the address of its principal office; (3) the names and addresses of the incorporators; and (4) the names and addresses of its directors; and may contain provisions not inconsistent with this chapter deemed necessary or advisable for the conduct of its business and not repugnant to the constitution or laws of this State. Such articles shall be signed by each incorporator and acknowledged by at least two of the incorporators, or on their behalf, if they are cooperatives. The purposes of the cooperative shall be set forth in the articles of incorporation, but it is not necessary to set forth its corporate powers.

Amended 1999, No. 143 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 9776. 1943, No. 116 , § 7.

Amendments--1999 (Adj. Sess.). Substituted "its directors" for "its trustees" in the first sentence and rewrote the third sentence.

§ 3006. Bylaws.

The board of directors shall adopt bylaws of a cooperative to be adopted following an incorporation, conversion, merger, or consolidation. Thereafter the members shall adopt, amend, or repeal the bylaws pursuant to the provisions thereof but in no case by the vote of less than a majority of those members voting thereon at a meeting of the members. The bylaws shall set forth the rights and duties of members and directors and may contain other provisions for the regulation and management of the affairs of the cooperative not inconsistent with this chapter or with its articles of incorporation.

Amended 1959, No. 165 ; 1999, No. 143 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 9777. 1943, No. 116 , § 8.

Amendments--1999 (Adj. Sess.). Substituted "directors" for "trustees" in the first and third sentences.

Amendments--1959. Substituted "pursuant to the provisions thereof but in no case by the vote of less than" for "by the affirmative vote of" preceding "a majority" in the second sentence.

§ 3007. Members, qualifications.

Each incorporator of a cooperative shall be a member thereof, but no other person may become a member thereof unless such other person uses electric energy or other services, goods, or products furnished by the cooperative when they are made available through its electric distribution facilities, or a person may become a member by purchasing and paying the cooperative for renewable energy certificates or other environmental attributes associated with the generation of electricity. A member of a cooperative who ceases to use electric energy shall cease to be a member if he or she does not use electric energy supplied by the cooperative within six months after it is made available, or if electric energy is not made available by the cooperative within two years after he or she becomes a member or some lesser period as the bylaws of the cooperative may provide. Two or more owners or occupants of property served by a cooperative may hold a joint membership in a cooperative. Membership in a cooperative shall not be transferable, except as provided by the bylaws. The bylaws may prescribe additional qualifications and limitations in respect to membership.

Amended 1999, No. 143 (Adj. Sess.), § 7; amended 2005, No. 61 , § 14.

History

Source. V.S. 1947, § 9778. 1943, No. 116 , § 9.

Amendments--2005 Made a minor change in punctuation and added ", or a person may become a member by purchasing and paying the cooperative for renewable energy certificates or other environmental attributes associated with the generation of electricity" in the first sentence.

Amendments--1999 (Adj. Sess.). Section amended generally.

§ 3008. Meetings.

An annual meeting of the members of a cooperative shall be held at such time and place as shall be provided in the bylaws. Special meetings of the members may be called by the president, by the board of directors, by three directors, or by not less than 10 percent of the members. All meetings of members shall be called at and held in some convenient public place in this State.

Amended 1999, No. 143 (Adj. Sess.), § 8.

History

Source. V.S. 1947, § 9779. 1943, No. 116 , § 10.

Amendments--1999 (Adj. Sess.). Substituted "directors" for "trustees" in two places in the second sentence.

§ 3009. Notice of meeting.

Except as otherwise provided in this chapter, written or printed notice stating the time and place of each meeting of the members, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given to each member, either personally or by mail, not less than 10 nor more than 25 days before the date of the meeting. If mailed, such notice shall be deemed to be given when deposited in the U.S. mail with postage prepaid addressed to the member at his or her address as it appears on the records of the cooperative.

History

Source. V.S. 1947, § 9780. 1943, No. 116 , § 10.

§ 3010. Members necessary for quorum.

Unless the bylaws prescribe the presence of a greater percentage or greater number of members for a quorum, a quorum for the transaction of business at all meetings of the members of a cooperative having not more than 1,000 members, shall be 10 percent of all members, and of a cooperative having more than 1,000 members, shall be 100 members. For the purpose of determining the presence of a quorum under this section, all members shall be counted who are either present in person or who vote on business transacted at the meeting in a manner allowed under section 3011 of this title. If less than a quorum is present at a meeting, a majority of those present in person may adjourn the meeting from time to time without further notice but no business may validly be enacted at any meeting without the presence of a quorum.

Amended 1999, No. 143 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 9781. 1943, No. 116 , § 10.

Amendments--1999 (Adj. Sess.). Inserted "greater" following "greater percentage or", substituted "ten percent" for "five percent", deleted "present in person" following "all members", and substituted "shall be 100 members" for "shall be fifty members, present in person" in the first sentence, added the second sentence and "but no business may validly be enacted at any meeting without the presence of a quorum" following "notice" in the present third sentence.

§ 3011. Voting.

Each member shall be entitled to one vote on each matter submitted to a vote at a meeting of the members. Voting shall be in person, but if the bylaws so provide, may also be by proxy, by mail, telephonically, or electronically. If the bylaws provide for voting by proxy, by mail, telephonically, or electronically, they shall also prescribe the conditions under which such voting shall be permitted. No person shall vote as proxy for more than three members at any meeting. If the bylaws of a cooperative provide for voting by proxy, by mail, telephonically, or electronically, such vote shall have full force and effect as if voted in person by a member at a meeting of the members in accordance with the provisions of the bylaws and as specifically referred to under this title and chapter.

Amended 1975, No. 107 ; 1999, No. 143 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 9782. 1943, No. 116 , § 10.

Amendments--1999 (Adj. Sess.). Substituted "by proxy, by mail, telephonically, or electronically" for "by proxy or by mail" in the second through fourth sentences and deleted the fifth sentence.

Amendments--1975. Inserted "or by mail" following "proxy" in the second and third sentences and added the fifth and sixth sentences.

§ 3012. Notice, waiver.

A person entitled to notice of a meeting may waive such notice in writing either before or after such meeting. If such person shall attend such meeting, such attendance shall constitute a waiver of notice of such meeting, unless such person participates therein solely to object to the transaction of any business because the meeting has not been legally called or convened.

History

Source. V.S. 1947, § 9783. 1943, No. 116 , § 11.

§ 3013. Directors, qualifications.

The business of a cooperative shall be managed by a board of not less than five directors, each of whom shall be a member of the cooperative or of another cooperative which is a member thereof, shall not be an employee of the cooperative, and shall reside in this State. The bylaws shall prescribe the number of directors, their qualifications, other than those prescribed in this chapter, the manner of holding meetings of the board of directors and of electing successors to directors who shall resign, die, or otherwise be incapable of acting. The bylaws may also provide for the removal of directors from office and for the election of their successors. Directors as such may not receive any salary for their services, but by resolution of the board of directors a fixed sum and expenses of attendance may be allowed for attendance at each meeting of the board of directors, or a committee thereof, or other customary activities necessary to carry out the duties of a director. The board of directors may exercise all of the powers of a cooperative not conferred upon the members by this chapter or its articles of incorporation or bylaws.

Amended 1999, No. 143 (Adj. Sess.), § 11.

History

Source. V.S. 1947, § 9784. 1943, No. 116 , § 12.

Amendments--1999 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Cited. Vermont Department of Public Service v. Massachusetts Municipal Wholesale Electric Co., 151 Vt. 73, 558 A.2d 215 (1988).

§ 3014. Election and term of office.

  1. The bylaws of a cooperative shall determine the method of election and term of office of the directors.
  2. Existing bylaws shall govern until duly amended. Those cooperatives which have in the past in compliance with their bylaws elected their directors to serve for staggered terms of three or four years may continue the practice.

    Amended 1975, No. 108 , § 1, eff. April 30, 1975; 1999, No. 143 (Adj. Sess.), § 12.

History

Source. V.S. 1947, § 9785. 1943, No. 116 , § 12.

Amendments--1999 (Adj. Sess.). Substituted "directors" for "trustees" in subsecs. (a) and (b).

Amendments--1975. Section amended generally.

ANNOTATIONS

Cited. In re Bloch, 133 Vt. 326, 340 A.2d 51 (1975).

§ 3015. Repealed. 1975, No. 108, § 2, eff. April 30, 1975.

History

Former § 3015. Former § 3015, relating to election of successors and quorum, was derived from V.S. 1947, § 9786; 1943, No. 116 , § 12.

§ 3016. Districts.

The bylaws may provide for the division of the territory served or to be served by a cooperative into two or more districts for any purpose, without limitation, the nomination and election of trustees and the election and functioning of district delegates. In such case the bylaws shall prescribe the boundaries of the districts, the manner of establishing and changing such boundaries, and the manner in which such districts shall function.

Amended 1999, No. 143 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 9787. 1943, No. 116 , § 13.

Amendments--1999 (Adj. Sess.). Deleted the third sentence.

§ 3017. Officers, duties.

The officers of a cooperative shall consist of a president, vice president, secretary, and treasurer, who shall be elected annually by and from the board of directors. When a person holding office ceases to be a director, he or she shall cease to hold such office. The offices of secretary and treasurer may be held by the same person. A vacancy in the office of secretary may be filled by the board of directors, and the person so elected shall serve until his or her successor is elected. When a cooperative neglects for six months to appoint and have a clerk, it shall forfeit $50.00 to the person injured to be recovered in an action on this statute. The secretary shall record all votes and proceedings of the members and directors or executive committee thereof. He or she shall have the custody of the corporate seal and of the corporate records and shall keep such records within this State. He or she shall keep a book containing a record of the names of the members, the date of their membership and of others served by the cooperative, and of the places of residence of each, which book shall always be open to the inspection of members. He or she shall procure and file in the office of the clerk of the town where the principal office is located and also keep on file in his or her own office certified copies of all papers required by law or by this chapter to be filed with the Secretary of State. The board of directors may also elect or appoint such other officers, agents, or employees as it deems necessary or advisable and shall prescribe their powers and duties. An officer may be removed from office and his or her successor elected in the manner prescribed by the bylaws.

Amended 1999, No. 143 (Adj. Sess.), § 14.

History

Source. V.S. 1947, § 9788. 1943, No. 116 , § 14.

Revision note. Deleted "of tort" following "action" in the sixth sentence to conform reference to V.R.C.P. 2 pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under 4 V.S.A. § 219.

Amendments--1999 (Adj. Sess.). Substituted "secretary" for "clerk" and "directors" for "trustees" wherever they appeared throughout the section, deleted the former second sentence, substituted "director" for trustee" in the present second sentence, inserted "or she" following "he" and "or her" following "his" throughout the section.

§ 3018. Amendment of articles.

A cooperative may amend its articles of incorporation by complying with the following requirements: The proposed amendment shall be presented to a meeting of the members, the notice of which shall set forth or have attached thereto the proposed amendment. If the proposed amendment, with changes, is approved by the affirmative vote of not less than two-thirds of those members voting thereon at such meeting, a certificate of amendment shall be executed and acknowledged on behalf of the cooperative by its president or vice president and its seal shall be affixed thereto and attested by its secretary. The certificate of amendment shall recite that it is executed pursuant to this chapter and shall state: (1) the name of the cooperative; (2) the address of its principal office; and (3) the amendment to its articles of incorporation. The president or vice president executing such certificate of amendment shall make and annex thereto an affidavit stating that the provisions of this section in respect of the amendment set forth in such articles were duly complied with.

Amended 1999, No. 143 (Adj. Sess.), § 15.

History

Source. V.S. 1947, § 9789. 1943, No. 116 , § 15.

Amendments--1999 (Adj. Sess.). Substituted "secretary" for "clerk" following "attested by its" in the third sentence.

§ 3019. Location of office.

Upon authorization of its board of trustees or its members, a cooperative may change the location of its principal office by filing in the office of the Secretary of State a certificate reciting such change of principal office, executed and acknowledged by its president or vice president under its seal attested by its clerk.

History

Source. V.S. 1947, § 9790. 1943, No. 116 , § 16.

§ 3020. Consolidation.

Two or more cooperatives licensed in this State under this law, each of which is hereinafter designated a "consolidating cooperative," may consolidate into a new cooperative, hereinafter designated the "new cooperative," by complying with the following requirements:

  1. The proposition for the consolidation of the consolidating cooperatives into the new cooperative and proposed articles of consolidation to effect the same shall be submitted to a meeting of the members of each consolidating cooperative, the notice of which shall have attached thereto a copy of the proposed articles of consolidation.
  2. If the proposed consolidation and the proposed articles of consolidation, with amendments, are approved by the affirmative vote of not less than two-thirds of the members of each consolidating cooperative voting thereon at each such meeting, articles of consolidation in the form approved shall be executed and acknowledged on behalf of each consolidating cooperative by its president or vice president and its seal shall be affixed thereto and attested by its secretary. The articles of consolidation shall recite that they are executed pursuant to this chapter and shall state: (A) the name of each consolidating cooperative and the address of its principal office; (B) the name of the new cooperative and the address of its principal office; (C) a statement that each consolidating cooperative agrees to the consolidation; (D) the names and addresses of the directors of the new cooperative; and (E) the terms and conditions of the consolidation and the mode of carrying the same into effect, including the manner in which members of the consolidating cooperative may or shall become members of the new cooperative; and may contain provisions not inconsistent with law or this chapter deemed necessary or advisable for the conduct of the business of the new cooperative. The president or vice president of each consolidating cooperative executing such articles of consolidation shall make and annex thereto an affidavit stating that the provisions of this section in respect of such articles were duly complied with by such cooperative.

    Amended 1999, No. 143 (Adj. Sess.), § 16.

History

Source. V.S. 1947, § 9791. 1943, No. 116 , § 17.

Amendments--1999 (Adj. Sess.). Subdiv. (2): Substituted "its secretary" for "its clerk" in the first sentence" and "the directors" for "the trustees" in item (D).

§ 3021. Merger, requirements.

One or more cooperatives, each of which is hereinafter designated a "merging cooperative," may merge into another cooperative, hereinafter designated the "surviving cooperative," by complying with the following requirements:

  1. The proposition for the merger of the merging cooperatives into the surviving cooperative and proposed articles of merger to give effect thereto shall be submitted to a meeting of the members of each merging cooperative and of the surviving cooperative, the notice of which shall have attached thereto a copy of the proposed articles of merger.
  2. If the proposed merger and the proposed articles of merger, with amendments, are approved by the affirmative vote of not less than two-thirds of those members of each cooperative voting thereon at each such meeting, articles of merger in the form approved shall be executed and acknowledged on behalf of each such cooperative by its president or vice president and its seal shall be affixed thereto and attested by its secretary. The articles of merger shall recite that they are executed pursuant to this chapter and shall state: (A) the name of each merging cooperative and the address of its principal office; (B) the name of the surviving cooperative and the address of its principal office; (C) a statement that each merging cooperative and the surviving cooperative agree to the merger; (D) the names and addresses of the directors of the surviving cooperative; and (E) the terms and conditions of the merger and the mode of carrying the same into effect, including the manner in which members of the merging cooperatives may become members of the surviving cooperative. Such articles may contain provisions not inconsistent with law or this chapter deemed necessary or advisable for the conduct of the business of the surviving cooperative. The president or vice president of each cooperative executing such articles of merger shall make and annex thereto an affidavit stating that the provisions of this section in respect to such articles were duly complied with by such cooperative.

    Amended 1999, No. 143 (Adj. Sess.), § 17.

History

Source. V.S. 1947, § 9792. 1943, No. 116 , § 18.

Amendments--1999 (Adj. Sess.). Subdiv. (2): Substituted "secretary" for "clerk" in the first sentence and "directors" for "trustees" in item (D).

§ 3022. Effect.

In the case of a consolidation, the separate existence of the consolidating cooperatives shall cease and the articles of consolidation shall be deemed to be the articles of incorporation of the new cooperative. In the case of a merger, the separate existence of the merging cooperatives shall cease and the articles of incorporation of the surviving cooperative shall be deemed to be amended to the extent that changes therein are provided for in the articles of the merger.

History

Source. V.S. 1947, § 9793. 1943, No. 116 , § 19.

§ 3023. Transfer of rights and liabilities.

All the rights, privileges, immunities, and franchises and all property, real and personal, including applications for membership, all debts due on whatever account, and all other choses in action, of each of the consolidating or merger cooperatives shall be deemed to be transferred to and vested in the new or surviving cooperative respectively, without further act or deed.

History

Source. V.S. 1947, § 9794. 1943, No. 116 , § 19.

2016. In this section, "without limitation" was deleted following "including" in accordance with 2013, No. 5 , § 4.

§ 3024. Responsibilities for liabilities transferred.

The new or surviving cooperative shall be responsible and liable for all the liabilities and obligations of each of the consolidating or merging cooperatives and a claim existing or action or proceeding pending by or against a consolidating or merging cooperative may be prosecuted as if the consolidation or merger had not taken place, but the new or surviving cooperative may be substituted in its place.

History

Source. V.S. 1947, § 9795. 1943, No. 116 , § 19.

§ 3025. Creditors' rights not impaired by merger.

Neither the rights of creditors nor liens upon the property of such cooperatives shall be impaired by such consolidation or merger.

History

Source. V.S. 1947, § 9796. 1943, No. 116 , § 19.

§ 3026. Private corporation, change.

A corporation organized under the laws of this State and supplying or authorized to supply energy may be converted into a cooperative by complying with the following requirements and shall thereupon become subject to this chapter with the same effect as if originally organized under this chapter:

  1. The proposition for the conversion of such corporation into a cooperative and proposed articles of conversion to give effect thereto shall be submitted to a meeting of the members or stockholders of such corporation, the notice of which shall have attached thereto a copy of the proposed articles of conversion.
  2. If the proposition for the conversion of such corporation into a cooperative and the proposed articles of conversion, with amendments, are approved by the affirmative vote of not less than two-thirds of those members of such corporation voting thereon at such meeting, or, if such corporation is a stock corporation, by the affirmative vote of the holders of not less than two-thirds of the shares of the capital stock of such corporation represented at such meeting and voting thereon, articles of conversion in the form approved shall be executed and acknowledged on behalf of such corporation by its president or vice president and its seal shall be affixed thereto and attested by its secretary.
  3. The articles of conversion shall recite that they are executed pursuant to this chapter and shall state: (A) the name of the corporation and the address of its principal office prior to its conversion into a cooperative; (B) the statute or statutes under which it was organized; (C) a statement that such corporation elects to become a cooperative subject to this chapter; (D) its name as a cooperative; (E) the address of the principal office of the cooperative; (F) the names and addresses of the directors of the cooperative; and (G) the manner in which members or stockholders of such corporation may become members of the cooperative; and may contain any provisions not inconsistent with law or this chapter deemed necessary or advisable for the conduct of the business of the cooperative. The president or vice president executing such articles of conversion shall make and annex thereto an affidavit stating that the provisions of this section were duly complied with in respect of such articles. The articles of conversion shall be deemed to be the articles of incorporation of the cooperative.

    Amended 1999, No. 143 (Adj. Sess.), § 18.

History

Source. V.S. 1947, § 9797. 1943, No. 116 , § 20.

Amendments--1999 (Adj. Sess.). Deleted "electric" preceding "energy" in the introductory paragraph, substituted "secretary" for "clerk" in subdiv. (2), deleted "nonprofit, nonstock membership corporation" following "a cooperative" in item (C), and substituted "directors" for "trustees" in item (F) in subdiv. (3).

ANNOTATIONS

1. Application.

A private corporation that was described as an electric cooperative prior to the enactment of this chapter was not entitled to operate under the benefits of this chapter unless it complied with the provisions of this section. 1944-46 Op. Atty. Gen. 201.

§ 3027. Dissolution - Cooperative not commencing business.

A cooperative that has not commenced business may be dissolved by delivering to the Secretary of State a certificate of dissolution, which shall be executed and acknowledged on behalf of the cooperative by a majority of the incorporators and which shall state:

  1. the name of the cooperative;
  2. the address of its principal office;
  3. that the cooperative has not commenced business;
  4. that any sums received by the cooperative, less any part thereof disbursed for expenses of the cooperative, have been returned or paid to those entitled thereto;
  5. that no debt of the cooperative is unpaid; and
  6. that a majority of the incorporators elect that the cooperative be dissolved.

History

Source. V.S. 1947, § 9798. 1943, No. 116 , § 21.

§ 3028. Dissolution of cooperatives.

A cooperative that has commenced business may be dissolved in the following manner: The members at a meeting shall approve, by the affirmative vote of not less than two-thirds of the members voting thereon at such meeting, a proposal that the cooperative be dissolved. Upon such approval, a certificate of election to dissolve, hereinafter designated the "certificate," executed under oath and acknowledged on behalf of the cooperative by its president or vice president under its seal, attested by its secretary, and stating: (1) the name of the cooperative; (2) the address of its principal office; and (3) that the members of the cooperative have duly voted that the cooperative be dissolved, shall be filed with the Secretary of State. Upon filing of such certificate by the Secretary of State, the cooperative shall cease to carry on its business except to the extent necessary for the winding up thereof, but its corporate existence shall continue until a certificate of dissolution has been filed by the Secretary of State. The board of directors shall immediately cause notice of the dissolution proceedings to be mailed to each known creditor of and claimant against the cooperative and to be published once a week for two successive weeks in a newspaper of general circulation in the county in which the principal office of the cooperative is located. The board of directors shall wind up and settle the affairs of the cooperative, collect sums owing to it, liquidate its property and assets, pay and discharge its debts, obligations, and liabilities, and do all other things required to wind up its business. After paying or discharging or adequately providing for the payment or discharge of all its debts, obligations, and liabilities, the board shall distribute any remaining sums among its members and former members in proportion to the patronage of the respective members or former members during the seven years next preceding the date of the filing of the certificate by the Secretary of State, or if the cooperative has not been in existence for such period, then during the period of its existence prior to such filing. The board of directors shall thereupon authorize the execution of a certificate of dissolution, which shall be executed and acknowledged on behalf of the cooperative by its president or vice president, and its seal shall be affixed thereto and attested by its secretary. The certificate of dissolution shall recite that it is executed pursuant to this chapter and shall state: (1) the name of the cooperative; (2) the address of its principal office; (3) the date on which the certificate of election to dissolve was filed by the Secretary of State; (4) that there are no actions or suits pending against the cooperative; (5) that all debts, obligations, and liabilities of the cooperative have been paid and discharged or that adequate provision has been made therefor; and (6) that the provisions of this chapter relative to dissolution have been duly complied with. The president or vice president executing the certificate of dissolution shall make and annex thereto an affidavit stating that the statements made therein are true.

Amended 1999, No. 143 (Adj. Sess.), § 19.

History

Source. V.S. 1947, § 9799. 1947, No. 202 , § 9931. 1943, No. 116 , § 21.

Amendments--1999 (Adj. Sess.). Substituted "dissolution of cooperatives" for "corporation commencing business" in the section catchline, "secretary" for "clerk" in the third and eighth sentences, and "directors" for "trustees" in the fifth, sixth and eighth sentences.

§ 3029. Papers filed.

Articles of incorporation, amendment, consolidation, merger, conversion, or dissolution, when executed and acknowledged and accompanied by such affidavits as may be required by applicable provisions of this chapter, shall be filed with the Secretary of State. If the Secretary of State shall find that the articles presented conform to the requirements of this chapter, he or she shall, upon the payment of the fees as in this chapter provided, record such articles and upon such recording the incorporation, amendment, consolidation, merger, conversion, or dissolution provided for therein shall be in effect. The provisions of this section shall also apply to certificates of election to dissolve pursuant to section 3028 of this title.

History

Source. V.S. 1947, § 9800. 1943, No. 116 , § 22.

§ 3030. Revenues, use of.

Revenues of a cooperative for a fiscal year in excess of the amount thereof necessary:

  1. To defray the expenses of the operation and maintenance of the facilities of the cooperative during such fiscal year.
  2. To pay interest and principal obligations of the cooperative coming due in such fiscal year.
  3. To finance, or to provide a reserve for the financing of, the construction or acquisition by the cooperative of additional facilities to the extent determined by the board of directors.
  4. To provide a reasonable reserve for working capital.
  5. To provide a reserve for the payment of indebtedness of the cooperative in an amount not less than the total of the interest and principal payments in respect thereof required to be made during the next following fiscal year.
  6. To provide a fund, hereinafter designated as the "cooperative education fund," for education in cooperation and for the dissemination of information concerning the effective use of energy and other services, goods, or products made available by the cooperative, shall, unless otherwise determined by a vote of the members, be distributed by the cooperative to its members and to other persons to whom the cooperative supplies energy or other services, goods, or products made available through its electric distribution facilities, as patronage refunds prorated in accordance with the patronage of the cooperative by the respective members and such other persons, paid for during such fiscal year; provided, however, such distribution shall not be made to such other person until he or she has become a member of the cooperative. If such other person does not become a member of the cooperative within one year after the amount of his or her distributive share or accumulated distributive shares equals the membership fee required by the bylaws of the cooperative, or, if no membership fee is required, within two years after the declaration of such patronage refund, he or she shall cease to be entitled to such share or shares, which shall, in such case, be paid into the cooperative education fund. The cooperative shall make such additional provision, in the bylaws or otherwise, relative to the disposition of the revenues of the cooperative as may be necessary and appropriate to establish and maintain the nonprofit character of the cooperative. Nothing herein contained shall be construed to prohibit the payment by a cooperative of all or any part of its indebtedness prior to the date when the same shall become due.

    Amended 1999, No. 143 (Adj. Sess.), § 20.

History

Source. V.S. 1947, § 9801. 1947, No. 202 , § 9933. 1943, No. 116 , § 23.

Amendments--1999 (Adj. Sess.). Subdiv. (3): Substituted "directors" for "trustees".

Subdiv. (6): Inserted "cooperative" preceding "education fund" in the first and second sentences, deleted "electric" preceding "energy" in two places, inserted "goods or products" preceding "made available", and "goods or products made available through its electric distribution facilities" preceding "as patronage" in the first sentence.

§ 3031. Mortgage and investment.

  1. The board of directors of a cooperative shall have full power and authority, without authorization by the members thereof, to authorize the execution and delivery of a mortgage or mortgages or a deed or deeds of trust of, or the pledging or encumbering of, any or all of the property, assets, rights, privileges, licenses, franchises, and permits of the cooperative, whether acquired or to be acquired, and wherever situated, as well as the revenues and income therefrom, all upon such terms and conditions as the board of directors shall determine, to secure indebtedness of the cooperative in the ordinary course of the cooperative's electric business.
  2. The board of directors of a cooperative shall have full power and authority, with the approval of two-thirds of the members of the cooperative voting on such authorization, to authorize the execution and delivery of a mortgage or mortgages or a deed of trust of, or the pledging or encumbering of, any or all of the property, assets, rights, privileges, licenses, franchises, and permits of the cooperative, whether acquired or to be acquired, and wherever situated, as well as the revenues and income therefrom, upon such terms and conditions as the board of directors shall determine, to secure indebtedness of the cooperative for purposes authorized by statute other than operation of the cooperative's electric business.
  3. No more than 50 percent of the member equity of an electric cooperative subject to the provisions of this chapter may be used to invest in all business activities authorized by statute, other than electric business activities. Each individual investment by the electric cooperative in a business activity authorized by statute, other than electric, exceeding three percent of the members' equity, may be made only with approval of two-thirds of the members voting on such proposal.
  4. Business activities authorized by statute, other than electric, shall be geographically limited to any county in which the cooperative has authority to sell energy or other services furnished by the cooperative when they are made available through its electric distribution facilities, or any county in which an authorized business is presently serving.

    Amended 1969, No. 192 (Adj. Sess.), eff. March 12, 1970; 1999, No. 143 (Adj. Sess.), § 21.

History

Source. V.S. 1947, § 9802. 1943, No. 116 , § 24.

Amendments--1999 (Adj. Sess.). Section amended generally.

Amendments--1969 (Adj. Sess.). Added "or to a national financing institution in which the cooperative holds membership, organized on a cooperative plan for the purpose of financing its memberships' programs, projects and undertakings" at the end of the section.

§ 3032. Sale or lease of assets.

A cooperative may not sell, lease, or otherwise dispose of all or a substantial portion of its property unless such sale, lease, or other disposition is authorized by the affirmative vote of not less than a majority of all the members of the cooperative. Members may vote in person or in a manner authorized under section 3011 of this title.

Amended 1999, No. 143 (Adj. Sess.), § 22.

History

Source. V.S. 1947, § 9803. 1943, No. 116 , § 24.

Amendments--1999 (Adj. Sess.). Section amended generally.

§ 3033. Personal liability.

A member shall not be liable or responsible for debts of the cooperative and the property of the members shall not be subject to attachment or execution therefor.

History

Source. V.S. 1947, § 9804. 1947, No. 202 , § 9936. 1943, No. 116 , § 25.

§ 3034. Mortgages, filing.

A mortgage, deed of trust, or other instrument executed by a cooperative or foreign corporation doing business in this State pursuant to this chapter, which affects real and personal property and which is recorded in the town in which such property is located or is to be located, shall have the same force and effect as if the mortgage, deed of trust, or other instrument were also recorded, filed, or indexed as provided by law in the proper office in such town as a mortgage of personal property. All after-acquired property of such cooperative or foreign corporation described or referred to as being mortgaged or pledged in such mortgage, deed of trust, or other instrument, shall become subject to the lien thereof immediately upon the acquisition of such property by such cooperative or foreign corporation, whether or not such property was in existence at the time of the execution of such mortgage, deed of trust, or other instrument. Recordation of such mortgage, deed of trust, or other instrument shall constitute notice and otherwise have the same effect with respect to such after-acquired property as it has under the laws relating to recordation, with respect to property owned by such cooperative or foreign corporation at the time of the execution of such mortgage, deed of trust, or other instrument and therein described or referred to as being mortgaged or pledged thereby.

History

Source. V.S. 1947, § 9805. 1947, No. 202 , § 9937. 1943, No. 116 , § 26.

§ 3035. Safety standards.

As a minimum requirement for any activity authorized by this chapter, the cooperative shall adhere to all applicable federal, State, or local safety codes, regulations, or standards.

Amended 1999, No. 143 (Adj. Sess.), § 23.

History

Source. V.S. 1947, § 9806. 1943, No. 116 , § 26a.

Amendments--1999 (Adj. Sess.). Section amended generally.

§ 3036. Acknowledgments, members authorized.

A person who is authorized to take acknowledgments under the laws of this State shall not be disqualified from taking acknowledgments of instruments executed in favor of a cooperative or to which it is a party, by reason of being an officer, director, or member of such cooperative.

Amended 1999, No. 143 (Adj. Sess.), § 24.

History

Source. V.S. 1947, § 9807. 1947, No. 202 , § 9939. 1943, No. 116 , § 27.

Amendments--1999 (Adj. Sess.). Substituted "director" for "trustee" following "an officer".

§ 3037. Foreign companies, service of process.

A foreign nonprofit or cooperative corporation supplying or authorized to supply electric energy and owning or operating electric transmission or distribution lines in an adjacent state, prior to March 26, 1943, may construct or acquire extensions of such lines in this State within an area no point of which is more than 25 miles from the boundary line of this State and may operate such extensions without qualifying as a foreign corporation to do business in this State. Before constructing or operating such extensions, by an instrument executed and acknowledged on its behalf by its president or vice president, under its seal attested by its clerk or secretary, and filed with the Secretary of State, which instrument shall be in form and substance like that prescribed by 11 V.S.A. § 692 , such a corporation shall designate the Secretary of State its agent to accept service of process on its behalf. Thereafter, such corporation shall have all the rights, powers, privileges, and immunities of a cooperative. Service of process shall be made upon the Secretary of State in accordance with the provisions of 12 V.S.A. §§ 851 and 852 and he or she shall forthwith forward one copy of the same by registered mail to such corporation at the address of its principal office.

History

Source. V.S. 1947, § 9808. 1943, No. 116 , § 28.

Reference in text. 11 V.S.A. § 692, referred to in the second sentence, was repealed by 1971, No. 237 (Adj. Sess.), § 100, eff. Jan. 1, 1973.

§ 3038. Fees.

  1. There shall be paid to the Secretary of State fees for filing as follows:
    1. Articles of incorporation, $15.00;
    2. Articles of amendment, $10.00;
    3. Articles of consolidation or merger, $15.00;
    4. Articles of conversion, $10.00;
    5. Certificate of election to dissolve, $5.00;
    6. Articles of dissolution, $5.00; and
    7. Certificate of change of principal office, $5.00.
  2. Such fees shall include two certified copies of the respective instruments.

    Amended 1963, No. 37 , § 19.

History

Source. V.S. 1947, § 9809. 1943, No. 116 , § 29.

2016. Subsec. designations added.

Amendments--1963. Subdiv. (1): Substituted "$15.00" for "$10.00".

Subdiv. (2): Substituted "$10.00" for "$5.00".

Subdiv. (3): Substituted "$15.00" for "$10.00".

Subdiv. (4): Substituted "$10.00" for "$5.00".

Subdiv. (5): Substituted "$5.00" for "$2.00".

Subdiv. (6): Substituted "$5.00" for "$2.00".

Subdiv. (7): Substituted "$5.00" for "$2.00".

§§ 3039, 3040. Repealed. 1969, No. 257 (Adj. Sess.), § 7.

History

Former §§ 3039, 3040. Former § 3039, relating to jurisdiction of the Public Service Board, was derived from V.S. 1947, § 9810; 1943, No. 116 , § 30 and amended by 1959, No. 329 (Adj. Sess.), § 39(b); 1961, No. 267 , § 5.

Former § 3040, relating to service and rates, was derived from 1961, No. 267 , § 6.

§ 3041. Securities act.

The provisions of 9 V.S.A. chapter 131 shall not apply to a note, bond, or other evidence of indebtedness issued by a cooperative or foreign corporation doing business in this State pursuant to this chapter, to the United States of America or an agency or instrumentality thereof, or to a mortgage, deed of trust, or other instrument executed to secure the same. The provisions of 9 V.S.A. chapter 131 shall not apply to the issuance of membership certificates by a cooperative or such foreign corporations.

History

Source. V.S. 1947, § 9811. 1943, No. 116 , § 31.

Prior law. 30 V.S.A. § 3040.

§ 3042. Annual reports.

Each cooperative formed under the provisions of this chapter shall prepare and submit to its annual meeting a report containing the name of the cooperative, its principal place of business, a general statement of its business operations during the fiscal year, including a statement of its assets and liabilities, the amount of its indebtedness secured by mortgage or pledge of the corporate property or part thereof, and the names of the directors, officers, and secretary. A copy of the annual report attested by the secretary shall be filed with the Secretary of State within 30 days after the annual meeting.

Amended 1999, No. 143 (Adj. Sess.), § 25.

History

Source. 1947, § 9812. 1943, No. 116 , § 32.

Amendments--1999 (Adj. Sess.). Substituted "directors, officers and secretary" for "trustees, officers and clerk" following "the names of the" in the first sentence, and "the secretary shall" for "the clerk shall" and "within 30 days" for "within thirty days" in the second sentence.

Prior law. 30 V.S.A. § 3041.

§ 3043. Formation of cooperatives by cooperatives.

  1. Notwithstanding any other provision of this chapter, one or more cooperatives formed under the provisions of this chapter may organize and control a cooperative having as its principal purpose the generation, manufacture, purchase, acquisition, accumulation, transmission, sale, supply, and disposal of energy, cable television, telecommunications, interactive media, and Internet access. Such a cooperative shall have all of the powers of cooperatives formed under the provisions of this chapter.
  2. Members of a cooperative organized pursuant to subsection (a) of this section shall be the cooperative or cooperatives organizing it and may include any individual, partnership, association, corporation, municipality, or cooperative engaged in the generation, transmission, or distribution of energy within or without the State of Vermont. The bylaws of a cooperative organized pursuant to subsection (a) of this section may provide for more than one class of membership, including a class or classes with no rights or with limited rights to vote on matters requiring the vote of members under this chapter, and including a class or classes with no rights or limited rights to receive distributions of patronage refunds.

    Added 1979, No. 51 , § 1, eff. April 25, 1979; amended 1999, No. 143 (Adj. Sess.), § 26.

History

Amendments--1999 (Adj. Sess.). Subsec. (a): Substituted "of energy, cable television, telecommunications, interactive media, and internet access" for "of electric energy" in the first sentence.

Subsec. (b): Deleted "electric" preceding "energy within" in the first sentence.

§ 3044. Approval by members of cooperative.

  1. With respect to matters not subject to section 248 of this title, a cooperative established under this chapter shall obtain the approval of the voters of the cooperative before in any way:
    1. purchasing electric capacity or energy from outside the State:
      1. for a period exceeding five years, that represents more than three percent of its historic peak demand, unless the purchase is from a plant that produces electricity from renewable energy; or
      2. for a period exceeding 10 years, that represents more than 10 percent of its historic peak demand, if the purchase is from a plant that produces electricity from renewable energy;
    2. investing in an electric generation or transmission facility located outside this State; or
    3. beginning site preparation for or construction of an electric generation facility within the State, or an electric transmission facility within the State that is designed for immediate or eventual operation at any voltage or exercising the right of eminent domain in connection with site preparation for or construction of any such transmission or generation facility, except for the replacement of existing facilities with equivalent facilities in the usual course of business.
  2. A cooperative shall obtain the approval required by subsection (a) of this section by a vote of a majority of the voters of the cooperative voting upon the question at a duly warned annual or special meeting to be held for that purpose. Prior to the meeting, the cooperative may provide to the voters an assessment of any risks and benefits of the proposed action.
  3. In this section, "plant" and "renewable energy" have the same meaning as in section 8002 of this title.

    Added 1985, No. 48 , § 4; amended 2015, No. 130 (Adj. Sess.), § 2.

History

Amendments--2015 (Adj. Sess.). Section amended generally.

§ 3045. Conservation and load management.

  1. Cooperatives may expend their funds, including the proceeds of their notes, bonds, or other obligations, for the purposes of modifying demand for electric capacity or energy through conservation or load management by participation in such facilities, projects, and programs as the governing board of the cooperative determines will effectively accomplish such purposes.  Such facilities, projects, and programs may include providing or financing facilities or programs for conservation or load management, which may be: (i) owned or operated by the cooperative or by others, (ii) leased or licensed by the cooperative to others, or financed by loans by the cooperative to others, in either case on such terms and conditions as the governing board of the cooperative may determine.
  2. A cooperative may issue its notes, bonds, or other obligations pursuant to any statutory authority conferring such power for carrying out the purposes of this section.

    Added 1989, No. 112 , § 5a, eff. June 22, 1989.

History

2016. In subsec. (a), deleted "without limitation" following "including" and ", but shall not be limited to," following "include" in accordance with 2013, No. 5 , § 4.

§§ 3046. [Reserved.].

In carrying out the purposes of this chapter, the electric revenues received from regulated activities of a cooperative shall not subsidize any nonelectric activities of the cooperative. A cooperative shall adopt cost allocation procedures to ensure that the electrical distribution revenues received from regulated activities of a cooperative do not subsidize any of the nonelectric activities and that costs attributable to any nonelectric activities are not included in the cooperative's rates for electric service. A copy of the cost allocation procedures shall be available to the public upon request.

Added 1999, No. 143 (Adj. Sess.), § 27; amended 2019, No. 79 , § 12, eff. June 20, 2019.

History

Reference in text. The Rural Utilities Service of the United States Department of Agriculture, referred to in this section, is codified as 7 U.S.C. § 1921 et seq.

Editor's note. The instructional language in 1999, No. 143 (Adj. Sess.), § 27, purports to add "30 V.S.A. § 3002a", but the text of the section being added is "30 V.S.A. § 3047". Since there is already a section 3002a in chapter 81 of Title 30, the section added by No. 143, § 27 has been codified as this section, 30 V.S.A. § 3047.

Amendments--2019. Deleted last sentence, which read: "Nonelectric activities of the cooperative shall not be financed by loans or grants from the Rural Utilities Service of the U.S. Department of Agriculture or any successor federal agency."

§ 3047. Cost allocations; subsidization prohibited.

CHAPTER 82. COMMUNICATIONS UNION DISTRICTS

Sec.

§ 3051. Formation.

  1. Two or more towns and cities may elect to form a communications union district for the delivery of communications services and the operation of a communications plant, which district shall be a body politic and corporate.
  2. A town or city electing to form a district under this chapter shall submit to the eligible voters of such municipality a proposition in substantially the following form: "Shall the Town of ____________ enter into a communications union district to be known as ____________, under the provisions of 30 V.S.A. chapter 82?" at an annual or special meeting of such town or city.
  3. Additional towns or cities may be admitted to the district in the manner provided in section 3082 of this chapter.
  4. As used in this chapter:
    1. "Communications plant" means any and all parts of any communications system owned by the district, whether using wires, cables, fiber optics, wireless, other technologies, or a combination thereof, and used for the purpose of transporting or storing information, in whatever forms, directions, and media, together with any improvements thereto hereafter constructed or acquired, and all other facilities, equipment, and appurtenances necessary or appropriate to such system. However, the term "communications plant" and any regulatory implications or any restrictions under this chapter regarding a "communications plant" shall not apply to facilities or portions of any communications facilities intended for use by, and solely used by, a district member and its own officers and employees in the operation of municipal departments or systems of which such communications are merely an ancillary component.
    2. "Communications union district" or "district" means a communications union district formed under this chapter.
    3. "District member" or "member municipality" means a town or city that elects to form or join a communications union district under this chapter.
    4. "Governing board" or "board" means the governing board of the communications union district as established under this chapter.

      Added 2015, No. 41 , § 20, eff. June 1, 2015.

History

Communications union district formation; temporary authorization for municipal legislative bodies. 2019, No. 119 (Adj. Sess.), § 1 provides: "For purposes of formation of a communications union district and notwithstanding the provisions of 30 V.S.A. § 3051(b) requiring a vote by the eligible voters of a municipality at an annual or special meeting, during a declared state of emergency under 20 V.S.A. chapter 1 due to COVID-19, the legislative body of a municipality may vote to enter into a communications union district under the provisions of 30 V.S.A. chapter 82."

§ 3052. District composition.

A district formed under this chapter shall be composed of and include all of the lands and residents within a member municipality, and any other town or city subsequently admitted to the district as provided in this chapter except for those towns and cities that withdraw as provided in this chapter. Registered voters in each member municipality are eligible to vote in all district meetings, but only district member representatives are eligible to vote in meetings of the district's governing board.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3053. Creation; duration; noncontestability.

  1. Following the organizational meeting called for in section 3060 of this chapter, the district's governing board shall cause to be filed with the Office of the Secretary of State a certificate attesting to the vote conducted under subsection 3051(b) of this chapter.
  2. A district formed under this chapter shall continue as a body politic and corporate unless and until dissolved according to the procedures set forth in this chapter.
  3. An action shall not be brought directly or indirectly challenging, questioning, or in any manner contesting the legality of the formation, or the existence as a body corporate and politic of any communications union district created under this chapter after six months from the date of the recording in the office of the Secretary of State of the certificate required by subsection (a) of this section. An action shall not be brought directly or indirectly challenging, questioning, or in any manner contesting the legality or validity of any bonds issued to defray costs of communications plant improvements approved by the board, after six months from the date upon which the board voted affirmatively to issue such bonds. This section shall be liberally construed to effect the legislative purpose to validate and make certain the legal existence of all communications union districts in this State and the validity of bonds issued or authorized for communications plant improvements, and to bar every remedy therefor notwithstanding any defects or irregularities, jurisdictional or otherwise, after expiration of the six-month period. The provisions of this subsection shall also pertain to financial contracts directly related to the district's bonding authority.
  4. To the extent a district constructs communications infrastructure with the intent of providing communications services, the district shall ensure that any and all losses from these services, or in the event these services are abandoned or curtailed, any and all costs associated with the investment in communications infrastructure, are not borne by the taxpayers of district members.

    Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3054. District powers.

  1. In addition to the powers enumerated in 24 V.S.A. § 4866 , and, subject to the limitations and restrictions set forth in section 3056 of this chapter, a district created under this chapter shall have the power to:
    1. operate, cause to be operated, or contract for the construction, ownership, management, financing, and operation of a communications plant for the delivery of communications services, as provided in 24 V.S.A. chapter 54, and all enactments supplementary and amendatory thereto;
    2. purchase, sell, lease, own, acquire, convey, mortgage, improve, and use real and personal property in connection with its purpose;
    3. hire and fix the compensation and terms of employment of employees;
    4. sue and be sued;
    5. enter into contracts for any term or duration;
    6. contract with architects, engineers, financial and legal consultants, and others for professional services;
    7. contract with individuals, corporations, associations, authorities, and agencies for services and property, including the assumption of the liabilities and assets thereof;
    8. provide communications services for its district members, including the residential and business locations located therein; and also provide communications services for such other residential and business locations as its facilities and obligations may allow, provided such other locations are in a municipality that is contiguous with the town limits of a district member, and further provided such other locations do not have access to Internet service capable of speeds that meet or exceed the current speed requirements for funding eligibility under the Connectivity Initiative, section 7515b of this title.
    9. contract with the State of Vermont, the United States of America, or any subdivision or agency thereof for services, assistance, and joint ventures;
    10. contract with any municipality for the services of any officers or employees of that municipality useful to it;
    11. promote cooperative arrangements and coordinated action among its members and other public and private entities;
    12. make recommendations for review and action to its members and other public agencies which perform functions within the region in which its members are located;
    13. exercise any other powers which are necessary or desirable for dealing with communications matters of mutual concern and that are exercised or are capable of exercise by any of its members;
    14. enter into financing agreements as provided by 24 V.S.A. § 1789 and chapter 53, subchapter 2, or other provisions of law authorizing the pledge of net revenue, or alternative means of financing capital improvements and operations;
    15. establish a budget to provide for the funding thereof out of general revenue of the district;
    16. appropriate and expend monies;
    17. establish sinking and reserve funds for retiring and securing its obligations;
    18. establish capital reserve funds and make appropriations thereto for communications plant improvements and the financing thereof;
    19. enact and enforce any and all necessary or desirable bylaws for the orderly conduct of its affairs for carrying out its communications purpose and for protection of its communications property;
    20. solicit, accept, and administer gifts, grants, and bequests in trust or otherwise for its purpose;
    21. exercise all powers incident to a public corporation;
    22. adopt a name under which it shall be known and shall conduct business; and
    23. establish an effective date of its creation.
  2. Before a district may sell any service using a communications plant subject to Public Utility Commission jurisdiction and for which a certificate of public good is required under chapter 5 or 13 of this title, it shall obtain a certificate of public good for such service. Each such certificate of public good shall be nonexclusive and shall not contain terms or conditions more favorable than those imposed on existing certificate holders authorized to serve the municipality.

    Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3055. Communications plant; sites.

Each member shall make available for lease to the district one or more sites for a communications plant or components thereof within such member municipality.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3056. Limitations; taxes; indebtedness.

  1. Notwithstanding any grant of authority in this chapter to the contrary, a district shall not accept funds generated by a member's taxing or assessment power.
  2. Notwithstanding any grant of authority in this chapter to the contrary, a district shall not have the power to levy, assess, apportion, or collect any tax upon property within the district, nor upon any of its members, without specific authorization of the General Assembly.
  3. Notwithstanding any grant of authority in this chapter to the contrary, every issue of a district's notes and bonds shall be payable only out of any revenues or monies of the district.

    Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3057. Board authority.

The legislative power and authority of a district and the administration and the general supervision of all fiscal, prudential, and governmental affairs thereof shall be vested in a legislative body known as the governing board, except as specifically provided otherwise in this chapter.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3058. Board composition.

The district governing board shall be composed of one representative from each member and one or more alternates to serve in the absence of the designated representative.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3059. Appointment.

Annually on or before the last Monday in April, the legislative body of each member shall appoint a representative and one or more alternates to the governing board for one-year terms. Appointments of representatives and alternates shall be in writing, signed by the chair of the legislative body of the appointing member, and presented to the clerk of the district. The legislative body of a member, by majority vote, may replace its appointed representative or alternate at any time and shall promptly notify the district clerk of such replacement. Initial appointments shall be made within 60 days of the vote to form a district under subsection 3051(b) of this title and initial terms may be for less than one year.

Added 2015, No. 41 , § 20, eff. June 1, 2015; amended 2019, No. 119 (Adj. Sess.), § 2, eff. June 23, 2020.

History

Amendments--2019 (Adj. Sess.). Deleted "commencing in the year following the effective date of the district's creation" following "April" in the first sentence and added the last sentence.

§ 3060. Organizational meeting.

Annually, on the second Tuesday in May following the appointments contemplated in section 3059 of this chapter, the board shall hold its organizational meeting. At such meeting, the board shall elect from among its appointed representatives a chair and a vice chair, each of whom shall hold office for one year and until his or her successor is duly elected. The board's initial organizational meeting shall be held within 90 days of the vote to form a district under subsection 3051(b) of this title.

Added 2015, No. 41 , § 20, eff. June 1, 2015; amended 2019, No. 119 (Adj. Sess.), § 3, eff. June 23, 2020.

History

Amendments--2019 (Adj. Sess.). Added the last sentence.

§ 3061. Quorum.

For the purpose of transacting business, the presence of delegates or alternates representing more than 50 percent of district members shall constitute a quorum. However, a smaller number may adjourn to another date. Any action adopted by a majority of the votes cast at a meeting of the board at which a quorum is present shall be the action of the board, except as otherwise provided in this chapter.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3062. Voting.

Each district member's delegation shall be entitled to cast one vote.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3063. Term.

Unless replaced in the manner provided in section 3059 of this chapter, a representative on the governing board shall hold office until his or her successor is duly appointed. Any representative or alternate may be reappointed to successive terms without limit.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3064. Vacancy.

Any vacancy on the board shall be filled within 30 days after such vacancy occurs by appointment by the authority which appointed the representative or alternate whose position has become vacant. An appointee to a vacancy shall serve until the expiration of the term of the representative or alternate to whose position the appointment was made and may thereafter be reappointed.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3065. Rules of procedure.

Except as otherwise provided by law, or as may be agreed upon by the board, Robert's Rules of Order shall govern at all meetings.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3066. Compensation of representatives.

Each district member may reimburse its representative to the governing board for expenses as it determines reasonable, except as provided in section 3072 of this chapter with respect to district officers.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3067. Officers; bond.

  1. The officers of the district shall be the chair and the vice chair of the board, the clerk of the district, and the treasurer of the district. Prior to assuming their offices, officers may be required to post bond in such amounts as shall be determined by resolution of the board. The cost of such bond shall be borne by the district.
  2. The chair shall preside at all meetings of the board and shall make and sign all contracts on behalf of the district upon approval by the board. The chair shall perform all duties incident to the position and office as required by the general laws of the State.
  3. During the absence of or inability of the chair to render or perform his or her duties or exercise his or her powers, the same shall be performed and exercised by the vice chair and when so acting, the vice chair shall have all the powers and be subject to all the responsibilities hereby given to or imposed upon the chair.
  4. During the absence or inability of the vice chair to render or perform his or her duties or exercise his or her powers, the board shall elect from among its membership an acting vice chair who shall have the powers and be subject to all the responsibilities hereby given or imposed upon the vice chair.
  5. Upon the death, disability, resignation, or removal of the chair or vice chair, the board shall forthwith elect a successor to such vacant office until the next annual meeting.

    Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3068. Clerk.

The clerk of the district shall be appointed by the board, and shall serve at its pleasure. The clerk is not required to be a member of the governing board. The clerk shall have the exclusive charge and custody of the records of the district and the seal of the district. The clerk shall record all votes and proceedings of the district, including district and board meetings, and shall prepare and cause to be posted and published all warnings of meetings of such meetings. Following approval by the board, the clerk shall cause the annual report to be distributed to the legislative bodies of the district members. The clerk shall prepare and distribute any other reports required by State law and resolutions or regulations of the board. The clerk shall perform all duties and functions incident to the office of secretary or clerk of a body corporate.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3069. Treasurer.

The treasurer of the district shall be appointed by the board, and shall serve at its pleasure. The treasurer shall not be a member of the governing board. The treasurer shall have the exclusive charge and custody of the funds of the district and shall be the disbursing officer of the district. When authorized by the board, the treasurer may sign, make, or endorse in the name of the district all checks and orders for the payment of money and pay out and disburse the same and receipt therefor. The treasurer shall keep a record of every obligation issued and contract entered into by the district and of every payment thereon. The treasurer shall keep correct books of account of all the business and transactions of the district and such other books and accounts as the board may require. The treasurer shall render a statement of the condition of the finances of the district at each regular meeting of the board and at such other times as shall be required of the treasurer. The treasurer shall prepare the annual financial statement and the budget of the district for distribution, upon approval of the board, to the legislative bodies of district members. The treasurer shall do and perform all of the duties appertaining to the office of treasurer of a body politic and corporate. Upon removal or the treasurer's termination from office by virtue of removal or resignation, the treasurer shall immediately pay over to the successor all of the funds belonging to the district and at the same time deliver to the successor all official books and papers.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3070. Audit.

Once the district becomes operational, the board shall cause an audit of the financial condition of the district to be performed annually by an independent professional accounting firm.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3071. Committees.

The board has authority to establish one or more committees and grant and delegate to them such powers as it deems necessary. Members of an executive committee shall serve staggered terms and shall be board members. Membership on other committees established by the board is not restricted to board members.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3072. Compensation of officers.

Officers of the district shall be paid from district funds such compensation or reimbursement of expenses, or both, as determined by the board.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3073. Recall of officers.

An officer may be removed by a two-thirds' vote of the board whenever, in its judgment, the best interest of the district shall be served.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3074. Fiscal year.

The fiscal year of the district shall commence on January 1 and end on December 31 of each year.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3075. Budget.

  1. Annually, on or before October 21, the board shall approve and cause to be distributed to the legislative body of each district member for review and comment an annual report of its activities, together with a financial statement, a proposed district budget for the next fiscal year, and a forecast presenting anticipated year-end results. The proposed budget shall include reasonably detailed estimates of:
    1. deficits and surpluses from prior fiscal years;
    2. anticipated expenditures for the administration of the district;
    3. anticipated expenditures for the operation and maintenance of any district communications plant;
    4. payments due on obligations, long-term contracts, leases, and financing agreements;
    5. payments due to any sinking funds for the retirement of district obligations;
    6. payments due to any capital or financing reserve funds;
    7. anticipated revenues from all sources; and
    8. such other estimates as the board deems necessary to accomplish its purpose.
  2. Coincident with a regular meeting thereof, the board shall hold a public hearing on or before November 15 of each year to receive comments from the legislative bodies of district members and hear all other interested persons regarding the proposed budget. Notice of such hearing shall be given to the legislative bodies of district members at least 15 days prior to such hearing. The board shall give consideration to all comments received and make such changes to the proposed budget as it deems advisable.
  3. Annually, on or before December 15, the board shall adopt the budget and appropriate the sums it deems necessary to meet its obligations and operate and carry out the district's functions for the next ensuing fiscal year.
  4. Actions or resolutions of the board for the annual appropriations of any year shall not cease to be operative at the end of the fiscal year for which they were adopted. Appropriations made by the board for the various estimates of the budget shall be expended only for such estimates, but by majority vote of the board the budget may be amended from time to time to transfer funds between or among such estimates. Any balance left or unencumbered in any such budget estimate, or the amount of any deficit at the end of the fiscal year, shall be included in and paid out of the operating budget and appropriations in the next fiscal year. All such budget amendments shall be reported by the district treasurer to the legislative bodies of each district member within 14 days of the end of the fiscal year.
  5. Financial statements and audit results shall be delivered to the legislative bodies of each district member within 10 days of delivery to the board.

    Added 2015, No. 41 , § 20, eff. June 1, 2015; amended 2015, No. 130 (Adj. Sess.), § 5e, eff. May 25, 2016.

History

Amendments--2015 (Adj. Sess.). Subsec. (a): Substituted "on or before October 21" for "not later than September 15".

Subsec. (b): Substituted "on or before November 15" for "not later than November 1" and "15 days prior" for "30 days prior".

Subsec. (c): Substituted "on or before December 15" for "not later than December 1".

§ 3076. Indebtedness.

The board may borrow money through the issuance of notes of the district for the purpose of paying current expenses of the district. Such notes shall mature within one year, and may be refunded in the manner provided by law, and shall be payable solely from the district's operating revenues. The governing board may borrow money in anticipation of the receipt of grants-in-aid from any source and any revenues. Such notes shall mature within one year, but may be renewed as provided by general law.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3077. Pledge of revenues.

  1. When the board, at a regular or special meeting called for such purpose, determines by resolution passed by a vote of a majority of members present and voting that the public interest or necessity demands communications plant improvements, or a long-term contract, and that the cost of the same will be too great to be paid out of the ordinary annual income and revenue of the district, the board may pledge communications plant net revenues and enter into long-term contracts to provide for such improvements. A "long-term contract" means an agreement in which the district incurs direct or conditional obligations for which the costs are too great to be paid out of the ordinary annual income and revenues of the district, in the judgment of the board. It includes an agreement authorized under 24 V.S.A. § 1789 , wherein performance by the district is conditioned upon periodic appropriations. The term "communications plant improvements" includes improvements that may be used for the benefit of the public, whether or not publicly owned or operated.
  2. The pledge of communications plant net revenues, and other obligations allowed by law, may be authorized for any purpose permitted by this chapter, 24 V.S.A. chapter 53, subchapter 2, and chapter 54, or any other applicable statutes. A communications plant is declared to be a project within the meaning of 24 V.S.A. § 1821(4) .

    Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3078. Sinking and reserve funds.

  1. The board may establish and provide for sinking and reserve funds, however denominated, for the retirement and security of pledges of communications plant net revenue, or for long-term contracts. When so established, such funds shall be kept intact and separate from other monies at the disposal of the district, and shall be accounted for as a pledged asset for the purpose of retiring or securing such obligations or contracts. The cost of payments to any sinking or reserve fund shall be included in the annual budget of the district.
  2. The board shall establish and provide for a capital reserve fund to pay for communications plant improvements, replacement of worn out buildings and equipment, and planned and unplanned major repairs in furtherance of the purpose for which the district was created. Any such capital reserve fund shall be kept in a separate account and invested as are other public funds and shall be expended for such purposes for which established. The cost of payments to any capital reserve fund shall be included in the annual budget of the district.

    Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3079. Service fees.

The board may from time to time establish and adjust service, subscription, access, and utility fees for the purpose of generating revenues from the operation of its communications plant.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3080. Special meetings.

  1. The board may call a special meeting of the district when it deems it necessary or prudent to do so and shall call a special meeting of the district when action by the voters is necessary under this chapter. In addition, the board shall call a special meeting upon receipt of a petition signed by at least five percent of the registered voters within the district, or upon request of at least 25 percent of district members evidenced by formal resolutions of the legislative bodies of such members or by petitions signed by at least five percent of the member's registered voters. The board may rescind the call of a special meeting called by it but not a special meeting called as provided in this subsection. The board may schedule the date of such special meetings to coincide with the date of annual municipal meetings, primary elections, general elections, or similar meetings when the electorate within the district members will be voting on other matters.
  2. At any special meeting of the district, voters of each district member shall cast their ballots at such polling places within the municipality of their residence as shall be determined by the board of the district in cooperation with the boards of civil authority of each district member.
  3. Not less than three nor more than 14 days prior to any special meeting, at least one public hearing shall be held by the board at which time the issues under consideration shall be presented and comments received. Notice of such public hearing shall include the publication of a warning in a newspaper of general circulation in the district at least once a week, on the same day of the week, for three consecutive weeks, the last publication not less than five nor more than 10 days before the public hearing. Such notice may be included in the warning called for in subsection (d) of this section.
  4. The board shall warn a special meeting by filing a notice with the clerk of each district member and by posting a notice in at least five public places in each municipality in the district not less than 30 nor more than 40 days before the meeting. In addition, the warning shall be published in a newspaper of general circulation in the district once a week on the same day of the week for three consecutive weeks before the meeting, the last publication to be not less than five nor more than 10 days before the meeting.
  5. The original warning of any special meeting of the district shall be signed by a majority of the board and shall be filed with the clerk before being posted.
  6. The posted and published warning notification shall include the date, time, place, and nature of the meeting. It shall, by separate articles, specifically indicate the business to be transacted and the questions to be voted upon.
  7. The Australian ballot system shall be used at all special meetings of the district when voting is to take place. Ballots shall be commingled and counted under the supervision of the district clerk.
  8. All legal voters of the district members shall be legal voters of the district. The district members shall post and revise checklists in the same manner as for municipal meetings prior to any district meeting at which there will be voting.
  9. At all special meetings, the provisions of 17 V.S.A. chapter 51 regarding election officials, voting machines, polling places, absentee voting, process of voting, count and return of votes, validation, recounts and contest of elections, reconsideration or rescission of vote, and jurisdiction of courts shall apply except where clearly inapplicable. The clerk shall perform the functions assigned to the Secretary of State under that chapter. The Washington Superior Court shall have jurisdiction over petitions for recounts. Election expenses shall be borne by the district, unless within 30 days of the date of such resolution there is filed with the clerk of the district a request to call a special district meeting under this section to consider a proposition to rescind such resolution.

    Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3081. Withdrawal of a member municipality.

A district member may withdraw from the district upon the terms and conditions herein specified:

  1. Prior to the district pledging communications plant net revenues, or entering into a long-term contract, or contract subject to annual appropriation, a district member may vote to withdraw in the same manner as the vote for admission to the district. If a majority of the voters of a district member present and voting at a meeting duly warned for such purpose votes to withdraw from the district, the vote shall be certified by the clerk of that municipality and presented to the board. Thereafter, the board shall give notice to the remaining district members of the vote to withdraw and shall hold a meeting to determine if it is in the best interest of the district to continue to exist. Representatives of the district members shall be given an opportunity to be heard at such meeting together with any other interested persons. After such a meeting, the board may declare the district dissolved or it may declare that the district shall continue to exist despite the withdrawal of such member. The membership of the withdrawing municipality shall terminate after the vote to withdraw.
  2. After the district has pledged communications plant net revenues, or entered into a long-term contract or contract subject to annual appropriations, a district member may vote to withdraw in the same manner as the vote for admission to the district.

    Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3082. Admission of district members.

The board may authorize the inclusion of additional district members in the communications union district upon such terms and conditions as it in its sole discretion shall deem to be fair, reasonable, and in the best interests of the district. The legislative body of any nonmember municipality which desires to be admitted to the district shall make application for admission to the board. The board shall determine the financial, economic, governance, and operational effects that are likely to occur if such municipality is admitted and thereafter either grant or deny authority for admission of the petitioning municipality. If the board grants such authority, it shall also specify any terms and conditions, including financial obligations, upon which such admission is predicated. Upon resolution of the board, such applicant municipality shall become and thereafter be a district member.

Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3083. Dissolution.

  1. If the board by resolution approved by two-thirds of all the votes entitled to be cast determines that it is in the best interests of the public, the district members, and the district that such district be dissolved, and if the district then has no outstanding obligations under pledges of communications plant net revenue, long-term contracts, or contracts subject to annual appropriation, or will have no such debt or obligation upon completion of the plan of dissolution, it shall prepare a plan of dissolution and thereafter adopt a resolution directing that the question of such dissolution and the plan of dissolution be submitted to the voters of the district at a special meeting thereof duly warned for such purpose. If a majority of the voters of the district present and voting at such special meeting shall vote to dissolve the district and approve the plan of dissolution, the district shall cease to conduct its affairs except insofar as may be necessary for the winding up thereof. The board shall immediately cause a notice of the proposed dissolution to be mailed to each known creditor of the district and to the Secretary of State and shall proceed to collect the assets of the district and apply and distribute them in accordance with the plan of dissolution.
  2. The plan of dissolution shall:
    1. identify and value all unencumbered assets;
    2. identify and value all encumbered assets;
    3. identify all creditors and the nature or amount of all liabilities and obligations;
    4. identify all obligations under long-term contracts and contracts subject to annual appropriation;
    5. specify the means by which assets of the district shall be liquidated and all liabilities and obligations paid and discharged, or adequate provision made for the satisfaction thereof;
    6. specify the means by which any assets remaining after discharge of all liabilities shall be liquidated if necessary; and
    7. specify that any assets remaining after payment of all liabilities shall be apportioned and distributed among the district members according to a formula based upon population.
  3. When the plan of dissolution has been implemented, the board shall adopt a resolution certifying that fact to the district members whereupon the district shall be terminated, and notice thereof shall be delivered to the Secretary of the Senate and the Clerk of the House of Representatives in anticipation of confirmation of dissolution by the General Assembly.

    Added 2015, No. 41 , § 20, eff. June 1, 2015.

§ 3084. Confidentiality; legislative intent.

The purpose of this section is to clarify that any records or information produced or acquired by a district that are trade secrets or confidential business information shall be exempt from public inspection and copying pursuant to 1 V.S.A. § 317(c)(9) .

Added 2021, No. 71 , § 11, eff. June 8, 2021.

CHAPTER 83. CONSOLIDATION OF MUNICIPAL AND COOPERATIVE DISTRICTS

Sec.

History

Construction. 1989, No. 112 , § 8(b), eff. June 22, 1989, provided: "Neither this act [which added sections 2925, 3002a and 3045 of this title and amended sections 209, 2902, 4002 and 5013 of this title] nor chapters 83 and 84 of Title 30 shall be construed as a restriction or a limitation upon any powers which a municipal corporation or cooperative might otherwise possess and exercise under any laws of this state: the provisions of 30 V.S.A. chapters 83 and 84 as amended by this act are cumulative and in addition to any existing powers. 30 V.S.A. chapters 83 and 84 and this act are remedial in nature and the powers hereby granted, and the exercise thereof, shall be liberally construed in order to effect the legislative purposes."

§ 4001. Definitions.

In this chapter, unless the context otherwise requires, the following words shall have the following meanings:

  1. "Cooperative" means a corporation organized under, or otherwise subject to, chapter 81 of this title.
  2. "Electric facilities" means any facilities necessary or incidental to the generation of electric power and energy or the transmission thereof, including electric generating units, electric generating plants, electric transmission lines, plant sites, rights-of-way, and real and personal property and equipment, and rights of every kind useful in connection therewith.
  3. "Municipal electric utility" means any city, town, village, or department thereof, within this State, authorized to and engaged in the manufacture, distribution, purchase, and sale of electricity in this State.
  4. "Utility," except as otherwise required by the context in which used herein, is intended to refer to cooperatives, municipal utilities, as herein defined, and private electric utilities.

    Added 1977, No. 97 .

History

Revision note. Subdiv. designations added to conform section to V.S.A. style.

§ 4002. Agreements by cooperatives and municipal electric utilities.

Any cooperative or municipal electric utility shall have:

  1. authority to participate with other utilities in entering into agreements for the planning, financing, acquisition, construction, ownership, operation, and maintenance of jointly owned or operated electric facilities and in connection therewith to construct, acquire, own, operate, and maintain electric facilities, for the purpose of providing a supply of power and energy to the cooperatives and municipal electric utilities entering into any such agreements, including the right to sell or exchange any surplus produced from such facilities to others;
  2. authority to act in participation with other such utilities in arranging for the purchase of supplies of capacity and energy from other utilities, either within or outside the State of Vermont, including purchases from private electric utilities, municipal electric utilities, cooperatives, associations of utilities, or public authorities;
  3. authority, in participation with other utilities, to enter into contracts for the transmission of such supplies of capacity or energy generated either by them or purchased from others;
  4. authority, in participation with other utilities, to participate in facilities, projects, and programs for the purposes of modifying demand for electric capacity or energy through conservation or load management;
  5. authority, in participation with other utilities, to employ attorneys, engineers, technicians, and any other personnel as said utilities may deem necessary or proper to carry out any of the foregoing powers;
  6. authority to allow the Vermont Public Power Supply Authority to provide all requirements service for a stated period of time pursuant to subdivision 5012(15) of this title;
  7. authority to otherwise do all lawful acts and things necessary or incidental to the exercise of the authority granted in this chapter.

    Added 1977, No. 97 ; amended 1989, No. 112 , § 3, eff. June 22, 1989; 1991, No. 170 (Adj. Sess.), § 2, eff. May 15, 1992.

History

Amendments--1991 (Adj. Sess.). Deleted "and" following "powers" in subdiv. (5), added a new subdiv. (6), and redesignated former subdiv. (6) as subdiv. (7).

Amendments--1989. Added a new subdiv. (4) and redesignated former subdivs. (4) and (5) as subdivs. (5) and (6), respectively.

Construction of 1991 (Adj. Sess.) amendment. 1991, No. 170 (Adj. Sess.), § 1, eff. May 15, 1992, provided in part: "Nothing in this act [which amended this section and sections 201 and 5012 of this title and added section 4002a of this title] shall be construed as limiting or revoking any existing powers conferred on Vermont public power supply authority by statute. This act shall be liberally construed to effectuate its purpose, which is to enable member systems of the authority which wish to do so, and which receive the approvals required by the act, to take full advantage of the administrative and economic efficiencies available through implementation of an all requirements concept, while preserving, through representation of each member system on the authority's board, the right of each signatory to an all requirements contract to participate fully in decisions of the authority implementing the rights confirmed by this act."

1991, No. 170 (Adj. Sess.), § 6, eff. May 15, 1992, provided: "Nothing provided in this act shall be deemed to alter the existing contractual obligations of the Vermont public power supply authority, and the obligations of participants under any contracts they may have with the authority that secure or are pledged as security for any outstanding bonds issued by the authority."

ANNOTATIONS

1. Limitations.

Project capability is defined in the power sales agreements as the amount of electrical capacity and energy, if any, which the project is capable of producing at any particular time while electric capacity and energy refers to actual supplies of capacity and energy that exist in ascertainable amounts; because 30 V.S.A. § 4002 authorizes utilities to enter into contracts for capacity and energy and does not authorize them to enter into contracts for project capability, Act 112, § 1, which ratifies contracts for electric capacity or energy, does not ratify contracts for project capability. Massachusetts Municipal Wholesale Electric Co. v. State, 161 Vt. 346, 639 A.2d 995 (1994).

§ 4002a. All requirements contracts.

  1. For purposes of this section, and subdivisions 4002(6) and 5012(15) of this title, the term "all requirements service" shall mean service pursuant to a contract by which the Vermont Public Power Supply Authority assumes responsibility for power supply arrangements and other arrangements pertaining to the procurement and transmission of electric energy and capacity, on behalf of those systems which are signatories to a contract under this section, and subdivisions 4002(6) and 5012(15) of this title, and such contract may contain provisions consistent with and shall be subject to the provisions of section 5013 of this title in the same manner as a capacity and output contract. Such contract may include provisions under which the Vermont Public Power Supply Authority will provide demand-side management programs and least-cost integrated plans for the contracting utility.
  2. Prior to entering into such a contract, the municipal or cooperative utility must obtain:
    1. Approval, upon petition of the utility or of the Authority, by the Public Utility Commission of the proposed arrangement, which shall be given upon findings that the proposed arrangement will promote the general good of the ratepayers of the utility or utilities, and is consistent with least-cost integrated planning principles. The proposed contract reflecting the arrangement shall be filed with the Commission and the Department at least 45 days prior to its intended execution, and the Department shall make its recommendation as to whether it accepts or does not accept the contract within 30 days of the date on which the proposed contract was filed. Should the Department oppose the contract, or the Commission on its own motion determine that investigation into the contract is appropriate, the Commission shall hear evidence on the matter and shall determine, within seven months of the intended execution date, whether the contract promotes the general good as described in this subdivision. Failure of the Commission to act within seven months shall be deemed to constitute approval of the contract.
    2. Approval of the arrangement, within 90 days of approval or failure to act by the Public Utility Commission under subdivision (1) of this subsection, by a majority of persons voting in a duly warned election called by the cooperative or municipality for the purpose of considering such arrangement.
  3. Nothing in this section or subdivision 4002(6) of this title shall be construed as precluding entry by municipal or cooperative utilities into letters of intent or other conditional arrangements for ultimate entry into a contract contemplated by this section and subdivision 5012(15) of this title.
  4. Any contract under this section shall contain provisions allowing for its termination upon appropriate prior notice, with due consideration for the equitable allocation of obligations incurred pursuant to subdivision 5012(6) of this title during the period of delegated authority. Where a petition signed by not less than five percent of the qualified voters of a municipality or members of a cooperative, requesting termination of the participation of the municipality or cooperative in an all requirements contract, is filed with the clerk of the municipality or the board of directors of the cooperative, the legislative body of the municipality or the board of directors of the cooperative shall provide for a binding vote of the municipality or cooperative in accordance with this subsection within 60 days of filing, at an annual or special meeting duly warned for that purpose.
  5. No contract under this section reduces the responsibility of a contracting utility to develop cost-effective demand-side and supply-side resources in accordance with an approved least-cost integrated plan. However, the utility may delegate authority to the Vermont Public Power Supply Authority to prepare, file, and seek approval of least-cost integrated resource plans on behalf of the contracting utility.

    Added 1991, No. 170 (Adj. Sess.), § 3, eff. May 15, 1992.

History

2017. In subdiv. (b)(1), in the second sentence, replaced "above" with "in this subdivision".

Construction. 1991, No. 170 (Adj. Sess.), § 1, eff. May 15, 1992, provided in part: "Nothing in this act [which added this section and amended sections 201, 4002 and 5012 of this title] shall be construed as limiting or revoking any existing powers conferred on Vermont public power supply authority by statute. This act shall be liberally construed to effectuate its purpose, which is to enable member systems of the authority which wish to do so, and which receive the approvals required by the act, to take full advantage of the administrative and economic efficiencies available through implementation of an all requirements concept, while preserving, through representation of each member system on the authority's board, the right of each signatory to an all requirements contract to participate fully in decisions of the authority implementing the rights confirmed by this act."

1991, No. 170 (Adj. Sess.), § 6, eff. May 15, 1992, provided: "Nothing provided in this act shall be deemed to alter the existing contractual obligations of the Vermont public power supply authority, and the obligations of participants under any contracts they may have with the authority that secure or are pledged as security for any outstanding bonds issued by the authority."

§ 4003. Implementing powers.

Without limiting the general scope and application of section 4002 of this chapter, each participating utility shall have the right and power:

  1. To use its means and assets for the purposes of exercising the authority granted by section 4002 of this chapter, including, as to municipal electric utilities, the right and power to pledge the credit of the municipality.
  2. To issue bonds and other securities to raise funds for those purposes in the same way and to the same extent and subject to all of the conditions which would apply if the utility's interest in such agreements, actions, and contracts were whole and entire.
  3. To acquire, for the use and benefit of all participating utilities, by purchase or through the exercise of the power of eminent domain, lands, easements, and properties for the purpose of jointly owned electric facilities, and transfer or convey such lands, easements, and properties or interests therein, or otherwise to cause such lands, easements, and properties, or interests therein, to be vested in other participating utilities to the extent and in the manner agreed between the participating utilities.  In all cases in which a participating utility exercises the right and power of eminent domain conferred by statute, it shall be controlled by the law governing condemnation by corporate public utilities in this State, and the right and power of eminent domain hereby conferred shall include the right and power to take fee title in land so condemned, except that no participating utility has the right or power to take by the exercise of the power of eminent domain any electric facilities, or interests therein, belonging to any other municipal electric utility, electric cooperative, or private utility, except as provided by chapter 79 of this title.
  4. To form a public service corporation with one or more other utilities and to hold stock and operate the same as a public utility as a means of carrying out the purposes of this chapter.  However, the formation of any such public service corporation and its operation shall be subject to the requirements of this title governing the formation and operation of public service corporations.

    Added 1977, No. 97 .

Cross References

Cross references. Vermont Public Power Supply Authority, see § 5001 et seq. of this title.

§ 4004. Taxes.

Electric facilities constructed or otherwise acquired under the terms of this chapter shall be subject to taxation by the municipality within which the same are located in the same manner as like facilities privately owned.

Added 1977, No. 97 .

§ 4005. Insurance.

Each participating utility shall have the right and power to enter into contracts or specialized insurance appertaining to property and risks in connection with an incident to the ownership, operation, and maintenance of electric facilities, in addition to the usual forms of available insurance. Each participating utility shall be authorized to enter into contracts or insurance for the use and benefit of each of the other participating utilities as though the insurance was for its sole benefit and to cause the rights of the other participating utilities to be protected by contracts according to their respective undivided interests or entitlements under applicable agreements between the participating utilities.

Added 1977, No. 97 .

§ 4006. Construction of chapter.

Notwithstanding any other provision of this chapter, nothing herein shall have the effect of, or be construed as, altering, amending, or repealing the statutory purposes provided for by any statute enacted by the Legislature of Vermont pertaining to the creation, establishment, or operation of municipal electric utilities or electric cooperatives.

Added 1977, No. 97 .

§ 4007. Severability.

If any provision of this chapter or the application thereof to any person or circumstance shall be held to be invalid, the remainder of the chapter, and the application of such provision to other persons or circumstances shall not be affected thereby, and to this end the provisions of this chapter are declared to be severable.

Added 1977, No. 97 .

CHAPTER 84. VERMONT PUBLIC POWER SUPPLY AUTHORITY

History

Construction. 1989, No. 112 , § 8(b), eff. June 22, 1989, provided: "Neither this act [which added sections 2925, 3002a and 3045 of this title and amended sections 209, 2902, 4002 and 5013 of this title] nor chapters 83 and 84 of Title 30 shall be construed as a restriction or a limitation upon any powers which a municipal corporation or cooperative might otherwise possess and exercise under any laws of this state; the provisions of 30 V.S.A. chapters 83 and 84 as amended by this act are cumulative and in addition to any existing powers. 30 V.S.A. chapters 83 and 84 and this act are remedial in nature and the powers hereby granted, and the exercise thereof, shall be liberally construed in order to effect the legislative purposes."

Subchapter 1. General Provisions

History

Short title. 1979, No. 78 , § 1, provided: "This act [which added this chapter] may be cited as the 'Vermont Public Power Supply Authority Act.'"

Policy and purpose. 1979, No. 78 , § 2, provided: "It is declared that the need for obtaining and maintaining a continuous and adequate supply of dependable electric power and energy is a matter of public concern to the people of the state; that public benefit will be derived by provision for the development of natural resources for the generation of electric power and energy, and that for the purpose of deriving such public benefit, of continuing an adequate supply of electric power and energy for the future needs of its member municipal and cooperative electric utilities systems, and of assisting in the development of facilities having prospects of reducing electricity production costs, the public interest requires that the authority participate in the generation of electric power and energy to the extent authorized by this act [this chapter]."

§ 5001. Definitions.

In this chapter, the following words and terms, unless the context clearly indicates a different meaning, shall have the following meaning:

  1. "Authority" means the Vermont Public Power Supply Authority created by this chapter.
  2. "Cooperative" means a corporation organized under, or otherwise subject to, chapter 81 of this title.
  3. "Legislative body" means the mayor and board of aldermen of a city, the selectboard of a town, and the trustees or light commissioners of a village.
  4. "Municipality" means any city, town, or village within the State of Vermont, which is authorized to and engaged in the manufacture, distribution, purchase, or sale of electricity in the State of Vermont.
  5. "Person" shall be as defined in section 3001 of this title.
  6. "Project" means any plant, works, system, facilities, and real and personal property of any nature or any interest in any of them, together with all parts of them and appurtenances to them, used or useful in the generation, production, transmission, purchase, sale, exchange, or interchange of electric energy, and together with any capacity or output from them.
  7. "Utility" means any public utility as defined in chapter 83 of this title.

    Added 1979, No. 78 , § 3.

History

2016 Substituted "selectboard" for "board of selectmen" in accordance with 2013, No. 161 , § 72.

Subchapter 2. Establishment and Organization

§ 5011. Creation of Vermont Public Power Supply Authority.

  1. Vermont Public Power Supply System, Inc., a corporation formed under the provisions of subdivision 4003(4) of this title, is hereby declared and established to be a body politic and corporate with duties and powers as are set forth in this chapter, to be known as "Vermont Public Power Supply Authority" to carry out the provisions of this chapter.  The Authority is constituted a public instrumentality exercising public and essential governmental functions, and the exercise by the authority of the powers conferred by this chapter shall be deemed and held to be the performance of an essential governmental function of the State.
  2. The Authority shall consist of those municipalities and cooperatives which by January 31, 1979 elected to become a member of Vermont Public Power Supply System, Inc., in accordance with the terms of its bylaws, and those Vermont municipalities and cooperatives that shall thereafter elect to become members of the Authority in accordance with the rules and regulations of the Authority established by it.  These rules and regulations shall be calculated to permit membership without an undue burden on new members, but with regard to the benefits contributed to the Authority by its original members.
  3. The powers of the Authority shall be exercised by a board of directors.  The Board of Directors shall consist of one director from each member municipality or member cooperative, who shall be elected by the legislative body of each member municipality or the board of trustees of each member cooperative.  Each municipality or cooperative may also elect an alternate director to serve in the absence or disability of its director.  The term of office of a director shall be for one year coincident with the fiscal year of the Authority or until a successor director has been duly elected and qualified.  Any director may be removed at the pleasure of the legislative body of the municipality or cooperative which elected that director, upon notice to the authority and the election of a successor director.  The Board of Directors of the Authority shall adopt bylaws or other rules and regulations for the management of the affairs of the Authority and carrying out the purpose of this chapter.  The Board of Directors shall also elect one of its member directors as chair of the Authority and shall also elect a treasurer and secretary who may be, but need not be, directors.  It may elect other officers and agents as necessary to perform those acts commonly delegated to the officers and agents of a business corporation and shall set their compensation.
  4. Despite any law or charter provision to the contrary, a director or officer of the Authority who is also an officer, employee, or member of a legislative body of a municipality or other public body or the State shall not thereby be precluded from voting or acting on behalf of the Authority on a matter involving the municipality or public body or the State. Neither shall service as a director or officer of the Authority constitute a conflict of interest for an officer, employee, or member of a municipality or public body or the State.
  5. The Authority and its existence shall continue as long as it shall have notes, bonds, or other obligations or indebtedness outstanding, including notes, bonds, or other obligations or indebtedness hereafter issued or incurred, and until its existence is terminated by law.  The net earnings of the Authority, beyond that necessary for retirement of its notes, bonds, or other obligations or indebtedness or to implement the public purposes and programs authorized in this chapter, shall not inure to the benefit of any person other than the State. Upon termination of the existence of the Authority, title to all of the property owned by the Authority, including any net earnings of the Authority, shall vest in the State. The State reserves the right at any time to alter, amend, repeal, or otherwise change the structure, organization, programs, or activities of the Authority, including the power to terminate the Authority, subject to any limitation on the impairment of the obligation of any contract or contracts entered into by the Authority.

    Added 1979, No. 78 , § 3.

History

2016 Substituted "chair" for "chairman" in accordance with 2013, No. 161 , § 72.

§ 5012. General powers and duties.

The Authority shall have all of the powers necessary and convenient to carry out this chapter, including those general powers provided a business corporation by 11 V.S.A. § 1852 , and including the power:

  1. To receive, administer, and comply with the conditions and requirements respecting any gift, grant, donation, or appropriation of any property or money.
  2. To acquire by purchase, lease, gift, or otherwise, or to obtain options for the acquisition of any property, real or personal, improved or unimproved, tangible or intangible, including an interest in land of less than the fee.
  3. To sell, lease, mortgage, exchange, transfer, or otherwise dispose of any real or personal property or interest in them, or to grant options for any of those purposes.
  4. To pledge or assign any money, fees, charges, or other revenues of the Authority and any proceeds derived by the Authority from the sale of property, or from insurance or condemnation awards.
  5. To employ personnel who shall serve at the pleasure of the directors.
  6. To borrow money and issue its notes and bonds as provided in this chapter.
  7. To purchase electric power and energy, including all or a portion of the capacity and output of one or more specific projects.
  8. To sell electric power and energy and other products of projects to other utilities within the State, and to any person or utility outside the State.  These other utilities are authorized to purchase electric power and energy sold by the Authority; provided, however, that nothing in this chapter shall be construed to authorize resale of electric power and energy purchased from the Authority except as otherwise authorized by law.
  9. To enter into joint ownership contracts and tenancies in common with any Vermont utility, whether or not such utility is a member of the Authority.  With the consent of the Authority, utilities which are not members of the Authority shall be eligible to participate in projects sponsored by the Authority.
  10. To contract for the use of transmission and distribution facilities owned by others for the delivery to purchasers of electric power and energy sold by the Authority.  These other owners are authorized to enter into these contracts with the Authority.
  11. To contract with respect to the purchase, sale, delivery, exchange, interchange, wheeling, pooling, transmission, or use of electric power and energy and to otherwise participate in intrastate, interstate, and international arrangements with respect to those matters, including a New England power pool as defined by chapter 14 of this title, except that this power shall not be exercised so as to conflict with or diminish in any way the powers and obligations of the Public Utility Commission under this title regarding planning and entering into agreements for the supply of electric power and energy.
  12. Jointly with utilities or on its own, to plan, finance, acquire, construct, improve, purchase, operate, maintain, use, share costs of, own, lease, sell, dispose of, or otherwise participate in projects or portions of projects, the product or service from them, securities or obligations issued or incurred in connection with the financing of them, or research and development relating to them, within or outside the State. It may also enter into and perform contracts with any person with respect to the foregoing. If the Authority acquires or owns an interest as a tenant in common with others in any projects within the State, the surrender or waiver by the other property owner of its right to partition the property for a period not exceeding the period for which the property is used or useful for electric utility purposes shall not be invalid and unenforceable by reason of length of the period, or as unduly restricting the alienation of such property.
  13. To apply to the appropriate agencies of the State, other states, the United States, and to any other proper agency for permits, licenses, certificates, or approvals which may be necessary, and to construct, maintain, and operate projects in accordance with these licenses, permits, certificates, or approvals.
  14. To apply and contract for and to expend assistance from the United States or other sources, whether in form of a grant or loan or otherwise.
  15. To enter into a contract or contracts to provide all requirements service, as defined in section 4002a of this title, with some or all of its member systems, upon receipt by the systems entering into such contract of the approvals required by section 4002a.
  16. Upon entry into a contract with member systems pursuant to subdivision (15) of this section, to seek and obtain approval, in its own name, for projects and contracts otherwise requiring approval under section 248 or 2902 of this title.
  17. To make and execute all contracts and agreements and other instruments necessary or convenient in the exercise of the powers and functions of the Authority under this chapter.
  18. To enter into contracts determined by the Authority to be useful for the prudent management of its assets, purchases, funds, debts, or fuels, including interest rate or other swaps, option contracts, future contracts, forward purchase contracts, hedging contracts, and leases or other risk management instruments to the full extent that a business corporation is authorized to enter into such contracts.
  19. To acquire stock, shares, securities, membership units, or other equity or participation interests in entities that directly or indirectly construct, own, or operate electric generation or transmission facilities within or outside the State to the full extent that a business corporation is authorized to acquire such interests.
  20. To do all things necessary, convenient, or desirable to carry out the purposes of this chapter or the powers expressly granted or necessarily implied in this chapter.

    Added 1979, No. 78 , § 3; amended 1991, No. 170 (Adj. Sess.), § 4, eff. May 15, 1992; 2009, No. 78 (Adj. Sess.), § 39, eff. April 15, 2010.

History

Reference in text. 11 V.S.A § 1852, referred to in the introductory paragraph, was repealed by 1993, No. 85 , § 3(a), eff. Jan. 1, 1994. For present provisions, see § 3.02 of Title 11A.

2013. In the first sentence preceding the colon, "without limitation" and "without limiting the generality of the foregoing" were deleted in accordance with No. 5, § 4 of 2013.

Revision note - In subdiv. (7), "without limiting the generality of the foregoing" was deleted following "including" in accordance with No. 5, § 4 of 2013.

Amendments--2009 (Adj. Sess.) In the first sentence of subdiv. (12), deleted "jointly or" preceding "jointly with utilities" and inserted "or on its own," thereafter, added new subdivs. (18) and (19), and redesignated former subdiv. (18) as subdiv. (20).

Amendments--1991 (Adj. Sess.). Added new subdivs. (15) and (16) and redesignated former subdivs. (15) and (16) as subdivs. (17) and (18), respectively.

Construction of 1991 (Adj. Sess.) amendment. 1991, No. 170 (Adj. Sess.), § 1, eff. May 15, 1992, provided in part: "Nothing in this act (which amended this section and sections 201 and 4002 of this title and added section 4002a of this title) shall be construed as limiting or revoking any existing powers conferred on Vermont public power supply authority by statute. This act shall be liberally construed to effectuate its purpose, which is to enable member systems of the authority which wish to do so, and which receive the approvals required by the act, to take full advantage of the administrative and economic efficiencies available through implementation of an all requirements concept, while preserving, through representation of each member system on the authority's board, the right of each signatory to an all requirements contract to participate fully in decisions of the authority implementing the rights confirmed by this act."

1991, No. 170 (Adj. Sess.), § 6, eff. May 15, 1992, provided: "Nothing provided in this act shall be deemed to alter the existing contractual obligations of the Vermont public power supply authority, and the obligations of participants under any contracts they may have with the authority that secure or are pledged as security for any outstanding bonds issued by the authority."

§ 5013. Special powers.

  1. The Authority may contract to sell, and member municipalities and cooperatives and other utilities may contract to purchase, all or a portion of the capacity and output of one or more specific projects including contracts providing for planning, engineering, design, acquiring sites or options for sites, and expenses preliminary or incidental to such project.  This contract may be for the life of a project or other term or for an indefinite period; may provide for the payment of unconditional obligations imposed without regard to whether a project is undertaken, completed, operable, or operating and despite the suspension, interruption, interference, reduction, or curtailment of the output of a project; and may contain provisions for prepayment, nonunanimous amendment, arbitration, delegation, and other matters deemed necessary or desirable to carry out its purposes.  This contract may also provide, in the event of default by any party to the contract in the performance of its obligations under the contract, for other parties to assume the obligations and succeed to the rights and interests of the defaulting party, pro rata or otherwise as may be agreed upon in the contract.
  2. Neither the obligations of the Authority nor the obligations of any member municipality or cooperative or other utility under any contract authorized by subsection (a) of this section shall be deemed to constitute an indebtedness or a lending of credit of the Authority or any such municipality, cooperative, or other utility or shall be included in computing the borrowing capacity of the Authority, or any such municipality, cooperative, or other utility.  These obligations of such municipalities and cooperatives shall be treated as expenses of operating their electric plants.  In the case of municipalities, these obligations shall constitute special obligations of such municipalities payable solely from the revenues and other monies derived by them from their electric departments or systems.  The liability of these municipalities from other funds is limited to obligations undertaken by them to pay for the electric power and energy used by them.
  3. A municipality or cooperative shall be obligated to fix, revise, and collect fees and charges for electric power and energy and other services, facilities, and commodities furnished or supplied through its electric system at least sufficient to provide revenues adequate to meet its obligations under any such output and capacity contract and to pay all other amounts payable from or constituting a charge and lien upon those revenues.
  4. Any member municipality or cooperative may convey, transfer, or assign to the Authority, with or without consideration, any real or personal property or interest in either, including a leasehold estate.
  5. The Authority and any member municipality or cooperative or other utility (whether or not such utility is a member of the Authority) that is acting pursuant to a contract with the Authority may expend its funds, including the proceeds of its notes, bonds, or other obligations, for the purposes of modifying demand for electric capacity or energy through conservation or load management by participation in such facilities, projects, and programs as the Board of the Authority or the legislative body or other governing body or the governing board of the member municipality or cooperative or other utility, as the case may be, determines will effectively accomplish such purposes. Such facilities, projects, and programs may include providing or financing facilities or projects for conservation or load management, which may be: owned or operated by the Authority or any member municipality or cooperative or other utility or by others; leased or licensed by the Authority or any member municipality or cooperative or other utility to others, or financed by loans by the Authority or any member municipality or cooperative or other utility to others, in either case on such terms and conditions as the Board of the Authority or the legislative body or other governing body or the governing board of the member municipality or cooperative or other utility, as the case may be, may determine. Any member municipality or cooperative or other utility may issue its notes, bonds, or other obligations pursuant to any statutory authority conferring such power for carrying out the purposes of this subsection.

    Added 1979, No. 78 , § 3; amended 1989, No. 112 , §§ 2, 4, eff. June 22, 1989; 2009, No. 78 (Adj. Sess.), § 40, eff. April 15, 2010.

History

2013. In subsec. (a), "without limiting the generality of the foregoing" was deleted following "including" in accordance with No. 5, § 4 of 2013.

Revision note - In subsec. (e), "without limitation" after "including" and "but shall not be limited to" after "include" were deleted in accordance with No. 5, § 4 of 2013.

Subsec. (f), as added by 1989, No. 112 , § 4, was redesignated as subsec. (e).

Amendments--2009 (Adj. Sess.) Subsec. (c): Inserted "or cooperative" following "municipality" and deleted "department or" preceding "system at least sufficient".

Subsec. (e): Substituted "loans" for "laons" following "financed by" in subdiv. (ii).

Amendments--1989. Subsec. (b): Rewrote the first and second sentences as the first through third sentences.

Subsec. (f): Added.

ANNOTATIONS

Cited. Vermont Department of Public Service v. Massachusetts Municipal Wholesale Electric Co., 151 Vt. 73, 558 A.2d 215 (1988); In re Vermont Public Power Supply Authority, 140 Vt. 424, 440 A.2d 140 (1981).

§ 5014. Acquisition of property.

The Authority may acquire real property, or any interest in it, by eminent domain in accordance with the provisions of sections 110 through 124 of this title; provided, however, that:

  1. No property already appropriated to public use shall be so taken except to the extent and for the purposes permitted by sections 110 through 124 of this title.
  2. No facility for the generation, transmission, or distribution of electric power and energy owned by any person shall be so taken except for the purpose of acquiring property or rights in it in order to permit the crossing of existing transmission or distribution facilities.  Any taking under sections 110 through 124 of this title shall be governed by the provisions of these sections which are applicable to public utilities.
  3. No site for a project for which any utility had filed an application for a preliminary permit or a license from the Federal Energy Regulatory Commission on or before November 1, 1977 shall be so taken until such time, if ever, that the application is denied, and no further renewals or appeals are available to the utility, or the utility abandons its application, permit, or license.

    Added 1979, No. 78 , § 3.

§ 5015. Tax exemption.

  1. All bonds or notes issued under this chapter are issued by a body corporate and politic of this State and for an essential public and governmental purpose.  Those bonds and notes, and the interest on them and the income from them, including any profit on their sale, and all activities of the Authority and fees, charges, funds, revenues, incomes, and other monies of the Authority whether or not pledged or available to pay or secure the payment of those bonds or notes, or interest on them, are exempt from all taxation, franchise fees, or special assessments of whatever kind except for transfer, inheritance, and estate taxes.
  2. The Authority is not required to make or file any reports, statements, or informational returns required of any utility or other bodies corporate except as provided in this chapter.
  3. Real and personal property, situated within the State and owned by the Authority shall be exempt from property taxation.  The Authority shall, in lieu of property taxes, pay to any governmental body authorized to levy local property taxes the amount which would be assessable as local property taxes on the real and tangible personal property if that property were the property of a utility.  These payments shall be due, and bear interest if unpaid, as in the case of taxes on the property of a utility.  For purposes of these payments in lieu of taxes, the assessors of the taxing authority shall make a valuation and assessment of the property and determine the tax that would be assessable if the property were owned by a utility.  Payments in lieu of taxes made under this chapter shall be treated in the same manner as taxes for the purposes of all procedural and substantive provisions of law, including appeals, now and hereinafter in effect applicable to assessment and taxation of real and personal property, collection, and abatement of these taxes and the raising of public revenues.

    Added 1979, No. 78 , § 3.

§ 5016. Rules and rates.

  1. The Authority may make and enforce rules and regulations which it deems necessary or desirable.  It may establish, levy, and collect or may authorize by contract, franchise, lease, or otherwise, the establishment, levying, and collection of rents, rates, and other charges:
    1. for the services afforded by the Authority or afforded by or in connection with any project or properties which it may construct, erect, acquire, own, operate, or control, or with respect to which it may have any interest or any right to capacity thereof; and
    2. for the sale of electric energy or of generation or transmission capacity or service as it may deem necessary, proper, desirable, and reasonable.
  2. Rents, rates, and other charges shall be at least sufficient to meet the expenses of the Authority, including operating and maintenance expenses, reasonable reserves, interest, and principal payments, including payments into one or more sinking funds for the retirement of principal, and other requirements of any trust agreement or resolution securing bonds or notes.  The Authority may pledge its rates, rents, and other revenues, or any part of them, as security for the repayment, with interest and redemption premiums, if any, of any monies borrowed by it or advanced to it for any of its authorized purposes and as security for the payment of amounts due and owing by it under any contract.

    Added 1979, No. 78 , § 3.

History

Revision note. Undesignated paragraphs were designated as subsecs. (a) and (b).

§ 5017. Powers of municipalities.

A municipality may by resolution of its legislative body enter into contracts with the Authority for the purchase, sale, exchange, or transmission of electric energy and other services, on such terms and for such period of time as the resolution may provide. A municipality may by resolution of its legislative body enter into a contract with the Authority related to the issuance of bonds and notes as authorized by section 5031 of this title only after an affirmative vote of the qualified voters at any duly warned annual or special meeting held for that purpose. The required vote may either approve a specific contract with the Authority or it may approve generally the right for the municipality to enter into all such contracts with the Authority by resolution of its legislative body. A municipality may appropriate electricity-derived revenues received in any year to make payments due during that year under any contract made by the municipality with the Authority. Nothing in this section shall be construed to repeal any charter provision or law requiring an election or other condition precedent to the establishment of a municipal electric plant.

Added 1979, No. 78 , § 3; amended 2009, No. 78 (Adj. Sess.), § 41, eff. April 15, 2010.

History

Amendments--2009 (Adj. Sess.) Deleted "after an affirmative vote of the qualified voters at any duly warned annual or special meeting to be held for that purpose" preceding "may by resolution" in the first sentence and added the second and third sentences.

ANNOTATIONS

Cited. In re Vermont Public Power Supply Authority, 140 Vt. 424, 440 A.2d 140 (1981).

§ 5018. Construction contracts.

The Authority may contract for the planning, acquisition, construction, operation, maintenance, repair, extension, and improvement of any project, or may contract with other public or private owners of any project to perform these functions, without advertising for bids, preparing final plans and specifications in advance of construction or securing performance and payment bonds, except to the extent that the directors determine that these actions are desirable in furtherance of the purposes of this chapter. Except as otherwise provided by this section, no contract shall be invalid or unenforceable by reason of nonperformance of the conditions required by any other law relating to public contracts.

Added 1979, No. 78 , § 3.

Subchapter 3. Form and Nature of Bonds and Notes

§ 5031. Bonds and notes.

    1. The Authority may issue its negotiable notes and bonds in such principal amount as the Authority determines to be necessary to provide sufficient funds for achieving any of its corporate purposes, including the payment of interest on notes and bonds of the Authority, establishment of reserves to secure the notes and bonds, and all other expenditures of the Authority incident to and necessary or convenient to carry out its corporate purposes and powers.  Without limiting the generality of the foregoing, such bonds and notes may be issued for project costs, or the Authority's share of costs of projects, which may include: (a) (1)  The Authority may issue its negotiable notes and bonds in such principal amount as the Authority determines to be necessary to provide sufficient funds for achieving any of its corporate purposes, including the payment of interest on notes and bonds of the Authority, establishment of reserves to secure the notes and bonds, and all other expenditures of the Authority incident to and necessary or convenient to carry out its corporate purposes and powers.  Without limiting the generality of the foregoing, such bonds and notes may be issued for project costs, or the Authority's share of costs of projects, which may include:
      1. interest prior to and during the carrying out of any project and for a reasonable period thereafter;
      2. prepayments under contracts for the purchase of capacity and output;
      3. reserves for debt service or other capital or current expenses as may be required by a trust agreement or resolution securing bonds and notes; and
      4. all other expenses incidental to the determination of the feasibility of any project or to carrying out the project or to placing the project in operation.
    2. The Authority shall have the power, from time to time, to issue notes, to renew notes and bonds, to pay notes, including the interest on them and, whenever it deems refunding expedient, to refund any bonds by the issuance of new bonds, whether the bonds to be refunded have or have not matured, and to issue bonds partly to refund bonds then outstanding and partly for any of its corporate purposes.
    3. Except as may otherwise be expressly provided by resolution of the Authority, every issue of its notes and bonds shall be general obligations of the Authority payable out of any revenues or monies of the Authority, subject only to any agreements with the holders of particular notes or bonds pledging any particular revenues.
    4. Bonds and notes may be issued in accordance with this chapter, without the need to obtain the consent and approval of the Public Utility Commission as provided in this title.
    5. The notes and bonds shall be authorized by resolution or resolutions of the Authority, shall bear such date or dates, and shall mature at such time or times as the resolution or resolutions may provide. The bonds may be issued as serial bonds payable in annual installments or as term bonds or as a combination of them. The resolution or resolutions may provide that the notes and bonds bear interest at a given rate or rates, be in certain denominations, be in temporary, coupon, or registered form, carry certain registration privileges, be executed in a given manner, be payable in a given medium of payment, at a place or places within or outside the State, and be subject to specified terms of redemption. The Authority may participate in any state or federally created or supported bond programs. The notes and bonds of the Authority may be sold by the Authority, at public or private sale, at such price or prices as the Authority shall determine.
  1. Any resolution or resolutions authorizing any notes or bonds or any issue of them may contain provisions, which shall be a part of the contract or contracts with the bond or noteholders as to:
    1. pledging, mortgaging, or granting a security interest in any real or personal property and all or any part of the revenues of the Authority, of any project, or any revenue producing contract made by the Authority with any person to secure the payment of the notes or bonds or of any issue of them subject to such agreements with noteholders or bondholders as may then exist;
    2. the custody, collection securing, investment, and payment of any revenues, assets, money, funds, or property with respect to which the Authority may have any rights or interest;
    3. the rates or charges for electric energy sold by, or services rendered by, the Authority, the amount to be raised by the rates or charges, and the use and disposition of any or all revenue;
    4. the setting aside of reserves or sinking funds and their regulation and disposition;
    5. limitations on the purpose to which the proceeds of sale of notes or bonds may be applied and pledging the proceeds to secure the payment of the notes or bonds or of any issue of them;
    6. limitations on the issuance of additional notes or bonds; the terms upon which additional notes or bonds may be issued and secured; and the refunding of outstanding or other notes or bonds;
    7. the procedure, if any, by which the terms of any contract with noteholders or bondholders may be amended or abrogated, the amount of notes or bonds the holders of which must consent thereto, and the manner in which consent may be given;
    8. vesting in a trustee or trustees, within or outside the State, such property, rights, powers, and duties in trust as the Authority may determine, which may include any or all of the rights, powers, and duties of the trustee appointed by the bondholders pursuant to this chapter and limiting or abrogating the right of the bondholders to appoint a trustee under this chapter or limiting the rights, powers, and duties of the trustee;
    9. defining the acts or omissions to act which shall constitute a default in the obligations and duties of the Authority to the holders of the notes or bonds and providing for the rights and remedies of the holders of the notes or bonds in the event of such default, including as a matter of right the appointment of a receiver; provided, however, that the rights and remedies shall not be inconsistent with the general laws of the State and other provisions of this chapter; and
    10. any other matters, of like or different character, which in any way affect the security or protection of the holders of the notes or bonds.
  2. Any pledge made by the Authority shall be valid and binding from the time when the pledge is made; the revenues, monies, or property so pledged and thereafter received by the Authority shall immediately be subject to the lien of the pledge without any physical delivery of it or further act. That pledge shall be valid and binding as against all parties having claims of any kind in tort, contract, or otherwise against the Authority, irrespective of whether those parties have notice of it.
  3. Neither the directors nor executive officers of the Authority nor any other person executing the notes or bonds shall be subject to any personal liability or accountability by reason of the issuance of the notes or bonds.
  4. The Authority, subject to whatever agreement with noteholders or bondholders as may then exist, shall have power out of any funds available for that purpose to purchase notes or bonds of the Authority, which shall then be cancelled, at a price not exceeding:
    1. if the notes or bonds are then redeemable, the redemption price then applicable plus accrued interest to the next interest payment on them; or
    2. if the notes or bonds are not then redeemable, the redemption price applicable on the first date after the purchase upon which the notes or bonds become subject to redemption plus accrued interest to that date.
  5. In the discretion of the Authority, the notes or bonds may be secured by a trust indenture by and between the Authority and a corporate trustee, which may be any trust company or bank having the power of a trust company within or outside the State.  The trust indenture may contain such provisions for protecting and enforcing the rights and remedies of the noteholders or bondholders as may be reasonable and proper and not in violation of law, including covenants setting forth the duties of the Authority in relation to the exercise of its corporate powers and the custody, safeguarding, and application of all monies.  The Authority may provide by the trust indenture for the payment of the proceeds of the notes or bonds and the revenues to the trustee under the trust indenture or other depository, and for the method of disbursement, with such safeguards and restrictions as it may determine.  All expenses incurred in carrying out the trust indenture may be treated as a part of the operating expenses of the Authority.  If the notes or bonds shall be secured by a trust indenture, the noteholders and bondholders shall have no authority to appoint a separate trustee to represent them.
  6. Any law to the contrary notwithstanding, a bond or note issued under this chapter is fully negotiable for all purposes of 9A V.S.A. § 1 - 101 et seq., and each holder or owner of a bond or note, or of any coupon appurtenant to a bond or note, by accepting the bond or note or coupon shall be conclusively deemed to have agreed that the bond, note, or coupon is fully negotiable for those purposes.
  7. Any provision of this chapter or of any other law or any recitals in any bonds or notes issued under this chapter to the contrary notwithstanding, all bonds, notes, and interest coupons appertaining to them issued by the Authority shall have and are hereby declared to have all the qualities and incidents, including negotiability, of investment securities under 9A V.S.A. § 1 - 101 et seq., but no provision of those sections respecting the filing of a financing statement to perfect a security interest shall be applicable to any pledge made or security interest created in connection with the issuance of the bonds, notes, or coupons.
  8. In the case any of the directors or executive officers of the Authority whose signatures appear on any notes or bonds or coupons shall cease to be directors or executive officers before the delivery of such notes or bonds, the signatures shall, nevertheless, be valid and sufficient for all purposes, the same as if those directors or executive officers had remained in office until that delivery.

    Added 1979, No. 78 , § 3; amended 2009, No. 78 (Adj. Sess.), § 42, eff. April 15, 2010; 2019, No. 81 , § 3.

History

Amendments--2019. Subdiv. (a)(4): Substituted "without the need to obtain the" for "subject to" preceding "consent".

Amendments--2009 (Adj. Sess.) Subdiv. (a)(5): Added the fourth sentence.

ANNOTATIONS

Cited. In re Vermont Public Power Supply Authority, 140 Vt. 424, 440 A.2d 140 (1981).

§ 5032. Refunding obligations; issuance.

The Authority may provide for the issuance of refunding obligations for the purpose of refunding any obligations then outstanding which have been issued under the provisions of this chapter, including the payment of any redemption premium on them and any interest accrued or to accrue to the date of redemption of those obligations and for any corporate purpose of the Authority. The issuance of the obligations, the maturities and other details pertaining to them, the rights of their holders, and the rights, duties, and obligations of the Authority in respect to them shall be governed by the provisions of this chapter which relate to the issuance of obligations, insofar as those provisions may be appropriate.

Added 1979, No. 78 , § 3.

§ 5033. Refunding obligations; sale.

Refunding obligations issued as provided in section 5032 of this title may be sold or exchanged for outstanding obligations issued under this chapter and, if sold, the proceeds from them may be applied, in addition to any other authorized purposes, to the purchase, redemption, or payment of those outstanding obligations. Pending the application of the proceeds of any refunding obligations, with any other available funds, to the payment of the principal, accrued interest, and any redemption premium on the obligations being refunded, and, if so provided or permitted in the resolution authorizing the issuance of such refunding obligations or in the trust agreement securing them to the payment of any interest on refunding obligations and any expenses in connection with refunding, such proceeds may be invested as specified in the resolution authorizing the obligations to be refunded or the trust agreement securing them. These investments shall mature or shall be subject to redemption by their holders, at the option of the holders, not later than the respective dates when the proceeds, together with the interest accruing on them, will be required for the purposes intended.

Added 1979, No. 78 , § 3.

§ 5034. Remedies of bondholders and noteholders.

  1. In the event that the Authority defaults in the payment of principal or of interest on any bonds or notes issued under this chapter after they become due, whether at maturity or upon call for redemption, and the default continues for a period of 30 days, or in the event that the Authority fails or refuses to comply with the provisions of this chapter, or defaults in any agreement made with the holders of an issue of bonds or notes of the Authority, the holders of 25 percent in aggregate principal amount of the bonds or notes of such issue then outstanding, by instrument or instruments filed in the office of the Secretary of State and proved or acknowledged in the same manner as a deed to be recorded, may appoint a trustee to represent the holders of those bonds or notes for the purposes herein provided.
  2. That trustee may, and upon written request of the holders of 25 percent in principal amount of the bonds or notes then outstanding shall, in his or her or its own name:
    1. enforce all rights of the bondholders or noteholders, including the right to require the Authority to fix and collect rates, fees, and charges relating to projects or other obligations held by it adequate to carry out any agreement as to, or pledge of, the revenues of the Authority, and to require the Authority to carry out any other agreements with the holders of the bonds or notes and to perform its duties under this chapter;
    2. enforce all rights of the bondholders or noteholders, including the right to take possession and control of the business and properties of the Authority, to operate and maintain the same, to make any necessary repairs, renewals, and replacements to them, and to fix, revise, and collect fees and charges, so as to carry out any contract as to, or pledge of revenues, and to require the Authority to carry out and perform the terms of any contract with the holders of the bonds or notes or its duties under this chapter;
    3. bring suit upon all or any part of the bonds or notes;
    4. by action or suit, require the Authority to account as if it were the trustee of an express trust for the holders of the bonds or notes;
    5. by action or suit, enjoin any acts or things which may be unlawful or in violation of the rights of the holders of the bonds or notes;
    6. declare all bonds or notes due and payable, and, if all defaults shall be made good, then with the consent of the holders of 25 percent of the principal amount of the bonds or notes then outstanding to annul the declaration and its consequences.
  3. The trustee shall in addition to the foregoing have and possess all the powers necessary or appropriate for the exercise of any functions specifically set forth in this chapter or incident to the general representation of bondholders or noteholders in the enforcement and protection of their rights.
  4. Before declaring the principal of bonds or notes due and payable, the trustee shall first give 30 days' notice in writing to the Governor, to the Authority, and to the Attorney General of the State.
  5. The Superior Court shall have jurisdiction of any suit, action, or proceeding by the trustee on behalf of bondholders or noteholders.

    Added 1979, No. 78 , § 3.

§ 5035. Pledge of the State.

The State does hereby pledge to and agree with the holders of the notes and bonds issued under this chapter that the State will not limit or restrict the rights hereby vested in the Authority to perform its obligations and to fulfill the terms of any agreement made with the holders of its bonds or notes. Neither will the State in any way impair the rights and remedies of the holders until the notes and bonds, together with interest on them, and interest on any unpaid installments of interest, are fully met, paid, and discharged. The Authority is authorized to execute this pledge and agreement of the State in any agreement with the holders of the notes or bonds.

Added 1979, No. 78 , § 3.

§ 5036. Credit of State and members of Authority not pledged.

Obligations issued under the provisions of this chapter shall not be deemed to constitute a debt or liability or obligation of the State or of any political subdivision of it or of any member of the Authority, nor shall it be deemed to constitute a pledge of the faith and credit of the State or of any political subdivision or of any member of the Authority, but shall be payable solely from the revenues or assets of the Authority. Each obligation issued by the Authority shall contain on its face a statement to the effect that the Authority shall not be obligated to pay the same nor the interest on it except from the revenues or assets pledged for those purposes and that neither the faith and credit nor the taxing power of the State or of any political subdivision of it or of any member of the Authority is pledged to the payment of the principal of or the interest on these obligations.

Added 1979, No. 78 , § 3.

§ 5037. Notes and bonds as legal investments.

Notwithstanding any other law, the State and all public officers, governmental units, and agencies of the State, all banks, trust companies, savings banks and institutions, building and loan associations, savings and loan associations, investment companies, and other persons carrying on a banking business, all insurance companies, insurance associations, and other persons carrying on an insurance business, all credit unions, and all executors, administrators, guardians, trustees, and other fiduciaries may legally invest any sinking funds, monies, or other funds belonging to them or within their control in any bonds or notes issued under this chapter, and the bonds or notes are authorized security for any and all public deposits.

Added 1979, No. 78 , § 3.

§ 5038. Annual reports; audit.

  1. On or before the last day of January in each year, the Authority shall submit a report of its activities for the preceding calendar year to the Governor, the Public Utility Commission, and the General Assembly. Each report shall set forth a complete operating and financial statement covering its operations during the year, and shall contain a full and complete statement of the Authority's anticipated budget and operations for the ensuing year. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subsection. The Authority shall cause an audit of its books and accounts to be made at least once in each year by certified public accountants; the cost shall be considered an expense of the Authority and copies shall be filed with the State Treasurer and the Public Utility Commission.
  2. The Auditor of Accounts of the State and his or her duly authorized representatives may at any time examine the accounts and books of the Authority including its receipts, disbursements, contracts, sinking funds, investments, and any other matters relating to its financial statements.

    Added 1979, No. 78 , § 3; amended 2013, No. 142 (Adj. Sess.), § 51.

History

Amendments--2013 (Adj. Sess.). Subsec. (a): Added the third sentence, and made minor stylistic changes.

§ 5039. Liberal construction.

Neither this chapter nor anything contained in this chapter is or shall be construed as a restriction or limitation upon any powers which the Authority might otherwise have under any laws of this State, and this chapter is cumulative to any such powers. This chapter does and shall be construed to provide a complete, additional, and alternative method for the doing of the things authorized by it and shall be regarded as supplemental and additional to powers conferred by other laws.

Added 1979, No. 78 , § 3.

§ 5040. Public Utility Commission jurisdiction.

Notwithstanding any other provision of this chapter, the Authority shall be subject to the regulatory jurisdiction of the Public Utility Commission, insofar as provided in this title.

Added 1979, No. 78 , § 3.

§ 5041. Inconsistent provisions in other laws superseded.

Insofar as the provisions of this chapter are inconsistent with the provisions of any special act or any municipal charter, the provisions of this chapter shall be controlling.

Added 1979, No. 78 , § 3.

CHAPTER 85. WEST RIVER BASIN ENERGY AUTHORITY

Sec.

History

Repeal of chapter. This chapter, which comprised §§ 6001-6010, relating to the West River Basin energy authority, was repealed by 2009, No. 135 (Adj. Sess.), § 26(13)(A).

§§ 6001-6010. Repealed. 2009, No. 135 (Adj. Sess.), § 26(13)(A).

History

Former §§ 6001-6010. Former § 6001, relating to legislative findings, was derived from 1981, No. 202 (Adj. Sess.), § 1.

Former § 6002, relating to definitions, was derived from 1981, No. 202 (Adj. Sess.), § 2(a).

Former § 6003, relating to creation of West River Basin Energy Authority, was derived from 1981, No. 202 (Adj. Sess.), § 2(b).

Former § 6004, relating to general powers and duties, was derived from 1981, No. 202 (Adj. Sess.), § 2(c) and amended by 1995, No. 99 (Adj. Sess.), § 11.

Former § 6005, relating to financing of the authority; obligations, was derived from 1981, No. 202 (Adj. Sess.), § 2(d).

Former § 6006, relating to acquisition of property, was derived from 1981, No. 202 (Adj. Sess.), § 2(e).

Former § 6007, relating to tax exemption, was derived from 1981, No. 202 (Adj. Sess.), § 2(f).

Former § 6008, relating to rules and rates, was derived from 1981, No. 202 (Adj. Sess.), § 2(g).

Former § 6009, relating to regulatory jurisdiction, was derived from 1981, No. 202 (Adj. Sess.), § 3.

Former § 6010, relating to transitional provision, was derived from 1981, No. 202 (Adj. Sess.), § 4.

CHAPTER 86. UNDERGROUND UTILITY DAMAGE PREVENTION SYSTEM

Sec.

§ 7001. Definitions.

In this chapter:

  1. "Commission" means the Public Utility Commission under section 3 of this title.
  2. "Company" means any public utility, municipality, or person that supplies gas, electricity, hot water, steam, or telecommunications service and that maintains underground utility facilities, and any cable television company operating a cable television system as defined in section 501 of this title that maintains underground utility facilities.
  3. "Damage" includes the substantial weakening of structural or lateral support of an underground utility facility; penetration or destruction of any underground utility facility's protective coating, housing, or device; or the partial or complete severance of any underground utility facility.
  4. "Excavation activities" means any activities that will disturb the subsurface of the earth or could damage underground utility facilities and that may involve the removal of earth, rock, or other materials in the ground or the demolition of any structure by the discharge of explosives or the use of powered or mechanized equipment, including digging, trenching, blasting, boring, drilling, hammering, post driving, wrecking, razing, tunneling, or pavement or concrete slab removal within 100 feet of an underground utility facility. Excavation activities shall not include the tilling of the soil for agricultural purposes, routine home gardening with hand tools outside easement areas and public rights-of-way, activities relating to routine public highway maintenance, or the use of hand tools by a company, or the company's agent or a contractor working under the agent's direction, to locate or service the company's facilities, provided the company has a written damage prevention program.
  5. "Person" means any individual, trust, firm, joint stock company, corporation including a government corporation, partnership, association, state, municipality, commission, political subdivision of the State, or any interstate body.
  6. "Public agency" means the State or any political subdivision thereof, including any governmental agency.
  7. "Approximate location of underground utility facilities" means a strip of land extending not more than 18 inches on either side of the underground utility facilities.
  8. "System" means the public utility underground facility damage prevention system referred to in section 7002 of this title.
  9. "Underground utility facility" or "facility" means any pipe, conduit, wire, or cable located beneath the surface of the earth and maintained by a company, including the protective covering of the pipe, conduit, wire, or cable, as well as any manhole, vault, pedestal, or component maintained by a company.
  10. "Premark" means to identify the general scope of excavation activities using white paint, stakes, or other suitable white markings, in a manner that will enable the operators of the underground utility facilities to know the boundaries of the proposed excavation activities.
  11. "Powered or mechanized equipment" means equipment that is powered or energized by any motor, engine, or hydraulic or pneumatic device and that is used for excavation or demolition work.
  12. "Hand tools" means tools powered solely by human energy.
  13. "Verified" means the location and depth have been visually determined using careful and prudent excavating techniques such as hand digging, water excavation, or other safe means.
  14. "Damage prevention program" means a program established to ensure employees involved in excavation activities are aware of and utilize appropriate and safe excavating practices.

    Added 1987, No. 86 , § 1, eff. Jan. 1, 1988; amended 1993, No. 118 (Adj. Sess.), § 1; 2001, No. 51 , § 1; 2003, No. 56 , § 56, eff. June 4, 2003; 2007, No. 145 (Adj. Sess.), § 1; 2017, No. 53 , § 10; 2019, No. 31 , § 9.

History

2016. In subdivs. (3) and (4), deleted "but not limited to" following "including" in accordance with 2013, No. 5 , § 4.

Revision note - At the end of subdiv. (8), substituted "section 7002 of this title" for "section 7002" to conform reference to V.S.A. style.

Amendments--2019. Subdiv. (2): Amended generally.

Subdiv. (4): Amended generally the first sentence.

Subdiv. (9): Deleted "or" following "vault," and inserted ", or component" preceding "maintained".

Subdiv. (13): Amended generally.

Amendments--2017. Subdiv. (1): Amended generally.

Amendments--2007 (Adj. Sess.). Subdiv. (4): Rewrote the last sentence.

Subdivs. (11)-(14): Added.

Amendments--2003. Subdiv. (4): Added second sentence.

Amendments--2001. Subdiv. (2): Substituted "telecommunications" for "telephone" preceding "service".

Subdiv. (4): Substituted "100 feet of an underground utility facility" for "an underground utility easement or the area of a public right of way in which an underground utility is located".

Subdiv. (10): Added.

Amendments--1993 (Adj. Sess.). Subdiv. (4): Rewrote the first sentence.

Subdiv. (7): Substituted "18 inches" for "three feet".

Appeal process for penalties for underground utility damage prevention system violations. 2007, No. 145 (Adj. Sess.), § 5 provides: "The department of public service, in collaboration with the public service board and companies and contractors using the underground utility damage prevention system, shall develop a streamlined appeal process before an independent adjudicator for the purpose of appealing fines assessed pursuant to 30 V.S.A. § 7008(a)."

§ 7002. Public Utility Underground Facility Damage Prevention System.

Each company shall be a member of and participate in the Public Utility Underground Facility Damage Prevention System as designated by the Commission unless granted an exemption by the Commission after opportunity for hearing. The System shall operate during regular business hours throughout the year, except Saturdays, Sundays, and legal holidays. The System shall receive notices of proposed excavation activities and transmit the notices to member companies whose facilities may be affected. The cost for operation of the System shall be apportioned equitably among member companies.

Added 1987, No. 86 , § 1, eff. Jan. 1, 1988; amended 1993, No. 118 (Adj. Sess.), § 2; 1999, No. 157 (Adj. Sess.), § 15.

History

Amendments--1999 (Adj. Sess.) Inserted "opportunity for" preceding "hearing" in the first sentence.

Amendments--1993 (Adj. Sess.). Substituted "excavation activities" for "excavations" following "proposed" in the third sentence.

§ 7003. Rulemaking.

The Commission shall adopt rules, pursuant to 3 V.S.A. chapter 25 relative to:

  1. minimum requirements for the operation of the System, including notification procedures and the reporting of underground utility facility locations;
  2. procedures for the investigation of complaints;
  3. emergency situations;
  4. uniform standards for the marking of the approximate location of underground utility facilities;
  5. uniform standards for the future installation of underground utility facilities, including the following:
    1. color coding of facilities;
    2. depth requirements for the laying of facilities;
    3. subsurface marking of facilities;
    4. surface marking of facilities;
    5. the filing of as-built plans of facilities with municipalities; and
    6. capability for location of facilities by sensors;
  6. standards for the granting of exemptions under section 7002 of this title; and
  7. situations where the premarks cannot be found.

    Added 1987, No. 86 , § 1; amended 1993, No. 118 (Adj. Sess.), § 3; 2019, No. 31 , § 10.

History

2016 In subdiv. (5), deleted "but not limited to" following "including" in accordance with 2013, No. 5 , § 4.

Amendments--2019. Subdiv. (3): Amended generally.

Subdiv. (7): Added.

Amendments--1993 (Adj. Sess.). Subdiv. (3): Inserted "activities" following "excavation".

§ 7004. Notice of excavation activities.

  1. No person or company shall engage in excavation activities, except in an emergency situation as defined by the Commission, without premarking the proposed area of excavation activities and giving notice as required by this section.
  2. Prior to notifying the System, the person shall premark the area of proposed excavation activities in a manner that will enable operators of underground facilities to identify the boundaries of the proposed excavation activities.
  3. At least 48 hours, excluding Saturdays, Sundays, and legal holidays, but not more than 30 days before commencing excavation activities, each person required to give notice of excavation activities shall notify the System referred to in section 7002 of this title. Such notice shall set forth a reasonably accurate and readily identifiable description of the geographical location of the proposed excavation activities and the premarks.

    Notice to the System may be in writing or by telephone. For purposes of this section, the System shall provide a toll-free telephone number.

    (e) Notice of excavation activities shall be valid for an excavation site until one of the following occurs:

    1. the excavation is not completed within 30 days of the notification;
    2. the markings become faded, illegible, or destroyed; or
    3. the company installs new underground facilities in a marked area still under excavation.

      Added 1987, No. 86 , § 1, eff. Jan. 1, 1988; amended 1993, No. 118 (Adj. Sess.), § 4; 2001, No. 51 , § 2; 2007, No. 145 (Adj. Sess.), § 2; 2019, No. 31 , § 11.

History

2016. In subsec. (d), removed subdiv. designations (1) and (2) in light of the repeal of subdiv. (2).

Amendments--2019. Added new subsec. (b), redesignated former subsec. (b) as present subsec. (c) and in that subsec. added "and the premarks" at the end of the last sentence, redesignated former subsec. (c) as present subsec. (d), and deleted former subsec. (d).

Amendments--2007 (Adj. Sess.). Subsec. (e): Added.

Amendments--2001. Subsec. (a): Amended generally.

Subsec. (d): Added.

Amendments--1993 (Adj. Sess.) Added "activities" following "excavation" in the section catchline, substituted "engage in excavation activities" for "make an excavation" following "company shall" in subsec. (a), and deleted "an" preceding "excavation" and inserted "activities" thereafter in two places in the first sentence and added the second sentence in subsec. (b).

Repeal of subdiv. (d)(2). 2007, No. 145 (Adj. Sess.), § 7 provided for the repeal of subdiv. (d)(2) effective January 1, 2010.

§ 7005. Notification by System.

Upon receiving notice of excavation activities, the System shall notify all member companies whose facilities may be affected. An adequate record shall be maintained by the System to document compliance with requirements of this chapter.

Added 1987, No. 86 , § 1, eff. Jan. 1, 1988; amended 1993, No. 118 (Adj. Sess.), § 5.

History

Amendments--1993 (Adj. Sess.). Inserted "activities" following "excavation" in the first sentence.

§ 7006. Marking of underground utility facilities.

A company notified in accordance with section 7005 of this title shall, within 48 hours, exclusive of Saturdays, Sundays, and legal holidays, of the receipt of the notice, mark the approximate location of its underground utility facilities in the area of the proposed excavation activities; provided, however, if the company advises the person that the proposed excavation area is of such length or size that the company cannot reasonably mark all of the underground utility facilities within 48 hours, the person shall notify the company of the specific locations in which the excavation activities will first occur and the company shall mark facilities in those locations within 48 hours and the remaining facilities within a reasonable time thereafter. A company and an excavator may by agreement fix a later time for the company's marking of the facilities, provided the marking is made prior to excavation activities. For the purposes of this chapter, the approximate location of underground facilities shall be marked with stakes, paint, or other physical means as designated by the Commission.

Added 1987, No. 86 , § 1, eff. Jan. 1, 1988; amended 1993, No. 118 (Adj. Sess.), § 6.

History

Amendments--1993 (Adj. Sess.). Rewrote the first sentence and added "activities" following "excavation" in the second sentence.

§ 7006a. Maintenance of underground utility facility markings.

After a company has marked its underground facilities in accordance with section 7006 of this title, the excavator shall be responsible for maintenance of the designated markings. In the event said markings are obliterated, destroyed, or removed, the person engaged in excavation activities shall notify the System referred to in section 7002 of this title that remarking is needed. The System shall then notify all member companies whose facilities may be affected. The company shall within 48 hours, exclusive of Saturdays, Sundays, and legal holidays, following receipt of the notice, remark the location of its underground utility facilities.

Added 1993, No. 118 (Adj. Sess.), § 7.

§ 7006b. Excavation area precautions.

Any person engaged in excavating activities in the approximate location of underground utility facilities marked pursuant to section 7006 of this title shall take reasonable precautions to avoid damage to underground utility facilities, including any substantial weakening of the structural or lateral support of such facilities or penetration, severance, or destruction of such facilities. The person engaged in excavation activities shall expose underground facilities to verify their location and depth, in a safe manner, at each location where the work will cross a facility and at reasonable intervals when paralleling an underground facility. Powered or mechanized equipment may only be used within the approximate location where the facilities have been verified.

Added 1993, No. 118 (Adj. Sess.), § 8; amended 2001, No. 51 , § 3; 2007, No. 145 (Adj. Sess.), § 3; 2019, No. 31 , § 12.

History

2016 Deleted "but not limited to" following "including" in accordance with 2013, No. 5 , § 4.

Amendments--2019. Deleted "When excavation activities involve horizontal or directional boring," preceding "the person engaged" in the second sentence.

Amendments--2007 (Adj. Sess.). Substituted "will cross" for "crosses" in the second sentence and added the last sentence.

Amendments--2001. Added the second sentence.

§ 7007. Notice of damage.

When any underground utility facility is damaged during excavation activities, the excavator shall immediately notify the affected company. Under no circumstances shall the excavator backfill or conceal the damaged area until the company inspects and repairs the damage, provided that the excavator shall take reasonable and prudent actions to protect the public from serious injury from the damaged facilities until the company or emergency response personnel arrive at the damaged area. An excavator who causes damage to a pipeline that results in a release of natural or other gas or hazardous liquid shall promptly report the release to emergency responders by calling 911.

Added 1987, No. 86 , § 1, eff. Jan. 1, 1988; amended 1993, No. 118 (Adj. Sess.), § 9; 2019, No. 31 , § 13.

History

Amendments--2019. Added the last sentence.

Amendments--1993 (Adj. Sess.). Inserted "activities" following "excavation" in the first sentence and added the second sentence.

§ 7008. Penalties.

  1. Vermont Digsafe Program.  Any person or company who violates any provisions of section 7004, 7006, 7006a, 7006b, or 7007 of this title shall be subject to a civil penalty of not more than $500.00 for the first offense, not more than $1,000.00 for the second offense within one year of the date of the first offense, not more than $1,500.00 for the third offense within one year of the first offense, and not more than $5,000.00 for the fourth or subsequent offense within one year of the date of a previous offense, in addition to any other remedies or penalties provided by law or any liability for actual damages. For the purposes of this subsection, "the date of the first offense" means the date on which the violation occurred, not the date on which the adjudication of the offense resulted.
  2. [Repealed.]
  3. If underground facilities are damaged because a company has not marked them as required by section 7006 or 7006a, the company shall be subject to a civil penalty as provided in this section and, in addition, shall be liable for any damages incurred by the excavator as a result of the company's failure to mark the facilities.
  4. All penalties recovered in any such actions shall be paid into the General Fund of the State. The Commission shall have jurisdiction over all actions brought pursuant to this chapter.
  5. Any person who violates any provisions of sections 7004 through 7007 of this title as to an underground gas distribution or transmission facility shall also be subject to the civil penalties described in section 2816 of this title. However, a person who has been assessed a civil penalty pursuant to section 2816 of this title shall not be subject to the payment of an assessed penalty under the provisions of this section for the same violation.

    Added 1987, No. 86 , § 1, eff. Jan. 1, 1988; amended 1993, No. 118 (Adj. Sess.), § 10; 2007, No. 145 (Adj. Sess.), § 4.

History

Amendments--2007 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Deleted.

Subsec. (e): Added the last sentence.

Amendments--1993 (Adj. Sess.). Subsec. (a): Substituted "any" for "the" preceding "provisions" and "sections 7004, 7006a, 7006b or 7007" for "section 7004 or section 7007" preceding "of this title".

Subsec. (b): Inserted "or 7006a" following "7006".

Subsec. (c): Inserted "or 7006a" following "7006".

Subsec. (e): Added.

ANNOTATIONS

1. Authority of Board.

Subsection (a) of this section does not expressly confer upon the Public Service Board the authority to determine liability for actual damages caused by a person in violation of the applicable provisions of the Underground Utility Damage Prevention System, and, moreover, in light of the extensive legislative history evincing a legislative intent not to grant such authority, the Board's exercise of jurisdiction can be neither presumed nor implied. Green Mountain Power Corp. v. Sprint Communications, 172 Vt. 416, 779 A.2d 687 (2001).

CHAPTER 87. ENHANCED 911; EMERGENCY SERVICES

Sec.

History

Revision note. This chapter, comprising §§ 7051-7061, was originally enacted as chapter 88 of this title by 1993, No. 197 (Adj. Sess.), § 2, and was redesignated to conform to the general numbering scheme of V.S.A.

Amendments--2011. 2011, No. 64 , § 1, eff. June 2, 2011, substituted "Services" for "Response System" in the chapter heading.

Effective date. 1993, No. 197 (Adj. Sess.), § 9, provided: "This act shall take effect on July 1, 1994, except that the universal service charge established under Sec. 5 of this act [which added sections 7501-7504, 7511-7515, 7521-7525 of this title] and 30 V.S.A. § 5723(b) [sic] shall be imposed beginning on and after October 1, 1994, and except that administrative agencies required to execute this act may act immediately to establish policies, procedures and rules, and to select and to contract with a fiscal agent."

Legislative intent; target date for completion of implementation. 1993, No. 197 (Adj. Sess.), § 1(b) provided: "It is the intention of the general assembly that:

"(1) For planning purposes, the target date for completion of statewide enhanced 911 emergency calling service should be July 1, 1997, but that specific plans for implementation should be reviewed by the 1995 general assembly.

"(2) In order to ensure that both urban and rural areas have equal opportunity, enhanced 911 should be available at approximately the same time in all areas of the state."

Pursuant to 1993, No. 197 (Adj. Sess.), § 10, section 1(b) of the act, as set out in the note above, is repealed on July 1, 1996.

Cross References

Cross references. Telephone lifeline program, see § 218 of this title.

§ 7051. Definitions.

As used in this chapter:

  1. "Automatic location identification" or "ALI" means the system capability to identify automatically the geographical location of the electronic device being used by the caller to summon assistance and to provide that location information to an appropriate device located at any public safety answering point for the purpose of sending emergency assistance.
  2. ALI "database" means a derivative, verified set of records which contain at a minimum a telephone number and location identification for each unique building or publicly used facility within a defined geographic area in Vermont.
  3. "Automatic number identification" or "ANI" means the system capability to identify automatically the calling telephone number and to provide a display of that number at any public safety answering point.
  4. "Board" means the Vermont Enhanced 911 Board established under section 7053 of this title.
  5. "Caller" means a person or an automated device calling on behalf of a person.
  6. "Director" means the Director for statewide Enhanced 911.
  7. "Emergency call system" or "Enhanced 911 system" means a system consisting of devices with the capability to determine the location and identity of a caller that initiates communication for the purpose of summoning assistance in the case of an emergency. In most cases summoning assistance will occur when a caller dials the digits 9-1-1 on a telephone, mobile phone, or other IP-enabled service, or by a communication technology designed for the purpose of summoning assistance in the case of an emergency.
  8. "Emergency services" means fire, police, medical, and other services of an emergency nature as identified by the Board.
  9. "IP-enabled service" means a service, device, or application that makes use of Internet protocol, or IP, and which is capable of entering the digits 9-1-1 or otherwise contacting the emergency 911 system. IP-enabled service includes voiceover IP and other services, devices, or applications provided through or using wire line, cable, wireless, or satellite or other facilities.
  10. "Municipality" means any city, town, incorporated village, unorganized town, gore, grant, or other political subdivision of the State.
  11. "Other methods of locating caller" means those commercially available technologies designed to provide the location information of callers when a call is initiated to access emergency 911 services regardless of the type of device that is used.
  12. "Public safety answering point" means a facility with the capability to receive emergency calls, operated on a 24-hour basis, assigned the responsibility of receiving 911 calls and dispatching, transferring, or relaying emergency 911 calls to other public safety agencies or private safety agencies.
  13. "Selective routing" means a telecommunications switching system that enables all 911 calls originating from within a defined geographical region to be answered at a predesignated public service answering point.
  14. "Dispatchable Location" means the location information delivered to the public safety answering point with a 911 call.
  15. "Enterprise Communications Systems (ECS)" means any networked communication system serving two or more stations, or living units, within an enterprise. ECS includes circuit-switched networks, such as multi-line telephone systems or legacy ECS, IP-enabled service, and cloud-based technology.
  16. "Station" means a telephone handset, customer premise equipment (CPE), or calling device that is capable of initiating a call to 911.

    Added 1993, No. 197 (Adj. Sess.), § 2; amended 1995, No. 182 (Adj. Sess.), § 10, eff. May 22, 1996; 2011, No. 64 , § 1, eff. June 2, 2011; 2017, No. 190 (Adj. Sess.), § 24, eff. May 28, 2018.

History

Amendments--2017 (Adj. Sess.). Subdivs. (14)-(16): Added.

Amendments--2011. Section amended generally.

Amendments--1995 (Adj. Sess.) Subdiv. (7): Inserted "of an individual, unless otherwise requested by such individual in accordance with rules adopted by the board, and the" preceding "address" near end of the subdiv.

Effective date. See note set out preceding § 7051 of this title.

Disclosure. 1997, No. 147 (Adj. Sess.), § 92, provided: "Notwithstanding any other provision of law, no other agency of state government may spend funds appropriated by this act for the purpose of requiring any individual to disclose any enhanced 911 address related to such individual, provided that the individual furnishes an alternative mailing address."

§ 7052. Vermont Enhanced 911 Board.

  1. The Vermont Enhanced 911 Board is established to develop, implement, and supervise the operation of the statewide Enhanced 911 system.
  2. The Board shall consist of nine members: one county law enforcement officer elected by the membership of the Vermont State Sheriffs' Association; one municipal law enforcement officer elected by the Vermont Association of Chiefs of Police; one official of a municipality; a firefighter; an emergency medical services provider; a Department of Public Safety representative; and three members of the public. Board members shall be appointed by the Governor to three-year terms, except that the Governor shall stagger initial appointments so that the terms of no more than four members expire during a calendar year. In appointing Board members, the Governor shall give due consideration to the different geographical regions of the State, and the need for balance between rural and urban areas. Board members shall serve at the pleasure of the Governor.
  3. Members who are not State employees or not otherwise compensated in the course of their employment shall receive per diem compensation and expense reimbursement for meetings in accordance with the provisions of 32 V.S.A. § 1010 . Members who receive per diem shall receive compensation for no more than 12 meetings per year.
  4. The Governor shall annually appoint a member to serve as Board chair and a member to serve as Board vice chair. The Board shall hold at least four regular meetings a year. Meetings of the Board may be held at any time or place within Vermont upon call of the Chair or a majority of the members, after reasonable notice to the other members and shall be held at such times and places as in the judgment of the Board will best serve the convenience of all parties in interest. The Board shall adopt rules and procedures with respect to the conduct of its meetings and other affairs. Membership on the Board does not constitute the holding of an office for any purpose, and members of the Board shall not be required to take and file oaths of office before serving on the Board. A member of the Board shall not be disqualified from holding any public office or employment, and shall not forfeit any office or employment, by reason of their appointment to the Board, notwithstanding any statute, ordinance, or charter to the contrary.
  5. The Board shall appoint, subject to the approval of the Governor, the Executive Director who shall hold office at the pleasure of the Board. He or she shall perform such duties as may be assigned by the Board. The Executive Director is entitled to compensation, as established by law, and reimbursement for the expenses within the amounts available by appropriation. The Executive Director may, with the approval of the Board, hire employees, agents, and consultants and prescribe their duties.

    Added 1993, No. 197 (Adj. Sess.), § 2; 2009, No. 4 , § 99, eff. April 29, 2009.

History

Amendments--2009. Subsec. (b): Deleted "not currently receiving 911 service" following " municipality".

Effective date. See note set out preceding § 7051 of this title.

§ 7053. Board; responsibilities and powers.

  1. The Board shall be the single governmental agency responsible for statewide Enhanced 911. To the extent feasible, the Board shall consult with the Agency of Human Services, the Department of Public Safety, the Department of Public Service, and local community service providers on the development of policies, system design, standards, and procedures. The Board shall develop designs, standards, and procedures and shall adopt rules on the following:
    1. The technical and operational standards for public safety answering points.
    2. The system database standards and procedures for developing and maintaining the database. The system database shall be the property of the Board.
    3. Statewide, locatable means of identifying customer location, such as addressing, geo-coding, or other methods of locating the caller.
    4. Standards and procedures to ensure system and database security.
  2. -(d)  [Repealed.]

    (e) The Board is authorized:

    1. to make or cause to be made studies of any aspect of the Enhanced 911 system, including service, operations, training, database development, and public awareness;
    2. to accept and use in the name of the State, subject to review and approval by the Joint Fiscal Committee, any and all donations or grants, both real and personal, from any governmental unit or public agency or from any institution, person, firm, or corporation, consistent with the rules established by the Board and the purpose or conditions of the donation or grant; and
    3. to exercise all powers and conduct such activities as are necessary in carrying out the Board's responsibilities in fulfilling the purposes of this chapter.

      (f) The Board shall adopt such rules as are necessary to carry out the purposes of this chapter, including, where appropriate, imposing reasonable fines or sanctions against persons that do not adhere to applicable Board rules.

      (g), (h) [Repealed.]

      Added 1993, No. 197 (Adj. Sess.), § 2; amended 2011, No. 64 , § 1, eff. June 2, 2011.

History

Amendments--2011. Subsec. (a): Deleted "and" following "safety,"; inserted "and local community service providers" following "service," and deleted the former third sentence.

Subdiv. (a)(3): Substituted "methods of locating the caller" for "means which provide for reliable emergency response" following "other".

Subsecs. (b)-(d): Deleted.

Subsec. (f): Inserted ", including, where appropriate, imposing reasonable fines or sanctions against persons that do not adhere to applicable board rules" following "chapter".

Subsecs. (g), (h): Deleted.

Effective date. See note set out preceding § 7051 of this title.

§ 7054. Funding.

  1. The Enhanced 911 Fund is created as a special fund subject to the provisions of 32 V.S.A. chapter 7, subchapter 5. Balances in the Fund on June 30 of each year shall carry forward and shall not revert to the General Fund.
  2. The General Assembly shall annually review and approve an amount to be transferred by the universal service fiscal agent to the Enhanced 911 Fund and shall appropriate some or all of that amount for expenditures related to providing Enhanced 911 services.
  3. Into the Enhanced 911 Fund shall be deposited monies transferred from the universal service fiscal agent, any State or federal funds appropriated to the Fund by the General Assembly, any taxes specifically required by law to be deposited into the Fund, and any grants or gifts received by the State for the benefit of the Enhanced 911 system.
  4. Disbursements from the Enhanced 911 Fund shall be made by the State Treasurer on warrants drawn by the Director solely for the purposes specified in this chapter. The Director may issue such warrants pursuant to contracts or grants.
  5. Disbursements may be made for:
    1. nonrecurring costs, including establishing public safety answering points, purchasing network equipment and software, developing databases, and providing for initial training and public education;
    2. recurring costs, including network access fees and other telephone charges, software, equipment, database management and improvement, public education, ongoing training, and equipment maintenance;
    3. expenses of the Board and the Department of Public Service incurred under this chapter;
    4. costs solely attributable to statewide public safety answering point operations; and
    5. costs attributable to demonstration projects designed to enhance the delivery of emergency 911 and other emergency services.
  6. Disbursements may not be made for:
    1. personnel costs for emergency dispatch answering points;
    2. construction, purchase, renovation, or furnishings for buildings at emergency dispatch points;
    3. two-way radios; and
    4. vehicles and associated equipment.

      Added 1993, No. 197 (Adj. Sess.), § 2; amended 1999, No. 62 , § 82; 2007, No. 192 (Adj. Sess.), § 6.025, eff. June 7, 2008; 2011, No. 64 , § 1, eff. June 2, 2011.

History

2013. In subdivs. (e)(1) and (2), deleted "but not limited to" following "including" in accordance with 2013, No. 5 , § 4.

Amendments--2011. Subdiv. (e)(5): Added.

Amendments--2007 (Adj. Sess.). Subdiv. (e)(5): Added.

Subsec. (f): Deleted former subdiv. (1) and redesignated (2) through (4) as (1) through (3).

Amendments--1999. Subdiv. (e)(4): Added.

Effective date. See note set out preceding § 7051 of this title.

Restrictions on deposits carried forward in the E-911 Fund. 1999, No. 152 , § 88(b), as amended by 2001, No. 11 , § 15, eff. April 25, 2001 and 2003, No. 63 , § 70, provided: "Notwithstanding the provisions of 30 V.S.A. § 7054 or 32 V.S.A. § 511, monies deposited into the E-911 fund and carried forward to a subsequent fiscal year shall not be spent, as excess receipts or otherwise, for the construction or maintenance of any public service answering points not already in operation on January 1, 2001, except for the E-911 Board's network, database, and equipment, and their maintenance costs, associated with Rockingham, Rutland, and Derby, without the express, annual appropriation of the general assembly."

Expiration of 2007 (Adj. Sess.) amendment. 2007, No. 192 (Adj. Sess.), § 9.001(f), provides that the amendments to subsecs. (e) and (f), as amended by Sec. 6.025 of that act, shall expire on July 1, 2010 and, upon that date, the language of subsec. (e) and (f) shall revert to the language that existed as of January 1, 2008.

Cross References

Cross references. Distributions to Enhanced 911 special fund, see § 7514 of this title.

§ 7055. Telecommunications company coordination.

  1. Every telecommunications company under the jurisdiction of the Public Utility Commission offering access to the public network shall make available, in accordance with rules adopted by the Public Utility Commission, the universal emergency telephone number 911 for use by the public in seeking assistance from fire, police, medical, and other emergency service providers through a public safety answering point.
  2. Every local exchange telecommunications provider shall provide the ANI and any other information required by rules adopted under section 7053 of this title to the Board, or to any administrator of the Enhanced 911 database, for purposes of maintaining the Enhanced 911 database. Each such provider shall be responsible for updating the information at a frequency specified by such rules. All persons receiving confidential information under this section, as defined by the Public Utility Commission, shall use it solely for the purposes of providing emergency 911 services, and shall not disclose such confidential information for any other purpose.
  3. Each local exchange telecommunications company, cellular company, and mobile or personal communications service company within the State shall designate a person to coordinate with and provide all relevant information to the Enhanced 911 Board and Public Utility Commission in carrying out the purposes of the chapter.
  4. Wire line and nonwire cellular carriers certificated to provide service in the State shall provide ANI signaling which identifies geographical location as well as cell site address for cellular 911 calls. Personal communications networks and any future mobile or personal communications systems shall also be required to identify the location of the caller. The telephone company shall provide ANI signaling which identifies the name of the carrier and identify the type of service as cellular, mobile, or personal communications as part of the ALI along with a screen message that advises the call answerer to verify the location of the reported emergency. Telecommunication providers of mobile wireless, IP-enabled, and other communication services which have systems with the capability to send data related to the location of the caller with the call or transmission instead of relying on location data otherwise contained in the ALI database shall provide this data with calls or transmissions for the sole purpose of enabling the emergency 911 system to locate an individual seeking emergency services. Location data shall be provided in accordance with relevant national standards for next generation 9-1-1 technology.
  5. Each local exchange telecommunications provider in the State shall file with the Public Utility Commission tariffs for each service element necessary for the provision of Enhanced 911 services. The Public Utility Commission shall review each company's proposed tariff, and shall ensure that tariffs for each necessary basic service element are effective within six months of filing. The Department of Public Service, by rule or emergency rule, may establish the basic service elements that each company must provide for in tariffs. Such tariffs must be filed with the Public Utility Commission within 60 days after the basic service elements are established by the Department of Public Service.

    Added 1993, No. 197 (Adj. Sess.), § 2; amended 2011, No. 64 , § 1, eff. June 2, 2011.

History

Amendments--2011. Subsec. (a): Inserted "medical, " following "police,".

Subsec. (b): Substituted "database" for "data base" following "911" in two places; deleted "establishing and" preceding "maintaining" and "E-911" preceding "emergency"; substituted "911" for "telephone" following "emergency" and "services" for "service" following "911".

Subsec. (d): Substituted "location" for "cell site" following "geographical" and "or" for "and/or" preceding "personal" and added the present fourth sentence.

Effective date. See note set out preceding § 7051 of this title.

§ 7056. Municipal cooperation; enhanced ANI/ALI capability.

  1. Each municipality, by its legislative body, may participate in the Enhanced 911 system. Municipalities choosing to participate shall identify all building locations and other public and private locations frequented by the public and shall cooperate in the development and maintenance of the necessary databases. The Board shall work with municipalities to identify nonmonetary incentives designed to streamline and reduce the administrative burdens imposed by this requirement. Any municipality that changes its system for addresses shall ensure that the modified address system is consistent with the standards established by the Board.
  2. After the effective date of this chapter, any municipality that changes its system for addresses shall ensure that the modified address system is consistent with the standards established by the Board.
  3. -(e)  [Repealed.]

    Added 1993, No. 197 (Adj. Sess.), § 2; amended 1997, No. 28 , § 13, eff. May 15, 1997; 2011, No. 64 , § 1, eff. June 2, 2011.

History

Amendments--2011. Subsec. (a): Deleted the former second sentence; substituted "databases" for "data bases" following "necessary" and added the present third and fourth sentences.

Subsecs. (c)-(e): Deleted.

Amendments--1997 Subsec. (e): Added.

Effective date. See note set out preceding § 7051 of this title.

§ 7057. Enterprise communications system.

Any enterprise communications system shall provide to those end users the same level of 911 service that other end users receive and shall provide ANI signaling, station identification data, including dispatchable location, and updates to Enhanced 911 databases under rules adopted by the Board. The Board may waive the provisions of this section for any enterprise communications system, provided that in the judgment of the Board, the owner of the system is actively engaged in becoming compliant with this section, is likely to comply with this section in a reasonable amount of time, and will do so in accordance with standards and procedures adopted by the Board by rule.

Added 1993, No. 197 (Adj. Sess.), § 2; amended 2011, No. 64 , § 1, eff. June 2, 2011; 2017, No. 190 (Adj. Sess.), § 25, eff. May 28, 2018.

History

Amendments--2017 (Adj. Sess.). Rewrote the section heading and substituted "enterprise communications system" for "privately owned telephone systems" in the first and second sentences, and inserted "including dispatchable location" following "identification data" in the first sentence.

Amendments--2011. Substituted "Any" for "When an enhanced 911 system is implemented, any" preceding "privately"; deleted "in the area" following "users" and ", except that the" following "board"; inserted "The" preceding "board"; deleted "; taking into consideration the costs and the public benefits of compliance" following "system" and inserted "provided that in the judgment of the board, the owner of the system is actively engaged in becoming compliant with this section, is likely to comply with this section in a reasonable amount of time, and will do so" preceding "in accordance."

Effective date. See note set out preceding § 7051 of this title.

§ 7058. Pay telephones.

Each provider or other owner or lessee of a pay station telephone shall permit a caller to dial 911 without first inserting a coin or paying any other charge. The provider or other owner or lessee shall prominently display on each notice advising callers to dial 911 in an emergency and that deposit of a coin is not required.

Added 1993, No. 197 (Adj. Sess.), § 2; amended 2011, No. 64 , § 1, eff. June 2, 2011.

History

Amendments--2011. Substituted "Each" for "When enhanced 911 service begins operation in a municipality, or as soon as feasible thereafter, each" preceding "provider" and deleted "operating in that area" following "telephone" and "convert each telephone," following "shall".

Effective date. See note set out preceding § 7051 of this title.

§ 7059. Confidentiality of system information.

    1. A person shall not access, use, or disclose to any other person any individually identifiable information contained in the system database created under subdivision 7053(a)(4) of this title, including any customer or user ALI or ANI information, except in accordance with rules adopted by the Board and for the purpose of: (a) (1)  A person shall not access, use, or disclose to any other person any individually identifiable information contained in the system database created under subdivision 7053(a)(4) of this title, including any customer or user ALI or ANI information, except in accordance with rules adopted by the Board and for the purpose of:
      1. responding to emergency calls;
      2. system maintenance and quality control under the direction of the Director;
      3. investigation, by law enforcement personnel, of false or intentionally misleading reports of incidents requiring emergency services;
      4. assisting in the implementation of a statewide emergency notification system;
      5. provision of emergency dispatch services by public safety answering points in other states that are under contract with local law enforcement and emergency response organizations; or
      6. coordinating with state and local service providers for the provision of emergency dispatch services that serve individuals with a disability, elders, and other populations with special needs.
    2. No person shall use customer ALI or ANI information to create special 911 databases for any private purpose or any public purpose unauthorized by this chapter.
  1. Notwithstanding the provisions of subsection (a) of this section, customer ALI or ANI information obtained in the course of responding to an emergency call may be included in an incident report prepared by emergency response personnel, in accordance with rules adopted by the Board.
  2. Information relating to customer name, address, and any other specific customer information collected, organized, acquired, or held by the Board, the entity operating a public safety answering point or administering the Enhanced 911 database, or emergency service provider is not public information and is exempt from disclosure under 1 V.S.A. chapter 5, subchapter 3.
  3. If a municipality has adopted conventional street addressing for Enhanced 911 addressing purposes, the municipality shall ensure that an individual who so requests will not have his or her street address and name linked in a municipal public record, but the individual shall be required to provide a mailing address. The request required by this subsection shall be in writing and shall be filed with the municipal clerk. Requests under this subsection shall be confidential. A form shall be prepared by the Board and made generally available to the public by which the confidentiality option established by this subsection may be exercised.
  4. Notwithstanding any provision of law to the contrary, no person acting on behalf of the State of Vermont or any political subdivision of the State shall require an individual to disclose his or her Enhanced 911 address, provided that the individual furnishes his or her alternative mailing address.

    Added 1993, No. 197 (Adj. Sess.), § 2; amended 1995, No. 182 (Adj. Sess.), § 11, eff. May 22, 1996; 2003, No. 59 , § 44; 2011, No. 64 , § 1, eff. June 2, 2011; 2013, No. 96 (Adj. Sess.), § 193.

History

Amendments--2013 (Adj. Sess.). Subdiv. (a)(1): Substituted "A person shall not access" for "No person shall access" preceding "use".

Subdiv. (a)(1)(F): Substituted "elders" for "elderly individuals" following "disability," and "populations with special needs" for "special needs populations" at the end.

Amendments--2011. Subdivs. (a)(1)(D)-(F): Added.

Amendments--2003. Subsec. (e): Added.

Amendments--1995 (Adj. Sess.) Subsec. (d): Added.

Effective date. See note set out preceding § 7051 of this title.

§ 7060. Limitation of liability.

No person shall be liable in any suit for civil damages who in good faith receives, develops, collects, or processes information for the Enhanced 911 database or develops, designs, adopts, establishes, installs, participates in, implements, maintains, or provides access to telephone, mobile, or IP-enabled service for the purpose of helping persons obtain emergency assistance in accordance with this chapter unless such action constitutes gross negligence or an intentional tort. In addition, no provider of telephone, mobile, or other IP-enabled service or a provider's respective employees, directors, officers, assigns, affiliates, or agents shall be liable for civil damages in connection with the release of customer information to any governmental entity, including any public safety answering point, as required under this chapter.

Added 1993, No. 197 (Adj. Sess.), § 2; amended 2011, No. 64 , § 1, eff. June 2, 2011.

History

Amendments--2011. Section amended generally.

Effective date. See note set out preceding § 7051 of this title.

§ 7061. Enforcement and penalties.

  1. The Board may file a civil action for injunctive relief in Washington County Superior Court to enforce a provision of this chapter or a rule adopted by the Board under this chapter. The court shall award the Board its costs and reasonable attorney's fees in the event that the Board prevails in an action under this subsection.
  2. A person who violates the provisions of section 7059 of this title shall be imprisoned not more than one year or fined not more than $10,000.00, or both.
  3. An aggrieved individual may maintain an action in Superior Court for damages, injunctive relief, costs, and attorney's fees against any person who intentionally or with gross negligence violates any provision of, or rules adopted under, section 7059 or subsection 7055(b) of this title.

    Added 1993, No. 197 (Adj. Sess.), § 2.

History

2016. Substituted "subsection 7055(b)" for "subdivision 7055(b)(2)".

- 2008. In subsec. (c), substituted "subdivision 7055(b)(2)" for "section 7055(b)(2)" to conform reference to V.S.A. style.

Effective date. See note set out preceding § 7051 of this title.

CHAPTER 88. UNIVERSAL TELECOMMUNICATIONS SERVICE

History

Revision note. This chapter, comprising § § 7501-7504, 7511-7515 and 7521-7525, was originally enacted as chapter 87 of this title by 1993, No. 197 (Adj. Sess.), § 5, and was redesignated to conform to the general numbering scheme of V.S.A.

Effective date. 1993, No. 197 (Adj. Sess.), § 9, provided: "This act shall take effect on July 1, 1994, except that the Universal Service Charge established under Sec. 5 of this act [which added sections 7501-7504, 7511-7515, 7521-7525 of this title] and 30 V.S.A. § 5723(b) [sic] shall be imposed beginning on and after October 1, 1994, and except that administrative agencies required to execute this act may act immediately to establish policies, procedures and rules, and to select and to contract with a fiscal agent."

Legislative purpose; findings. 2013, No. 190 (Adj. Sess.), § 1 provides: "It is the intent of the General Assembly to maintain a robust and modern telecommunications network in Vermont by making strategic investments in improved technology for all Vermonters. To achieve that goal, it is the purpose of this act to upgrade the State's telecommunications objectives and reorganize government functions in a manner that results in more coordinated and efficient State programs and policies, and, ultimately, produces operational savings that may be invested in further deployment of broadband and mobile telecommunications services for the benefit of all Vermonters. In addition, it is the intent of the General Assembly to update and provide for a more equitable application of the Universal Service Fund (USF) surcharge. Together, these operational savings and additional USF monies will raise at least $1 million annually, as follows:

"(1) $650,000.00 from an increase in the USF charge to a flat two percent;

"(2) $450,000.00 from application of the USF charge to prepaid wireless telecommunications service providers; and

"(3) $300,000.00 in operational savings from the transfer and consolidation of State telecommunications functions."

Cross References

Cross references. Enhanced 911 emergency response system, see § 7051 et seq. of this title.

Subchapter 1. General Provisions

§ 7501. Purpose; definitions.

  1. It is the purpose of this chapter to create a financial structure that will allow every Vermont household to obtain basic telecommunications service at an affordable price, and to finance that structure with a proportional charge on all telecommunications transactions that interact with the public switched network.
  2. As used in this chapter:
    1. "Basic telecommunications service" means that a customer has available at his or her location:
      1. switched voice grade interactive telecommunications service permitting origination and termination of calls;
      2. the ability to transmit network switching instructions through tones generated by customer-owned equipment;
      3. the ability to transmit and receive the customer's computer-generated digital data, either by digital or analog transmission, reliably and at common transmission rates, using customer-owned equipment;
      4. the ability to communicate quickly and effectively with emergency response personnel; and
      5. telecommunications relay service, as authorized under section 218a of this title.
    2. "Interactive" means that a communications medium is regularly used to transmit information in two directions.
    3. "Line in service" means a circuit or channel connecting a customer to the public switched network or to the Internet.
    4. "Private network" means a telecommunications system entirely owned and operated by a single corporate or individual person other than a telecommunications service provider and not available to the general public.
    5. "Public switched network" means the communications network owned and operated by telecommunications service providers, some of whom are common carriers.
    6. "Service area" means:
      1. in the case of a rural telephone company, the company's study area as approved by the Federal Communications Commission; or
      2. in the case of a local exchange carrier, other than a rural telephone company, the carrier's local exchange service area as approved by the Public Utility Commission.
    7. "Service location" means a business or residential geographic point of contact of a telecommunications service for purposes of the Enhanced 911 network. The number of service locations in each exchange shall be determined by the Department of Public Service in periodic updates to the State Telecommunications Plan based on analysis of the locations in the database of the Vermont Enhanced 911 Board.
    8. "Telecommunications service" means the transmission of any interactive electromagnetic communications that passes through the public switched network. The term includes transmission of voice, image, data, and any other information, by means of wire, electric conductor cable, optic fiber, microwave, radio wave, or any combinations of such media, and the leasing of any such service.
      1. Telecommunications service includes:
        1. local telephone service, including any facility or service provided in connection with such local telephone service;
        2. toll telephone service;
        3. directory assistance;
        4. two-way cable television service; and
        5. mobile telephone or telecommunication service, both analog and digital.
      2. Notwithstanding the provisions of this subdivision (8), as used in this chapter, telecommunications service does not include:
        1. Services consisting primarily of the creation of artistic material or other information that is later transmitted over telecommunications equipment, including information services and electronic bulletin boards, but only to the extent that charges for such information processing are separated from charges for other telecommunications services, and only to the extent that such information is not used by any telecommunications service provider in the administration of the telecommunications network.
        2. Mobile radio and paging services that do not have an electronic interface into the public switched network.
        3. Private network services; provided, however, that payments by a private network to a telecommunications service provider, such as for point-to-point transmission services, are not exempt under this subdivision.
        4. [Repealed.]
        5. Telecommunications services paid for at the point of purchase by depositing coins or currency.
        6. Charges incurred by utilizing prepaid telephone calling cards or prepaid authorization numbers.
    9. "Telecommunications service provider" means a company required by law to hold a certificate of public good from the Public Utility Commission to offer telecommunications service for intrastate service, or is authorized by the Federal Communications Commission to offer interstate telecommunications service.

      Added 1993, No. 197 (Adj. Sess.), § 5; amended 1995, No. 99 (Adj. Sess.), § 12; 1997, No. 71 (Adj. Sess.), § 29, eff. March 11, 1998; 1997, No. 156 (Adj. Sess.), § 31, eff. April 29, 1998; 2013, No. 190 (Adj. Sess.), § 2, eff. June 16, 2014.

History

Reference in text. The statutes governing the Federal Communications Commission, referred to in subdiv. (b)(6), are codified as 47 U.S.C. § 151 et seq.

Amendments--2013 (Adj. Sess.). Subdivs. (b)(3), (b)(6) and (b)(7): Added, and redesignated the remaining subdivs. accordingly.

Subdiv. (b)(8): Deleted "but is not limited to" twice, and made minor stylistic changes.

Subdiv. (b)(8)(A): Deleted "but is not limited to" at the end.

Subdiv. (b)(8)(B): Substituted "Notwithstanding the provisions of this subdiv. (8), as used in" for "Notwithstanding the above, for purposes of" at the beginning.

Amendments--1997 (Adj. Sess.). Act No. 71 repealed subdiv. (b)(5)(B)(iv) for specified services; see "applicability of amendment" note below.

Act No. 156 added subdiv. (b)(5)(B)(vi).

Amendments--1995 (Adj. Sess.) Subsec. (b)(5)(B)(v): Added.

Effective date. See note set out preceding § 7501 of this title.

Applicability-- 1997, No. 71 (Adj. Sess.) amendment. 1997, No. 71 (Adj. Sess.), § 29, eff. March 11, 1998, provided that subdiv. (b)(5)(B)(iv) of this section (exemption from universal telecommunications service tax for property or services subject to sales and use tax) is repealed, effective for services provided on or after September 1, 1997, and billed in the regular course of business on or after October 1, 1997.

Applicability-- 1997, No. 156 (Adj. Sess.) amendment. 1997, No. 71 (Adj. Sess.), § 59(c), eff. July 1, 1998, provided that section 31 of that act, which added subdiv. (b)(5)(B)(vi) of this section, shall apply to services on and after July 1, 1998.

§ 7502. Rulemaking.

  1. Consistent with the purposes of this chapter, the Department of Public Service may interpret the provisions of this chapter. Any person aggrieved by any such interpretation or policy may file with the Department of Public Service a petition for a declaratory ruling. Such a petition may include a request to determine whether newly created services, and other services not specifically mentioned by the definition of telecommunications service in this chapter, are telecommunications service. All services declared to be telecommunications service shall thereafter be subject to the charge imposed by subchapter 3 of this chapter.
  2. By rule or general order, the Department of Public Service may adopt procedures and standards to implement its responsibilities under this chapter. To the extent applicable, the Department of Public Service shall use the procedures and standards applicable to the setting of rates for regulated utilities. Those procedures may be designed to expedite the annual establishment of amounts to be collected and distributed by the fiscal agent.

    Added 1993, No. 197 (Adj. Sess.), § 5; amended 2015, No. 41 , § 26, eff. June 1, 2015.

History

2015. Substituted "Department of Public Service" for "Public Service Board" in subsecs. (a) and (b) in accordance with 2015, No. 41 , § 26.

Effective date. See note set out preceding § 7501 of this title.

Cross References

Cross references. Procedure for adoption of administrative rules, see 3 V.S.A. ch. 25.

§ 7503. Fiscal agent.

  1. A fiscal agent shall be selected to receive and distribute funds under this chapter.
  2. The fiscal agent shall be selected by the Commissioner of Public Service after competitive bidding. No telecommunications service provider shall be eligible to be the fiscal agent. The duties of the fiscal agent shall be determined by a contract with a term not greater than three years.
  3. In order to finance grants and other expenditures that have been approved by the Commissioner of Public Service, the fiscal agent may borrow money from time to time in anticipation of receipts during the current fiscal year. No such note shall have a term of repayment in excess of one year, but the fiscal agent may pledge its receipts in the current and future years to secure repayment. Financial obligations of the fiscal agent are not guaranteed by the State of Vermont.
  4. The fiscal agent shall be audited annually by a certified public accountant in a manner determined by and under the direction of the Commissioner of Public Service.
  5. The financial accounts of the fiscal agent shall be available at reasonable times to any telecommunications service provider in this State. The Commissioner of Public Service may investigate the accounts and practices of the fiscal agent and may enter orders concerning the same.
  6. The fiscal agent acts as a fiduciary and holds funds in trust for the ratepayers until the funds have been disbursed as provided pursuant to section 7511 of this chapter.

    Added 1993, No. 197 (Adj. Sess.), § 5; amended 2005, No. 171 (Adj. Sess.), § 1; 2013, No. 191 (Adj. Sess.), § 33; 2015, No. 41 , § 7.

History

Amendments--2015. Subsecs. (b) through (e): Substituted "Commissioner of Public Service" for "Public Service Board".

Subsec. (f): Substituted "section 7511" for "sections 7511 through 7515" following "as provided pursuant to" near the end of the sentence.

Amendments--2013 (Adj. Sess.). Subsec. (a): Deleted "for the Vermont telecommunications relay service, for the Vermont lifeline program, for enhanced 911 services, and, subject to further legislative authorization, to reduce the cost to customers of basic telecommunications service in high-cost areas" at the end.

Amendments--2005 (Adj. Sess.). Subsec. (f): Added.

Effective date. See note set out preceding § 7501 of this title.

Cross References

Cross references. Distribution of funds, see § 7511 et seq. of this title.

Payment of universal service charge receipts to fiscal agent, see § 7524 of this title.

§ 7504. Severability.

In the event that a court determines that some part of this chapter, or its application to a particular circumstance, violates the Constitution or laws of the United States, the remainder of this chapter shall not thereby be declared invalid.

Added 1993, No. 197 (Adj. Sess.), § 5.

History

Effective date. See note set out preceding § 7501 of this title.

Subchapter 2. Distribution

§ 7511. Distribution generally.

    1. As directed by the Commissioner of Public Service, funds collected by the fiscal agent, and interest accruing thereon, shall be distributed as follows: (a) (1)  As directed by the Commissioner of Public Service, funds collected by the fiscal agent, and interest accruing thereon, shall be distributed as follows:
      1. to pay costs payable to the fiscal agent under its contract with the Commissioner;
      2. to support the Vermont telecommunications relay service in the manner provided by section 7512 of this title;
      3. to support the Vermont Lifeline program in the manner provided by section 7513 of this title;
      4. to support Enhanced 911 services in the manner provided by section 7514 of this title; and
      5. to support the Connectivity Fund established in section 7516 of this title; and
    2. for fiscal year 2016 only, any personnel or administrative costs associated with the Connectivity Initiative shall come from the Connectivity Fund, as determined by the Commissioner in consultation with the Connectivity Board.
  1. If insufficient funds exist to support all of the purposes contained in subsection (a) of this section, the Commissioner shall allocate the available funds, giving priority in the order listed in subsection (a).

    Added 1993, No. 197 (Adj. Sess.), § 5; amended 2013, No. 190 (Adj. Sess.), § 3, eff. June 16, 2014; 2013, No. 191 (Adj. Sess.), § 34; 2015, No. 41 , § 9.

History

Amendments--2015. Added present subdiv. (a)(2), redesignated former subsec. (a) as present subdiv. (a)(1) and redesignated former subdivs. (a)(1)-(a)(5) as present subdivs. (a)(1)(A)-(a)(1)(E).

Subsec. (b): Substituted "Commissioner" for "Board" following "subsection (a) of this section, the" near the middle of the sentence and deleted "conduct an expedited proceeding to" preceding "allocate the available funds" near the end of the sentence.

Amendments--2013 (Adj. Sess.). Subdiv. (a)(1) and subsec. (b): Act No. 191 substituted "Board" for "public service board".

Subdiv. (a)(5): Act No. 190 rewrote the subdiv.

Subdiv. (a)(6): Added by Act No. 191.

Effective date. See note set out preceding § 7501 of this title.

§ 7512. Telecommunications relay service.

The fiscal agent shall make distributions for the Vermont telecommunications relay service to the State Treasurer. The amount of the transfer shall be determined by the Commissioner of Public Service as the amount reasonably necessary to pay the costs of a contract administered by the Department of Public Service.

Added 1993, No. 197 (Adj. Sess.), § 5.

History

Effective date. See note set out preceding § 7501 of this title.

Cross References

Cross references. Annual rate adjustment, see § 7523 of this title.

§ 7513. Lifeline.

The fiscal agent shall make distributions for the Vermont Lifeline program under subsection 218(c) of this title to reimburse telecommunications service providers for credits that have been granted to their customers, within annual limits approved in advance by the Public Utility Commission. The fiscal agent shall also make distributions to reimburse telecommunications companies for Lifeline program administration costs approved by the Commission.

Added 1993, No. 197 (Adj. Sess.), § 5; amended 1995, No. 99 (Adj. Sess.), § 13.

History

Amendments--1995 (Adj. Sess.) Added the second sentence.

Effective date. See note set out preceding § 7501 of this title.

Cross References

Cross references. Annual rate adjustment, see § 7523 of this title.

§ 7514. Enhanced 911.

The fiscal agent shall make distributions to the State Treasurer, for deposit into the Enhanced 911 special fund, as annually directed by the General Assembly.

Added 1993, No. 197 (Adj. Sess.), § 5.

History

Effective date. See note set out preceding § 7501 of this title.

Cross References

Cross references. Enhanced 911 special fund, see § 7054 of this title.

§ 7515. High-cost program.

  1. The Universal Service Charge shall be used as a means of keeping basic telecommunications service affordable in all parts of this State, thereby maintaining universal service, and as a means of supporting access to broadband service in all parts of the State.
  2. The Public Utility Commission, after review of a petition of a company holding a certificate of public good to provide telecommunications service in Vermont, and upon finding that the company meets all requirements for designation as an "eligible telecommunications carrier" as defined by the FCC, may designate the company as a Vermont-eligible telecommunications carrier (VETC).
  3. The supported services a designated VETC must provide are voice telephony services, as defined by the FCC, and broadband Internet access, directly or through an affiliate. A VETC receiving support under this section shall use that support for capital improvements in high-cost areas, as defined in subsection (f) of this section, to build broadband capable networks.
  4. The Commission may designate multiple VETCs for a single high-cost area, but each designated VETC shall:
    1. offer supported services to customers at all locations throughout the high-cost area or areas for which it has been designated; and
    2. for its voice telephone services, meet service quality standards set by the Commission.
  5. A VETC shall receive support as defined in subsection (i) of this section from the fiscal agent of the Vermont Universal Service Fund for each telecommunications line in service or service location, whichever is greater in number, in each high-cost area it services. Such support may be made in the form of a net payment against the carrier's liability to the Fund. If multiple VETCs are designated for a single area, then each VETC shall receive support for each line it has in service.
  6. As used in this section, a Vermont telephone exchange is a "high-cost area" if the exchange is served by a rural telephone company, as defined by federal law, or if the exchange is designated as a rural exchange in the wholesale tariff of a regional bell operating company (RBOC), as defined by the FCC, or of a successor company to an RBOC. An exchange is not a high-cost area if the Public Utility Commission finds that the supported services are available to all locations throughout the exchange from at least two service providers.
  7. Except as provided in subsection (h) of this section, a VETC shall provide broadband Internet access at speeds no lower than 25 Mbps download and 3 Mbps upload in each high-cost area it serves within five years of designation. A VETC need not provide broadband service to a location that has service available from another service provider, as determined by the Department of Public Service.
  8. The Public Utility Commission may modify the buildout requirements of subsection (d) of this section as it relates to broadband Internet access to be the geographic area that could be reached using one-half of the funds to be received over five years. A VETC may seek such waiver of the buildout requirements within one year of designation and shall demonstrate the cost of meeting broadband Internet access requirements on an exchange basis and propose an alternative buildout plan.
  9. The amount of the monthly support under this section shall be the pro rata share of available funds based on the total number of incumbent local exchange carriers in the State and reflecting each carrier's lines in service or service locations in its high-cost area or areas, as determined under subsection (e) of this section. If an incumbent local exchange carrier does not petition the Commission for VETC designation, or is found ineligible by the Commission, the share of funds it otherwise would have received under this section shall be used to support the Connectivity Initiative established in section 7515b of this chapter.
  10. The Public Utility Commission shall adopt by rule standards and procedures for ensuring projects funded under this section are not competitive overbuilds of existing wired telecommunications services.
  11. Each VETC shall submit certification that it is meeting the requirements of this section and an accounting of how it expended the funds received under this section in the previous calendar year, with its annual report to the Department of Public Service. For good cause shown, the Public Utility Commission may investigate submissions required by this subsection and may revoke a company's designation if it finds that the company is not meeting the requirements of this subsection.

    Added 1993, No. 197 (Adj. Sess.), § 5; amended 2011, No. 169 (Adj. Sess.), § 2, eff. May 18, 2012; 2013, No. 190 (Adj. Sess.), § 5, eff. June 16, 2014; 2015, No. 41 , § 11; 2019, No. 79 , § 4, eff. June 20, 2019.

History

Reference in text. The statutes governing the Federal Communications Commission, referred to in subdiv. (b)(6), are codified as 47 U.S.C. § 151 et seq.

Amendments--2019. Subsec. (g): Substituted "25 Mbps download and 3 Mbps upload" for "4 Mbps download and 1 Mbps upload".

Amendments--2015. Subsec. (c): Added "as defined in subsection (f) of this section" preceding "to build broadband capable networks" near the end of the second sentence.

Subdiv. (d)(1): Substituted "high cost" for "service" following "all locations throughout the" near the middle of the sentence.

Subsec. (h): Deleted "in subsection (c)" following "waiver to build out requirements" near the middle of the second sentence.

Subsec. (i): Amended generally.

Amendments--2013 (Adj. Sess.). Section amended generally.

Amendments--2011 (Adj. Sess.). Subsec. (a): Deleted the former second sentence.

Subsec. (b): Inserted "commissioner of public service, in conjunction with the" preceding "public" and "by the incumbent local exchange carriers (the providers of last resort)" following "service"; and substituted "include an informal workshop process to be conducted by the board. Such process shall be noticed to the general public and structured to allow written and verbal comments by the general public, service providers, public officials, and others as determined by the board" for "be conducted either as an independent inquiry or as part of a proceeding or docket affecting other matters" following "shall".

Subdiv. (b)(1): Inserted "estimate the current costs and" preceding "estimate".

Subdiv. (b)(6): Inserted "(FCC)" following "Commission" and added the second and third sentences.

Subdivs. (b)(8), (b)(9): Added.

Subsec. (c): Substituted "house committee on commerce and economic development and the senate committee on finance" for "general assembly" and "December 1, 2012" for "January 15, 1996".

Subsecs. (d), (e): Added.

Creation of one-year high-cost program. 2011, No. 169 (Adj. Sess.), § 3 provides: "(a) There is created a high-cost program under which the universal service charge shall be used as a means of keeping basic telecommunications service affordable in all parts of this state, thereby maintaining universal service. Payments shall be made to Vermont's incumbent local exchange carriers (ILECs) for the purpose of reducing the cost of providing basic local telecommunications service in areas where that cost would otherwise jeopardize universal service or uniform economic development.

"(b) Funds distributed under the high-cost program are intended to defray the cost an ILEC incurs in building and maintaining its network so that it stands ready to serve any customer in its service area, even those in the most remote areas of Vermont. In order to achieve this goal, funding shall not be based upon the number of basic telecommunications services ordered, but rather upon the cost to serve any customer in that service area who may request basic local exchange service. This includes the costs of building and maintaining the entire network in each exchange in the applicable service area.

"(c) The fiscal agent shall make distributions for the high-cost program to the ILECs, as required by this section. The percentage of funds distributed to each ILEC shall reflect the percentage of total access lines reported by each ILEC in its annual report to the public service board.

"(d) Any funds in excess of $1,000,000.00 remaining in the Vermont universal service fund as of September 1, 2012 shall be distributed among all the ILECs in a manner determined by the commissioner of public service."

§ 7515a. Repealed. 2015, No. 41, § 8.

History

Former § 7515a. Former § 7515a, relating to additional program support for Executive Branch activities, was derived from 2013, No. 191 (Adj. Sess.), § 35.

§ 7515b. Connectivity Initiative. Section 7515b effective until January 1, 2022; see also section 7515b effective January 1, 2022 set out below.

  1. The purpose of the Connectivity Initiative is to provide each service location in Vermont access to broadband that is capable of speeds of at least 25 Mbps download and 3 Mbps upload. Within this category of service locations, priority shall be given first to unserved and then to underserved locations. As used in this section, "unserved" means a location that only has access to broadband capable of speeds of less than 4 Mbps download and 1 Mbps upload and "underserved" means a location that only has access to broadband capable of speeds of at least 4 Mbps download and 1 Mbps upload but less than 25 Mbps download and 3 Mbps upload.
  2. The Department of Public Service shall publish annually a list of E-911 locations eligible for funding based on the Department's most recent broadband mapping data. The Department annually shall solicit proposals from service providers to deploy broadband to eligible E-911 locations. Funding shall be available for capital improvements only, not for operating and maintenance expenses, and shall be available only for projects that the Department determines do not conflict with or undermine the deployment plans of a communications union district. The Department shall give priority to proposals that reflect the lowest cost of providing services to unserved and underserved locations; however, the Department also shall consider:
    1. the proposed data transfer rates and other data transmission characteristics of services that would be available to consumers;
    2. the price to consumers of services;
    3. the proposed cost to consumers of any new construction, equipment installation service, or facility required to obtain service;
    4. whether the proposal would use the best available technology that is economically feasible;
    5. the availability of service of comparable quality and speed;
    6. the objectives of the State's Telecommunications Plan; and
    7. the extent to which a proposal leverages federal or private funding opportunities.
  3. In order to ensure that grants are disbursed based on the value of work completed, the Department shall develop with each grantee a payment schedule that reflects the verified percentage of project completion. To verify project completion, the grantee shall retain a Department-approved third party to conduct independent field testing, which the Department may supplement with provider-supplied data and crowd-sourced user data. If deemed necessary by the Department, the Department may advance a grantee funds necessary for project commencement. The Department shall retain five percent of an award for two years after project completion to ensure continued compliance with contract terms. A grantee shall reimburse the Department any funds received for contracted work that is not completed pursuant to contract specifications.
  4. The Department shall maintain a publicly accessible inventory of completed broadband projects financed in whole or in part with grants under this section.

    Added 2013, No. 190 (Adj. Sess.), § 6, eff. June 16, 2014; amended 2015, No. 41 , § 12; 2017, No. 169 (Adj. Sess.), § 10; 2019, No. 79 , § 5, eff. June 20, 2019; 2021, No. 71 , § 7c, eff. June 8, 2021.

History

Amendments--2021. Subsecs (a), (b): Amended generally by Act No. 71, § 7c.

Subdiv. (b)(7): Added by Act No. 71, § 7c.

Subsecs. (c), (d): Added by Act No. 71, § 7c.

Amendments--2019. Subsec. (a): Substituted "25 Mbps download and 3 Mbps upload" for "10 Mbps download and 1 Mbps upload" in the first sentence.

Amendments--2017 (Adj. Sess.). Subsec. (b): Inserted the third sentence.

Amendments--2015. Amended Internet speed requirements and deleted references to the Vermont Telecommunications Authority and the Division for Connectivity in subsec. (b).

§ 7515b. Connectivity Initiative. Section 7515b effective January 1, 2022; see also section 7515b effective until January 1, 2022 set out above.

  1. The Connectivity Initiative shall be administered by the Vermont Community Broadband Board. The purpose of the Connectivity Initiative is to provide each service location in Vermont access to broadband that is capable of speeds of at least 100 Mbps symmetrical. Within this category of service locations, priority shall be given first to unserved and then to underserved locations that are part of a plan to achieve universal broadband coverage in a community or communications union district. As used in this section, "unserved" means a location that only has access to broadband capable of speeds of less than 4 Mbps download and 1 Mbps upload and "underserved" means a location that only has access to broadband capable of speeds of at least 4 Mbps download and 1 Mbps upload but less than 25 Mbps download and 3 Mbps upload.
  2. The Department of Public Service shall publish annually a list of E-911 locations eligible for funding based on the Department's most recent broadband mapping data. The Board annually shall solicit proposals from communications union districts and from service providers working in conjunction with a communications union district to provide universal broadband service in a community or communications union district, to deploy broadband to eligible E-911 locations. Funding shall be available for capital improvements only, not for operating and maintenance expenses, and shall be available only for projects that the Board determines do not conflict with or undermine the deployment plans of a communications union district. The Board shall give priority to proposals that reflect the lowest cost of providing services to unserved and underserved locations; however, the Board also shall consider:
    1. the proposed data transfer rates and other data transmission characteristics of services that would be available to consumers;
    2. the price to consumers of services;
    3. the proposed cost to consumers of any new construction, equipment installation service, or facility required to obtain service;
    4. whether the proposal would use the best available technology that is economically feasible;
    5. the availability of service of comparable quality and speed;
    6. the objectives of the State's Telecommunications Plan; and
    7. the extent to which a proposal leverages federal or private funding opportunities.
  3. In order to ensure that grants are disbursed based on the value of work completed, the Board shall develop with each grantee a payment schedule that reflects the verified percentage of project completion. To verify project completion, the grantee shall retain a Board-approved third party to conduct independent field testing, which the Board may supplement with provider-supplied data and crowd-sourced user data. If deemed necessary by the Board, the Board may advance a grantee funds necessary for project commencement. The Board shall retain five percent of an award for two years after project completion to ensure continued compliance with contract terms. A grantee shall reimburse the Board any funds received for contracted work that is not completed pursuant to contract specifications.
  4. The Board shall maintain a publicly accessible inventory of completed broadband projects financed in whole or in part with grants under this section.

    Added 2013, No. 190 (Adj. Sess.), § 6, eff. June 16, 2014; amended 2015, No. 41 , § 12; 2017, No. 169 (Adj. Sess.), § 10; 2019, No. 79 , § 5, eff. June 20, 2019; 2021, No. 71 , § 7c, eff. June 8, 2021; 2021, No. 71 , § 7d, eff. Jan. 1, 2022.

History

Amendments--2021. Subsecs. (a)-(c): Amended generally by Act No. 71, § 7d.

Subsec. (d): Act No. 71, § 7d substituted "Board" for "Department" preceding "shall".

Effective date of amendments--2021. 2021, No. 71 , § 21(2) provides that the amendments to this section by 2021, No. 71 , § 7d shall take effect on January 1, 2022.

§ 7516. Connectivity Fund.

  1. There is created a Connectivity Fund for the purpose of providing support to the High-Cost Program established under section 7515 of this chapter and the Connectivity Initiative established under section 7515b of this chapter. The fiscal agent shall determine annually, on or before November 1, the amount of monies available to the Connectivity Fund. Such funds shall be apportioned as follows: 45 percent to the High-Cost Program and 55 percent to the Connectivity Initiative.
  2. [Repealed.]

    Added 2013, No. 190 (Adj. Sess.), § 4, eff. June 16, 2014; amended 2015, No. 41 , § 10; 2019, No. 31 , § 8; 2019, No. 79 , § 3, eff. June 20, 2019; 2021, No. 71 , § 7a, eff. June 8, 2021.

History

2019. The text of this section is based on the harmonization of two amendments. This section was amended twice by 2019, No. 31 , § 8 and 2019, No. 79 , § 3, resulting in two versions of this section. In order to reflect all of the changes enacted by the Legislature in 2019, the text of Act Nos. 31 and 79 were merged to arrive at a single version of this section. The changes that each of the amendments made are described in amendment notes set out below.

Amendments--2021. Subsec (b): Repealed.

Amendments--2019. Act No. 31 substituted "November 1" for "September 1" in the second sentence of the existing section.

Act No. 79 designated the existing section as subsection (a), and added subsec. (b).

Amendments--2015. Substituted "as follows: 45 percent" for "equally" following "funds shall be apportioned" near the end of the sentence, added "55 percent" following "High-Cost Program and" near the end of the sentence, and deleted "referenced in this section" following "Connectivity Initiative" at the end of the sentence.

Subchapter 3. Collection

History

Repeal of termination date. 1993, No. 197 (Adj. Sess.), § 10, which provided for the repeal of this subchapter effective July 1, 1998, was repealed by 1997, No. 135 (Adj. Sess.), § 5, eff. April 27, 1998, and by 1997, No. 155 (Adj. Sess.), § 11, eff. April 29, 1998.

§ 7521. Charge imposed; wholesale exemption.

  1. A Universal Service Charge is imposed on all retail telecommunications service provided to a Vermont address. Where the location of a service and the location receiving the bill differ, the location of the service shall be used to determine whether the Charge applies. The Charge is imposed on the person purchasing the service, but shall be collected by the telecommunications provider. Each telecommunications service provider shall include in its tariffs filed at the Public Utility Commission a description of its billing procedures for the Universal Service Charge.
  2. The Universal Service Charge shall not apply to wholesale transactions between telecommunications service providers where the service is a component part of a service provided to an end user. This exemption includes network access charges and interconnection charges paid to a local exchange carrier.
  3. In the case of mobile telecommunications service, the Universal Service Charge is imposed when the customer's place of primary use is in Vermont. The terms "customer," "place of primary use," and "mobile telecommunications service" have the meanings given in 4 U.S.C. § 124. All provisions of 32 V.S.A. § 9782 shall apply to the imposition of the Universal Service Charge under this section.
  4. [Repealed.]
    1. Notwithstanding any other provision of law to the contrary, beginning on January 1, 2020, the Universal Service Charge shall be imposed on all retail sales of prepaid wireless telecommunications service subject to the sales and use tax imposed under 32 V.S.A. chapter 233. The charges shall be collected by sellers or marketplace facilitators collecting sales tax pursuant to 32 V.S.A. § 9713 and remitted to the Department of Taxes in the manner provided under 32 V.S.A. chapter 233. Upon receipt of the charges, the Department of Taxes shall have 30 days to remit the funds to the fiscal agent selected under section 7503 of this chapter. The Commissioner of Taxes shall establish registration and payment procedures applicable to the Universal Service Charge imposed under this subsection consistent with the registration and payment procedures that apply to the sales tax imposed on such services and also consistent with the administrative provisions of 32 V.S.A. chapter 151, including any enforcement or collection action available for taxes owed pursuant to that chapter. (e) (1)  Notwithstanding any other provision of law to the contrary, beginning on January 1, 2020, the Universal Service Charge shall be imposed on all retail sales of prepaid wireless telecommunications service subject to the sales and use tax imposed under 32 V.S.A. chapter 233. The charges shall be collected by sellers or marketplace facilitators collecting sales tax pursuant to 32 V.S.A. § 9713 and remitted to the Department of Taxes in the manner provided under 32 V.S.A. chapter 233. Upon receipt of the charges, the Department of Taxes shall have 30 days to remit the funds to the fiscal agent selected under section 7503 of this chapter. The Commissioner of Taxes shall establish registration and payment procedures applicable to the Universal Service Charge imposed under this subsection consistent with the registration and payment procedures that apply to the sales tax imposed on such services and also consistent with the administrative provisions of 32 V.S.A. chapter 151, including any enforcement or collection action available for taxes owed pursuant to that chapter.
    2. If a minimal amount of prepaid wireless telecommunications service is sold with a prepaid wireless device for a single, nonitemized price, then the seller may elect not to apply the Universal Service Charge to such transaction.
    3. As used in this subsection:
      1. "Minimal amount" means an amount of service denominated as not more than 10 minutes or not more than $5.00.
      2. "Prepaid wireless telecommunications service" means a telecommunications service as defined in subdivision 203(5) of this title that a consumer pays for in advance and that is sold in predetermined units or dollars that decline with use.
      3. "Seller" means a person who sells prepaid wireless telecommunications service to a consumer.
      4. "Marketplace facilitator" shall have the same meaning as in 32 V.S.A. § 9701(56) .

        Added 1993, No. 197 (Adj. Sess.), § 5, eff. Oct. 1, 1994; amended 2001, No. 144 (Adj. Sess.), § 36; 2013, No. 191 (Adj. Sess.), § 29; 2019, No. 79 , § 6, eff. Jan. 1, 2020; 2019, No. 79 , § 7, eff. June 20, 2019; 2019, No. 131 (Adj. Sess.), § 290; 2019, No. 175 (Adj. Sess.), § 11, eff. July 1, 2021.

History

Amendments--2019 (Adj. Sess.). Act No. 131 deleted "Fund" preceding "Charge" in the last sentence of subsec. (a).

Act No. 175 inserted "or marketplace facilitators collecting sales tax pursuant to 32 V.S.A. § 9713" in subdiv. (e)(1) and added subdiv. (e)(3)(D).

Amendments--2019. Subsec. (d): Repealed by Act No. 79, § 6.

Subsec. (e): Added by Act No. 79, § 7.

Amendments--2013 (Adj. Sess.). Subsec. (b): Deleted ", but is not limited to," following "This exemption includes".

Subdivs. (d)(1)-(d)(3): Added.

Amendments--2001 (Adj. Sess.) Added subsec. (c).

Effective date. See note set out preceding § 7501 of this title.

Effective date of amendments to subsec. (e). 2019, No. 175 (Adj. Sess.), § 31(2) provides that the amendments to subsec. (e) of this section by 2019, No. 175 (Adj. Sess.), § 11 shall take effect on July 1, 2021.

Applicability of subsec. (c). 2001, No. 144 (Adj. Sess.), § 42(11), provides that § 36 of that act [which adds subsec. (c) to this section] shall apply to customer bills issued after August 1, 2002.

§ 7522. Rebate for payment elsewhere.

When a telecommunications service is subject to the Charge imposed by section 7521 of this title and also to a similar charge imposed for similar purposes in another state, the customer shall be liable only for the difference between the amount demonstrably paid in the other state and the amount due in this State.

Added 1993, No. 197 (Adj. Sess.), § 5.

History

Effective date. See note set out preceding § 7501 of this title.

§ 7523. Rate of charge.

  1. Beginning on July 1, 2014, the rate of charge shall be two percent of retail telecommunications service.
  2. Beginning on July 1, 2019, the rate of charge established under subsection (a) of this section shall be increased by four-tenths of one percent of retail telecommunications service, and the monies collected from this increase shall be transferred to the Vermont Community Broadband Fund established under section 8083 of this title, and up to $120,000.00 shall be used to fund a Rural Broadband Technical Assistance Specialist whose duties shall include providing outreach, technical assistance, and other support services to communications union districts established pursuant to chapter 82 of this title and other units of government, nonprofit organizations, cooperatives, and for-profit businesses for the purpose of expanding broadband service to unserved and underserved locations. Support services also may include providing business model templates for various approaches, including formation of or partnership with a cooperative, a communications union district, a rural economic development infrastructure district, an electric utility, or a new or existing Internet service provider as operator of the network.
  3. Universal Service Charges imposed and collected by the fiscal agent under this subchapter shall not be transferred to any other fund or used to support the cost of any activity other than in the manner authorized by this section and section 7511 of this title.

    Added 1993, No. 197 (Adj. Sess.), § 5; amended 1995, No. 182 (Adj. Sess.), § 7, eff. May 22, 1996; 2005, No. 171 (Adj. Sess.), § 2; 2013, No. 190 (Adj. Sess.), § 7, eff. June 16, 2014; 2019, No. 79 , § 2, eff. June 20, 2019; 2021, No. 71 , § 7b, eff. June 8, 2021.

History

2006. Redesignated the amended subsec. (b) as subsec. (a) and the existing subsec. (c) as subsec. (b) to conform to V.S.A. style.

Amendments--2021. Subsec (b): Amended generally.

Amendments--2019. Added new subsec. (b), redesignated former subsec. (b) as subsec. (c), and in that subsec. inserted "this section and" preceding "section 7511".

Amendments--2013 (Adj. Sess.). Section heading: Substituted "of charge" for "adjusted annually" at the end.

Subsec. (a): Rewrote the subsec.

Amendments--2005 (Adj. Sess.). Section amended generally.

Amendments--1995 (Adj. Sess.) Subsec. (c): Added.

Prospective repeal of section. See note set out preceding section 7521 of this subchapter.

Establishment of initial Universal Service Charge rate. 1993, No. 197 , § 8(a), provided that the initial universal service charge rate under subsec. (b) of this section shall be established on or before October 1, 1994.

§ 7524. Payment to fiscal agent.

  1. Telecommunications service providers shall pay to the fiscal agent all Universal Service Charge receipts collected from customers. A report in a form approved by the Department of Public Service shall be included with each payment.
  2. Payments shall be made monthly, by the 15th day of the month, and shall be based upon amounts collected in the preceding month. If the amount is small, the Commissioner may allow payment to be made less frequently, and may permit payment on an accrual basis.
  3. Telecommunications service providers shall maintain records adequate to demonstrate compliance with the requirements of this chapter. The Commissioner or the fiscal agent may examine those records in a reasonable manner.
  4. When a payment is due under this section by a telecommunications service provider who has provided customer credits under the Lifeline program, the amount due may be reduced by the amount of credit granted.
  5. The fiscal agent shall examine the records of telecommunications service providers to determine whether their receipts reflect application of the Universal Service Charge on all assessable telecommunications services under this chapter, including the federal subscriber line charge, directory assistance, enhanced services unless they are billed as separate line items, and toll-related services.
  6. The Department of Public Service shall ensure the fiscal agent is authorized to negotiate and collect from telecommunications service providers any Universal Service Charges not properly assessed or remitted pursuant to this chapter. For the purpose of this subsection, the fiscal agent may examine the records of telecommunications providers for the immediately preceding three years and assess the provider for underpayments, if any, as appropriate.

    Added 1993, No. 197 (Adj. Sess.), § 5; amended 1995, No. 99 (Adj. Sess.), § 14; 1995, No. 182 (Adj. Sess.), § 8, eff. May 22, 1996; 2013, No. 191 (Adj. Sess.), § 30; 2015, No. 41 , § 26, eff. June 1, 2015.

History

2015. Substituted "Department of Public Service" for "Public Service Board" in subsecs. (a) and (f), and "Commissioner" for "Board" in subsecs. (b) and (c) in accordance with 2015, No. 41 , § 26.

Amendments--2013 (Adj. Sess.). Subsecs. (e) and (f): Added.

Amendments--1995 (Adj. Sess.) Act No. 99 amended the section generally.

Act No. 182 rewrote the second sentence of subsec. (b), deleted former subsec. (d), and redesignated former subsec. (e) as present subsec. (d).

Effective date. See note set out preceding § 7501 of this title.

§ 7525. Delinquent payments.

  1. If a report required by this chapter is not filed, or if a report when filed is incorrect or insufficient, or if a provider fails to bill and collect amounts required by this chapter, the fiscal agent shall determine a delinquency from information available and shall so inform the provider.
  2. Interest shall be charged on delinquent payments to the fiscal agent at the rate of 1.5 percent per month or part thereof.
  3. The Public Utility Commission may hear appeals from any determinations of delinquency made by the fiscal agent. Any such determination shall become final if not so appealed within 60 days of its issuance.
  4. Upon petition of the fiscal agent, the Public Utility Commission may impose, after notice and an opportunity for hearing, civil penalties against a telecommunications service provider who is delinquent in making payments to the fiscal agent. Any penalty imposed may be based upon the size and duration of the violation, but no such penalty shall exceed twice the amount of the delinquency or $1,000.00, whichever is larger.
  5. A telecommunications service provider who has filed reports required by this chapter shall not be liable for delinquent payments that were due more than three years before the fiscal agent gave notice of delinquency to the provider.
  6. Payments, interest, and penalties due under this chapter may be collected by civil actions in the courts of this State initiated in the name of the State or fiscal agent.

    Added 1993, No. 197 (Adj. Sess.), § 5; amended 1995, No. 99 (Adj. Sess.), § 15; 2005, No. 171 (Adj. Sess.), § 3.

History

Amendments--2005 (Adj. Sess.). Subsec. (f): Added.

Amendments--1995 (Adj. Sess.) Section amended generally.

Effective date. See note set out preceding § 7501 of this title.

CHAPTER 89. RENEWABLE ENERGY PROGRAMS

Subchapter 1. General Provisions

History

Amendments--2011 2011, No. 47 , § 20m(b), eff. July 1, 2011, designated §§ 8001-8014 of this chapter as subchapter 1 and added the subchapter heading.

§ 8001. Renewable energy goals.

  1. The General Assembly finds it in the interest of the people of the State to promote the State energy policy established in section 202a of this title by:
    1. Balancing the benefits, lifetime costs, and rates of the State's overall energy portfolio to ensure that to the greatest extent possible the economic benefits of renewable energy in the State flow to the Vermont economy in general, and to the rate-paying citizens of the State in particular.
    2. Supporting development of renewable energy that uses natural resources efficiently and related planned energy industries in Vermont, and the jobs and economic benefits associated with such development, while retaining and supporting existing renewable energy infrastructure.
    3. Providing an incentive for the State's retail electricity providers to enter into affordable, long-term, stably priced renewable energy contracts that mitigate market price fluctuation for Vermonters.
    4. Developing viable markets for renewable energy and energy efficiency projects.
    5. Protecting and promoting air and water quality in the State and region through the displacement of those fuels, including fossil fuels, which are known to emit or discharge pollutants.
    6. Contributing to reductions in global climate change and anticipating the impacts on the State's economy that might be caused by federal regulation designed to attain those reductions.
    7. Providing support and incentives to locate renewable energy plants of small and moderate size in a manner that is distributed across the State's electric grid, including locating such plants in areas that will provide benefit to the operation and management of that grid through such means as reducing line losses and addressing transmission and distribution constraints.
    8. Promoting the inclusion, in Vermont's electric supply portfolio, of renewable energy plants that are diverse in plant capacity and type of renewable energy technology.
  2. The Commission shall adopt the rules that are necessary to allow the Commission and the Department to implement and supervise programs pursuant to subchapter 1 of this chapter.

    Added 2003, No. 69 , § 1, eff. June 17, 2003; amended 2005, No. 61 , § 1; 2011, No. 47 , § 6 (eff. May 25, 2011) and § 18; 2011, No. 170 (Adj. Sess.), § 1, eff. May 18, 2012; 2015, No. 56 , § 21.

History

Amendments--2015. Subsec. (b): After "Board shall" substituted "adopt the rules" for "provide, by order or rule, the regulations and procedures" and, after "pursuant to", inserted "subchapter 1 of".

Amendments--2011 (Adj. Sess.). Subdiv. (a)(2): Added "that uses natural resources efficiently".

Subdivs. (a)(5) and (a)(7): Amended generally.

Subdiv. (a)(8): Added.

Amendments--2011. Subdiv. (a)(2): Substituted "and the jobs and economic benefits associated with such development" for "in particular" following "Vermont,".

Subdiv. (a)(7): Added.

Subsec. (b): Substituted "Board" for "Public Service Board" and "Department" for "Department of Public Service".

Amendments--2005 Subsec. (a): Amended generally.

§ 8002. Definitions.

As used in this chapter:

  1. "Commission" means the Public Utility Commission under section 3 of this title.
  2. "Commissioned" or "commissioning" means the first time a plant is put into operation following initial construction or modernization if the costs of modernization are at least 50 percent of the costs that would be required to build a new plant including all buildings and structures technically required for the new plant's operation. However, these terms shall not include activities necessary to establish operational readiness of a plant.
  3. "CPI" means the Consumer Price Index for all urban consumers, designated as "CPI-U," in the northeast region, as published by the U.S. Department of Labor, Bureau of Labor Statistics.
  4. "Customer" means a retail electric consumer.
  5. "Department" means the Department of Public Service under section 1 of this title, unless the context clearly indicates otherwise.
  6. "Energy conversion efficiency" means the effective use of energy and heat from a combustion process.
  7. "Environmental attributes" means the characteristics of a plant that enable the energy it produces to qualify as renewable energy and include any and all benefits of the plant to the environment such as avoided emissions or other impacts to air, water, or soil that may occur through the plant's displacement of a nonrenewable energy source.
  8. "Existing renewable energy" means renewable energy produced by a plant that came into service prior to or on June 30, 2015.
  9. "Greenhouse gas reduction credits" shall be as defined in section 8006a of this title.
  10. "Group net metering system" means a net metering system serving more than one customer, or a single customer with multiple electric meters, located within the service area of the same retail electricity provider. Various buildings owned by municipalities, including water and wastewater districts, fire districts, villages, school districts, and towns, may constitute a group net metering system. A union or district school facility may be considered in the same group net metering system with buildings of its member schools that are located within the service area of the same retail electricity provider.
  11. "kW" means kilowatt or kilowatts (AC).
  12. "kWh" means kW hour or hours.
  13. "MW" means megawatt or megawatts (AC).
  14. "MWH" means MW hour or hours.
  15. "Net metering" means measuring the difference between the electricity supplied to a customer and the electricity fed back by the customer's net metering system during the customer's billing period:
    1. using a single, non-demand meter or such other meter that would otherwise be applicable to the customer's usage but for the use of net metering; or
    2. if the system serves more than one customer, using multiple meters. The calculation shall be made by converting all meters to a non-demand, non-time-of-day meter, and equalizing them to the tariffed kWh rate.
  16. "Net metering system" means a plant for generation of electricity that:
    1. is of no more than 500 kW capacity;
    2. operates in parallel with facilities of the electric distribution system;
    3. is intended primarily to offset the customer's own electricity requirements and does not primarily supply electricity to electric vehicle supply equipment, as defined in section 201 of this title, for the resale of electricity to the public by the kWh or for other retail sales to the public, including those based in whole or in part on a flat fee per charging session or a time-based fee for occupying a parking space while using electric vehicle supply equipment; and
      1. employs a renewable energy source; or (D) (i) employs a renewable energy source; or
      2. is a qualified micro-combined heat and power system of 20 kW or fewer that meets the definition of combined heat and power in subsection 8015(b) of this title and uses any fuel source that meets air quality standards.
  17. "New renewable energy" means renewable energy produced by a specific and identifiable plant coming into service after June 30, 2015.
    1. Energy from within a system of generating plants that includes renewable energy shall not constitute new renewable energy, regardless of whether the system includes specific plants that came or come into service after June 30, 2015.
    2. "New renewable energy" also may include the additional energy from an existing renewable energy plant retrofitted with advanced technologies or otherwise operated, modified, or expanded to increase the kWh output of the plant in excess of an historical baseline established by calculating the average output of that plant for the 10-year period that ended June 30, 2015. If the production of new renewable energy through changes in operations, modification, or expansion involves combustion of the resource, the system also must result in an incrementally higher level of energy conversion efficiency or significantly reduced emissions.
  18. "Plant" means an independent technical facility that generates electricity from renewable energy. A group of facilities, such as wind turbines, shall be considered one plant if the group is part of the same project and uses common equipment and infrastructure such as roads, control facilities, and connections to the electric grid. Common ownership, contiguity in time of construction, and proximity of facilities to each other shall be relevant to determining whether a group of facilities is part of the same project.
  19. "Plant capacity" means the rated electrical nameplate for a plant, except that, in the case of a solar energy plant, the term shall mean the aggregate AC nameplate capacity of all inverters used to convert the plant's output to AC power.
  20. "Plant owner" means a person who has the right to sell electricity generated by a plant.
  21. "Renewable energy" means energy produced using a technology that relies on a resource that is being consumed at a harvest rate at or below its natural regeneration rate.
    1. For purposes of this subdivision (21), methane gas and other flammable gases produced by the decay of sewage treatment plant wastes or landfill wastes and anaerobic digestion of agricultural products, byproducts, or wastes, or of food wastes shall be considered renewable energy resources, but no other form of solid waste, other than silvicultural waste, shall be considered renewable.
    2. For purposes of this subdivision (21), no form of nuclear fuel shall be considered renewable.
    3. The only portion of electricity produced by a system of generating resources that shall be considered renewable is that portion generated a technology that qualifies as renewable under this subdivision (21).
    4. The Commission by rule may add technologies or technology categories to the definition of "renewable energy," provided that technologies using the following fuels shall not be considered renewable energy supplies: coal, oil, propane, and natural gas.
    5. In this chapter, renewable energy refers to either "existing renewable energy" or "new renewable energy."
    1. "Renewable pricing" shall mean an optional service provided or contracted for by an electric company: (22) (A) "Renewable pricing" shall mean an optional service provided or contracted for by an electric company:
      1. under which the company's customers may voluntarily either:
        1. purchase all or part of their electric energy from renewable sources as defined in this chapter; or
        2. cause the purchase and retirement of tradeable renewable energy credits on the participating customer's behalf; and
      2. which increases the company's reliance on renewable sources of energy beyond those the electric company would otherwise be required to provide under section 218c of this title.
    2. Renewable pricing programs may include:
      1. contribution-based programs in which participating customers can determine the amount of a contribution, monthly or otherwise, that will be deposited in a Commission-approved fund for new renewable energy project development;
      2. energy-based programs in which customers may choose all or a discrete portion of their electric energy use to be supplied from renewable resources;
      3. facility-based programs in which customers may subscribe to a share of the capacity or energy from specific new renewable energy resources.
  22. "Retail electricity provider" or "provider" means a company engaged in the distribution or sale of electricity directly to the public.
  23. "Standard Offer Facilitator" means an entity appointed by the Commission pursuant to subsection 8005a(a) of this title.
  24. [Repealed.]
  25. "Tradeable renewable energy credits" means all of the environmental attributes associated with a single unit of energy generated by a renewable energy source where:
    1. those attributes are transferred or recorded separately from that unit of energy;
    2. the party claiming ownership of the tradeable renewable energy credits has acquired the exclusive legal ownership of all, and not less than all, the environmental attributes associated with that unit of energy; and
    3. exclusive legal ownership can be verified through an auditable contract path or pursuant to the system established or authorized by the Commission or any program for tracking and verification of the ownership of environmental attributes of energy legally recognized in any state and approved by the Commission.
  26. "Vermont composite electric utility system" means the combined generation, transmission, and distribution resources along with the combined retail load requirements of the Vermont retail electricity providers.
  27. "Energy transformation project" means an undertaking that provides energy-related goods or services but does not include or consist of the generation of electricity and that results in a net reduction in fossil fuel consumption by the customers of a retail electricity provider and in the emission of greenhouse gases attributable to that consumption. Examples of energy transformation projects may include home weatherization or other thermal energy efficiency measures; air source or geothermal heat pumps; high efficiency heating systems; increased use of biofuels; biomass heating systems; support for transportation demand management strategies; support for electric vehicles or related infrastructure; and infrastructure for the storage of renewable energy on the electric grid.
  28. "RES" means the Renewable Energy Standard established under sections 8004 and 8005 of this title.
  29. "Energy storage facility" has the same meaning as in section 201 of this title.

    Added 2003, No. 69 , § 1, eff. June 17, 2003; amended 2005, No. 61 , § 2; 2007, No. 92 (Adj. Sess.), § 19; 2009, No. 45 , § 2, eff. May 27, 2009; 2009, No. 159 (Adj. Sess.), § 13, eff. July 1, 2012; 2011, No. 47 , § 7, eff. May 25, 2011 and § 18; 2011, No. 125 (Adj. Sess.), § 8; 2011, No. 170 (Adj. Sess.), § 2, eff. May 18, 2012 and § 10; 2013, No. 89 , § 14; 2013, No. 99 (Adj. Sess.), § 3, eff. Jan. 1, 2017; 2015, No. 56 , § 25; 2017, No. 53 , § 11; 2019, No. 59 , § 33, eff. June 14, 2019; 2019, No. 81 , § 4; 2021, No. 54 , § 10.

History

2013. In the introductory paragraph, substituted "As used in" for "For purposes of", and in subdiv. (18)(B), deleted ", but are not limited to" following "include" in accordance with 2013, No. 5 , § 4.

Amendments--2021. Subdiv. (30): Added.

Amendments--2019. Subdiv. (16)(C): Amended generally by Act No. 59.

Subdiv. (10): Act No. 81 substituted "may" for "shall" preceding "be considered" and "schools" for "municipalities" preceding "that are located" and deleted "that serves the facility" following "electricity provider" in the third sentence.

Amendments--2017. Subdiv. (1): Amended generally.

Amendments--2015. Subdivs. (8) and (17): Substituted "June 30, 2015" for "December 31, 2004".

Subdiv. (21)(A): Inserted "or of food wastes" preceding "shall be considered", "other" preceding "form of solid waste", and deleted "agriculture or" preceding "silvicultural waste".

Subdiv. (24): Substituted "Standard Offer" for "SPEED" preceding "Facilitator" and "subsection 8005a(a)" for "subdivision 8005(b)(1)".

Subdiv. (25): Repealed.

Subdivs. (28), (29): Added.

Amendments--2013 (Adj. Sess.). Amended generally.

Amendments--2013. Subdiv. (15): Deleted "that executes a standard offer contract under this chapter" following the second occurrence of "plant".

Amendments--2011 (Adj. Sess.) Text of subdivs. (1), (2), (5), (7), (13), (14), (17), (19), (21), (21): Amended generally by Act No. 170.

Text of subdivs. (3), (6), (8), (23): Added by Act No. 170.

Subdiv. (15): Act No. 125 added "except that, in the case of a solar energy plant that executes a standard offer contract under this chapter, the term shall mean the aggregate AC nameplate capacity of all inverters used to convert the plant's output to AC power".

Amendments--2011. Subdiv. (4): In the second sentence, deleted "This" and inserted the language beginning "With respect to a system of generating resources" and ending "total plant capacity of the system" and inserted "New renewable energy' also" preceding "may include".

Subdiv. (8)(C): Substituted "board" for "public service board".

Subdiv. (10): Inserted "under section 3 of this title" following "board".

Subdivs. (16)-(20): Added.

Amendments--2009 (Adj. Sess.) Subdiv. (2)(C): Amended generally.

Amendments--2009. Subdivs. (10)-(15): Added.

Amendments--2007 (Adj. Sess.). Subdiv. (4): Inserted "operated," following "otherwise" and "in excess of an historical baseline established by calculating the average output of that facility for the 10-year period that ended December 31, 2004" following "facility" in the first sentence; substituted "changes in operations, modification, or expansion" for "retrofitting" and inserted "also" following "system" in the third sentence.

Amendments--2005 Substituted "200 megawatts" for "80 megawatts" in subdiv. (2)(C) and added subdiv. (2)(D), added new subdivs. (3) through (7), redesignated former subdiv. (3) as subdiv. (8) and added subdiv. (9).

Conforming amendments; renewable energy definitions. 2015, No. 55 , § 25 provides: "(a) In 2014 Acts and Resolves No. 99, Sec. 3, in 30 V.S.A. § 8002(8) (existing renewable energy) and (17) (new renewable energy), each occurrence of "December 31, 2004" is amended to "June 30, 2015." The Office of Legislative Council shall implement these amendments during statutory revision.

Statutory revision. 2011, No. 170 (Adj. Sess.), § 10 provides: "(a) The office of legislative council shall reorganize 30 V.S.A. § 8002 (definitions) so that the definitions are in alphabetical order.

"(b) In the Vermont Statutes Annotated, the office of legislative council shall revise each cross-reference to a definition contained in 30 V.S.A. § 8002 so that it refers to the definition as reorganized under subsection (a) of this section."

Retroactive application. 2011, No. 125 (Adj. Sess.), § 8(c) provides: "Notwithstanding 1 V.S.A. §§ 213 and 214, Sec. 8 of this act (amending the definition of plant capacity) shall apply to solar energy plants that:

"(1) have executed a standard offer contract under 30 V.S.A. chapter 89; and

"(2) are commissioned, within the meaning of 30 V.S.A. § 8002(11), on or after January 1, 2012."

ANNOTATIONS

1. Plant.

Public Utility Commission properly concluded that two proposed solar electric facilities were a single "plant" because they were not only commonly owned, physically contiguous, and designed to fit together, but their interconnection to the grid required the developer to construct a mile-long line extension at its own expense, the use of which would be shared by the facilities and which the PUC considered to be a single interconnection facility. In re Chelsea Solar LLC, - Vt. - , - A.3d - (Apr. 16, 2021).

Definition of "plant" does not address final ownership of equipment and infrastructure; it focuses instead on the use of common - i.e., shared - equipment and infrastructure. In re Chelsea Solar LLC, - Vt. - , - A.3d - (Apr. 16, 2021).

Statutory definition of "plant" does not require exclusive use of common infrastructure for facilities to be considered a single plant. In re Chelsea Solar LLC, - Vt. - , - A.3d - (Apr. 16, 2021).

Second sentence of the statutory definition of "plant" makes clear that electrical generation facilities are not independent if they share technical features such as equipment and infrastructure. The logical corollary of the second sentence is that facilities that are not part of the same project and do not share equipment and infrastructure should be considered separate plants. In re Programmatic Changes, 196 Vt. 175, 95 A.3d 999 (Mar. 28, 2014).

Under the plain language of the statutory definition of "plant," two solar power projects would qualify as "independent technical facilities," as they would not share common roads, control facilities, or connections to the electric grid, and each would have a separate interconnection agreement and separate interconnection facilities, which would limit the capacity of each to 2.0 megawatts. As independent plants, both should have been awarded standard-offer contracts under the terms of the request for proposals because they were the lowest and second-lowest priced projects, respectively. In re Programmatic Changes, 196 Vt. 175, 95 A.3d 999 (Mar. 28, 2014).

§ 8003. Renewable energy pricing.

  1. An electric utility, municipal department formed under local charter or chapter 79 of this title, or electric cooperative formed under chapter 81 of this title may implement a renewable energy pricing program under this section for its customers, or offer customers the option of making a voluntary contribution to the Vermont Clean Energy Development Fund established under section 8015 of this title. Such renewable energy pricing programs may include tariffs, standard special contracts, or other arrangements whose purpose is to increase the company's reliance on, or the customer's support of, renewable sources of energy or the type and quantity of renewable energy resources available.
  2. A standard special contract for renewable pricing that has been approved as to form and substance by the Commission under this section shall not require further approval by the Commission under section 229 of this title as to individual customers who choose to execute that contract.
  3. Renewable pricing programs may be priced in the form of a premium relative to the tariff that would otherwise apply; provided the premium shall be cost-based, shall reasonably reflect the difference between acquiring the renewable energy and the utility's alternative cost of power, including administrative costs, and shall be adjusted via such periodic adjustment mechanisms, including adjustment clauses, as the Commission shall approve as part of a renewable pricing program. Any renewable pricing program shall require that any costs of power in excess of the company's alternative cost of power shall be borne solely by those customers who elect to participate in the renewable pricing program.
  4. Tradeable renewable energy credits (with or without other features), tradeable emissions credits, emission offsets, or other market instruments created or obtained by energy resources acquired pursuant to or as part of a renewable pricing program approved under this section shall be permanently retired by or on behalf of the program's subscribers, and shall not be sold or otherwise disposed of. However, if a program is not fully subscribed, any such instruments created or obtained by the unsubscribed portion of the program may be sold or disposed of at no less than market value if the net proceeds of such sale or disposal are used to reduce the cost paid under the renewable pricing program.
  5. The Commission shall ensure that disclosures and representations made regarding renewable pricing programs are accurate, are reasonably supported by objective data, disclose the types of technologies used, whether the energy is Vermont-based or not, and clearly distinguish between energy or tradeable energy credits provided from renewable and nonrenewable sources, and existing and new sources.
  6. [Repealed.]
  7. The Commission shall consider the following factors in deciding whether and upon what conditions to approve a proposed renewable energy pricing program:
    1. minimization of marketing and administrative expenses;
    2. auditing or certification of sources of energy or tradeable renewable energy credits;
    3. marketing and promotion plans;
    4. effectiveness of the program in meeting the goals of promoting renewable energy generation and public understanding of renewable energy sources in Vermont;
    5. retention by the program of renewable energy production incentives, tax incentives, and other incentives earned or otherwise obtained by energy resources acquired pursuant to or as part of a renewable energy pricing program approved under this section to reduce the cost of any premiums paid under this section; and
    6. costs imposed on nonparticipating customers arising on account of the implementation of the voluntary renewable energy pricing program.

      Added 2003, No. 69 , § 1, eff. June 17, 2003; amended 2007, No. 92 (Adj. Sess.), § 20; 2009, No. 45 , § 4a, eff. May 27, 2009.

History

2013. In subsec. (a), deleted ", but are not limited to," following "may include" in accordance with 2013, No. 5 , § 4.

- 2011. Pursuant to Sec. 20m(a) of No. 47 of 2011, revised the statutory cross-reference in subsec. (a) to section 8015 of this title.

Amendments--2009. Subsec. (a): Substituted "An" for "Unless the board finds good cause to exempt a utility, by no later than July 1, 2009, each", "or" for "and each", "may" for "shall" and deleted "shall" preceding "offer customers" in the first sentence.

Amendments--2007 (Adj. Sess.). Catchline: Inserted "energy" preceding "pricing".

Subsec. (a): Deleted the former first sentence; added the present first sentence and inserted "renewable energy pricing" preceding "programs" in the second sentence.

Subsec. (f): Deleted.

Subsec. (g): Inserted "and upon what conditions" following "whether" and "energy" following "renewable".

Subdivs. (g)(5), (6): Inserted "energy" preceding "pricing".

§ 8004. Sales of electric energy; Renewable Energy Standard (RES).

  1. Establishment; requirements.  The RES is established. Under this program, a retail electricity provider shall not sell or otherwise provide or offer to sell or provide electricity in the State of Vermont without ownership of sufficient energy produced by renewable energy plants or sufficient tradeable renewable energy credits from plants whose energy is capable of delivery in New England that reflect the required amounts of renewable energy set forth in section 8005 of this title or without support of energy transformation projects in accordance with that section. A retail electricity provider may meet the required amounts of renewable energy through eligible tradeable renewable energy credits that it owns and retires, eligible renewable energy resources with environmental attributes still attached, or a combination of those credits and resources.
  2. Rules.  The Commission shall adopt the rules that are necessary to allow the Commission and the Department to implement and supervise further the implementation and maintenance of the RES.
  3. RECS; banking.  The Commission shall allow a provider that has met the required amount of renewable energy in a given year, commencing with 2017, to retain tradeable renewable energy credits created or purchased in excess of that amount for application to the provider's required amount of renewable energy in one of the following three years.
  4. Alternative compliance payment.  In lieu of purchasing renewable energy or tradeable renewable energy credits or supporting energy transformation projects to satisfy the requirements of this section and section 8005 of this title, a retail electricity provider in this State may pay to the Vermont Clean Energy Development Fund established under section 8015 of this title an alternative compliance payment at the applicable rate set forth in section 8005.
  5. VPPSA members.  In the case of members of the Vermont Public Power Supply Authority, the requirements of this chapter may be met in the aggregate.
  6. Joint efforts.  Retail electricity providers may engage in joint efforts to meet one or more categories within the RES.

    Added 2003, No. 69 , § 1, eff. June 17, 2003; amended 2005, No. 61 , § 3; 2005, No. 208 (Adj. Sess.), § 14; 2007, No. 92 (Adj. Sess.), § 21; 2009, No. 45 , § 3, eff. May 27, 2009; 2011, No. 47 , §§ 18, 20m(a); 2015, No. 56 , § 2.

History

Amendments--2015. Section amended generally.

Amendments--2011. Subsec. (c): Substituted "board" for "public service board".

Subsec. (d): Substituted "board" for "public service board" and "department" for "department of public service".

Subsec. (e): In the first sentence, changed statutory cross-reference to "section 8015 of this title" and substituted "kWh" for "kilowatt hour".

Amendments--2009. Subsec. (a): In the last sentence, substituted "of this chapter" for "of subsection (b) of this section" and deleted "through all requirements contracts pursuant to section 4002a of this title, or in the aggregate otherwise as approved by the board" following "aggregate".

Amendments--2007 (Adj. Sess.). Subsec. (e): Substituted "the Vermont clean energy development fund established under 10 V.S.A. § 6523" for "a renewable energy fund established by the public service board".

Amendments--2005 (Adj. Sess.). Subsec. (f): Substituted "biennially thereafter through December 30, 2013" for "again before December 30, 2009" in the first sentence; substituted "cumulative growth in electric energy uses in Vermont" for "cumulative load growth in Vermont" in subdiv. (f)(1); and added subdiv. (f)(9).

Amendments--2005 Section amended generally.

Public Service Board implementation. 2015, No. 55 , § 8, effective June 11, 2015, provides: "(a) Commencement. On or before August 31, 2015, the Public Service Board (the Board) shall commence a proceeding to implement Secs. 2 (sales of electric energy; RES) [which amended 30 V.S.A. § 8004], 3 (RES categories) [which amended 30 V.S.A. § 8005], and 7 (tradeable renewable energy credits) [which amended 30 V.S.A. § 8006] of this act.

"(b) Notice; comment; workshop. The proceeding shall include one or more workshops to solicit the input of potentially affected parties and the public. The Board shall provide notice of the workshops on its website and directly to the Department, Vermont's retail electricity providers, Renewable Energy Vermont, business organizations such as Associated Industries of Vermont, environmental and consumer advocacy organizations such as the Vermont Natural Resources Council and the Vermont Public Interest Research Group, and to any other person that requests direct notice or to whom the Board may consider direct notice appropriate. The Board also shall provide an opportunity for submission of written comments, which the notice shall include.

"(c) Order. On or before July 1, 2016, the Board shall issue an order to take effect on January 1, 2017 that initially implements Secs. 2, 3, and 7 of this act.

"(d) On or before July 1, 2018, the Board shall commence rulemaking to implement Secs. 2, 3, and 7 of this act. The Board shall finally adopt these rules within eight months of commencing rulemaking, unless this period is extended by the Legislative Committee on Administrative Rules under 3 V.S.A. § 843.

"(e) Assistance. The Board and the Department of Public Service may retain experts and other personnel to assist them with the proceedings and rulemaking under this section and allocate the costs of these personnel to the electric distribution utilities in accordance with the process under 30 V.S.A. § 21."

§ 8005. RES categories.

  1. Categories.  This section specifies three categories of required resources to meet the requirements of the RES established in section 8004 of this title: total renewable energy, distributed renewable generation, and energy transformation.
    1. Total renewable energy.
      1. Purpose; establishment.  To encourage the economic and environmental benefits of renewable energy, this subdivision establishes, for the RES, minimum total amounts of renewable energy within the supply portfolio of each retail electricity provider. To satisfy this requirement, a provider may use renewable energy with environmental attributes attached or any class of tradeable renewable energy credits generated by any renewable energy plant whose energy is capable of delivery in New England.
      2. Required amounts.  The amounts of total renewable energy required by this subsection shall be 55 percent of each retail electricity provider's annual retail electric sales during the year beginning on January 1, 2017, increasing by an additional four percent each third January 1 thereafter, until reaching 75 percent on and after January 1, 2032.
      3. Relationship to other categories.  Distributed renewable generation used to meet the requirements of subdivision (2) of this subsection (a) shall also count toward the requirements of this subdivision. However, an energy transformation project under subdivision (3) of this subsection shall not count toward the requirements of this subdivision.
      4. Municipal providers; petition.  On petition by a provider that is a municipal electric utility serving not more than 6,000 customers, the Commission may reduce the provider's required amount under this subdivision (1) for a period of up to three years. The Commission may approve one such period only for a municipal provider. The Commission may reduce this required amount if it finds that:
        1. the terms or conditions of an environmental permit or certification necessitate a reduction in the electrical energy generated by an in-state hydroelectric facility that the provider owns and that this reduction will require the provider to purchase other renewable energy with environmental attributes attached or tradeable renewable energy credits in order to meet this required amount; and
        2. this purchase will:
          1. cause the provider to increase significantly its retail rates; or
          2. materially impair the provider's ability to meet the public's need for energy services after safety concerns are addressed, in the manner set forth in subdivision 218c(a)(1) (least-cost integrated planning) of this title.
    2. Distributed renewable generation.
      1. Purpose; establishment.  This subdivision establishes a distributed renewable generation category for the RES. This category encourages the use of distributed generation to support the reliability of the State's electric system; reduce line losses; contribute to avoiding or deferring improvements to that system necessitated by transmission or distribution constraints; and diversify the size and type of resources connected to that system. This category requires the use of renewable energy for these purposes to reduce environmental and health impacts from air emissions that would result from using other forms of generation.
      2. Definition.  As used in this section, "distributed renewable generation" means one of the following:
        1. a renewable energy plant that is new renewable energy; has a plant capacity of five MW or less; and
          1. is directly connected to the subtransmission or distribution system of a Vermont retail electricity provider; or
          2. is directly connected to the transmission system of an electric company required to submit a Transmission System Plan under subsection 218c(d) of this title, if the plant is part of a plan approved by the Commission to avoid or defer a transmission system improvement needed to address a transmission system reliability deficiency identified and analyzed in that Plan; or
        2. a net metering system approved under the former section 219a or under section 8010 of this title if the system is new renewable energy and the interconnecting retail electricity provider owns and retires the system's environmental attributes.
      3. Required amounts.  The required amounts of distributed renewable generation shall be one percent of each retail electricity provider's annual retail electric sales during the year beginning January 1, 2017, increasing by an additional three-fifths of a percent each subsequent January 1 until reaching 10 percent on and after January 1, 2032.
      4. Distributed generation greater than five MW.  On petition of a retail electricity provider, the Commission may for a given year allow the provider to employ energy with environmental attributes attached or tradeable renewable energy credits from a renewable energy plant with a plant capacity greater than five MW to satisfy the distributed renewable generation requirement if the plant would qualify as distributed renewable generation but for its plant capacity and the provider demonstrates that it is unable during that year to meet the requirement solely with qualifying renewable energy plants of five MW or less. To demonstrate this inability, the provider shall issue one or more requests for proposals, and show that it is unable to obtain sufficient ownership of environmental attributes to meet its required amount under this subdivision (2) from:
        1. the construction and interconnection to its system of distributed renewable generation that is consistent with its approved least-cost integrated resource plan under section 218c of this title at a cost less than or equal to the sum of the applicable alternative compliance payment rate and the applicable rates published by the Department under the Commission's rules implementing subdivision 209(a)(8) of this title; and
        2. purchase of tradeable renewable energy credits for distributed renewable generation at a cost that is less than the applicable alternative compliance rate.
    3. Energy transformation.
      1. Purpose; establishment.  This subdivision establishes an energy transformation category for the RES. This category encourages Vermont retail electricity providers to support additional distributed renewable generation or to support other projects to reduce fossil fuel consumed by their customers and the emission of greenhouse gases attributable to that consumption. A retail electricity provider may satisfy the energy transformation requirement through distributed renewable generation in addition to the generation used to satisfy subdivision (2) of this subsection (a) or energy transformation projects or a combination of such generation and projects.
      2. Required amounts.  For the energy transformation category, the required amounts shall be two percent of each retail electricity provider's annual retail electric sales during the year beginning January 1, 2017, increasing by an additional two-thirds of a percent each subsequent January 1 until reaching 12 percent on and after January 1, 2032. However, in the case of a provider that is a municipal electric utility serving not more than 6,000 customers, the required amount shall be two percent of the provider's annual retail sales beginning on January 1, 2019, increasing by an additional two-thirds of a percent each subsequent January 1 until reaching 10 and two-thirds percent on and after January 1, 2032. Prior to January 1, 2019, such a municipal electric utility voluntarily may engage in one or more energy transformation projects in accordance with this subdivision (3).
      3. Eligibility criteria.  For an energy transformation project to be eligible under this subdivision (a)(3), each of the following shall apply:
        1. Implementation of the project shall have commenced on or after January 1, 2015.
        2. Over its life, the project shall result in a net reduction in fossil fuel consumed by the provider's customers and in the emission of greenhouse gases attributable to that consumption, whether or not the fuel is supplied by the provider.
        3. The project shall meet the need for its goods or services at the lowest present value life cycle cost, including environmental and economic costs. Evaluation of whether this subdivision (iii) is met shall include analysis of alternatives that do not increase electricity consumption.
        4. The project shall cost the utility less per MWH than the applicable alternative compliance payment rate.
      4. Conversion.  For the purpose of determining eligibility and the application of the energy transformation project to a provider's annual requirement, the provider shall convert the net reduction in fossil fuel consumption resulting from the energy transformation project to a MWH equivalent of electric energy, in accordance with rules adopted by the Commission. The conversion shall use the most recent year's approximate heat rate for electricity net generation from the total fossil fuels category as reported by the U.S. Energy Information Administration in its Monthly Energy Review. If an energy transformation project is funded by more than one regulated entity, the Commission shall prorate the reduction in fossil fuel consumption among the regulated entities. In this subdivision (D), "regulated entity" includes each provider and each efficiency entity appointed under subsection 209(d) of this title.
      5. Other sources.
        1. A retail electricity provider or a provider's partner may oversee an energy transformation project under this subdivision (3). However, the provider shall deliver the project's goods or services in partnership with persons other than the provider unless exclusive delivery through the provider is more cost-effective than delivery by another person or there is no person other than the provider with the expertise or capability to deliver the goods or services.
        2. An energy transformation project may provide incremental support to a program authorized under Vermont statute that meets the eligibility criteria of this subdivision (3) but may take credit only for the additional amount of service supported and shall not take credit for that program's regularly budgeted or approved investments.
        3. To meet the requirements of this subdivision (3), one or more retail electricity providers may jointly propose with an energy efficiency entity appointed under subdivision 209(d)(2) of this title an energy transformation project or group of such projects. The proposal shall include standards of measuring performance and methods to allocate savings and reductions in fossil fuel consumption and greenhouse gas emissions among each participating provider and efficiency entity.
      6. Implementation.  To carry out this subdivision (3), the Commission shall adopt rules:
        1. For the conversion methodology in accordance with subdivision (3)(D) of this subsection (a).
        2. To provide a process for prior approval of energy transformation projects by the Commission or its designee. This process shall ensure that each of these projects meets the requirements of this subdivision (3) and need not consist of individual review of each energy transformation project prior to implementation as long as the mechanism ensures those requirements are met. An energy transformation project that commenced prior to initial adoption of rules under this subdivision (F) may seek approval after such adoption.
        3. For cost-effectiveness screening of energy transformation projects. This screening shall be consistent with the provisions of this subdivision (3) and, as applicable, the screening tests developed under subsections 209(d) (energy efficiency) and 218c(a) (least-cost integrated planning) of this title.
        4. To allow a provider who has met its required amount under this subdivision (3) in a given year to apply excess net reduction in fossil fuel consumption, expressed as a MWH equivalent, from its energy transformation project or projects during that year toward the provider's required amount in a future year.
        5. To ensure periodic evaluation of an energy transformation project's claimed fossil fuel reductions, avoided greenhouse gas emissions, conversion to MWH equivalent, cost-effectiveness and, if applicable, energy savings, and to ensure annual verification and auditing of a provider's claims regarding project completion and resulting MWH equivalent. Changes to project claims resulting from periodic evaluations shall not reduce retroactively claims made on behalf of a project approved under subdivision (3)(F)(ii) of this subsection (a) or reduce verified claims carried forward under subdivision (3)(F)(iv) of this subsection (a).
        6. To ensure that all ratepayers have an equitable opportunity to participate in, and benefit from, energy transformation projects regardless of rate class, income level, or provider service territory.
        7. To ensure the coordinated delivery of energy transformation projects with the delivery of similar services, including low-income weatherization programs, entities that fund and support affordable housing, energy efficiency programs delivered under section 209 of this title, and other energy efficiency programs delivered locally or regionally within the State.
        8. To ensure that, if an energy transformation project will increase the use of electric energy, the project incorporates best practices for demand management, uses technologies appropriate for Vermont, and encourages the installation of the technologies in buildings that meet minimum energy performance standards.
        9. To provide a process under which a provider may withdraw from or terminate, in an orderly manner, an ongoing energy transformation project that no longer meets the eligibility criteria because of one or more factors beyond the control of the project and the provider.
      7. Petitions.  On petition of a retail electricity provider in any given year, the Commission may:
        1. reduce the provider's required amount under this subdivision (3) for that year, without penalty or alternative compliance payment, if the Commission finds that compliance with the required amount for that year will:
          1. cause the provider to increase significantly its retail rates; or
          2. materially impair the provider's ability to meet the public's need for energy services after safety concerns are addressed, in the manner set forth in subdivision 218c(a)(1) (least-cost integrated planning) of this title; or
        2. allow a provider who failed to achieve the required amount under this subdivision (3) during the preceding year to avoid paying the alternative compliance payment if the Commission:
          1. finds that the provider made a good faith effort to achieve the required amount and its failure to achieve that amount resulted from market factors beyond its control; and
          2. directs that the provider add the difference between the required amount and the provider's actually achieved amount for that year to its required amount for one or more future years.
    4. Alternative compliance rates.
      1. The alternative compliance payment rates for the categories established by this subsection (a) shall be:
        1. total renewable energy requirement - $0.01 per kWh; and
        2. distributed renewable generation and energy transformation requirements - $0.06 per kWh.
      2. The Commission shall adjust these rates for inflation annually commencing January 1, 2018, using the CPI.
  2. Reduced amounts; providers; 100 percent renewable.
    1. The provisions of this subsection shall apply to a retail electricity provider that:
      1. as of January 1, 2015, was entitled, through contract, ownership of energy produced by its own generation plants, or both, to an amount of renewable energy equal to or more than 100 percent of its anticipated total retail electric sales in 2017, regardless of whether the provider owned the environmental attributes of that renewable energy; and
      2. annually each July 1 commencing in 2018, owns and has retired tradeable renewable energy credits monitored and traded on the New England Generation Information System or otherwise approved by the Commission equivalent to 100 percent of the provider's total retail sales of electricity for the previous calendar year.
    2. A provider meeting the requirements of subdivision (1) of this subsection may:
      1. satisfy the distributed renewable generation requirement of this section by accepting net metering systems within its service territory pursuant to the provisions of this title that govern net metering; and
      2. if the Commission has appointed the provider as an energy efficiency entity under subsection 209(d) of this title, propose to the Commission to reduce the energy transformation requirement that would otherwise apply to the provider under this section.
        1. The provider may make and the Commission may review such a proposal in connection with a periodic submission made by the provider pursuant to its appointment under subsection 209(d) of this title.
        2. The Commission may approve a proposal under this subdivision (B) if it finds that:
          1. the energy transformation requirement that would otherwise apply under this section exceeds the achievable potential for cost-effective energy transformation projects in the provider's service territory that meet the eligibility criteria for these projects under this section; and
          2. the reduced energy transformation requirement proposed by the provider is not less than the amount sufficient to ensure the provider's deployment or support of energy transformation projects that will acquire that achievable potential.
        3. The measure of cost-effectiveness under this subdivision (B) shall be the alternative compliance payment rate established in this section for the energy transformation requirement.
  3. Biomass.
    1. Distributed renewable generation that employs biomass to produce electricity shall be eligible to count toward a provider's distributed renewable generation or energy transformation requirement only if the plant produces both electricity and thermal energy from the same biomass fuel and the majority of the energy recovered from the plant is thermal energy.
    2. Distributed renewable generation and energy transformation projects that employ forest biomass to produce energy shall comply with renewability standards adopted by the Commissioner of Forests, Parks and Recreation under 10 V.S.A. § 2751 .
  4. Hydropower.  A hydroelectric renewable energy plant shall be eligible to satisfy the distributed renewable generation or energy transformation requirement only if, in addition to meeting the definition of distributed renewable generation, the plant:
    1. is and continues to be certified by the Low-impact Hydropower Institute; or
    2. after January 1, 1987, received a water quality certification pursuant to 33 U.S.C. § 1341 from the Agency of Natural Resources.

      Added 2005, No. 61 , § 4; amended 2005, No. 208 (Adj. Sess.), § 15; 2007, No. 92 (Adj. Sess.), § 22; 2009, No. 45 , § 4, eff. May 27, 2009; 2009, No. 159 (Adj. Sess.), §§ 3, 4, 5, 8, eff. June 4, 2010; 2011, No. 47 , § 8 (eff. May 25, 2011) and § 18; 2011, No. 170 (Adj. Sess.), § 3, eff. May 18, 2012; 2013, No. 34 , § 19; 2015, No. 56 , § 3; 2015, No. 174 (Adj. Sess.), § 14.

History

Amendments--2015 (Adj. Sess.). Subdiv. (a)(1)(D): Added.

Amendments--2015. Section amended generally.

Amendments--2013. Subdiv. (d)(4)(B): Deleted former last sentence.

Amendments--2011 (Adj. Sess.). Section amended generally; many provisions moved to new section 8005a.

Amendments--2011. Subsec. (b): Deleted "January 1, 2007" following "board."

Subdiv. (b)(2): Substituted "Issue" for "No later than September 30, 2009, put into effect, on behalf of all Vermont retail electricity providers," preceding "standard".

Subdiv. (b)(2)(G): Added.

Subsec. (b)(5): In the first sentence, substituted "from" for "through" and "facilitator" for "program" and added the second sentence.

Subsec. (e): Substituted "The" for "By no later than September 1, 2006, the public service" preceding "board".

Subdiv. (g)(2): Deleted "and any associated costs" following "purchased"; inserted "at the price paid to the plant owners, allocated to the providers" following "providers"; substituted "the electricity" for "those costs" following "for" and deleted the former second through fourth sentences.

Subsec. (m): Inserted "and its instrumentalities" following "state".

Amendments--2009 (Adj. Sess.) Subdiv. (b)(2)(F): Added.

Subdiv. (b)(7): Amended generally.

Subsec. (i): Deleted "interconnection" following "address" and "and interconnection" following "metering".

Subsec. (k): Added the second and third sentences.

Amendments--2009. Subsec. (b): Substituted "subdivisions (1), (2), and (5)" for "subdivisions (2) and (3) in the introductory paragraph, added the language beginning ", and shall implement" to the end of subdiv. (1), rewrote subdiv. (2), deleted former subdiv. (3) and redesignated former subdivs. (4)-(10) as present subdivs. (3)-(9), inserted "tradeable", substituted "those plants that accept the standard offer issued under subdivision (2)" for "the projects approved under subdivision (3)" in subdiv (3), inserted "and third party developer" in subdiv. (4), rewrote subdiv (5), added the last sentence in subdiv. (6), in subdiv. (7), deleted "subdivision (6) of" following "established under", and added the language beginning ", provided, however, that" to the end, and deleted "and" from the end of subdiv. (8).

Subsecs. (g)-(n): Added.

Amendments--2007 (Adj. Sess.). Subsec. (b): Inserted "and in the case of subdivisions (2) and (3) of this subsection shall" following "may".

Subdiv. (b)(2): Deleted "margin below the hourly spot market" preceding "price" and inserted "determined by the board to be adequate to promote SPEED resource development while remaining consistent with the principles of least-cost energy services under section 218c of this title. For purposes of this section, a long-term contract should be 15 years or greater unless the board finds good cause for a shorter term" following "price" in the first sentence.

Subdiv. (b)(3): Inserted "at stable prices" following "contracts" and substituted "qualifying SPEED resources. The board shall create a standard contract price, or a set of maximum and minimum provisions, or both, for qualifying SPEED resources over 1 MW of capacity. In setting a standard contract price for a qualifying SPEED resource, the board shall consider the goal of developing qualified SPEED resources, least cost provision of energy service under section 218c of this title, and the impact on electric rates" for "renewable energy that are anticipated to be below the long-term market price, over the lives of the projects".

Subdiv. (d)(1): Amended generally.

Subdiv. (d)(2): Rewrote the subdiv.

Subdiv. (d)(3): Substituted "subdivisions" for "subdivision" preceding "(1)" and inserted "and (2)" preceding "of this subsection".

Amendments--2005 (Adj. Sess.). Subsec (b): Substituted "established, by rule, order, or contract" for "established, after notice and hearing" in the first sentence and "standard comes into effect" for "standard is in effect" in subdiv. (b)(7).

Subdiv. (d)(1): In the second sentence, substituted "electric energy usage" for "demand" and "load", respectively.

Subsec. (e): Added the last sentence.

Subsec. (f): Added.

§ 8005a. Standard Offer Program.

  1. Establishment.  A Standard Offer Program is established. To achieve the goals of section 8001 of this title, the Commission shall issue standard offers for renewable energy plants that meet the eligibility requirements of this section. The Commission shall implement these standard offers by rule, order, or contract and shall appoint a Standard Offer Facilitator to assist in this implementation. For the purpose of this section, the Commission and the Standard Offer Facilitator constitute instrumentalities of the State.
  2. Eligibility.  To be eligible for a standard offer under this section, a plant must constitute a qualifying small power production facility under 16 U.S.C. § 796(17)(C) and 18 C.F.R. part 292, must not be a net metering system under section 219a of this title, and must be a new standard offer plant. In this section, "new standard offer plant" means a renewable energy plant that is located in Vermont, that has a plant capacity of 2.2 MW or less, and that is commissioned on or after September 30, 2009.
  3. Cumulative capacity.  In accordance with this subsection, the Commission shall issue standard offers to new standard offer plants until a cumulative plant capacity amount of 127.5 MW is reached.
    1. Pace.  Annually commencing April 1, 2013, the Commission shall increase the cumulative plant capacity of the Standard Offer Program (the annual increase) until the 127.5-MW cumulative plant capacity of this subsection is reached.
      1. Annual amounts.  The amount of the annual increase shall be five MW for the three years commencing April 1, 2013, 7.5 MW for the three years commencing April 1, 2016, and 10 MW commencing April 1, 2019.
      2. Blocks.  Each year, a portion of the annual increase shall be reserved for new standard offer plants proposed by Vermont retail electricity providers (the provider block), and the remainder shall be reserved for new standard offer plants proposed by persons who are not providers (the independent developer block).
        1. The portion of the annual increase reserved for the provider block shall be 10 percent for the three years commencing April 1, 2013, 15 percent for the three years commencing April 1, 2016, and 20 percent commencing April 1, 2019.
        2. If the provider block for a given year is not fully subscribed, any unsubscribed capacity within that block shall be added to the annual increase for each following year until that capacity is subscribed and shall be made available to new standard offer plants proposed by persons who are not providers.
        3. If the independent developer block for a given year is not fully subscribed, any unsubscribed capacity within that block shall be added to the annual increase for each following year until that capacity is subscribed and:
          1. shall be made available to new standard offer plants proposed by persons who are not providers; and
          2. may be made available to a provider following a written request and specific proposal submitted to and approved by the Commission.
      3. Adjustment; greenhouse gas reduction credits.  The Commission shall adjust the annual increase to account for greenhouse gas reduction credits by multiplying the annual increase by one minus the ratio of the prior year's greenhouse gas reduction credits to that year's statewide retail electric sales.
        1. The amount of the prior year's greenhouse gas reduction credits shall be determined in accordance with subdivision 8006a(a) of this title.
        2. The adjustment in the annual increase shall be applied proportionally to the independent developer block and the provider block.
        3. Greenhouse gas reduction credits used to diminish a provider's obligation under section 8004 of this title may be used to adjust the annual increase under this subsection (c).
      4. Pilot project; preferred locations.  For one year commencing on January 1, 2017, the Commission shall allocate one-sixth of the annual increase to new standard offer plants that will be wholly located in one or more preferred locations other than parking lots or parking lot canopies and, separately, one-sixth of the annual increase to new standard offer plants that will be wholly located over parking lots or on parking lot canopies.
        1. To qualify for these allocations, the plant shall not require the construction of a new substation by the interconnecting retail electricity provider or by increasing the capacity of one or more of the provider's existing facilities. To qualify for the allocation to plants wholly located over parking lots or on parking lot canopies, the location shall remain in use as a parking lot.
        2. These allocations shall apply proportionally to the independent developer block and provider block.
        3. If an allocation under this pilot project is not fully subscribed, the Commission in 2017 shall allocate the unsubscribed capacity to new standard offer plants outside the pilot project.
        4. As used in this subdivision (D), "preferred location" means a site within the State on which a renewable energy plant will be located that is one of the following:
          1. A new or existing structure whose primary use is not the generation of electricity or providing support for the placement of equipment that generates electricity.
          2. A parking lot canopy over a paved parking lot, provided that the location remains in use as a parking lot.
          3. A tract previously developed for a use other than siting a plant on which a structure or impervious surface was lawfully in existence and use prior to July 1 of the year preceding the year in which an application for a certificate of public good under section 248 of this title for the plant is filed or in which the plant seeks an award of a contract under the Standard Offer Program under this section, whichever is earlier. To qualify under this subdivision (III), the limits of disturbance of a proposed renewable energy plant must include either the existing structure or impervious surface and shall not include any headwaters, streams, shorelines, floodways, rare and irreplaceable natural areas, necessary wildlife habitat, wetlands, endangered species, productive forestlands, and primary agricultural soils, all of which are as defined in 10 V.S.A. chapter 151.
          4. Land certified by the Secretary of Natural Resources to be a brownfield site as defined under 10 V.S.A. § 6642 .
          5. A sanitary landfill as defined in 10 V.S.A. § 6602 , provided that the Secretary of Natural Resources certifies that the land constitutes such a landfill and is suitable for the development of the plant.
          6. The disturbed portion of a gravel pit, quarry, or similar site for the extraction of a mineral resource, provided that all activities pertaining to site reclamation required by applicable law or permit condition are satisfied prior to the installation of the plant.
          7. A specific location designated in a duly adopted municipal plan under 24 V.S.A. chapter 117 for the siting of a renewable energy plant or specific type or size of renewable energy plant, provided that the plant meets any siting criteria recommended in the plan for the location.
          8. A site listed on the National Priorities List (NPL) established under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. chapter 103, if the U.S. Environmental Protection Agency or the Agency of Natural Resources confirms each of the following:
            1. The site is listed on the NPL.
            2. Development of the plant on the site will not compromise or interfere with remedial action on the site.
            3. The site is suitable for development of the plant.
          9. A new hydroelectric generation facility at a dam in existence as of January 1, 2016 or a hydroelectric generation facility that was in existence but not in service for a period of at least 10 years prior to January 1, 2016 and that will be redeveloped for electric generation, if the facility has received approval or a grant of exemption from the U.S. Federal Energy Regulatory Commission.
    2. Technology allocations.  The Commission shall allocate the 127.5-MW cumulative plant capacity of this subsection among different categories of renewable energy technologies. These categories shall include at least each of the following: methane derived from a landfill; solar power; wind power with a plant capacity of 100 kW or less; wind power with a plant capacity greater than 100 kW; hydroelectric power; and biomass power using a fuel other than methane derived from an agricultural operation or landfill.
  4. Plants outside cumulative capacity.  The following categories of plants shall not count toward the cumulative capacity amount of subsection (c) of this section, and the Commission shall make standard offers available to them provided that they are otherwise eligible for such offers under this section:
    1. Plants using methane derived from an agricultural operation.
    2. New standard offer plants that the Commission determines will have sufficient benefits to the operation and management of the electric grid or a provider's portion thereof because of their design, characteristics, location, or any other discernible benefit. To enhance the ability of new standard offer plants to mitigate transmission and distribution constraints, the Commission shall require Vermont retail electricity providers and companies that own or operate electric transmission facilities within the State to make sufficient information concerning these constraints available to developers who propose new standard offer plants.
      1. By March 1, 2013, the Commission shall develop a screening framework or guidelines that will provide developers with adequate information regarding constrained areas in which generation having particular characteristics is reasonably likely to provide sufficient benefit to allow the generation to qualify for eligibility under this subdivision (2).
      2. Once the Commission develops the screening framework or guidelines under subdivision (2)(A) of this subsection (d), the Commission shall require Vermont transmission and retail electricity providers to make the necessary information publicly available in a timely manner, with updates at least annually.
      3. Nothing in this subdivision shall require the disclosure of information in contravention of federal law.
  5. Term.  The term of a standard offer required by this section shall be 10 to 20 years, except that the term of a standard offer for a plant using solar power shall be 10 to 25 years.
  6. Price.  The categories of renewable energy for which the Commission shall set standard offer prices shall include at least each of the categories established pursuant to subdivision (c)(2) of this section. The Commission by order shall determine and set the price paid to a plant owner for each kWh generated under a standard offer required by this section, with a goal of ensuring timely development at the lowest feasible cost. The Commission shall not be required to make this determination as a contested case under 3 V.S.A. chapter 25.
    1. Market-based mechanisms.  For new standard offer projects, the Commission shall use a market-based mechanism, such as a reverse auction or other procurement tool, to obtain up to the authorized amount of a category of renewable energy, if it first finds that use of the mechanism is consistent with:
      1. applicable federal law; and
      2. the goal of timely development at the lowest feasible cost.
    2. Avoided cost.
      1. The price paid for each category of renewable energy shall be the avoided cost of the Vermont composite electric utility system if the Commission finds either of the following:
        1. Use of the pricing mechanism described in subdivision (1) (market-based mechanisms) of this subsection (f) is inconsistent with applicable federal law.
        2. Use of the pricing mechanism described in subdivision (1) (market-based mechanisms) of this subsection (f) is reasonably likely to result in prices higher than the prices that would apply under this subdivision (2).
      2. For the purpose of this subsection (f), the term "avoided cost" means the incremental cost to retail electricity providers of electric energy or capacity, or both, which, but for the purchase through the standard offer, such providers would obtain from distributed renewable generation that uses the same generation technology as the category of renewable energy for which the Commission is setting the price. For the purpose of this subsection (f), the term "avoided cost" also includes the Commission's consideration of each of the following:
        1. The relevant cost data of the Vermont composite electric utility system.
        2. The terms of the contract, including the duration of the obligation.
        3. The availability, during the system's daily and seasonal peak periods, of capacity or energy purchased through the standard offer, and the estimated savings from mitigating peak load.
        4. The relationship of the availability of energy or capacity purchased through the standard offer to the ability of the Vermont composite electric utility system or a portion thereof to avoid costs.
        5. The costs or savings resulting from variations in line losses and other impacts to the transmission or distribution system from those that would have existed in the absence of purchases through the standard offer.
        6. The supply and cost characteristics of plants eligible to receive the standard offer.
    3. Price determinations.  The Commission shall take all actions necessary to determine the pricing mechanism and implement the pricing requirements of this subsection (f) no later than March 1, 2013 for effect on April 1, 2013. Annually thereafter, the Commission shall review the determinations previously made under this subsection to decide whether they should be modified in any respect in order to achieve the goal and requirements of this subsection. Any such modification shall be effective on a prospective basis commencing one month after it has been made. Once a pricing determination made or modified under this subsection goes into effect, subsequently executed standard offer contracts shall comply with the most recently effective determination.
    4. Price stability.  Once a plant owner has executed a contract for a standard offer under this section, the plant owner shall continue to receive the price agreed on in that contract regardless of whether the Commission subsequently changes the price applicable to the plant's category of renewable energy.
    5. Price; preferred location pilots.  For the period during which the Commission allocates capacity to new standard offer plants that will be wholly located in one or more preferred locations as set forth in subdivision (c)(1)(D) of this section, the following shall apply to the price paid to such a plant:
      1. If the Commission uses a market-based mechanism under subdivision (1) of this subsection (f) to determine this price for one or both of the two allocations of capacity, the Commission shall compare only the proposals of plants that qualify for the allocation.
      2. If the Commission uses avoided costs under subdivision (2) of this subsection (f) to determine this price for one or both of the two allocations of capacity, the Commission shall apply the definition of "avoided costs" as set forth in subdivision (2)(B) of this subsection with the modification that the avoided energy or capacity shall be from distributed renewable generation that is sited on a location that qualifies for the allocation.
      3. With respect to the allocation to the new standard offer plants that will be wholly located over parking lots or on parking lot canopies, if the Commission receives only one application or multiple applications for plants owned or controlled by the same person as defined in 10 V.S.A. § 6001 , the Commission shall investigate each application and shall have discretion to reduce the price to be consistent with the standard offer price for plants outside the pilot project using the same generation technology.
  7. Qualifying existing agricultural plants.  Notwithstanding any other provision of this section, on and after June 8, 2010, a standard offer shall be available for a qualifying existing plant as defined in Sec. 3 of No. 159 of the Acts of the 2009 Adj. Sess. (2010) (Act 159). The provisions of subdivision 8005(b)(2) of this title, as they existed on June 4, 2010, the effective date of Act 159, shall govern a standard offer under this subsection. Standard offers for these plants shall not be subject to subsection (c) of this section (cumulative capacity; new standard offer plants).
  8. Application process.  The Commission shall administer the process of applying for and obtaining a standard offer contract in a manner that ensures that the resources and capacity of the Standard Offer Program are used for plants that are reasonably likely to achieve commissioning.
  9. Interconnection application.  No contract under this section for a new standard offer plant shall be executed unless and until the plant owner submits a complete application to interconnect the plant to the subtransmission or distribution system of the applicable retail electricity provider.
  10. Termination; reallocation.  In the event a proposed plant accepting a standard offer fails to meet the requirements of the Program in a timely manner, the plant's standard offer contract shall terminate, and any capacity reserved for the plant within the Program shall be reallocated to one or more eligible plants.
    1. For the purpose of this subsection, the requirements of the Program shall include commissioning of all new standard offer plants, except plants using methane derived from an agricultural operation, within the following periods after execution of the plant's standard offer contract:
      1. 24 months if the plant is solar power or is wind power with a plant capacity of 100 kW or less; and
      2. 36 months if the plant uses a fuel source not described in subdivision 1(A) of this subsection (j) or is wind power of greater than 100 kW capacity.
    2. At the request of a plant owner or for other good cause, the Commission may extend a period described in subdivision (1) of this subsection (j) if it finds that the plant owner has proceeded diligently and in good faith and that commissioning of the plant has been delayed because of litigation or appeal or because of the need to obtain an approval the timing of which is outside the Commission's control, or for other good cause as determined by the Commission.
  11. Executed standard offer contracts; transferability; allocation of benefits and costs.  With respect to executed contracts for standard offers under this section:
    1. A contract shall be transferable. The contract transferee shall notify the Standard Offer Facilitator of the contract transfer within 30 days of transfer.
    2. The Standard Offer Facilitator shall distribute the electricity purchased to the Vermont retail electricity providers at the price paid to the plant owners, allocated to the providers based on their pro rata share of total Vermont retail kWh sales for the previous calendar year, and the Vermont retail electricity providers shall accept and pay the Standard Offer Facilitator for the electricity. However, during any given calendar year:
      1. Calculation of pro rata shares under this subdivision (2) shall include an adjustment in the allocation to a provider if one or more of the provider's customers created greenhouse gas reduction credits under section 8006a of this title that are used to reduce the size of the annual increase under subdivision (c)(1)(C)(adjustment; greenhouse gas reduction credits) of this section. The adjustment shall ensure that any and all benefits or costs from the use of such credits flow to the provider whose customers created the credits. The savings that a provider realizes as a result of this application of greenhouse gas reduction credits shall be passed on proportionally to the customers that created the credits.
      2. A retail electricity provider that was relieved from the requirements of this subdivision by the Commission on or before January 25, 2018, shall be exempt from the requirements of this subdivision in any year that the Standard Offer Facilitator allocates electricity pursuant to this subdivision if the retail electricity provider meets the following criteria:
        1. during the immediately preceding 12-month period ending October 31, the amount of renewable energy supplied to the provider by generation owned by or under contract to the provider, regardless of whether the provider owned the energy's environmental attributes, was not less than the amount of energy sold by the provider to its retail customers; and
        2. the retail electricity provider owns and retires an amount of 30 V.S.A. § 8005(a)(1) qualified energy environmental attributes that is not less than the provider's retail sales.
    3. The Standard Offer Facilitator shall transfer the environmental attributes, including any tradeable renewable energy credits, of electricity purchased under standard offer contracts to the Vermont retail electricity providers in accordance with their pro rata share of the costs for such electricity as determined under subdivision (2) of this subsection (k), except that in the case of a plant using methane from agricultural operations, the plant owner shall retain such attributes and credits to be sold separately at the owner's discretion. It shall be a condition of a standard offer issued under this section that tradeable renewable energy credits associated with a plant that accepts the standard offer are owned by the retail electricity providers purchasing power generated by the plant, except in the case of a plant using methane from agricultural operations.
    4. The Standard Offer Facilitator shall transfer all capacity rights attributable to the plant capacity associated with the electricity purchased under standard offer contracts to the Vermont retail electricity providers in accordance with their pro rata share of the costs for such electricity as determined under subdivision (2) of this subsection (k).
    5. All reasonable costs of a Vermont retail electricity provider incurred under this subsection shall be included in the provider's revenue requirement for purposes of ratemaking under sections 218, 218d, 225, and 227 of this title. In including such costs, the Commission shall appropriately account for any credits received under subdivisions (3) and (4) of this subsection (k). Costs included in a retail electricity provider's revenue requirement under this subdivision (5) shall be allocated to the provider's ratepayers as directed by the Commission.
  12. Standard Offer Facilitator; expenses; payment.  With respect to standard offers under this section, the Commission shall:
    1. determine a Standard Offer Facilitator's reasonable expenses arising from its role and the allocation of the expenses among plant owners and Vermont retail electricity providers;
    2. determine the manner and timing of payments by a Standard Offer Facilitator to plant owners for energy purchased under an executed contract for a standard offer;
    3. determine the manner and timing of payments to the Standard Offer Facilitator by the Vermont retail electricity providers for energy distributed to them under executed contracts for standard offers;
    4. establish reporting requirements of a Standard Offer Facilitator, a plant owner, and a Vermont retail electricity provider.
  13. Metering.  With respect to standard offers under this section, the Commission shall make rule revisions concerning metering and the allocation of metering costs as needed to implement the standard offer requirements of this section.
  14. Wood biomass.  In addition to the other requirements of this section, wood biomass resources may receive a standard offer under this section only if they have a design system efficiency (the sum of full load design thermal output and electric output divided by the heat input) of at least 50 percent.
  15. Voluntary contracts.  The existence of a standard offer under this section shall not preclude a voluntary contract between a plant owner and a Vermont retail electricity provider on terms that may be different from those under the standard offer. A plant owner who declines a voluntary contract may still accept a standard offer under this section.
  16. Existing hydroelectric plants.  Notwithstanding any contrary requirement of this section, no later than January 15, 2013, the Commission shall make a standard offer contract available to existing hydroelectric plants in accordance with this subsection.
    1. In this subsection:
      1. "Existing hydroelectric plant" means a hydroelectric plant of five MW plant capacity or less that is located in the State, that was in service as of January 1, 2009, that is a qualifying small power production facility under 16 U.S.C. § 796(17)(C) and 18 C.F.R. part 292, and that does not have an agreement with the Commission's purchasing agent for the purchase of its power pursuant to subdivision 209(a)(8) of this title and Commission rules adopted under subdivision (8). The term includes hydroelectric plants that have never had such an agreement and hydroelectric plants for which such an agreement has expired.
      2. "LIHI" means the Low-Impact Hydropower Institute.
    2. The term of a standard offer contract under this subsection shall be 10 or 20 years, at the election of the plant owner.
    3. Unless inconsistent with applicable federal law, the price of a standard offer contract shall be the sum of the following elements:

      a two-year rolling average of the ISO New England Inc. (ISO-NE) Vermont zone hourly locational marginal price for energy;

      a two-year rolling average of the value of the plant's capacity in the ISO-NE forward capacity market;

      the value of avoided line losses due to the plant as a fixed increment of the energy and capacity values;

      (D) a two-year rolling average of the market value of environmental attributes, including renewable energy credits; and

      the value of a 10- or 20-year contract.

    4. The Commission shall determine the price to be paid under this subsection (p) not later than January 15, 2013.
        1. Annually by January 15 commencing in 2014, the Commission shall recalculate and adjust the energy, capacity, and environmental attribute elements of the price under subdivision (3) of this subsection (p). The recalculated and adjusted energy, capacity, and environmental attribute elements shall apply to all contracts executed under this subdivision, whether or not the contracts were executed prior to the adjustments. (A) (i) Annually by January 15 commencing in 2014, the Commission shall recalculate and adjust the energy, capacity, and environmental attribute elements of the price under subdivision (3) of this subsection (p). The recalculated and adjusted energy, capacity, and environmental attribute elements shall apply to all contracts executed under this subdivision, whether or not the contracts were executed prior to the adjustments.
        2. the Commission may periodically adjust the value of environmental attributes that are applicable to an executed contract based upon whether the plant becomes certified by LIHI or loses such certification.
      1. With respect to the price elements specified in subdivisions(3)(C)(avoided line losses) and (E)(value of long-term contract) of this subsection (p):
        1. These elements shall remain fixed at their values at the time a contract is signed for the duration of the contract.
        2. The Commission annually may adjust these elements for inclusion in contracts that are executed after the date any such adjustments are made.
    5. Once a plant owner has executed a contract for a standard offer under this subsection (p), the plant owner shall continue to receive the pricing terms agreed on in that contract regardless of whether the Commission subsequently changes any pricing terms under this subsection.

      Capacity of existing hydroelectric plants executing a standard offer contract under this subsection shall not count toward the cumulative capacity amount of subsection (c) of this section.

  17. Allocation of regulatory costs.  The Commission and Department may authorize or retain legal counsel, official stenographers, expert witnesses, advisors, temporary employees, and research services in conjunction with implementing their responsibilities under this section. In lieu of allocating such costs pursuant to subsection 21(a) of this title, the Commission or Department may allocate the expense in the same manner as the Standard Offer Facilitator's costs under subdivision (l)(1) of this section.
  18. State; nonliability.  The State and its instrumentalities shall not be liable to a plant owner or retail electricity provider with respect to any matter related to the Standard Offer Program, including costs associated with a standard offer contract or any damages arising from the breach of such a contract, the flow of power between a plant and the electric grid, or the interconnection of a plant to that grid.

    Added 2011, No. 170 (Adj. Sess.), § 4, eff. May 18, 2012; amended 2013, No. 34 , § 20; 2015, No. 56 , § 4; 2015, No. 97 (Adj. Sess.), § 62; 2015, No. 174 (Adj. Sess.), § 12a; 2019, No. 31 , §§ 15, 27; 2021, No. 42 , § 8.

History

Amendments--2021. Subdiv. (j)(2): Inserted "or for other good cause" following "owner" and ", or for other good cause as determined by the Commission" following "control".

Amendments--2019. Subdiv. (k)(2)(B): Amended generally.

Subdiv. (p)(1)(A): Deleted "provided that the expiration date is prior to December 31, 2015" following "has expired" in the last sentence.

Subdivs. (p)(3) through (p)(6): Amended generally.

Amendments--2015 (Adj. Sess.). Subdiv. (c)(1)(D) and (f)(5): Added by Act No. 174.

Subdiv. (p)(1)(B): Act No. 97 deleted "of Portland, Maine" following "Hydropower Institute".

Amendments--2015. Subsec. (a): Deleted "within the SPEED program" following "established" in the first sentence, rewrote the third sentence, and added the fourth sentence.

Subsec. (k): Substituted "Standard Offer" for "SPEED" preceding "Facilitator" throughout the subsec. and, in subdiv. (2)(B), struck "and subdivision (b)(5) (requirement to purchase standard offer power)" after "this subdivision".

Subsec. ( l ): Substituted "Standard Offer" for "SPEED" preceding "Facilitator" throughout the subsec.

Subsec. (n): Amended generally.

Subsec. (q): Substituted "Standard Offer" for "SPEED" preceding "Facilitator" in the last sentence.

Subsec. (r): Added.

Amendments--2013. Subdiv. (c)(1)(C)(ii): Deleted "During years in which the annual increase is 10 MW" preceding "the adjustment in the annual increase".

Adoption of rules. 2011, No. 170 (Adj. Sess.), § 17(c) provides: "No later than March 1, 2013, the public service board shall adopt rules or orders sufficient to implement 30 V.S.A. § 8005a(d)(2) (new standard offer plants; transmission and distribution constraints)."

Prior standard offer capacity. 2011, No. 170 (Adj. Sess.), § 5 addresses the following matters related to capacity in the Standard Offer Program as it existed prior to the act: the inclusion of the previously authorized capacity in the cumulative capacity amount stated in 30 V.S.A. § 8005a(c), pricing for previously authorized capacity that becomes available prior to April 1, 2013, the filing of interconnection applications by September 1, 2012, and a written report to be published by the public service board on ay factors that may have increased the costs to ratepayers or caused delays in the commissioning of standard offer projects.

Intent; amendment of 30 V.S.A. § 8005a. 2015, No. 56 , § 5 provides: "The General Assembly's intent in the amendments to 30 V.S.A. § 8005a set forth in Sec. 4 of this act [which amended this section] is to clarify the text because of the repeal of the Sustainably Priced Energy Enterprise Development Program in Sec. 3 of this act and to move provisions relating to the standard offer program from 30 V.S.A. § 8005 into section 8005a. The General Assembly does not intend any provision of this act to be interpreted as a substantive change to the standard offer program. The Standard Offer Facilitator described in Sec. 4 of this act shall be the successor to the SPEED Facilitator under 30 V.S.A. §§ 8005 and 8005a as they existed prior to this act."

ANNOTATIONS

Analysis

1. Interpretation.

It is logical to conclude from the statutory scheme and the language used in the subsection of the Standard Offer Program statute governing provider blocks that are not fully subscribed that the Public Utility Commission is to add the unsubscribed capacity to the annual increase and then allocate twenty percent of the sum to the provider block and eighty percent to the developer block. In re Investigation to Review Avoided Costs, - Vt. - , 251 A.3d 525 (Nov. 20, 2020).

Having interpreted the standard-offer statute to mandate the reallocation of unsubscribed capacity to the annual increase for the following year and then proceeding along the twenty-eighty-percent line - a practice the Public Utility Commission (PUC) has followed since 2013 - it was reasonable for the PUC to adopt the same approach for the new capacity resulting from terminated contracts. This approach was permitted under the flexible language of the subsection regarding termination; suggested by other provisions in the statutory scheme; and within the PUC's broad statutory authority to implement the standard-offer program. In re Investigation to Review Avoided Costs, - Vt. - , 251 A.3d 525 (Nov. 20, 2020).

2. Compliance with federal law.

Because in the statute governing the renewable energy standard offer program, the legislature chose to hinge the choice by the Public Utility Commission (PUC) of a pricing mechanism on a threshold determination that market-based pricing either did or did not comply with federal law, the court had authority to address the federal-compliance issue. In re Investigation to Review Avoided Costs, - Vt. - , - A.3d - (Apr. 30, 2021).

§ 8005b. Renewable energy programs; reports.

  1. The Department shall file reports with the General Assembly in accordance with this section.
    1. The House Committees on Commerce and Economic Development and on Energy and Technology and the Senate Committees on Economic Development, Housing and General Affairs, on Finance, and on Natural Resources and Energy each shall receive a copy of these reports.
    2. The Department shall include the components of subsection (b) of this section in its Annual Energy Report required under subsection 202b(e) of this title commencing in 2020 through 2033.
    3. The Department shall include the components of subsection (c) of this section in its Annual Energy Report required under subsection 202b(e) of this title biennially commencing in 2020 through 2033.
    4. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the reports to be made under this section.
  2. The annual report under this section shall include at least each of the following:
    1. An assessment of the costs and benefits of the RES based on the most current available data, including rate and economic impacts, customer savings, technology deployment, greenhouse gas emission reductions actually achieved, fuel price stability, effect on transmission and distribution upgrade costs, and any recommended changes based on this assessment.
    2. Projections, looking at least 10 years ahead, of the impacts of the RES.
      1. The Department shall employ an economic model to make these projections, to be known as the Consolidated RES Model, and shall consider at least three scenarios based on high, mid-range, and low energy price forecasts.
      2. The Department shall make the model and associated documents available on the Department's website.
      3. In preparing these projections, the Department shall:
        1. characterize each of the model's assumptions according to level of certainty, with the levels being high, medium, and low; and
        2. provide an opportunity for public comment.
      4. The Department shall project, for the State, the impact of the RES in each of the following areas: electric utility rates; total energy consumption; electric energy consumption; fossil fuel consumption; and greenhouse gas emissions. The report shall compare the amount or level in each of these areas with and without the program.
    3. An assessment of whether the requirements of the RES have been met to date, and any recommended changes needed to achieve those requirements.
  3. The biennial report under this section shall include at least each of the following:
    1. The retail sales, in kWh, of electricity in Vermont during the two preceding calendar years. The report shall include the statewide total and the total sold by each retail electricity provider.
    2. Commencing with the report to be filed in 2019, each retail electricity provider's required amount of renewable energy during the two preceding years using the most recent available data for each category of the RES as set forth in section 8005 of this title.
    3. For the two preceding calendar years, the amounts of renewable energy and tradeable renewable energy credits eligible to satisfy the requirements of sections 8004 and 8005 of this title actually owned by the Vermont retail electricity providers, expressed as a percentage of retail kWh sales. The report shall include the statewide total and the total owned by each retail electricity provider for each of these amounts and shall discuss the progress of each provider toward achieving each of the categories set forth in section 8005 of this title. The report shall summarize the energy transformation projects undertaken pursuant to section 8005 of this title, their costs and benefits, their claimed avoided fossil fuel consumption and greenhouse gas emissions, and, if applicable, claimed energy savings.
    4. A summary of the activities of the Standard Offer Program under section 8005a of this title, including the number of plants participating in the Program, the prices paid by the Program, and the plant capacity and average annual energy generation of the participating plants. The report shall present this information as totals for all participating plants and by category of renewable energy technology. The report also shall identify the number of applications received, the number of participating plants under contract, and the number of participating plants actually in service.
    5. An assessment of the energy efficiency and renewable energy markets and recommendations to the General Assembly regarding strategies that may be necessary to encourage the use of these resources to help meet upcoming supply requirements.
    6. An assessment of whether Vermont retail electric rates are rising faster than inflation as measured by the CPI, and a comparison of Vermont's electric rates with electric rates in other New England states and in New York. If statewide average rates have risen faster than inflation over the preceding two or more years, the report shall include an assessment of the contributions to rate increases from various sources, such as the costs of energy and capacity, costs due to construction of transmission and distribution infrastructure, and costs due to compliance with the requirements of sections 8004 and 8005 (RES) and section 8005a (standard offer) of this title. Specific consideration shall be given to the price of renewable energy and the diversity, reliability, availability, dispatch flexibility, and full life cycle cost, including environmental benefits and greenhouse gas reductions, on a net present value basis of renewable energy resources available from suppliers. The report shall include any recommendations for statutory change that arise from this assessment. If electric rates have increased primarily due to cost increases attributable to nonrenewable sources of electricity or to the electric transmission or distribution systems, the report shall include a recommendation regarding whether to increase the size of the annual increase described in subdivision 8005a(c)(1) (standard offer; cumulative capacity; pace) of this title.
      1. Commencing with the report to be filed in 2019, an assessment of whether strict compliance with the requirements of sections 8004 and 8005 (RES) and section 8005a (standard offer) of this title: (7) (A) Commencing with the report to be filed in 2019, an assessment of whether strict compliance with the requirements of sections 8004 and 8005 (RES) and section 8005a (standard offer) of this title:
        1. has caused one or more providers to raise its retail rates faster over the preceding two or more years than statewide average retail rates have risen over the same time period;
        2. will cause retail rate increases particular to one or more providers; or
        3. will impair the ability of one or more providers to meet the public's need for energy services in the manner set forth under subdivision 218c(a)(1) of this title (least-cost integrated planning).
      2. Based on this assessment, consideration of whether statutory changes should be made to grant providers additional flexibility in meeting requirements of sections 8004 and 8005 or section 8005a of this title.
    7. Any recommendations for statutory change related to sections 8004, 8005, and 8005a of this title.
  4. During the preparation of reports under this section, the Department shall provide an opportunity for the public to submit relevant information and recommendations.

    Added 2011, No. 170 (Adj. Sess.), § 6; amended 2015, No. 56 , § 6; 2017, No. 113 (Adj. Sess.), § 175a; 2019, No. 31 , § 5.

History

Amendments--2019. Subdivs. (a)(2) and (a)(3): Amended generally.

Subdiv. (c)(2): Deleted "calendar" preceding "years", and inserted "using the most recent available data" following "years".

Amendments--2017 (Adj. Sess.). Subdiv. (a)(1): Amended generally.

Amendments--2015. Section amended generally.

§ 8006. Tradeable credits; environmental attributes; recognition, monitoring, and disclosure.

  1. The Commission shall establish or adopt a system of tradeable renewable energy credits for renewable resources that may be earned by electric generation qualifying for the RES. The system shall recognize tradeable renewable energy credits monitored and traded on the New England Generation Information System (GIS); shall provide a process for the recognition, approval, and monitoring of environmental attributes attached to renewable energy that are eligible to satisfy the requirements of sections 8004 and 8005 of this title but are not monitored and traded on the GIS; and shall otherwise be consistent with regional practices.
  2. The Commission shall ensure that all electricity provider and provider-affiliate disclosures and representations made with regard to a provider's portfolio are accurate and reasonably supported by objective data. Further, the Commission shall ensure that providers disclose the types of generation used and shall clearly distinguish between energy or tradeable energy credits provided from renewable and nonrenewable energy sources and existing and new renewable energy.

    Added 2005, No. 61 , § 4; amended 2011, No. 47 , § 18; 2015, No. 56 , § 7.

History

Amendments--2015. Section amended generally.

Amendments--2011. Subsecs. (a) and (b): Substituted "board" for "public service board".

§ 8006a. Greenhouse gas reduction credits.

  1. Standard offer adjustment.  In accordance with this section, greenhouse gas reduction credits generated by an eligible ratepayer shall result in an adjustment of the standard offer under subdivision 8005a(c)(1) of this title (cumulative capacity; pace). For the purpose of adjusting the standard offer under subdivision 8005a(c)(1) of this title, the amount of a year's greenhouse gas reduction credits shall be the lesser of the following:
    1. The amount of greenhouse gas reduction credits created by the eligible ratepayers served by all providers.
    2. The providers' annual retail electric sales during that year to those eligible ratepayers creating greenhouse gas reduction credits.
  2. Definitions.  In this section:
    1. "Eligible ratepayer" means a customer of a Vermont retail electricity provider who takes service at 115 kilovolts and has demonstrated to the Commission that it has a comprehensive energy and environmental management program. Provision of the customer's certification issued under standard 14001 (environmental management systems) of the International Organization for Standardization (ISO) shall constitute such a demonstration.
    2. "Eligible reduction" means a reduction in non-energy-related greenhouse gas emissions from manufacturing processes at an in-state facility of an eligible ratepayer, provided that each of the following applies:
      1. The reduction results from a specific project undertaken by the eligible ratepayer at the in-state facility after January 1, 2012.
      2. The specific project reduces or avoids greenhouse gas emissions above and beyond any reductions of such emissions required by federal and State statutes and rules.
      3. The reductions are quantifiable and verified by an independent third party as approved by the Commission. Such independent third parties shall be certified by a body accredited by the American National Standards Institute (ANSI) as having a certification program that meets the ISO standards applicable to verification and validation of greenhouse gas assertions.
    3. "Greenhouse gas" shall be as defined under 10 V.S.A. § 552 .
    4. "Greenhouse gas reduction credit" means a credit for eligible reductions, calculated in accordance with subsection (c) of this section and expressed as a kWh credit.
  3. Calculation.  Greenhouse gas reduction credits shall be calculated as follows:
    1. Eligible reductions shall be quantified in metric tons of CO2 equivalent, in accordance with the methodologies specified under 40 C.F.R. part 98, and may be counted annually for the life of the specific project that resulted in the reduction.
    2. Metric tons of CO2 equivalent quantified under subdivision (1) of this subsection shall be converted into units of energy through calculation of the equivalent number of kWh of generation by renewable energy plants, other than biomass, that would be required to achieve the same level of greenhouse gas emission reduction through the displacement of market power purchases. For the purpose of this subdivision, the value of the avoided greenhouse gas emissions shall be based on the aggregate greenhouse gas emission characteristics of system power in the regional transmission area overseen by the Independent System Operator of New England (ISO-NE).
  4. Reporting.  An eligible ratepayer shall report to the Commission annually on each specific project undertaken to create eligible reductions. The Commission shall specify the required contents of such reports, which shall be publicly available.
  5. Savings.  A provider shall pass on savings that it realizes through greenhouse gas reduction credits proportionally to the eligible ratepayers generating the credits.

    Added 2011, No. 170 (Adj. Sess.), § 8, eff. May 18, 2012.

§ 8007. Small renewable energy plants; simplified procedures.

  1. The same application form, rules, and procedures that the Commission applies to net metering systems of 150 kilowatts (kW) or less under sections 248 and 8010 of this title shall apply to the review under section 248 of this title of any renewable energy plant with a plant capacity of 150 kW or less and to the interconnection of such a plant with the system of a Vermont retail electricity provider. This requirement includes any waivers of criteria under section 248 of this title made pursuant to section 8010 of this title.
  2. With respect to renewable energy plants that have a plant capacity that is greater than 150 kW and is 2.2 MW or less, the Commission shall establish by rule or order standards and procedures governing application for, and issuance or revocation of, a certificate of public good for such a plant under the provisions of section 248 of this title, and the interconnection of such a plant with the system of a Vermont retail electricity provider.
    1. In developing such rules or orders, the Commission:
      1. Shall waive the requirements of section 248 of this title that are not applicable to such a plant, including, for a plant that is not owned by a Vermont retail electricity provider, criteria that are generally applicable to such a provider.
      2. May modify notice and hearing requirements of this title as it deems appropriate.
      3. Shall simplify the petition and review process as appropriate.
    2. Notwithstanding 1 V.S.A. §§ 213 and 214, a petitioner whose petition under section 248 of this title is pending as of the effective date of a Commission rule or order under this subsection (b) may elect to apply the standards and procedures of such a rule or order to the pending petition if the petition pertains to a renewable energy plant with a plant capacity that is greater than 150 kW and is 2.2 MW or less.

      Added 2009, No. 159 (Adj. Sess.), § 6, eff. June 4, 2010; 2013, No. 99 (Adj. Sess.), § 6, eff. Jan. 1, 2017.

History

Amendments--2013 (Adj. Sess.). Subsec. (a): Deleted "219a and" preceding "248" and inserted "and 8010" following "248" and substituted "8010" for "219a" following "section".

ANNOTATIONS

1. Size of plant.

Statute entitled "Small renewable energy plants; simplified procedures" states that renewable energy plants of 2.2 megawatts (MW) or less are entitled to streamlined approval procedures, and the title suggests that the Legislature considers "small" plants to be those with capacities of less than 2.2 MW. A cluster of plants totaling 4.0 MW therefore could reasonably be defined as "moderate" in size. In re Programmatic Changes, 196 Vt. 175, 95 A.3d 999 (Mar. 28, 2014).

§ 8008. Agreements; attribute revenues; disposition by Commission.

  1. As used in this section, "the revenues" means revenues that are from the sale, through tradeable renewable energy certificates or other means, of environmental attributes associated with the generation of renewable energy from a system of generation resources with a total plant capacity greater than 200 MW and that are received by a Vermont retail electricity provider on or after May 1, 2012, pursuant to an agreement, contract, memorandum of understanding, or other transaction in which a person or entity agrees to transfer such revenues or rights associated with such attributes to the provider.
  2. After notice and opportunity for hearing, the Commission shall determine the disposition, allocation, and use of the revenues in a manner that promotes State energy policy as stated in section 202a of this title and the goals of this chapter and supports achievement of the greenhouse gas reduction and building efficiency goals contained in 10 V.S.A. §§ 578(a) and 581.
    1. The Commission shall provide notice of the proceeding to each Vermont retail electricity provider, the Department, the Clean Energy Development Board under 10 V.S.A. § 6523 , each fuel efficiency service provider appointed under subsection 203a(b) of this title, each energy efficiency entity appointed under subdivision 209(d)(2) of this title, the Institute for Energy and the Environment at the Vermont Law School, the Transportation Research Center at the University of Vermont, and any other persons or entities that have requested notice. The Commission may provide notice to additional persons or entities.
    2. In determining the disposition, allocation, and use of the revenues, the Commission shall consider each of the following potential uses of the revenues:
      1. Development of in-state renewable energy resources.
      2. Deposit into the Clean Energy Development Fund for use pursuant to section 8015 of this title.
      3. Deposit into the Fuel Efficiency Fund for use pursuant to section 203a of this title.
      4. Deposit into the Electric Efficiency Fund for use pursuant to section 209(d) of this title.
      5. Application, for the benefit of ratepayers, to the revenue requirement of one or more Vermont retail electricity providers.
      6. Development of transportation alternatives to vehicles that use gasoline such as electric or natural gas vehicles and supporting infrastructure and the coordination of such development with so-called "smart grid" electric transmission and distribution networks.
      7. Any other uses that support the statutory policy and goals referenced in this subsection (b).
  3. A Vermont retail electricity provider shall notify the Commission within 30 days of the first receipt of the revenues pursuant to an agreement, contract, memorandum of understanding, or other transaction under which it will receive the revenues. The Commission will open a proceeding under this section promptly on receipt of such notice and shall issue a final order in the proceeding within 12 months of such receipt.
  4. Any of the revenues that are received prior to completion of the 12-month period described in subsection (c) of this section shall be credited, for the benefit of ratepayers, against the revenue requirement of the Vermont retail electricity provider that receives the revenues.

    Added 2009, No. 159 (Adj. Sess.), § 13b, eff. June 4, 2010; amended 2011, No. 47 , §§ 18, 20m(a); 2017, No. 74 , § 127.

History

2011. Revised subdivs. (b)(2)(B) and (C) to refer, respectively, to sections 203a (fuel efficiency fund) and 209(d) (electric efficiency fund) of this title, instead of 10 V.S.A. §§ 203a and 209(d), which do not exist.

Amendments--2017. Subsec. (a): Substituted "As used in" for "For the purpose of" at the beginning; and substituted "or" for "and" preceding "after May 1, 2012".

Amendments--2011. In subdiv. (b)(1), substituted "department" for "department of public service" and in subdiv. (b)(2)(D), revised statutory cross-reference to "section 8015 of this title".

§ 8009. Baseload renewable power portfolio requirement.

  1. As used in this section:
    1. "Baseload renewable power" means a plant that generates electricity from renewable energy; that, during normal operation, is capable of taking all or part of the minimum load on an electric transmission or distribution system; and that produces electricity essentially continuously at a constant rate.
    2. "Baseload renewable power portfolio requirement" means the actual output of baseload renewable power from an in-state woody biomass plant that was commissioned prior to September 30, 2009, has a nominal capacity of 20.5 MW, and was in service as of January 1, 2011.
    3. "Biomass" means organic nonfossil material of biological origin constituting a source of renewable energy within the meaning of subdivision 8002(21) of this title.
    4. [Repealed.]
  2. Notwithstanding subsection 8004(a) and subdivision 8005(c)(1) of this title, commencing November 1, 2012, each Vermont retail electricity provider shall purchase the provider's pro rata share of the baseload renewable power portfolio requirement, which shall be based on the total Vermont retail kWh sales of all such providers for the previous calendar year. The obligation created by this subsection shall cease on November 1, 2024.
  3. A plant used to satisfy the baseload renewable power portfolio requirement shall be a qualifying small power production facility under 16 U.S.C. § 796(17)(C) and 18 C.F.R. part 292.
  4. The Commission shall determine the price to be paid to a plant used to satisfy the baseload renewable power portfolio requirement. The Commission shall not be required to make this determination as a contested case under 3 V.S.A. chapter 25. The price shall be the avoided cost of the Vermont composite electric utility system. In this subsection, the term "avoided cost" means the incremental cost to retail electricity providers of electric energy or capacity, or both, which, but for the purchase from the plant proposed to satisfy the baseload renewable power portfolio requirement, such providers would obtain from a source using the same generation technology as the proposed plant. In this subsection, the term "avoided cost" also includes the Commission's consideration of each of the following:
    1. The relevant cost data of the Vermont composite electric utility system.
    2. The terms of the potential contract, including the duration of the obligation.
    3. The availability, during the system's daily and seasonal peak periods, of capacity or energy from a proposed plant.
    4. The relationship of the availability of energy or capacity from the proposed plant to the ability of the Vermont composite electric utility system or a portion thereof to avoid costs.
    5. The costs or savings resulting from variations in line losses from those that would have existed in the absence of purchases from the proposed plant.
    6. The supply and cost characteristics of the proposed plant, including the costs of operation and maintenance of an existing plant during the term of a proposed contract.
  5. In determining the price under subsection (d) of this section, the Commission may require a plant proposed to be used to satisfy the baseload renewable power portfolio requirement to produce such information as the Commission reasonably deems necessary.
  6. With respect to a plant used to satisfy the baseload renewable power portfolio requirement:
    1. The Standard Offer Facilitator shall purchase the baseload renewable power, and shall allocate the electricity purchased and any associated costs to the Vermont retail electricity providers based on their pro rata share of total Vermont retail kWh sales for the previous calendar year, and the Vermont retail electricity providers shall accept and pay those costs.
    2. Any tradeable renewable energy credits attributable to the electricity purchased shall be transferred to the Vermont retail electricity providers in accordance with their pro rata share of the costs for such electricity as determined under subdivision (1) of this subsection.
    3. All capacity rights attributable to the plant capacity associated with the electricity purchased shall be transferred to the Vermont retail electricity providers in accordance with their pro rata share of the costs for such electricity as determined under subdivision (1) of this subsection.
    4. All reasonable costs of a Vermont retail electricity provider incurred under this section shall be included in the provider's revenue requirement for purposes of ratemaking under sections 218, 218d, 225, and 227 of this title. In including such costs, the Commission shall appropriately account for any credits received under subdivision (2) of this subsection. Costs included in a retail electricity provider's revenue requirement under this subdivision shall be allocated to the provider's ratepayers as directed by the Commission.
  7. A retail electricity provider shall be exempt from the requirements of this section if, and for so long as, one-third of the electricity supplied by the provider to its customers is from a plant that produces electricity from woody biomass.
  8. The Commission may issue rules or orders to carry out this section.
  9. The State and its instrumentalities shall not be liable to a plant owner or retail electricity provider with respect to any matter related to the baseload renewable power portfolio requirement or a plant used to satisfy such requirement, including costs associated with a contract related to such a plant or any damages arising from the breach of such a contract, the flow of power between a plant and the electric grid, or the interconnection of a plant to that grid. For the purpose of this section, the Commission and the Standard Offer Facilitator constitute instrumentalities of the State.

    Added 2011, No. 47 , § 11; amended 2011, No. 170 (Adj. Sess.), § 9; 2015, No. 56 , § 26; 2021, No. 39 , § 1, eff. May 20, 2021.

History

Amendments--2021. Subsec. (a): Inserted "As used" at the beginning of the intro. para.

Subdiv. (a)(2): Substituted "the actual output" for "an annual average of 175,000 MWh" preceding "of baseload"

Subdiv. (a)(3): Substituted "8002(21)" for "8002(17)".

Subsec. (b): Substituted "8005(c)(1)" for "8005(d)", deleted "the electricity supplied by" preceding "each" and "to its customers" preceding "provider"; and substituted "purchase" for "include" following the first instance of "shall", and "2024" for "2022" at the end.

Amendments--2015. Subdiv. (f)(1): Substituted "Standard Offer" for "SPEED" preceding "Facilitator", inserted "shall allocate" preceding "the electricity", and deleted "shall be allocated by the SPEED Facilitator" following "associated costs".

Subsec. (i): Substituted "Standard Offer" for "SPEED" preceding "Facilitator" in the last sentence.

Amendments--2011 (Adj. Sess.). Substituted "subdivision 8002(2) of this title" for "30 V.S.A. § 8002(2)" in subdiv. (a)(3); and deleted subdiv. (a)(4).

Public Utility Commission order extension. 2021, No. 39 , § 2 provides: "All decisions and orders of the former Public Service Board and the Public Utility Commission in the matter Investigation into the Establishment of a Standard-Offer Price for Baseload Renewable Power under the Sustainably Priced Energy Enterprise Development (SPEED) Program, Docket No. 7782, shall remain in full force and effect through October 31, 2024. For years 2023 and 2024, the purchase price shall be the levelized value determined in Docket No. 7782."

§ 8010. Self-generation and net metering.

  1. A customer may install and operate a net metering system in accordance with this section and the rules adopted under this section.
  2. A net metering customer shall pay the same rates, fees, or other payments and be subject to the same conditions and requirements as all other purchasers from the interconnecting retail electricity provider in the same rate-class, except as this section or the rules adopted under this section may provide, and except for appropriate and necessary conditions approved by the Commission for the safety and reliability of the electric distribution system.
  3. In accordance with this section, the Commission shall adopt and implement rules that govern the installation and operation of net metering systems.
    1. The rules shall establish and maintain a net metering program that:
      1. advances the goals and total renewables targets of this chapter and the goals of 10 V.S.A. § 578 (greenhouse gas reduction) and is consistent with the criteria of subsection 248(b) of this title;
      2. achieves a level of deployment that is consistent with the recommendations of the Electrical Energy and Comprehensive Energy Plans under sections 202 and 202b of this title, unless the Commission determines that this level is inconsistent with the goals and targets identified in subdivision (1)(A) of this subsection (c). Under this subdivision (B), the Commission shall consider the Plans most recently issued at the time the Commission adopts or amends the rules;
      3. to the extent feasible, ensures that net metering does not shift costs included in each retail electricity provider's revenue requirement between net metering customers and other customers;
      4. accounts for all costs and benefits of net metering, including the potential for net metering to contribute toward relieving supply constraints in the transmission and distribution systems and to reduce consumption of fossil fuels for heating and transportation;
      5. ensures that all customers who want to participate in net metering have the opportunity to do so;
      6. balances, over time, the pace of deployment and cost of the program with the program's impact on rates;
      7. accounts for changes over time in the cost of technology; and
      8. allows a customer to retain ownership of the environmental attributes of energy generated by the customer's net metering system and of any associated tradeable renewable energy credits or to transfer those attributes and credits to the interconnecting retail provider, and:
        1. if the customer retains the attributes, reduces the value of the credit provided under this section for electricity generated by the customer's net metering system by an appropriate amount; and
        2. if the customer transfers the attributes to the interconnecting provider, requires the provider to retain them for application toward compliance with sections 8004 and 8005 of this title.
    2. The rules shall include provisions that govern:
      1. whether there is a limit on the cumulative plant capacity of net metering systems to be installed over time and what that limit is, if any;
      2. the transfer of certificates of public good issued for net metering systems and the abandonment of net metering systems;
      3. the respective duties of retail electricity providers and net metering customers;
      4. the electrical safety, power quality, interconnection, and metering of net metering systems;
      5. the formation of group net metering systems, the resolution of disputes between group net metering customers and the interconnecting provider, and the billing, crediting, and disconnection of group net metering customers by the interconnecting provider; and
      6. the amount of the credit to be assigned to each kWh of electricity generated by a net metering customer in excess of the electricity supplied by the interconnecting provider to the customer, the manner in which the customer's credit will be applied on the customer's bill, and the period during which a net metering customer must use the credit, after which the credit shall revert to the interconnecting provider.
        1. When assigning an amount of credit under this subdivision (F), the Commission shall consider making multiple lengths of time available over which a customer may take a credit and differentiating the amount according to the length of time chosen. For example, a monthly credit amount may be higher if taken over 10 years and lower if taken over 20 years. Factors relevant to this consideration shall include the customer's ability to finance the net metering system, the cost of that financing, and the net present value to all ratepayers of the net metering program.
        2. In this subdivision (ii), "existing net metering system" means a net metering system for which a complete application was filed before January 1, 2017.
          1. Commencing 10 years from the date on which an existing net metering system was installed, the Commission may apply to the system the same rules governing bill credits and the use of those credits on the customer's bill that it applies to net metering systems for which applications were filed on or after January 1, 2017, other than any adjustments related to siting and tradeable renewable energy credits.
          2. This subdivision (ii) shall apply to existing net metering systems notwithstanding any contrary provision of 1 V.S.A. § 214 and 2014 Acts and Resolves No. 99, Sec. 10.
    3. The rules shall establish standards and procedures governing application for and issuance or revocation of a certificate of public good for net metering systems under the provisions of section 248 of this title. In establishing these standards and procedures:
      1. The rules may waive the requirements of section 248 of this title that are not applicable to net metering systems, including criteria that are generally applicable to public service companies as defined in this title.
      2. The rules may modify notice and hearing requirements of this title as the Commission considers appropriate.
      3. The rules shall seek to simplify the application and review process as appropriate, including simplifying the application and review process to encourage group net metering systems when the system is at least 50 percent owned by the customers who receive the bill credits for the electricity generated by the system.
      4. With respect to net metering systems that exceed 150 kW in plant capacity, the rules shall apply the so-called "Quechee" test for aesthetic impact as described by the Vermont Supreme Court in the case of In re Halnon, 174 Vt. 515 (2002) (mem.). The rules and application form shall state the components of this test.
      5. The rules shall not waive or include provisions that are less stringent than the requirements of subdivision 248(a)(4)(J) (required information) of this title.
      6. This subdivision (F) applies to an application for a net metering system with a capacity that is greater than 15 kilowatts, unless the system is located on a new or existing structure the primary purpose of which is not the generation of electricity. With respect to such a system, the rules shall not waive or include provisions that are less stringent than each of the following:
        1. the requirement of subdivision 248(a)(4)(C) of this title to provide a copy of the application to the Agencies of Agriculture, Food and Markets and of Natural Resources; the Department of Public Service; the Division for Historic Preservation; the municipal legislative body; and the municipal and regional planning commissions; and
        2. the requirements of subsection 248(f) (preapplication submittal) of this title.
    4. This section does not require the Commission to adopt identical requirements for the service territory of each retail electricity provider.
    5. Each retail electricity provider shall implement net metering in its service territory through a rate schedule that is consistent with this section and the rules adopted under this section and is approved by the Commission.
  4. Commencing in 2021 and biennially thereafter, the Department shall submit to the Commission its evaluation of the current state of net metering in Vermont, which shall be included within the Department's Annual Energy Report required under subsection 202b(e) of this title and shall also be submitted to the Committees listed under subdivision 202b(e)(2) of this title. The evaluation shall:
    1. analyze the current pace of net metering deployment, both statewide and within the service territory of each retail electricity provider;
    2. after considering the goals and policies of this chapter, of 10 V.S.A. § 578 (greenhouse gas reduction), of section 202a (State energy policy) of this title, and of the Electrical Energy and Comprehensive Energy Plans under sections 202 and 202b of this title, recommend the future pace of net metering deployment statewide and within the service territory of each provider;
    3. analyze the existence and degree of cross-subsidy between net metering customers and other customers on a statewide and on an individual provider basis;
    4. evaluate the effect of net metering on retail electricity provider infrastructure and revenue;
    5. evaluate the benefits to net metering customers of connecting to the provider's distribution system;
    6. analyze the economic and environmental benefits of net metering, and the short- and long-term impacts on rates, both statewide and for each provider;
    7. analyze the reliability and supply diversification costs and benefits of net metering;
    8. evaluate the ownership and transfer of the environmental attributes of energy generated by net metering systems and of any associated tradeable renewable energy credits; and
    9. examine and evaluate best practices for net metering identified from other states.
  5. If a hydroelectric generation plant seeking approval as a net metering system is subject to licensing jurisdiction under the Federal Power Act, 16 U.S.C. chapter 12, subchapter 1, the Commission shall require the plant to obtain such approval through means other than by application for a certificate of public good under section 248 of this title.
  6. Except for net metering systems for which the Commission has established a registration process, the Commission shall issue a final determination as to an uncontested application within 90 days of the date of the last substantive filing by a party.

    Added 2013, No. 99 (Adj. Sess.), § 4, eff. Jan. 1, 2017; amended 2015, No. 56 , § 12, eff. Jan. 2, 2017; 2015, No. 174 (Adj. Sess.), § 13, eff. Jan. 2, 2017; 2017, No. 42 , § 7, eff. May 22, 2017; 2019, No. 31 , § 6; 2019, No. 81 , § 5.

History

Amendments--2019. Subsec. (d): Act No. 31 amended generally the introductory paragraph.

Subsec. (f): Added by Act No. 81.

Amendments--2017. Subdiv. (c)(2)(F): Amended generally.

Amendments--2015 (Adj. Sess.). Subdiv. (c): Amended generally and added subdivs. (E) and (F).

Subsec. (e): Added.

Amendments--2015. Subsec. (c): Added subdiv. (1)(H), rewrote subdiv. (2)(F), and deleted former subdiv. (2)(G).

Governance of applications for net metering systems. 2013, No. 99 (Adj. Sess.), § 10(g) provides that 30 V.S.A. § 8010 and rules adopted under that section shall govern applications for net metering systems filed on and after January 1, 2017.

Effective date and applicability of 2015 amendments to subsec. (c). 2015, No. 56 , § 28(d) provides: "Sec. 12 [which amended subdivisions (c)(1)(H) and (c)(2)(F)] shall take effect on January 2, 2017, except that, notwithstanding 1 V.S.A. § 214, the section shall apply to the Public Service Board process under 2014 Acts and Resolves No. 99, Sec. 5. Sec. 12 shall not affect a net metering system for which a complete application was filed before January 1, 2017."

Effective date and applicability of amendments to subsec. (c). 2015, No. 174 (Adj. Sess.), § 16(2) provides: "Sec. 13 (net metering) [which amended this section] shall take effect on January 2, 2017, and shall amend 30 V.S.A. § 8010 as amended by 2015 Acts and Resolves No. 56, Sec. 12. Notwithstanding any contrary provision of 1 V.S.A. § 214, Sec. 13 shall apply retroactively to the Public Service Board process under 2014 Acts and Resolves No. 99, Sec. 5."

Net metering systems; approval under order. 2017, No. 42 , § 8 provides: "(a) In this section, 'Temporary Net Metering Order' means the order on reconsideration issued on August 29, 2016 by the Public Service Board (Board) under the caption of 'In Re: Revised Net-Metering Rule Pursuant to Act 99 of 2014.'

"(b) A net metering system that received an approval from the Board pursuant to the Temporary Net Metering Order may be constructed and placed into service in accordance with the terms of that Order and the approval issued pursuant to that Order, provided the approval was issued before September 1, 2017."

Applicability. 2017, No. 42 , § 9(b) provides: "Notwithstanding 1 V.S.A. § 214, Sec. 7 shall apply to net metering rules of the Public Service Board adopted on or after January 1, 2017."

§ 8011. Energy storage facilities.

  1. The Commission may adopt and implement rules that govern the installation and operation of energy storage facilities of all sizes.
  2. The rules may establish a size threshold below which storage facilities need not submit an application for a certificate of public good pursuant to section 248 of this title.
  3. The rules may include provisions that govern:
    1. the respective duties of retail electricity providers and energy storage facility owners or operators;
    2. the electrical and fire safety, power quality, interconnection, metering, and decommissioning of energy storage facilities;
    3. the resolution of disputes between energy storage facility owners, operators, and the interconnecting provider;
    4. energy storage aggregators and the operation of aggregations; and
    5. energy storage facilities paired with other resources, such as net metering and standard offer plants, including retrofits of existing plants.
  4. The rules shall establish standards and procedures governing application for and issuance or revocation of a certificate of public good for certain energy storage facilities under the provisions of section 248 of this title. In establishing these standards and procedures, the rules may:
    1. waive the requirements of section 248 of this title that are not applicable to energy storage facilities, including criteria that are generally applicable to public service companies as defined in this title;
    2. modify notice and hearing requirements of this title as the Commission considers appropriate; and
    3. seek to simplify the application and review process.

      Added 2021, No. 54 , § 11.

§ 8012. -8014. [Reserved for future use].

Subchapter 2. Clean Energy Development Fund

History

Amendments--2011 2011, No. 47 , § 20m(b), eff. July 1, 2011, designated §§ 8015-8016 of this chapter as subchapter 2 and added the subchapter heading.

American Electric Power (AEP) settlement to the Clean Energy Development Fund. 2013, No. 50 , § D.105 provides: "(a) Any funds recovered by the Attorney General as a result of the American Electric Power Service Corporation settlement shall be deposited into the Clean Energy Development Fund established by 30 V.S.A. § 8015."

§ 8015. Vermont Clean Energy Development Fund.

  1. Creation of Fund.
    1. There is established the Vermont Clean Energy Development Fund to consist of each of the following:
      1. The proceeds due the State under the terms of the memorandum of understanding between the Department of Public Service and Entergy Nuclear VY and Entergy Nuclear Operations, Inc. that was entered under Public Service Board docket 6812; together with the proceeds due the State under the terms of any subsequent memoranda of understanding entered before July 1, 2005 between the Department of Public Service and Entergy Nuclear VY and Entergy Nuclear Operations, Inc.
      2. Any other monies that may be appropriated to or deposited into the Fund.
    2. Balances in the Fund shall be expended solely for the purposes set forth in this subchapter and shall not be used for the general obligations of government. All balances in the Fund at the end of any fiscal year shall be carried forward and remain part of the Fund. Interest earned by the Fund shall be deposited in the Fund. This Fund is established in the State Treasury pursuant to 32 V.S.A. chapter 7, subchapter 5.
  2. Definitions.  As used in this section, the following definitions shall apply:
    1. "Clean energy resources" means electric power supply and demand-side resources, or thermal energy or geothermal resources, that are "combined heat and power facilities," "cost-effective energy efficiency resources," or "renewable energy" resources.
    2. "Combined heat and power (CHP) facility" means a generator that sequentially produces both electric power and thermal energy from a single source or fuel. In order for a fossil fuel-based CHP system to participate in the clean energy program set out in this section, at least 20 percent of its fuel's total recovered energy must be thermal and at least 13 percent must be electric, the design system efficiency (the sum of full load design thermal output and electric output divided by the heat input) must be at least 65 percent, and it must meet air quality standards established by the Agency of Natural Resources.
    3. "Cost-effective energy efficiency" means those energy efficiency and conservation measures that would qualify as part of a utility's least-cost integrated plan under section 218c of this title or that would be an eligible expenditure under subsection 209(d) of this title.
    4. "Emerging energy-efficient technologies" means technologies that are both precommercial but near commercialization and that have already entered the market but have less than five percent of current market share; that use less energy than existing technologies and practices to produce the same product or otherwise conserve energy and resources, regardless of whether or not they are connected to the grid; and that have additional non-energy benefits such as reduced environmental impact, improved productivity and worker safety, or reduced capital costs.
    5. "Renewable energy" has the meaning established under section 8002 of this title, and shall include the following: solar photovoltaic and solar thermal energy; wind energy; geothermal heat pumps; farm, landfill, and sewer methane recovery; low emission, advanced biomass power, and combined heat and power technologies using biomass fuels such as wood, agricultural or food wastes, energy crops, and organic refuse-derived waste, but not municipal solid waste; advanced biomass heating technologies and technologies using biomass-derived fluid fuels such as biodiesel, bio-oil, and bio-gas.
    6. "Energy storage" means a system that uses mechanical, chemical, or thermal processes to store energy for later use.
  3. Purposes of Fund.  The purposes of the Fund shall be to promote the development and deployment of cost-effective and environmentally sustainable electric power and thermal energy or geothermal resources for the long-term benefit of Vermont consumers, primarily with respect to renewable energy resources, and the use of combined heat and power technologies. The Fund also may be used to support natural gas and electric vehicles in accordance with subdivisions (d)(1)(K) and (L) of this section, respectively. The General Assembly expects and intends that the Public Utility Commission, Department of Public Service, and the State's power and efficiency utilities will actively implement the authority granted in this title to acquire all reasonably available cost-effective energy efficiency resources for the benefit of Vermont ratepayers and the power system.
  4. Expenditures authorized.
    1. Projects for funding may include the following:
      1. projects that will sell power in commercial quantities;
      2. among those projects that will sell power in commercial quantities, funding priority will be given to those projects that commit to sell power to Vermont utilities on favorable terms;
      3. projects to benefit publicly owned or leased buildings;
      4. renewable energy projects on farms, which may include any or all costs incurred to upgrade to a three-phase line to serve a system on a farm;
      5. small-scale renewable energy in Vermont residences, institutions, and businesses:
        1. generally; and
        2. through the Small-scale Renewable Energy Incentive Program;
      6. projects under the agricultural economic development special account established under 6 V.S.A. § 4710(g) to harvest biomass, convert biomass to energy, or produce biofuel;
      7. until December 31, 2008 only, super-efficient buildings;
      8. projects to develop and use thermal or geothermal energy, regardless of whether they also involve the generation of electricity;
      9. emerging energy-efficient technologies;
      10. effective projects that are not likely to be established in the absence of funding under the program;
      11. natural gas vehicles and associated fueling infrastructure if each such vehicle is dedicated only to natural gas fuel and, on a life cycle basis, the vehicle's emissions will be lower than those of commercially available vehicles using other fossil fuel, and any such infrastructure will deliver gas without interruption of flow;
      12. electric vehicles and associated charging stations;
      13. energy storage projects that facilitate utilization of renewable energy resources.
    2. If during a particular year, the Commissioner of Public Service determines that there is a lack of high value projects eligible for funding, as identified in the five-year plan, or as otherwise identified, the Commissioner shall consult with the Clean Energy Development Board, and shall consider transferring funds to the Energy Efficiency Fund established under the provisions of subsection 209(d) of this title. Such a transfer may take place only in response to an opportunity for a particularly cost-effective investment in energy efficiency, and only as a temporary supplement to funds collected under that subsection, not as replacement funding.
    3. Notwithstanding any contrary provision of this section, the Clean Energy Development Fund shall use all of the monies from alternative compliance payments under sections 8004 and 8005 of this title for projects that meet the definition of "energy transformation project" under section 8002 of this title and the eligibility criteria for those projects under section 8005 of this title. The Fund shall implement projects in the service territory of the retail electricity provider or providers making the alternative compliance payments used to support the projects and, in the case of a project delivered in more than one territory, shall prorate service delivery according to each provider's contribution. A provider shall not count, toward its required amount under the energy transformation category of section 8005 of this title, support provided by the Fund for an energy transformation project.
  5. Management of Fund.
    1. This Fund shall be administered by the Department of Public Service to facilitate the development and implementation of clean energy resources. The Department is authorized to expend monies from the Clean Energy Development Fund in accordance with this section. The Commissioner of the Department shall make all decisions necessary to implement this section and administer the Fund except those decisions committed to the Clean Energy Development Board under this subsection. The Department shall ensure an open public process in the administration of the Fund for the purposes established in this subchapter.
    2. During fiscal years after FY 2006, up to five percent of amounts appropriated to the Department of Public Service from the Fund may be used for administrative costs related to the Clean Energy Development Fund.
    3. There is created the Clean Energy Development Board, which shall consist of seven persons appointed in accordance with subdivision (4) of this subsection.
      1. The Clean Energy Development Board shall have decision-making and approval authority with respect to the plans, budget, and program designs described in subdivisions (7)(B)-(D) of this subsection (e). The Clean Energy Development Board shall function in an advisory capacity to the Commissioner on all other aspects of this section's implementation.
      2. During a Board member's term and for a period of one year after the member leaves the Board, the Clean Energy Development Fund shall not make any award of funds to and shall confer no financial benefit on a company or corporation of which the member is an employee, officer, partner, proprietor, or Board member or of which the member owns more than 10 percent of the outstanding voting securities. This prohibition shall not apply to a financial benefit that is available to any person and is not awarded on a competitive basis or offered only to a limited number of persons.
    4. The Commissioner of Public Service shall appoint three members of the Clean Energy Development Board, and the Chairs of the House Committee on Energy and Technology and the Senate Committee on Natural Resources and Energy each shall appoint two members of the Clean Energy Development Board. The terms of the members of the Clean Energy Development Board shall be four years, except that when appointments to this Board are made for the first time after May 25, 2011, each appointing authority shall appoint one member for a two-year term and the remaining members for four-year terms. When a vacancy occurs in the Board during the term of a member, the authority who appointed that member shall appoint a new member for the balance of the departing member's term.
    5. Except for those members of the Clean Energy Development Board otherwise regularly employed by the State, the compensation of the members shall be the same as that provided by 32 V.S.A. § 1010(a) .
    6. In performing its duties, the Clean Energy Development Board may utilize the legal and technical resources of the Department of Public Service. The Department of Public Service shall provide the Clean Energy Development Board with administrative services.
    7. The Department shall perform each of the following:
      1. On or before January 15 of each year, provide to the Senate Committees on Finance and on Natural Resources and Energy and the House Committees on Commerce and Economic Development and on Energy and Technology a report for the fiscal year ending the preceding June 30 detailing the activities undertaken, the revenues collected, and the expenditures made under this subchapter. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subdivision.
      2. Develop, and submit to the Clean Energy Development Board for review and approval, a five-year strategic plan and an annual program plan, both of which shall be developed with input from a public stakeholder process and shall be consistent with State energy planning principles.
      3. Develop, and submit to the Clean Energy Development Board for review and approval, an annual operating budget.
      4. Develop, and submit to the Clean Energy Development Board for review and approval, proposed program designs to facilitate clean energy market and project development (including use of financial assistance, investments, competitive solicitations, technical assistance, and other incentive programs and strategies). Prior to any approval of a new program or of a substantial modification to a previously approved program of the Clean Energy Development Fund, the Department of Public Service shall publish online the proposed program or modification, shall provide an opportunity for public comment of no less than 30 days, and shall provide to the Clean Energy Development Board copies of all comments received on the proposed program or modification. In this subdivision (D), "substantial modification" shall include a change to a program's application criteria or application deadlines and shall include any change to a program if advance knowledge of the change could unfairly benefit one applicant over another applicant. For the purpose of 3 V.S.A. § 831(c) (initiating rulemaking on request), a new program or substantial modification of a previously approved program shall be treated as if it were an existing practice or procedure.
    8. At least annually, the Clean Energy Development Board and the Commissioner or designee jointly shall hold a public meeting to review and discuss the status of the Fund, Fund projects, the performance of the Fund Manager, any reports, information, or inquiries submitted by the Fund manager or the public, and any additional matters they deem necessary to fulfill their obligations under this section.
  6. Clean Energy Development Fund Manager.  The Clean Energy Development Fund shall have a Fund Manager who shall be an employee of the Department of Public Service.
  7. Bonds.  The Commissioner of Public Service, in consultation with the Clean Energy Development Board, may explore use of the Fund to establish one or more loan-loss reserve funds to back issuance of bonds by the State Treasurer otherwise authorized by law, including Clean Renewable Energy Bonds, that support the purposes of the Fund.
  8. ARRA funds.  All American Recovery and Reinvestment Act (ARRA) funds described in section 8016 of this title shall be disbursed, administered, and accounted for in a manner that ensures rapid deployment of the funds and is consistent with all applicable requirements of ARRA, including requirements for administration of funds received and for timeliness, energy savings, matching, transparency, and accountability. These funds shall be expended for the following categories listed in this subsection, provided that no single project directly or indirectly receives a grant in more than one of these categories. After consultation with the Clean Energy Development Board, the Commissioner of Public Service shall have discretion to use non-ARRA monies within the fund to support all or a portion of these categories and shall direct any ARRA monies for which non-ARRA monies have been substituted to the support of other eligible projects, programs, or activities under ARRA and this section.
    1. The Vermont Small-scale Renewable Energy Incentive Program currently administered by the Renewable Energy Resource Center, for use in residential and business installations. These funds may be used by the Program for all forms of renewable energy as defined by section 8002 of this title, including biomass and geothermal heating. The disbursement to this Program shall seek to promote continuous funding for as long as funds are available.
    2. Grant and loan programs for renewable energy resources, including thermal resources such as district biomass heating that may not involve the generation of electricity.
    3. Grants and loans to thermal energy efficiency incentive programs, community-scale renewable energy financing programs, certification and training for renewable energy workers, promotion of local biomass and geothermal heating, and an anemometer loan program.
    4. $2 million for a public-serving institution efficiency and renewable energy program that may include grants and loans and create a revolving loan fund. In this subsection, "public-serving institution" means government buildings and nonprofit public and private universities, colleges, and hospitals. In this program, awards shall be made through a competitive bid process.
    5. $2 million to the Vermont Housing and Conservation Board (VHCB) to make grants and deferred loans to nonprofit organizations for weatherization and renewable energy activities allowed by federal law, including assistance for nonprofit owners and occupants of permanently affordable housing.
    6. $2 million to the Vermont Telecommunications Authority (VTA) to make grants of no more than $10,000 per turbine for installation of small-scale wind turbines and associated towers on which telecommunications equipment is to be collocated and which are developed in association with the VTA.
    7. $880,000.00 to the 11 regional planning commissions ($80,000.00 to each such commission) to conduct energy efficiency and energy conservation activities that are eligible under the EECBG program.
    8. Concerning the funds authorized for use in subdivisions (4)-(7) of this subsection:
      1. To the extent permissible under ARRA, up to five percent may be spent for administration of the funds received.
      2. In the event that the Commissioner of Public Service determines that a recipient of such funds has insufficient eligible projects, programs, or activities to fully utilize the authorized funds, then after consultation with the Clean Energy Development Board, the Commissioner shall have discretion to reallocate the balance to other eligible projects, programs, or activities under this section.
    9. The Commissioner of Public Service is authorized, to the extent allowable under ARRA, to utilize up to 10 percent of ARRA funds received for the purpose of administration. The Commissioner shall allocate a portion of the amount utilized for administration to retain permanent, temporary, or limited service positions or contractors and the remaining portion to the oversight of specific projects receiving ARRA funding pursuant to section 6524 of this title.
      1. Rules.  The Department and the Clean Energy Development Board each may adopt rules pursuant to 3 V.S.A. chapter 25 to carry out its functions under this section and shall consult with each other either before or during the rulemaking process.

        Added 2005, No. 74 , § 2; amended 2005, No. 208 (Adj. Sess.), § 5; 2005, No. 215 (Adj. Sess.), § 280, eff. May 31, 2006; 2007, No. 65 , § 94a; 2007, No. 92 (Adj. Sess.), § 7; 2009, No. 45 , §§ 5, 9e, eff. May 27, 2009; 2009, No. 54 , § 93, eff. June 1, 2009; 2009, No. 1 (Sp. Sess.), § E.235.3, eff. June 2, 2009; 2009, No. 2 (Sp. Sess.), § 4, eff. June 1, 2009; 2009, No. 3 (Sp. Sess.), § 13, eff. June 10, 2009; 2009, No. 67 (Adj. Sess.), § 68, eff. Feb. 25, 2010; 2009, No. 67 (Adj. Sess.), § 103; 2009, No. 1 59 (Adj. Sess.), § 18a; 2011, No. 47 , § 20j, eff. July 9, 2011, except subdivs. (d)(3) and (4) and (e)(3) and (4) eff. May 25, 2011; 2013, No. 89 , § 15; 2013, No. 95 (Adj. Sess.), § 82a, eff. Feb. 25, 2014; 2013, No. 142 (Adj. Sess.), § 53; 2015, No. 56 , § 13; 2017, No. 53 , § 23, eff. May 30, 2017; 2017, No. 113 (Adj. Sess.), § 175b.

History

2016. In subdivs. (b)(5) and (h)(1), revised the cross-references to 30 V.S.A. § 8002 in light of the amendments to that section by 2013, No. 99 (Adj. Sess.), § 3 and 2015, No. 56 , § 25. In subdiv. (e)(4), replaced "effective date of this act" with "May 25, 2011."

- 2014. In subsec. (c), in the second sentence, changed "natural gas and electric vehicles in accordance with subdiv. (d)(1)(K)" to "natural gas and electric vehicles in accordance with subdivs. (d)(1)(K) and (L), respectively" because (d)(1)(K) addresses natural gas vehicles and (d)(1)(L) addresses electric vehicles.

- 2011. In subdiv. (e)(7), corrected the cross-reference to the provision of the Administrative Procedure Act on initiating rulemaking on request.

2017. The "Public Service Board" described in subdiv. (a)(1)(A) became the Public Utility Commission on July 1, 2017. See section 3 of this title. The prior name is retained here for historical accuracy, because the text pertains to a case conducted under the entity's former name.

Amendments--2017 (Adj. Sess.). Subdiv. (e)(4): Substituted "Chairs of the House Committee on Energy and Technology and the Senate Committee on Natural Resources" for "Chairs of the House and Senate Committees on Natural Resources" in the first sentence.

Subdiv. (e)(7)(A): Substituted "On or before" for "By" preceding "January 15", and "Senate Committees on Finance and on Natural Resources and Energy and the House Committees on Commerce and Economic Development and on Energy and Technology" for "House and Senate Committees on Natural Resources and Energy, the Senate Committee on Finance, and the House Committee on Commerce and Economic Development" in the first sentence.

Amendments--2017. Subsec. (b): Substituted "As used in" for "For purposes of" in the introductory language.

Subdiv. (b)(6): Added.

Subdiv. (d)(1)(E): Substituted "small-scale" for "small scale" preceding "renewable energy".

Subdiv. (d)(1)(K): Inserted "those of" preceding "commercially".

Subdiv. (d)(1)(M): Added.

Amendments--2015. Subsec. (d): Rewrote subdiv. (3) and deleted former subdiv. (4).

Amendments--2013 (Adj. Sess.). Subsec. (c): Act No. 95 inserted "and electric" preceding "vehicles".

Subdiv. (d)(1)(L): Added by Act No. 95.

Subdiv. (e)(7)(A): Act No. 142 added the second sentence.

Amendments--2013. Subdiv. (d)(1): Deleted ", and in the case of subdivision (1)(E)(ii) of this subsection shall include continuous funding for as long as funds are available" following "include".

Amendments--2011. Section amended generally.

Clean Energy Development Funds; ARRA funds: Buildings and general services projects. 2011, No. 3 , § 80a(a) provides: "Notwithstanding any other provision of law, $1,000,000 of the ARRA State Energy Program (SEP) funds administered by the clean energy development fund shall be reallocated to the department of buildings and general services to fund ARRA-eligible projects."

Recodification; redesignation. 2011, No. 47 , § 20m(a) provides: "10 V.S.A. §§ 6523 and 6524 are recodified respectively as 30 V.S.A. §§ 8015 and 8016. The office of legislative council shall revise accordingly any references to these statutes contained in the Vermont Statutes Annotated. Any references in session law to these statutes as previously codified shall be deemed to refer to the statutes as recodified by this act."

Effective date. 2011, No. 47 , § 20(j) amended this section. 2011, No. 47 , (21(g) states that, "[e]xcept as provided under subdivision (b)(6) of this section," Sec. 20j "shall take effect 45 days after the act's passage." 2011, No. 47, § 21(b)(6) provides that the following subdivisions of this section take effect on passage: 20 V.S.A. § 8015(d)(3) and (4) (solar tax credit; grant in lieu of and general fund reimbursement) and (e)(3) and (4) (appointments to clean energy board).

§ 8016. ARRA energy monies.

The expenditure of each of the following shall be subject to the direction and approval of the Commissioner of Public Service, after consultation with the Clean Energy Development Board established under subdivision 8015(e)(4) of this title, and shall be made in accordance with subdivisions 8015(d)(1) (expenditures authorized), and (e)(7)(A) (reporting) and subsections 8015(f) (Fund manager), (h) (ARRA funds), and (i) (rules) of this title and applicable federal law and regulations:

  1. The amount of $21,999,000.00 in funds received by the State under the appropriation contained in the American Recovery and Reinvestment Act (ARRA) of 2009, Pub.L. No. 111-5, to the State Energy Program authorized under 42 U.S.C. § 6321 et seq.
  2. The amount of $9,593,500.00 received by the State under ARRA from the U.S. Department of Energy through the Energy Efficiency and Conservation Block Grant Program.

    Added 2009, No. 67 (Adj. Sess.); § 69; amended 2011, No. 47 , § 20l, eff. July 9, 2011.

History

2011. Corrected cross-reference to the subdiv. of 30 V.S.A. § 8015(e) that governs reporting.

Amendments--2011. Section amended generally.

Recodification; redesignation. 2011, No. 47 , § 20m(a) provides: "10 V.S.A. §§ 6523 and 6524 are recodified respectively as 30 V.S.A. §§ 8015 and 8016. The office of legislative council shall revise accordingly any references to these statutes contained in the Vermont Statutes Annotated. Any references in session law to these statutes as previously codified shall be deemed to refer to the statutes as recodified by this act."

Effective date. 2011, No. 47 , § 20j amended this section. 2011, No. 47 , § 21(g) states that, "[e]xcept as provided under subdivision (b)(6) of this section," Sec. 20j "shall take effect 45 days after the act's passage." 2011, No. 47, § 21(b)(6) provides that the following subdivs. of this section take effect on passage: 30 V.S.A. § 8015(d)(3) and (4) (solar tax credit; grant in lieu of and general fund reimbursement) and (e)(3) and (4) (appointments to clean energy development board).

Effective date. 2011, No. 47 , § 21(g) provides that Sec. 20l, which amends this section "shall take effect 45 days after the act's passage."

CHAPTER 90. VERMONT HYDROELECTRIC POWER AUTHORITY

Sec.

History

Prior law. A former 30 V.S.A. chapter 90, relating to the Vermont Hydro-electric Power Authority and comprising §§ 8051-59, was derived from 2003, No. 121 (Adj. Sess.), § 101, and was repealed by 2009, No. 135 (Adj. Sess.), § 26(13)(B).

Termination; repeal. This chapter was repealed by operation of law. 2015, No. 130 (Adj. Sess.), § 5(b) provides: "Sec. 4 of this act, creating 30 V.S.A. chapter 90, shall terminate on January 15, 2017 if at that time the State has not purchased or commenced negotiations to purchase, the dam facilities, as determined by the Secretary of Administration."

§§ 8040-8052. Repealed by operation of 2015, No. 130 (Adj. Sess.), § 5(b).

History

Former § 8040. Former § 8040, relating to findings, purpose, and goals, was derived from 2015, No. 130 (Adj. Sess.), § 4.

Former § 8041. Former § 8041, relating to definitions, was derived from 2015, No. 130 (Adj. Sess.), § 4.

Former § 8042. Former § 8042, relating to establishment, was derived from 2015, No. 130 (Adj. Sess.), § 4.

Former § 8043. Former § 8043, relating to Board of Directors, was derived from 2015, No. 130 (Adj. Sess.), § 4.

Former § 8044. Former § 8044, relating to manager, was derived from 2015, No. 130 (Adj. Sess.), § 4.

Former § 8045. Former § 8045, relating to termination, was derived from 2015, No. 130 (Adj. Sess.), § 4.

Former § 8046. Former § 8046, relating to general powers, was derived from 2015, No. 130 (Adj. Sess.), § 4.

Former § 8047. Former § 8047, relating to prohibitions, was derived from 2015, No. 130 (Adj. Sess.), § 4.

Former § 8048. Former § 8048, relating to obligations not obligations of the State, was derived from 2015, No. 130 (Adj. Sess.), § 4.

Former § 8049. Former § 8049, relating to records, annual report, audit, was derived from 2015, No. 130 (Adj. Sess.), § 4.

Former § 8050. Former § 8050, relating to bonds, indebtedness, was derived from 2015, No. 130 (Adj. Sess.), § 4.

Former § 8051. Former § 8051, relating to bonds, indebtedness, approval, was derived from 2015, No. 130 (Adj. Sess.), § 4.

Former § 8052. Former § 8052, relating to funds, accounts, was derived from 2015, No. 130 (Adj. Sess.), § 4.

CHAPTER 91. VERMONT TELECOMMUNICATIONS AUTHORITY

Sec.

§ 8060. Legislative findings and purpose.

  1. The General Assembly finds that:
    1. The availability of mobile telecommunications and broadband services is essential for promoting the economic development of the State, the education of its young people and lifelong learning, the delivery of cost-effective health care, the public safety, and the ability of citizens to participate fully in society and civic life.
    2. Private entities have brought mobile telecommunications and broadband services to many households, businesses, and locations in the State. Nevertheless, significant gaps remain in 99 target communities for broadband service, and in community hubs and along the routes which connect them for mobile telecommunications service.
    3. A new level of creative and innovative strategies (including partnerships and collaborations among and between State entities, nonprofit organizations, municipalities, the federal government, and the private sector) is necessary to extend and complete broadband coverage in the State, and to ensure that Vermont maintains a telecommunications infrastructure that allows residents and businesses to compete fairly in the national and global economy.
    4. When such partnerships and collaborations fail to achieve the goal of providing high-quality broadband access and service to all areas and households, or when some areas of the State fall behind significantly in the variety and quality of services readily available in the State, it is necessary for an authority of the State to support and facilitate the construction of infrastructure and access to broadband service through financial and other incentives.
    5. Small broadband enterprises now offering broadband service in Vermont have limited access to financial capital necessary for expansion of broadband service to unserved areas of the State. The General Assembly recognizes these locally based broadband providers for their contributions to date in providing broadband service to unserved areas despite the limitations on their financial resources.
    6. The universal availability of adequate mobile telecommunications and broadband services promotes the general good of the State.
    7. Vermonters should be served by broadband infrastructure that, to the extent practical and cost-effective, uses the best commercially available technology and does not involve widespread installation of technology that becomes outmoded within a short period after installation.
  2. Therefore, it is the goal of the General Assembly to ensure:
    1. that all residences and business in all regions of the State have access to affordable broadband services not later than the end of the year 2013, and that this goal be achieved in a manner that, to the extent practical and cost-effective, does not negatively affect the future installation of the best commercially available broadband technology or result in widespread installation of technology that becomes outmoded within a short period after installation;
    2. the universal availability of mobile telecommunication services, including voice and high-speed data along roadways, and near universal availability statewide;
    3. the investment in telecommunications infrastructure in the State that creates or completes the network for service providers to create last-mile connection to the home or business and supports the best available and economically feasible service capabilities;
    4. that telecommunications and broadband infrastructure in all areas of the State is continuously upgraded to reflect the rapid evolution in the capabilities of available mobile telecommunications and broadband technologies, and in the capabilities of mobile telecommunications and broadband services needed by persons, businesses, and institutions in the State;
    5. the most efficient use of both public and private resources through State policies by encouraging the development of open access telecommunications infrastructure that can be shared by multiple service providers.
  3. The statutory purpose of the exemption for Vermont Telecommunications Authority (VTA) bonds and notes in section 8074 of this title is to lower the cost of borrowing in order to finance the expansion of broadband access across the State.

    Added 2007, No. 79 , § 1, eff. June 9, 2007; amended 2009, No. 54 , § 50, eff. June 1, 2009; 2011, No. 53 , § 15, eff. May 27, 2011; 2013, No. 190 (Adj. Sess.), § 30; 2013, No. 200 (Adj. Sess.), § 2.

History

2013 (Adj. Sess.) Subdiv. (b)(2): Act No. 190 deleted "by the end of the year 2013" following "availability statewide".

Amendments--2013 (Adj. Sess.). Subsec. (c): Added by Act No. 200.

Amendments--2011. Subdiv. (a)(2): Deleted "but significant gaps remain" following "state" and added the last sentence.

Subdiv. (b)(1): Substituted "2013" for "2010" following "year".

Subdiv. (b)(2): Substituted "universal" for "ubiquitous" preceding "availability", "along roadways and near universal availability statewide" for "throughout the state" following "data" and "2013" for "2010" following "year".

Subdiv. (b)(3): Substituted "that creates or completes the network for service providers to create last-mile connection to the home or business and supports" for "which will support" following "state".

Amendments--2009. Subsec. (a): Added subdiv. (7).

Subsec. (b): Added the language beginning ", and that this goal be" to the end of subdiv. (1).

§ 8060a. Period of dormancy.

On July 1, 2015, the Division for Connectivity established under 3 V.S.A. § 2225 shall become the successor in interest to and the continuation of the Vermont Telecommunications Authority, and the Authority shall cease all operations and shall not resume its duties as specified under this chapter or under any other Vermont law unless directed to do so by enactment of the General Assembly or, if the General Assembly is not in session, by order of the Joint Fiscal Committee. Notwithstanding 32 V.S.A. § 5 , the Joint Fiscal Committee shall issue such order only upon finding that, due to an unforeseen change in circumstances, implementation of the Authority's capacity to issue revenue bonds or to accept any new gifts, grants, or contributions would be the most effective means of furthering the State's telecommunications goals and policies. Upon the effective date of such enactment or order, the duties of the Executive Director and the Board of Directors of the Authority shall resume in accordance with chapter 91 of this title and the Director for Connectivity shall be the acting Executive Director of the Authority, until the position is filled pursuant to subsection 8061(e) of this title.

Added 2013, No. 190 (Adj. Sess.), § 28, eff. June 16, 2014.

History

Reference in text. 3 V.S.A. § 2225, referred to in this section, was repealed by 2015, No. 41 , § 1.

Creation of positions; transfer of vacant positions; reemployment rights. 2013, No. 190 (Adj. Sess.), § 14, effective July 1, 2015, provides: "(a) The following exempt positions are created within the Division for Connectivity: one full-time Director and up to six additional full-time employees as deemed necessary by the Secretary of Administration.

"(b) The positions created under subsection (a) of this section shall only be filled to the extent there are existing vacant positions in the Executive Branch available to be transferred and converted to the new positions in the Division for Connectivity, as determined by the Secretary of Administration and the Commissioner of Human Resources, so that the total number of authorized positions in the State shall not be increased by this act.

"(c) All full-time personnel of the Vermont Telecommunications Authority employed by the Authority on the day immediately preceding the effective date of this act, who do not obtain a position in the Division for Connectivity pursuant to subsection (a) of this section, shall be entitled to the same reemployment or recall rights available to non-management State employees under the existing collective bargaining agreement entered into between the State and the Vermont State Employees' Association."

Transitional provisions. 2013, No. 190 (Adj. Sess.), § 15 provides: "(a) Personnel. The Secretary of Administration shall determine where the offices of the Division for Connectivity shall be housed.

"(b) Assets and liabilities. The Secretary of Administration shall develop a plan for transferring the assets and liabilities of the Vermont Telecommunications Authority (VTA) to the Agency of Administration or to another entity, as deemed appropriate.

"(c) Legal and contractual obligations. The Executive Director of the VTA, in consultation with the Secretary of Administration, shall identify all grants and contracts of the VTA and create a plan to redesignate the Agency of Administration as the responsible entity. The plan shall ensure that all existing grantors, grantees, and contractors are notified of the redesignation.

§ 8061. Establishment of Authority; organization.

  1. The Vermont Telecommunications Authority is hereby created and established as a body corporate and politic and a public instrumentality of the State. The exercise by the authority of the powers conferred upon it in this chapter constitutes the performance of essential governmental functions.
  2. The Authority shall have a Board of Directors of nine members selected as follows:
    1. the State Treasurer or his or her designee;
    2. the Secretary of Administration or his or her designee;
    3. one member of the House of Representatives appointed by the Speaker of the House;
    4. one member of the Senate appointed by the Committee on Committees of the Senate; and
    5. five at-large members appointed by the Governor, who may not be employees or officers of the State at the time of appointment.
  3. The Authority's powers are vested in the Board of Directors, and a quorum shall consist of five members. No action of the Authority shall be considered valid unless the action is supported by a majority vote of the members present and voting and then only if at least four members vote in favor of the action. The Governor shall select, from among the at-large members, a chair and vice chair, who may not be members of the General Assembly or employees or officers of the State at the time of the appointment.
  4. In making appointments of at-large and legislative members and the Chair, the appointing authorities shall give consideration to citizens of the State with knowledge of telecommunications technology, telecommunications regulatory law, transportation rights-of-way and infrastructure, finance, and environmental permitting. However, the legislative and five at-large members may not be persons with a financial interest in or owners or employees of an enterprise that provides broadband or cellular service or that is seeking in-kind or financial support from the Authority. The conflict of interest provision in this subsection shall not be construed to disqualify a member who has ownership in a mutual fund, exchange traded fund, pension plan, or similar entity that owns shares in such enterprises as part of a broadly diversified portfolio. In addition, at least one at-large member shall represent an area of Vermont determined by the Authority to be unserved by broadband at the time of his or her appointment or reappointment, and at least one at-large member shall represent an area of Vermont determined by the Authority to be unserved by mobile telecommunications at the time of his or her appointment or reappointment. The legislative and at-large members shall serve terms of two years beginning February 1 in odd-numbered years, and until their successors are appointed and qualified. However, three of the five at-large members first appointed by the Governor shall serve an initial term of three years. Vacancies shall be filled by the respective appointing bodies for the balance of the unexpired term. A member may be reappointed for up to three consecutive terms. Upon completion of a term of service for any reason, including the term's expiration or a member's resignation, and for one year from the date of such completion, a former Board member shall not advocate before the Authority on behalf of an enterprise that provides broadband or cellular service.
  5. The Authority shall hire and employ an Executive Director who shall serve as the Authority's chief administrative officer and shall direct and supervise the Authority's administrative affairs and technical activities in accordance with any rules, regulations, and policies set forth by the Authority. In addition to any other duties, the Executive Director shall:
    1. attend all meetings of the Authority, act as its secretary, and keep minutes of its proceedings;
    2. approve all accounts of the Authority, including accounts for salaries, per diems, and allowable expenses of any employee or consultant thereof and expenses incidental to the operation of the Authority;
    3. make an annual report to the Authority documenting the actions of the Authority and such other reports as the Authority may request;
    4. perform such other duties as may be directed by the Authority in the carrying out of the purposes of this chapter.
  6. Except for those members otherwise regularly employed by the State, the compensation of the Authority's members shall be the same as that provided by 32 V.S.A. § 1010(a) . All members of the Authority, including those members otherwise regularly employed by the State, shall receive their actual and necessary expenses when away from home or office upon their official duties.

    Added 2007, No. 79 , § 1, eff. June 9, 2007; amended 2011, No. 53 , § 16, eff. May 27, 2011.

History

2013. In subdiv. (e)(2), "but not limited to" following "including" was deleted in accordance with 2013, No. 5 , § 4.

Amendments--2011. Section amended generally.

VTA Board; reorganization. 2011, No. 53 , § 16a provides: "Upon the effective date of this act [May 27, 2011], the terms of office of the existing members of the board of directors of the Vermont telecommunications authority shall terminate, but members shall continue to serve until new members for the term commencing in 2011 are appointed as provided in this act."

§ 8062. Purpose; powers and duties.

  1. To achieve the goals under subsection 8060(b) of this title, the Authority is directed:
    1. to provide resources to local, regional, public, and private entities in the form of grants and other incentives funded through bonded capital and other resources;
    2. to inventory and assess the potential to use federal radio frequency licenses held by instrumentalities of the State to enable broadband service in unserved areas of the State; take whatever steps are consistent with the powers granted the Authority under this chapter to promote the use of those licensed radio frequencies for that purpose; and recommend to the General Assembly any further legislative measures with respect to ownership, management, and utilization of these licenses as would promote the general good of the State;
    3. to the extent not inconsistent with the goals of this chapter, to utilize existing buildings and structures, historic or otherwise, as sites for visually-neutral placement of mobile telecommunications and wireless broadband antenna facilities;
    4. to construct and install, or cause to be constructed and installed, fiber optic and wireless infrastructure through grants to providers and through direct investments in infrastructure to be owned by the Authority, in areas needed to meet the State's objectives as determined by the Secretary of Administration in the action plan developed under 3 V.S.A. § 2222b(b)(3) , provided that direct investment is not undertaken in areas served by existing providers with comparable levels of broadband quality and speed or mobile telecommunications service; and
    5. to provide technical and such other support as the Secretary of Administration deems necessary.
  2. The Authority shall have the following powers, which shall be exercised to further the Authority's purpose, and shall have all other powers necessary to carry out the duties imposed on the Authority by law:
    1. To enter into contracts with providers of telecommunications services and related facilities to serve unserved or underserved people and areas of the State; and to provide financial and other assistance to providers who agree in return to provide mobile telecommunications or broadband services to unserved or underserved people and areas of the State; and to facilitate directly or indirectly the efforts of other entities to advance the availability of mobile voice and high speed data or broadband services.
    2. To provide financial assistance in the form of grants or, in accordance with section 8064 of this title, to issue bonds backed by project revenues, the State or its political subdivisions or both for the purpose of building infrastructure capable of delivering mobile telecommunications and broadband services to all Vermonters.
    3. To consult, contract, or partner with the Vermont Economic Development Authority and the Vermont Municipal Bond Bank to provide financial assistance for purposes authorized by this chapter.
    4. To receive and accept grants, gifts, loans, or contributions from any source subject to the provisions of 32 V.S.A. § 5 .
    5. To incorporate one or more nonprofit corporations in Vermont to fulfill the goals of this chapter. Such corporations shall be empowered to borrow money and to receive and accept gifts, grants, or contributions from any source, subject to the provisions of 32 V.S.A. § 5 , subject to the limitations imposed by law on the Authority. The board of directors of any nonprofit corporation created under this subsection shall be the Board of Directors of the Authority. The corporation shall be organized and operate under the nonprofit corporation laws of the State of Vermont. The Authority may contract with the corporation to provide staff and management needs of the corporation.
    6. To construct, install, own, acquire, sell, trade, and lease equipment, facilities, and other infrastructure that could be accessed and used by multiple service providers, the State, and local governments, including fiber optic cables, towers, shelters, easements, rights-of-way, and wireless spectrum of frequencies; provided that any agreement by the Authority to sell infrastructure that is capable of use by more than one service provider shall contain conditions that will ensure continued shared use or colocation at reasonable rates, and provided that the proposed activity will not be in areas served by existing providers with comparable levels of broadband quality and speed or mobile telecommunications service.
    7. To apply for and obtain required permits for the construction of telecommunications infrastructure.
    8. In collaboration with the Agency of Administration, to lead the marketing of State properties to encourage and expedite collocation of infrastructure.
    9. To consult with agencies and departments on establishing charges or payments for use by wireless telecommunications and broadband service providers of State property, easements, and rights-of-way to the extent such charges or payments are required by law, and establish the criteria for waiver of such charges or payments when providers offer to furnish comparable value to the State to meet the public good.
    10. To sue and be sued in its own name and plead and be impleaded.
    11. To administer its own funds and to invest or deposit funds which are not needed currently to meet the obligations of the Authority.
    12. To borrow money and give other evidence of indebtedness or obligations and security consistent with the Authority's purpose and needs.
    13. To pursue route and site identification for fiber optic and wireless infrastructure.
  3. Nothing in this chapter shall be construed to grant power to the Authority to offer the sale of telecommunications services to the public.

    Added 2007, No. 79 , § 1, eff. June 9, 2007; amended 2011, No. 53 , § 17, eff. May 27, 2011.

History

Reference in text. 3 V.S.A. § 2222b, referred to in subdiv. (a)(4), was repealed by 2013, No. 190 (Adj. Sess.), § 13.

The U.S. Department of Agriculture, referred to in subdiv. (b)(4), is codified as 7 U.S.C. § 1 et seq.

Amendments--2011. Section amended generally.

§ 8063. Interagency cooperation and assistance.

  1. Other departments and agencies of State government shall assist and cooperate with the Authority and shall make available to it information and data as needed to assist the Authority in carrying out its duties. The Secretary of Administration shall establish protocols and agreements among the Authority and departments and agencies of the State for this purpose. Nothing in this section shall be construed to waive any privilege or protection otherwise afforded to the data and information under exemptions to the public records act or under other laws due solely to the fact that the information or data is shared with the Authority pursuant to this section.
  2. No instrumentality of the State shall sell, lease, or otherwise divest itself of ownership or control of radio frequency spectrum without prior notice to and approval of the General Assembly or, if the General Assembly is not in session, without prior notice to the Chairs of the House Committee on Commerce and Economic Development and the Senate Committees on Finance and on Economic Development, Housing and General Affairs and approval of the Joint Fiscal Committee, in consultation with the legislative Chairs already referenced in this subsection.

    Added 2007, No. 79 , § 1, eff. June 9, 2007; amended 2011, No. 53 , § 18, eff. May 27, 2011.

History

Amendments--2011. Section amended generally.

§ 8064. Bonds and notes.

    1. The Authority may issue its negotiable notes and bonds in such principal amount as the Authority determines to be necessary to provide sufficient funds for achieving any of its corporate purposes, including the payment of interest on notes and bonds of the Authority, establishment of reserves to secure the notes and bonds including the reserve funds created under section 8065 of this title, and all other expenditures of the Authority incident to and necessary or convenient to carry out its corporate purposes and powers. However, the bonds or notes of the Authority outstanding at any one time shall not exceed $34,000,000.00. No bonds shall be issued under this section without the prior approval of the Governor and the State Treasurer or their respective designees. In addition, before the Authority may initially exercise its bonding authority granted by this section, it shall submit to the Emergency Board of the State a current business plan, including an explanation of the bond issue or issues initially proposed. (a) (1)  The Authority may issue its negotiable notes and bonds in such principal amount as the Authority determines to be necessary to provide sufficient funds for achieving any of its corporate purposes, including the payment of interest on notes and bonds of the Authority, establishment of reserves to secure the notes and bonds including the reserve funds created under section 8065 of this title, and all other expenditures of the Authority incident to and necessary or convenient to carry out its corporate purposes and powers. However, the bonds or notes of the Authority outstanding at any one time shall not exceed $34,000,000.00. No bonds shall be issued under this section without the prior approval of the Governor and the State Treasurer or their respective designees. In addition, before the Authority may initially exercise its bonding authority granted by this section, it shall submit to the Emergency Board of the State a current business plan, including an explanation of the bond issue or issues initially proposed.
    2. The Authority shall have the power, from time to time, to issue bonds and notes, to renew, defease, and refund notes and bonds to pay bonds and notes, including the interest thereon, and, whenever it deems refunding expedient, to refund any bonds by the issuance of new bonds, whether the bonds and notes to be refunded have or have not matured, and to issue bonds and notes partly to refund bonds then outstanding and partly for any of its corporate purposes.
    3. Except as may otherwise be expressly provided by resolution of the Authority, every issue of its notes and bonds shall be general obligations of the Authority payable out of any revenues or monies of the Authority, subject only to any agreements with the holders of particular notes or bonds pledging any particular revenues.
  1. The notes and bonds shall be authorized by resolution or resolutions of the Authority, shall bear such date or dates and shall mature at such time or times as the resolution or resolutions may provide, except that no bond shall mature more than 30 years from the date of its issue. The bonds may be issued as serial bonds or as term bonds or as a combination thereof. The notes and bonds shall bear interest at such rate or rates or the manner of determining such rate or rates, as provided in 24 V.S.A. §§ 1881-1887 , be in such denominations, be in such form, carry such registration privileges, be executed in such manner, be payable in such medium of payment, at such place or places within or outside the State, and be subject to such terms of redemption as the resolution or resolutions may provide; provided, however, that at the time of the authorization of the issuance of such bonds or notes the Authority determines in such resolution that the Authority will derive receipts, revenues, or other income from the facilities or projects to be financed with the proceeds of such bonds or notes sufficient to provide, together with all other available receipts, revenues, and income of the Authority, for the payment of such bonds or notes and the payment of all costs and expenses incurred by the Authority with respect to the program or purpose for which such bonds or notes are issued and all other expenses of the Authority incurred under this title. The notes and bonds of the Authority may be sold by the Authority at public or private sale, at such price or prices as the Authority shall determine.
  2. Any resolution or resolutions authorizing any notes or bonds or any issue thereof may contain provisions, which shall be a part of the contract or contracts with the holders thereof, as to:
    1. pledging all or any part of the revenues of the Authority to secure the payment of the notes or bonds or of any issue thereof, subject to such agreements with note holders or bondholders as may then exist;
    2. pledging all or any part of the assets of the Authority to secure the payment of the notes or bonds or of any issue of notes or bonds, subject to such agreements with note holders or bondholders as may then exist;
    3. the use and disposition of the revenues of the Authority and payments upon other obligations held by the Authority;
    4. the setting aside of reserves or sinking funds and the regulation and disposition thereof;
    5. limitations on the purpose to which the proceeds of sale of notes or bonds may be applied and pledging the proceeds to secure the payment of the notes or bonds or of any issue thereof;
    6. limitations on the issuance of additional notes or bonds; the terms upon which additional notes or bonds may be issued and secured; and the refunding of outstanding or other notes or bonds;
    7. the procedure, if any, by which the terms of any contract with note holders or bondholders may be amended or abrogated, the amount of notes or bonds the holders of which must consent thereto, and the manner in which consent may be given;
    8. limitations on the amount of monies to be expended by the Authority for operating expenses of the Authority;
    9. vesting in a trustee or trustees, within or outside the State, such property, rights, powers, and duties in trust as the Authority may determine, which may include any or all of the rights, powers, and duties of the trustee appointed by the bondholders pursuant to this chapter and limiting or abrogating the right of the bondholders to appoint a trustee under this chapter or limiting the rights, powers, and duties of the trustee;
    10. defining the acts or omissions to act that shall constitute a default in the obligations and duties of the Authority to the holders of the notes or bonds and providing for the rights and remedies of the holders of the notes or bonds in the event of such default, including as a matter of right the appointment of a receiver; provided, however, that the rights and remedies shall not be inconsistent with the general laws of the State and other provisions of this chapter; and
    11. any other matters, of like or different character, which in any way affect the security or protection of the holders of the notes or bonds.
  3. Any pledge made by the Authority shall be valid and binding from the time when the pledge is made; the revenues, monies, or property so pledged and thereafter received by the Authority shall immediately be subject to the lien of such pledge without any physical delivery thereof or further act; and such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract, or otherwise against the Authority, irrespective of whether such parties have notice thereof.
  4. Bonds, notes, and other obligations authorized under this chapter may, in the discretion of the Authority, be issued with such terms as will cause the interest thereon to be subject to federal income taxation. To the extent required for the sale of the obligations, the Authority may register such obligations under applicable federal and state securities laws. No person executing any bonds, notes, and other obligations issued by the Authority or others under authority of this chapter shall be subject to any personal liability or accountability by reason of the issuance thereof. The Authority shall indemnify any person who shall have served as a member, officer, or employee of the Authority against financial loss or litigation expense arising out of or in connection with any claim or suit involving allegations that pecuniary harm has been sustained as a result of any transaction authorized by this chapter, unless such person is found by a final judicial determination not to have acted in good faith and for a purpose that the person reasonably believed to be lawful and in the best interest of the Authority.
  5. The Authority, subject to such agreements with note holders or bondholders as may then exist, shall have power out of any funds available therefore to purchase notes or bonds of the Authority, which shall thereupon be cancelled, at a price not exceeding:
    1. if the notes or bonds are then redeemable, the redemption price then applicable plus accrued interest to the next interest payment thereon; or
    2. if the notes or bonds are not then redeemable, the redemption price applicable on the first date after such purchase upon which the notes or bonds become subject to redemption plus accrued interest to such date.
  6. In the discretion of the Authority, the notes or bonds may be secured by a trust indenture by and between the Authority and a corporate trustee, which may be any trust company or bank having the power of a trust company within or outside the State. The trust indenture may contain such provisions for protecting and enforcing the rights and remedies of the note holders or bondholders as may be reasonable and proper and not in violation of law, including covenants setting forth the duties of the Authority in relation to the exercise of its corporate powers and the custody, safeguarding, and application of all monies. The Authority may provide by such trust indenture for the payment of the proceeds of the notes or bonds and the revenues to the trustee under such trust indenture or other depository and for the method of disbursement thereof, with such safeguards and restrictions as it may determine. All expenses incurred in carrying out the trust indenture may be treated as a part of the operating expenses of the Authority. If the notes or bonds shall be secured by a trust indenture, the note holders and bondholders shall have no authority to appoint a separate trustee to represent them.
  7. Any law to the contrary notwithstanding, a bond or note issued under this chapter is fully negotiable for all purposes of 9A V.S.A. § 1-101 et seq., and each holder or owner of a bond or note or of any coupon appurtenant thereto, by accepting the bond or note or coupon, shall be conclusively deemed to have agreed that the bond, note, or coupon is fully negotiable for those purposes.
  8. Any provision of this chapter or of any other law or any recitals in any bonds or notes issued under this chapter to the contrary notwithstanding, all bonds, notes, and interest coupons appertaining thereto issued by the Authority shall have and are hereby declared to have all the qualities and incidents, including negotiability, of investment securities under sections 9A V.S.A. § 1-101 et seq., but no provision of those sections respecting the filing of a financing statement to perfect a security interest shall be applicable to any security interest created in connection with the issuance of the bonds, notes, or coupons.
  9. In case any of the members, Executive Director, or officers of the Authority whose signatures appear on any notes or bonds or coupons shall cease to be members, Executive Director, or officers before the delivery of such notes or bonds, the signatures shall, nevertheless, be valid and sufficient for all purposes, the same as if such members, Executive Director, or officers had remained in office until such delivery.
  10. The Authority may enter into one or more agreements for the exchange of interest rates, cash flows, or payments to reduce net borrowing costs, to achieve desirable net effective interest rates in connection with its issuance and sale of debt obligations, and to provide for an efficient means of debt management.

    Added 2007, No. 79 , § 1, eff. June 9, 2007; amended 2019, No. 79 , § 18, eff. June 20, 2019.

History

2016. In subsec. (b), substituted "24 V.S.A. §§ 1881-1887" for "sections 1881-1887 of Title 24" to conform reference to V.S.A. style.

In subsecs. (h) and (i), substituted "9A V.S.A. § 1-101 et seq." for "sections 1-101 et seq. of Title 9A" to conform reference to V.S.A. style.

Amendments--2019. Subdiv. (a)(1): Substituted "$34,000,000.00" for "$40,000,000.00" in the first sentence.

§ 8065. Reserve funds.

  1. The Authority may create and establish one or more special funds, herein referred to as "debt service reserve funds," and shall pay into each such debt service reserve fund:
    1. any monies appropriated and made available by the State for the purpose of such fund;
    2. any proceeds of the sale of notes or bonds, to the extent provided in the resolution or resolutions of the Authority authorizing the issuance thereof; and
    3. any other monies which may be made available to the Authority for the purpose of such fund from any other source or sources.
  2. All monies held in any debt service reserve fund, except as hereinafter provided, shall be used, as required, solely for the payment of the principal of bonds secured in whole or in part by such fund or of the sinking fund payments hereinafter mentioned with respect to such bonds, the purchase or redemption of such bonds, the payment of interest on such bonds, or the payment of any redemption premium required to be paid when such bonds are redeemed prior to maturity; provided, however, that monies in any such fund shall not be withdrawn therefrom at any time in such amount as would reduce the amount of such fund to less than the debt service reserve requirement established by resolution of the Authority for such fund as hereafter provided except for the purpose of making with respect to bonds secured in whole or in part by such fund payments, when due, of principal, interest, redemption premiums, and the sinking fund payments hereinafter mentioned for the payment of which other monies of the Authority are not available. Any income or interest earned by, or increment to, any debt service reserve fund due to the investment thereof may be transferred by the Authority to other funds or accounts of the Authority to the extent it does not reduce the amount of such debt service reserve fund below the debt service reserve requirement for such fund.
  3. The Authority shall not at any time issue bonds or notes secured in whole or in part by a debt service reserve fund if upon the issuance of such bonds or notes the amount in such debt service reserve fund will be less than the debt service reserve requirement established by resolution of the Authority for such fund, unless the Authority at the time of issuance of such bonds shall deposit in such fund from the proceeds of the bonds or notes so to be issued, or from other sources, an amount that, together with the amount then in such fund, will not be less than the debt service reserve requirement established for such fund. The debt service reserve requirement for any debt service reserve fund shall be established by resolution of the Authority prior to the issuance of any bonds or notes secured in whole or in part by such fund and shall not be required to exceed "maximum debt service." For the purposes of this section, the term "maximum debt service" shall mean, as of any particular date of computation, an amount of money equal to the greatest of the respective amounts, for the then current or any future fiscal year of the Authority, of annual debt service on the bonds of the Authority secured or to be secured in whole or in part by such debt service reserve fund, such annual debt service for any fiscal year being the amount of money equal to the aggregate of:
    1. all interest payable during such fiscal year on all bonds secured in whole or in part by such debt service reserve fund outstanding on the date of computation; plus
    2. the principal amount of all such bonds outstanding on such date of computation that mature during such fiscal year; plus
    3. all amounts specified in any resolution of the Authority authorizing such bonds as payable during such fiscal year as a sinking fund payment with respect to any of such bonds that mature after such fiscal year.
  4. In computing the amount of the debt service reserve funds for the purpose of this section, securities in which all or a portion of such funds shall be invested shall be valued at par if purchased at par or at amortized value, as such term is defined by resolution of the Authority, if purchased at other than par.
  5. In order to assure the maintenance of the debt service reserve requirement in each debt service reserve fund established by the Authority, there may be appropriated annually and paid to the Authority for deposit in each such fund such sum as shall be certified by the Chair of the Authority to the Governor, the President of the Senate, and the Speaker of the House as is necessary to restore each such debt service reserve fund to an amount equal to the debt service reserve requirement for such fund. The Chair shall annually, on or about February 1, make and deliver to the Governor, the President of the Senate, and the Speaker of the House his or her certificate stating the sum required to restore each such debt service reserve fund to the amount aforesaid, and the sum so certified may be appropriated, and if appropriated, shall be paid to the Authority during the then current State fiscal year. The principal amount of bonds or notes outstanding at any one time and secured in whole or in part by a debt service reserve fund to which State funds may be appropriated pursuant to this subsection shall not exceed $40,000,000.00, provided that the foregoing shall not impair the obligation of any contract or contracts entered into by the Authority in contravention of the Constitution of the United States of America.
  6. The Authority shall create and establish such other fund or funds as may be necessary or desirable for its corporate purposes.

    Added 2007, No. 79 , § 1, eff. June 9, 2007.

§ 8066. Refunding obligations - Issuance and sale.

  1. The Authority may provide for the issuance of refunding obligations for the purpose of refunding any obligations then outstanding that have been issued under the provisions of this chapter, including the payment of any redemption premium thereon and any interest accrued or to accrue to the date of redemption of such obligations and for any corporate purpose of the Authority. The issuance of such obligations, the maturities and other details thereof, the rights of the holders thereof, and the rights, duties, and obligations of the Authority in respect of the same shall be governed by the provisions of this chapter that relate to the issuance of obligations, insofar as those provisions may be appropriate.
  2. Refunding obligations issued as provided in this section may be sold or exchanged for outstanding obligations issued under this chapter and, if sold, the proceeds thereof may be applied, in addition to any other authorized purposes, to the purchase, redemption, or payment of such outstanding obligations. Pending the application of the proceeds of any refunding obligations, with any other available funds, to the payment of the principal, accrued interest and any redemption premium on the obligations being refunded, and, if so provided or permitted in the resolution authorizing the issuance of such refunding obligations or in the trust agreement securing them to the payment of any interest on such refunding obligations and any expenses in connection with such refunding, such proceeds may be invested in direct obligations of, or obligations the principal of and the interest on which are unconditionally guaranteed by, the United States of America, and which shall mature or which shall be subject to redemption by the holders thereof, at the option of such holders, not later than the respective dates when the proceeds, together with the interest accruing thereon will be required for the purposes intended.

    Added 2007, No. 79 , § 1, eff. June 9, 2007.

§ 8067. Remedies of bondholders and note holders.

  1. In the event that the Authority defaults in the payment of principal or of interest on any bonds or notes issued under this chapter after they become due, whether at maturity or upon call for redemption, and the default continues for a period of 30 days, or in the event that the Authority fails or refuses to comply with the provisions of this chapter or defaults in any agreement made with the holders of an issue of bonds or notes of the Authority, the holders of 25 percent in aggregate principal amount of the bonds or notes of such issue then outstanding, by instrument or instruments filed in the Office of the Secretary of State and proved or acknowledged in the same manner as a deed to be recorded, may appoint a trustee to represent the holders of such bonds or notes for the purposes herein provided.
  2. Such trustee may, and upon written request of the holders of 25 percent in principal amount of such bonds or notes then outstanding shall, in his or her or its own name:
    1. enforce all rights of the bondholders or note holders, including the right to require the Authority to carry out any agreements with the holders of such bonds or notes and to perform its duties under this chapter;
    2. enforce all rights of the bondholders or note holders, including the right to collect and enforce the payment of amounts due to the Authority, so as to carry out any contract as to, or pledge of revenues, and to require the Authority to carry out and perform the terms of any contract with the holders of such bonds or notes or its duties under this chapter;
    3. bring suit upon all or any part of such bonds or notes;
    4. by action or suit, require the Authority to account as if it were the trustee of an express trust for the holders of such bonds or notes;
    5. by action or suit, enjoin any acts or things that may be unlawful or in violation of the rights of the holders of such bonds or notes;
    6. declare all such bonds or notes due and payable, and, if all defaults shall be made good, with the consent of the holders of 25 percent of the principal amount of such bonds or notes then outstanding to annul the declaration and its consequences.
  3. The trustee shall in addition to the foregoing have and possess all the powers necessary or appropriate for the exercise of any functions specifically set forth herein or incident to the general representation of bondholders or note holders in the enforcement and protection of their rights.
  4. Before declaring the principal of bonds or notes due and payable, the trustee shall first give 30 days' notice in writing to the Governor, to the Authority, and to the Attorney General of the State.
  5. The Superior Court or courts with equity jurisdiction shall have jurisdiction of any suit, action, or proceeding by the trustee on behalf of bondholders or note holders.

    Added 2007, No. 79 , § 1, eff. June 9, 2007.

§ 8068. Pledge of the State.

The State does hereby pledge to and agree with the holders of the notes and bonds issued under this chapter that the State will not limit or restrict the rights hereby vested in the Authority to perform its obligations and to fulfill the terms of any agreement made with the holders of its bonds or notes or in any way impair the rights and remedies of the holders until the notes and bonds, together with interest thereon, and interest on any unpaid installments of interest, are fully met, paid, and discharged. The Authority is authorized to execute this pledge and agreement of the State in any agreement with the holders of the notes or bonds.

Added 2007, No. 79 , § 1, eff. June 9, 2007.

§ 8069. Sovereign immunity; credit of State not pledged.

The Authority shall have the benefit of sovereign immunity to the same extent as the State of Vermont. Members, officers, employees, and the Executive Director of the Authority shall be deemed employees of the State for purposes of 12 V.S.A. chapter 189 (tort claims against State) and 3 V.S.A. chapter 29 (claims against State employees). Notwithstanding the foregoing, obligations issued under the provisions of this chapter shall not be deemed to constitute a debt or liability or obligation of the State or of any political subdivision thereof or a pledge of the faith and credit of the State or of any political subdivision but shall be payable solely from the revenues or assets of the Authority. Each obligation issued under this chapter shall contain on the face thereof a statement to the effect that the Authority shall not be obligated to pay the same nor the interest thereon except from the revenues or assets pledged therefor and that neither the faith and credit nor the taxing power of the State or of any political subdivision thereof is pledged to the payment of the principal of or the interest on such obligations.

Added 2007, No. 79 , § 1, eff. June 9, 2007.

§ 8070. Notes and bonds as legal investments.

Notwithstanding any other law, the State and all public officers, governmental units, and agencies thereof, all banks, trust companies, savings banks and institutions, building and loan associations, savings and loan associations, investment companies, and other persons carrying on a banking business, all insurance companies, insurance associations and other persons carrying on an insurance business, all credit unions, and all executors, administrators, guardians, trustees, and other fiduciaries may legally invest any sinking funds, monies, or other funds belonging to them or within their control in any bonds or notes issued under this chapter, and the bonds or notes are authorized security for any and all public deposits.

Added 2007, No. 79 , § 1, eff. June 9, 2007.

§ 8071. Quarterly and annual reports; audit.

  1. Annual reports.  On or before the last day of January of each calendar year, the Authority shall submit a report of its activities for the preceding fiscal year to the Governor and to the General Assembly. Each report shall set forth a complete operating and financial statement covering its operations during the year. The Authority shall cause an audit of its books and accounts to be made at least once in each year by certified public accountants; the cost shall be considered an expense of the Authority and a copy shall be filed with the State Treasurer. Audits performed by a public accountant under this section shall be conducted in accordance with generally accepted government auditing standards, including the issuance of a report on internal control over financial reporting that shall be provided to recipients of the financial statements.
  2. Auditor examinations.  The Auditor of Accounts of the State and his or her duly authorized representatives may at any time examine the accounts and books of the Authority including its receipts, disbursements, contracts, sinking funds, investments, and any other matters relating to its financial statements.
  3. Quarterly reports.  Within 30 days of the end of each quarter, the Authority shall, in addition to any other reports required under this section, submit a report of its activities for the preceding quarter to the House Committee on Corrections and Institutions and the Senate Committee on Institutions which shall include the following:
    1. a description of all Authority activities to develop or facilitate development of telecommunications infrastructure that furthers the objectives of this chapter;
    2. financial statements of the Authority, a summary of expenditures by the Authority since inception, and a forecast of expenditures;
    3. a summary of any financial commitments made by the Authority;
    4. a list and summary of all contracts and agreements entered into by the Authority, and a list and summary of any rail right-of-way agreements entered into by the Authority, including any waivers of charges for comparable value to the State granted under 19 V.S.A. § 26a ;
    5. a current business plan for the Authority, including an explanation of significant changes subsequent to the most recent previous report;
    6. identification of the impact of its activity on existing business providers.
  4. Summaries.  The Authority shall include in the annual report required under subsection (a) of this section a summary of all the information quarterly reported to the House Committee on Corrections and Institutions and the Senate Committee on Institutions under subsection (c) of this section, as well as a summary of any and all instances in which service providers that have entered into contracts or binding commitments with the Authority have materially defaulted, been unable to fulfill their commitments, or have requested or been granted relief from contractual or binding commitments.

    Added 2007, No. 79 , § 1, eff. June 9, 2007; amended 2011, No. 53 , § 19, eff. May 27, 2011; 2011, No. 139 (Adj. Sess.), § 29, eff. May 14, 2012.

History

Amendments--2011 (Adj. Sess.). Subsecs. (c) and (d): Substituted "house committee on corrections and institutions and the senate committee on institutions" for "secretary of administration".

Amendments--2011. Catchline: Added "Quarterly and" preceding "annual".

Subsec. (a): Added the last sentence.

Subsecs. (c) and (d): Added.

§ 8072. Repealed. 2011, No. 53, § 20, eff. May 27, 2011.

History

Former § 8072. Former § 8072, relating to annual oversight reports, was derived from 2007, No. 79 , § 1.

§ 8073. Authorization to accept appropriated monies.

The Authority is authorized to accept and expend such monies as may be appropriated or approved from time to time by the General Assembly for effectuating its corporate purposes including the payment of the initial expenses of administration and operation and the establishment of reserves or contingency funds to be available for the payment of the principal of and the interest on any bonds, notes, or other obligations of the Authority.

Added 2007, No. 79 , § 1, eff. June 9, 2007.

History

2016. In this section, ", without limitation," was deleted following "including" in accordance with 2013, No. 5 § 4.

§ 8074. Tax exemption.

  1. All property of the Authority is public property devoted to an essential public and governmental function and purpose and is exempt from all taxes, franchise fees, and special assessments of whatever nature of the State or any subdivision. All bonds or notes issued by the Authority or a municipality under this chapter are issued by a body corporate and public of this State and for an essential public and governmental purpose, and those bonds and notes and the interest thereon and the income therefrom and all activities of the Authority and fees, charges, funds, revenues, incomes, and other monies of the Authority, whether or not pledged or available to pay or secure the payment of those bonds or notes, or interest thereon, are exempt from all taxation, franchise fees, or special assessments of whatever kind except for transfer, inheritance, and estate taxes. This section shall not prevent a municipality from assessing and collecting from the Authority any excavation or construction fees otherwise charged by the municipality.
  2. The Authority is not required to make or file any reports, statements, or informational returns required of any other bodies corporate except as provided in this chapter.
  3. Buildings and structures of the Authority exempted from property taxation under this section shall be considered "State-owned property" for the purposes of the State payment in lieu of taxes (PILOT) provisions of 32 V.S.A. chapter 123, subchapter 4.

    Added 2007, No. 79 , § 1, eff. June 9, 2007.

§ 8075. Liberal construction.

Neither this chapter nor anything herein contained is or shall be construed as a restriction or limitation upon any powers that the Authority might otherwise have under any laws of this State, and this chapter is cumulative to any such powers. This chapter does and shall be construed to provide a complete, additional, and alternative method for the doing of the things authorized thereby and shall be regarded as supplemental and additional to powers conferred by other laws.

Added 2007, No. 79 , § 1, eff. June 9, 2007.

§ 8076. Inconsistent provisions in other laws superseded.

Insofar as the provisions of sections 8064 through 8074 of this title are inconsistent with the provisions of any other law, general, special, or local, the provisions of this chapter shall be controlling.

Added 2007, No. 79 , § 1, eff. June 9, 2007.

§ 8077. Repealed. 2013, No. 190 (Adj. Sess.), § 13, effective July 1, 2015.

History

Former § 8077. Former § 8077, relating to the establishment of minimum technical service characteristic objectives, was derived from 2007, No. 79 , § 1 and amended by 2009, No. 54 , § 51.

§ 8078. Selection of proposals to provide competitive process.

  1. Broadband service; competitive process.
    1. In this chapter, a premise is "served" with broadband service if it has access to mass-market broadband services meeting the minimum technical characteristics identified pursuant to section 8077 of this title. In this chapter, with respect to broadband service, "unserved area" shall mean a contiguous geographic area of the State, without regard to municipal boundaries or size of geographic area, which contains premises that can obtain basic telephone service but are not served.
    2. The Authority shall seek to enable the development of networks and telecommunications infrastructure necessary to support provision of mass-market broadband services, in all unserved areas of the State, which meet or exceed the minimum technical characteristics identified pursuant to section 8077 of this title.
    3. The Authority shall establish and utilize an open and competitive process to solicit proposals to eliminate unserved areas through the development of telecommunications facilities or through binding commitments from service providers to offer broadband service to all unserved areas in a given region. For the purposes of this process, the Authority may divide the State into one or more regions. The Authority shall undertake substantial efforts to complete the process of competitively soliciting proposals by June 30, 2012. The Authority shall solicit and accept broadband service expansion commitments in a manner that allows small locally based broadband providers a reasonable opportunity to contribute toward realization of the policy objectives of this chapter. In evaluating proposals, the Authority shall consider:
      1. the proposed data transfer rates and other data transmission characteristics of services which would be available to consumers;
      2. the price to consumers of services;
      3. the proposed cost to consumers of any new construction, equipment installation service, or facility required to obtain service;
      4. whether the proposal would utilize the best available technology which is economically feasible;
      5. the ability to achieve the Authority's objectives in the most cost-effective manner; and
      6. the availability of service of comparable quality and speed.
    4. The Authority may support or undertake projects that enable provision of broadband service in geographic areas currently served; provided that:
      1. such projects are the most cost-effective method for providing broadband services in nearby unserved areas; and
      2. before undertaking such projects, the Authority makes reasonable effort to distinguish served areas and populations from unserved areas and populations within the geographic area that the project would serve, including recognition and consideration of known or probable service extensions or upgrades.
  2. Commercial mobile radio (cellular) service, competitive process.
    1. The Authority shall seek to eliminate areas without access to commercial mobile radio service licensed by the Federal Communications Commission through the construction of facilities and binding commitments from commercial mobile radio service providers.
    2. The Authority shall seek to expand access to all services that utilize the technical standards which are commonly in use for providing voice and data services through commercial mobile radio service.
    3. The Authority shall establish and utilize an open and competitive process to solicit proposals to eliminate areas without coverage from a provider of commercial mobile radio services within the State of Vermont through the development of telecommunications facilities and through binding commitments from service providers to expand service, including all unserved areas in a given region. For the purposes of this process, the Authority may divide the State into one or more regions. The Authority shall undertake substantial efforts to complete the process of competitively soliciting proposals by June 30, 2012. In evaluating proposals, the Authority shall consider the extent to which a proposal meets coverage objectives while limiting environmental impact and providing opportunities for future development of wireless communications services.

      Added 2007, No. 79 , § 1, eff. June 9, 2007; amended 2011, No. 53 , § 21, eff. May 27, 2011; 2013, No. 190 (Adj. Sess.), § 30, eff. June 16, 2014.

History

Reference in text. Section 8077 of this title, referred to in subdiv. (a)(1), was repealed by 2013, No. 190 (Adj. Sess.), § 13.

The statutes governing the Federal Communications Commission, referred to in subdiv. (b)(1), are codified as 47 U.S.C. § 151 et seq.

2013 (Adj. Sess.) Deleted "by the end of the year 2013" in subdivs. (a)(3), (b)(1) and (3).

Amendments--2011. Section amended generally.

§ 8079. Repealed. 2013, No. 190 (Adj. Sess.), § 13, effective July 1, 2015.

History

Former § 8079. Former § 8079, relating to broadband infrastructure and investments, was derived from 2009, No. 78 (Adj. Sess.), § 11 and amended by 2009, No. 161 (Adj. Sess.), § 40 and 2011, No. 53 , § 22.

§ 8080. Agreements; telecommunications facilities.

In awarding loans or grants to entities as permitted under subdivision 8062(a)(6) of this title, the Authority shall develop terms and conditions applicable to agreements covering telecommunications infrastructure that ensure payments accrue in reasonable installments and at reasonable intervals, particularly with respect to the time period commencing after an agreement is entered into but before the telecommunications facility that is the subject of the agreement is ready for commercial use.

Added 2009, No. 78 (Adj. Sess.), § 12, eff. April 15, 2010.

CHAPTER 91A. VERMONT COMMUNITY BROADBAND BOARD

Sec.

History

Legislative findings and intent. 2021, No. 71 , § 1 provides: "(a) The General Assembly finds that:

"(1) For over a decade, Vermont has pursued many approaches and strategies designed to ensure that every Vermonter has access to reliable, affordable, high-speed broadband.

"(2) In 2018, through Acts and Resolves No. 169, the General Assembly found that broadband is essential for supporting economic and educational opportunities, strengthening health and public safety networks, and reinforcing freedom of expression and democratic, social, and civic engagement.

"(3) We further found in Act No. 169 that the lack of a thriving competitive market in Vermont, particularly in isolated locations, disadvantages the ability of consumers and businesses to protect their interests sufficiently, and we recognized that the State may exercise its traditional role in protecting consumers.

"(4) In 2019, through Acts and Resolves No. 79, the General Assembly found that despite the FCC's 'light-touch' regulatory approach under Title I of the Communications Act of 1934, rather than 'utility-style' regulation under Title II, existing broadband providers are not providing adequate service to many rural areas where fewer potential customers reduce the profitability necessary to justify network expansion.

"(5) Accordingly, reaching the last mile will require a grassroots approach founded on input from and support of local communities. Existing broadband grant programs do not offer the scale to solve this problem, and traditional capital sources typically shy away from businesses with limited revenue history and little equity or collateral.

"(6) To this end, public investment in programs and personnel that provide local communities with much-needed resources and technical assistance is required.

"(7) In 2020, the COVID-19 public health emergency served as an accelerant to the socioeconomic disparities between the connected and the unconnected in our State. Vermonters who cannot access or cannot afford broadband, many of whom are geographically isolated, face challenges with respect to distance learning; remote working; accessing telehealth services; and accessing government programs and services, including our institutions of democracy, such as the court system.

"(8) Indeed, the ongoing public health emergency has highlighted the extent to which robust and resilient broadband networks are critical to our economic future as a whole and provide a foundation for our educational, health care, public health and safety, and democratic institutions.

"(9) Broadband infrastructure is critical infrastructure fundamental to accessing other critical services in sectors such as energy, public safety, government, health care, education, and commerce.

"(10) The goal of universal broadband needs to be elevated as a top priority of the State to meet the economic, health, safety, educational, and social needs of Vermonters.

"(11) While private broadband providers have brought broadband services to many households, businesses, and locations in Vermont, significant gaps remain.

"(12) When existing broadband providers fail to achieve the goal of providing reliable, high-quality, universal broadband, it is imperative for the State to support and facilitate the construction of broadband infrastructure through financial and other means.

"(13) Communications union districts (CUDs) were created by the State to coordinate and implement creative and innovative solutions in their respective territories, particularly where existing providers are not providing adequate service that meets the needs of their residents and businesses while ensuring public accountability.

"(14) CUDs are thus positioned to be the unofficial 'provider of last resort' for broadband and ensure public accountability for serving all Vermonters within their respective service territories. Yet CUDs have limited access to financial capital necessary for expansion of broadband to unserved and underserved areas of the State.

"(15) All Vermont electric ratepayers are supporting the rollout of clean energy technologies, however not all ratepayers are able to access those technologies because they do not have access to adequate broadband. Equity in the energy sector requires universal broadband.

"(16) The Department of Public Service simultaneously plays a regulatory role in the telecommunications market while also supporting the development of CUDs in an unregulated competitive broadband market.

"(17) To ensure universal broadband in Vermont, there is a need for greater coordination of grassroots broadband solutions both among the CUDs themselves and also with respect to their other potential partners, such as electric distribution utilities, nonprofit organizations, the federal government, and private broadband providers.

"(18) In addition to broadband access, it is imperative for the State to address the critical issues of broadband affordability and adoption.

"(19) The Department of Public Service estimates that 82 percent of Vermont addresses (254,000 locations) lack access to 100 Mbps symmetrical service. The total cost to provide 100 Mbps symmetrical service to each of these locations is approximately $1,000,000,000.00. This figure is based on estimates in the Magellan Advisors' report commissioned by the Department, and it includes estimates of both fixed and variable capital costs for fiber to the premise infrastructure (Feasibility Study of Electric Companies Offering Broadband in Vermont, dated December 31, 2019).

"(b) Therefore, this act is intended to protect the public interest by:

"(1) ensuring broadband availability to all Vermonters and Vermont addresses;

"(2) ensuring public accountability for maintaining and upgrading critical broadband infrastructure;

"(3) increasing the reliability of the electric grid and ensuring equal access to clean energy services among all electric ratepayers;

"(4) protecting Vermonters' privacy and unrestricted access to the Internet;

"(5) alleviating the inherent tension the Department of Public Service currently experiences as a result of its dual roles as both regulator and community project developer;

"(6) directing public resources to the development of public broadband assets intended to provide universal access;

"(7) developing favorable taxing, financing, and regulatory mechanisms to support communications union districts; and

"(8) providing time-limited leadership for coordinating the buildout of Vermont's communications union districts and their partners and for developing financing mechanisms to fully support that buildout through a newly created State entity, the Vermont Community Broadband Board, designed specifically to effectuate these purposes."

Legislative priorities; federal funds. 2021, No. 71 , § 20 provides: "With respect to federal funds potentially available to the State of Vermont in fiscal years 2021 and 2022, the General Assembly establishes as a high priority providing support for community efforts that advance the State's goal of achieving universal access to reliable, high-quality, affordable broadband consistent with the policies, purposes, and programs established under 30 V.S.A. chapter 91A, concerning the Vermont Community Broadband Board established in Sec. 2 of this act."

§ 8081. Purpose.

In recognition of the historic level of broadband funding currently available to the State and the critical need for broadband access and adoption, it is the purpose of this chapter to establish the Vermont Community Broadband Fund to support policies and programs designed to accelerate community efforts that advance the State's goal of achieving universal access to reliable, high-quality, affordable, fixed broadband and to establish the Vermont Community Broadband Board to coordinate, facilitate, support, and accelerate the development and implementation of universal community broadband solutions.

Added 2021, No. 71 , § 2, eff. June 8, 2021.

§ 8082. Definitions.

As used in this chapter:

  1. "Board" means the Vermont Community Broadband Board.
  2. "Broadband service" or "broadband" means a mass-market retail service by wire or radio in Vermont that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service.
  3. "Department" means the Department of Public Service.
  4. "Eligible provider" means:
    1. a communications union district;
    2. a small communications carrier; or
    3. an Internet service provider working in conjunction with a communications union district to expand broadband service to unserved and underserved locations as part of a plan to achieve universal broadband coverage in the district.
  5. "Fund" means the Vermont Community Broadband Fund established by this chapter.
  6. "Internet service provider" means a business that provides broadband Internet access service to any person in Vermont.
  7. "Location" means an E-911 business or residential address connected to the electric power grid.
  8. "Municipality" means a city, town, incorporated village, or unorganized town or gore.
  9. "Served" means a location that has access to broadband service capable of speeds of at least 25 Mbps download and 3 Mbps upload.
  10. "Small communications carrier" means:
    1. a carrier that has elected to be regulated under subsection 227d(a) of this title; or
    2. an Internet service provider that operates in not more than five counties.
  11. "Underserved" means a location that only has access to broadband service capable of speeds of at least 4 Mbps download and 1 Mbps upload but less than 25 Mbps download and 3 Mbps upload.
  12. "Universal service plan" means a plan for providing each unserved and underserved location in a communications union district or in a municipality that was not part of a communications union district prior to June 1, 2021 access to broadband service capable of speeds of at least 100 Mbps download and 100 Mbps upload.
  13. "Unserved" means a location that only has access to broadband capable of speeds of less than 4 Mbps download and 1 Mbps upload.

    Added 2021, No. 71 , § 2, eff. June 8, 2021.

§ 8083. Vermont Community Broadband Fund.

  1. There is created a special fund in the State Treasury to be known as the "Vermont Community Broadband Fund." Expenditures from the Fund shall be made only to implement and effectuate the policies, purposes, and programs established in this chapter. The Fund shall be composed of any monies from time to time appropriated to the Fund by the General Assembly, transferred to the Fund pursuant to subsection 7523(b) of this title, or received from any other source, private or public, subject to the provisions of 32 V.S.A. § 5 . Unexpended balances and any earnings shall remain in the Fund for use in accord with the purposes of this chapter.
  2. Authorized expenditures from the Fund include:
    1. grants pursuant to the Broadband Preconstruction Grant Program established in section 8085 of this chapter;
    2. grants pursuant to the Broadband Construction Grant Program established in section 8086 of this chapter;
    3. funding for communications workforce training and development, in consultation with the Commissioner of Labor, to the extent such funds are not available from other funding sources;
    4. funding for a comprehensive, statewide fiber-optic engineering design as specified in subdivision 8084(a)(6)(I) of this chapter;
    5. administrative expenses of grant recipients in an amount determined by the Board, subject to applicable federal law and guidance; and
    6. up to $1,500,000.00 annually to fund the operational expenses of the Board and the Department to the extent the Department's expenses support the work of the Board.
  3. Expenditures from the Fund shall be authorized by the Board.

    Added 2021, No. 71 , § 2, eff. June 8, 2021.

§ 8084. Vermont Community Broadband Board.

  1. Vermont Community Broadband Board.
    1. There is created within the Department of Public Service the Vermont Community Broadband Board. The Board shall have approval authority with respect to budget development, program design, grant awards, and all other funding allocations pursuant to this chapter.
    2. The Board shall consist of five members as follows:
      1. two members appointed by the Governor who shall not be employees or officers of the State at the time of the appointment and at least one of whom shall have expertise in the area of finance and one of whom shall be selected by the Governor to serve as the Chair;
      2. one member appointed by the Speaker of the House who shall not be a member of the General Assembly at the time of the appointment and who shall have expertise in the area of broadband deployment in rural, high-cost areas;
      3. one member appointed by the Senate Committee on Committees who shall not be a member of the General Assembly at the time of the appointment and who shall have expertise in the area of communications and electric utility law and policy; and
      4. one member appointed by the Vermont Communications Union District Association.
    3. The members may not be persons with a financial interest in or owners, employees, or members of a governing board of an Internet service provider or a communications union district; however, this provision shall not be construed to disqualify a member who has ownership in a mutual fund, exchange-traded fund, pension plan, or similar entity that owns shares in such enterprises as part of a broadly diversified portfolio. Members shall serve terms of three years beginning on February 1 of the year of appointment; however, the members first appointed by the Governor shall serve initial terms of four years, the member first appointed by the Speaker of the House shall serve an initial term of three years, and the member first appointed by the Committee on Committees shall serve an initial term of two years. A vacancy shall be filled by the respective appointing authority for the balance of the unexpired term. A member may be reappointed. A member may be removed for cause only.
    4. At its initial organizational meeting, and annually thereafter at the first meeting following February 1, the Board shall elect from among its members a vice chair. The Board may elect officers as it may determine. Meetings shall be held at the call of the Chair or at the request of two members. A majority of sitting members shall constitute a quorum, and action taken by the Board under the provisions of this chapter may be authorized by a majority of the members present and voting at any regular or special meeting.
    5. Members are entitled to a per diem in the amount of $250.00 for each day spent in the performance of their duties and each member shall be reimbursed for his or her reasonable expenses incurred in carrying out his or her duties under this chapter.
    6. The Board shall have all the powers necessary and convenient to carry out and effectuate the purposes and provisions of this chapter, including the power to:
      1. coordinate and facilitate community broadband efforts;
      2. provide resources to communications union districts in the form of administrative and technical support;
      3. provide grants for the preconstruction and construction costs of broadband projects;
      4. facilitate partnerships between communications union districts and their potential partners;
      5. develop policies or recommend to the General Assembly programs that promote a strong communications workforce in Vermont;
      6. develop policies or recommend to the General Assembly programs that promote access to affordable broadband service plans;
      7. consult with the Vermont Economic Development Board and the Vermont Municipal Bond Bank with regard to financing community broadband projects;
      8. identify and publish State, federal, nonprofit, and any other broadband funding opportunities;
      9. contract for a comprehensive, statewide fiber-optic engineering design to identify strategies that maximize fiber-optic buildout efficiency and ensure resiliency and interoperability of all existing fiber-optic networks built with public or ratepayer funds, and that takes into consideration all proposed publicly funded fiber-optic projects, the development of which shall not be required or impede the disbursement of grants under this chapter;
      10. provide input to the Department of Public Service on the development of the State's Telecommunications Plan; and
      11. do any and all things necessary or convenient to effectuate the purposes and provisions of this chapter and to carry out its purposes and exercise the powers given and granted in this chapter.
    7. The Department shall provide the Board with administrative services.
    8. All meetings of the Board shall be open to the public and conducted in accordance with the Vermont Open Meeting Law. All records of the Board are subject to the Vermont Public Records Act. Any records or information produced or acquired by the Board that are trade secrets or confidential business information shall be exempt from public inspection and copying pursuant to 1 V.S.A. § 317(c)(9) .
  2. Executive Director.
    1. The Vermont Community Broadband Fund shall have an Executive Director. The initial Executive Director shall be appointed by the Governor with the advice and consent of the Senate, and subsequent executive directors shall be hired by the Board. The Executive Director shall be an employee of the Department of Public Service. The Executive Director shall be overseen and managed by the Board and shall serve as its chief administrative officer. The Executive Director shall direct and supervise the Board's administrative affairs and technical activities in accordance with Board policies. In addition to any other duties necessary for carrying out the purposes of this chapter, the Executive Director shall:
      1. work with the Board in developing and implementing the programs established by this chapter;
      2. approve all accounts of the Board, including accounts for salaries, per diems, and allowable expenses of any employee or consultant thereof and expenses incidental to the operation of the Board;
      3. make recommendations to the Board for grant awards or other forms of financial or technical assistance authorized by this chapter;
      4. make an annual report to the Board documenting the actions of the Board and such other reports as the Board may request; and
      5. perform such other duties as may be directed by the Board in the carrying out of the purposes and provisions of this chapter.
    2. The Executive Director may retain or employ technical experts and other officers, agents, employees, and contractors as are necessary to give effect to the purposes of this chapter, including in the areas of finance, network planning, engineering and technical design, and grant writing, and may fix their qualifications, duties, and compensation. The Executive Director shall oversee and manage the Rural Broadband Technical Assistance Specialist created in subsection 7523(b) of this title. The Executive Director is authorized to hire additional full-time employees pursuant to this subdivision who shall be part of the classified service created in 3 V.S.A. chapter 13.
  3. Administration.  The Fund shall be administered by the Department. The Department is authorized to expend monies from the Fund in accordance with this chapter. The Commissioner shall make all decisions necessary to implement this chapter and administer the Fund except those decisions committed to the Board under this section. The Department shall ensure an open public process in the administration of the Fund for the purposes established in this chapter.
  4. Grant administration redesignation.  The Board shall be redesignated as the responsible entity for administering the $1,000,000.00 grant award to the Department of Public Service by the Northern Border Regional Commission for the purpose of supporting communications union districts. Any position funded by the grant shall be overseen and managed by the Board in a manner that is consistent with grant terms and conditions.

    Added 2021, No. 71 , § 2, eff. June 8, 2021.

§ 8085. Broadband Preconstruction Grant Program.

  1. There is established the Community Broadband Preconstruction Grant Program to be administered by the Board. The purpose of the Program is to provide grants to communications union districts for preconstruction costs related to broadband projects that are part of a universal service plan.
  2. As used in this section, "preconstruction costs" include expenses for feasibility studies, business planning, pole data surveys, engineering and design, and make-ready work associated with the construction of broadband networks, including consultant, legal, and administrative expenses, and any other costs deemed appropriate by the Board.
  3. To ensure an equitable distribution of funds under this Program and to encourage collaborative work among communications union districts, grant awards shall be scalable and shall be commensurate with the size of a broadband project as determined by the project's service area, road mileage, the number of unserved or underserved locations, or any other metric deemed appropriate by the Board. In addition, the Board may develop standards for the disbursement of grant funds in a manner that both supports the efficient and timely use of funds and also ensures accountability.

    Added 2021, No. 71 , § 2, eff. June 8, 2021.

§ 8086. Broadband Construction Grant Program.

  1. There is established the Broadband Construction Grant Program to finance the broadband projects of eligible providers that are part of a universal service plan.
  2. In evaluating grant proposals under this chapter, the Board shall give priority to broadband projects that:
    1. leverage existing private resources and assets, with a high priority given to partnerships between a communications union district and a distribution utility;
    2. demonstrate project readiness;
    3. provide broadband service that complies with the consumer protection and net neutrality standards established in 3 V.S.A. § 348 ;
    4. support low-income or disadvantaged communities;
    5. promote geographic diversity of fund allocations;
    6. provide consumers with affordable service options; and
    7. include public broadband assets that can be shared by multiple service providers and that can support a variety of public purposes.
  3. The Board shall establish policies and standard grant terms and conditions that:
    1. reflect payment schedules that ensure maximum accountability;
    2. adopt an industry-accepted engineering standard that promotes network reliability, resiliency, and interoperability;
    3. establish standards for recouping grant funds and transferring ownership of grant-funded network assets to the State if a grantee materially fails to comply with the terms and conditions of a grant;
    4. establish a continuity of operations plan applicable to a network owned by a communications union district that, among other things, contemplates the Board assuming operational control of a network if necessary to maintain uninterrupted broadband service;
    5. prohibit the sale or transfer of grant-funded network assets without the prior written approval of the Board;
    6. allow an applicant to seek reconsideration of an adverse Board decision;
    7. ensure project completion within a reasonable period of time and consistent with applicable federal law and guidance; and
    8. comply with Administrative Bulletin No. 5, the Agency of Administration's policy for grant issuance and monitoring, and Administrative Bulletin 3.5, the Agency of Administration's policy for procurement and contracting procedures, as appropriate, and any other requirements of federal law and guidance, if applicable.
  4. Before the Board awards a grant under this section, it shall determine that the applicant has produced a viable business plan for its proposed broadband project, which takes into consideration network engineering and design, labor needs and availability, supply-chain contingencies for equipment and materials, make-ready work, and any other relevant capital and operational expenses.
  5. The Board shall not award a grant to an eligible provider who is not a communications union district unless the Board determines that the provider's universal service plan does not conflict with or undermine the universal service plan of an existing communications union district.
  6. The Board may provide a grant to an eligible provider that enables the provision of broadband service in a geographic area currently served, provided that:
    1. the proposed project is a cost-effective method for providing broadband service to nearby unserved and underserved locations that is capable of speeds of at least 100 Mbps download and 100 Mbps upload;
    2. any overbuild is incidental to the overall objectives of the universal service plan required for funding under this Program; and
    3. before awarding the grant, the Board makes a reasonable effort to distinguish served and unserved or underserved locations within the geographic area, including recognition and consideration of known or probable service extensions or upgrades.
  7. It is the intent of the General Assembly that a broadband project financed under this Program demonstrates an economically sustainable business model that ultimately will be eligible for financing in the private or municipal bond market.

    Added 2021, No. 71 , § 2, eff. June 8, 2021.

§ 8087. Centralized resources for communications union districts.

  1. The Board shall provide centralized resources and technical and administrative support to communications union districts with respect to the planning, development, and implementation of broadband projects.
  2. In carrying out the purpose of this section, the Board shall:
    1. develop standardized forms, contracts, network business and design models, and templates for use by any communications union district;
    2. assist communications union districts with identifying and negotiating with potential partners, including with respect to the development of a memorandum of understanding or other form of legally-binding commitment pertaining to a broadband project;
    3. when authorized by one or more communications union districts, apply for grants, loans, permits, licenses, certificates, or approvals, or enter into contractual arrangements for goods or services on behalf of or jointly with a communications union district or districts;
    4. assist communications union districts with pursuing route identification for fiber-optic infrastructure and with obtaining pole surveys and negotiating pole attachments;
    5. assist communications union districts with completing grant and loan applications for funding opportunities that exist outside this chapter; and
    6. assist communications union districts with obtaining access to fiber-optic networks owned by the State or by an electric distribution utility, where appropriate.

      Added 2021, No. 71 , § 2, eff. June 8, 2021.

§ 8088. Interagency cooperation and assistance.

Other departments and agencies of the State government, including the E-911 Board, shall assist and cooperate with the Board and shall make available to it information and data as needed to assist the Board in carrying out its duties. The Secretary of Administration shall establish protocols and agreements among the Board and departments and agencies of the State for this purpose. Nothing in this section shall be construed to waive any privilege or protection otherwise afforded to the data and information under exemption to the Public Records Act or under other laws due solely to the fact that the information or data is shared with the Board pursuant to this section.

Added 2021, No. 71 , § 2, eff. June 8, 2021.

§ 8089. Annual report.

  1. Notwithstanding 2 V.S.A. § 20(d) , on or before January 15 of each year, the Board shall submit a report of its activities pursuant to this chapter for the preceding year to the Senate Committees on Finance and on Natural Resources and Energy, the House Committee on Energy and Technology, and the Joint Information Technology Oversight Committee. The report shall include an operating and financial statement covering the Board's operations during the year, including a summary of all grant awards and contracts and agreements entered into by the Board. In addition, the report shall include a description of the progress each start-up communications union district has made in achieving long-term financial sustainability that is not dependent upon public funding, an update on its efforts to secure additional federal funds for broadband deployment, and progress made towards meeting the State's goal of ensuring every E-911 location has access to broadband capable of delivering a minimum of 100 Mbps symmetrical service as required in subdivision 202c(b)(10) of this title.
  2. As part of its first annual report, the Board shall include recommended legislation for policies and programs not authorized under this chapter but consistent with its purpose or for any other policies and programs it deems appropriate. The report shall include recommendations concerning increased access to and use of fiber-optic networks owned by the State or by an electric distribution utility in furtherance of the goals of this chapter. In addition, and with input from relevant stakeholders, the Board shall make recommendations on whether and to what extent authorized expenditures under the Fund should be expanded to include:
    1. funding for equipment replacement in the Department of Libraries' FiberConnect Network;
    2. funding for building-wide Wi-Fi installations at multi-unit affordable housing owned by nonprofits and housing authorities for the purpose of providing free broadband service to the residents thereof;
    3. funding for digital inclusion efforts, such as subsidized customer equipment installations and broadband service, grants for long-term affordability planning, and outreach and digital literacy training;
    4. funding for co-worker spaces;
    5. additional funding for communications workforce development initiatives; and
    6. funding for any other broadband programs or initiatives.

      Added 2021, No. 71 , § 2, eff. June 8, 2021.

§ 8089a. Sunset; transfer plan.

  1. The Fund and Board shall cease to exist on July 1, 2029.
  2. As part of its annual report submitted on or before January 15, 2029, the Board shall develop a plan for transferring its assets, liabilities, and legal and contractual obligations to another appropriate State entity. The Board may include in its report a recommendation regarding the continued existence of the Board beyond its statutory sunset date.

    Added 2021, No. 71 , § 2, eff. June 8, 2021.

CHAPTER 92. ELECTRIC AND GAS COMPANIES; PROVIDING ACCESS FOR COMMUNICATIONS FACILITIES

Sec.

History

Legislative findings and purpose. 2007, No. 131 (Adj. Sess.), § 1 provides: "The general assembly finds that:

"(1) As found in 30 V.S.A. § 8060(a)(1): 'The availability of mobile telecommunications and broadband services is essential for promoting the economic development of the state, the education of its young people and life-long learning, the delivery of cost-effective health care, the public safety, and the ability of citizens to participate fully in society and civic life.'

"(2) Electric and gas companies have networks that extend throughout the state. Some of these networks can be leveraged to improve the economics of deploying mobile telecommunications and broadband service throughout the state.

"(3) Electric and gas companies hold easements that allow for specific utility use, but certain of these easements may not allow for the attachment or the installation of communications facilities.

"(4) Therefore, the goals of the general assembly in this act are to ensure that electric and gas utilities allow and enable access to their facilities and easements to communications companies as a necessary element of serving the public good in a flexible manner that is fair to both the utilities' ratepayers and customers of communications service providers."

Investigation into substation networks. 2007, No. 131 (Adj. Sess.), § 5 provides: "The public service board shall conduct an investigation into the benefits and costs of construction of fiber-optic or other telecommunications facility networks linking electric company substations and submit a report to the committees of jurisdiction of the general assembly on or before January 15, 2009. In addition to other information it deems appropriate, the public service board shall require from each electric company an analysis of the likely cost of connecting its substations with fiber-optic facilities and other alternative means, and the benefits to electric company operations, including benefits for system management and reliability. If it finds good cause to do so, the board may excuse companies without more than one substation and companies which have already connected all company substations with fiber-optic facilities. In the event that the public service board determines that the benefit of such a network exceeds its costs, it shall recommend an implementation schedule for construction of such a network and include the schedule in its report. The board may issue an implementation schedule for individual companies prior to January 15, 2009."

§ 8090. Definitions.

For the purposes of this chapter:

  1. "Communications facilities" shall mean facilities that are used to send and receive audio, images, data, or other information via any electromagnetic media, including wires, cables, microwaves, radio waves, light waves, or any combination of these or similar media.
  2. "Communications service provider" shall mean the Vermont Telecommunications Authority, a company subject to the jurisdiction of the Public Utility Commission under subdivision 203(5) or section 502 of this title, or a broadband service provider who is considered to be an "attaching entity" pursuant to subsection 209(g) of this title.
  3. "Company" or "companies" shall mean an electric or gas utility subject to the jurisdiction of the Public Utility Commission.

    Added 2007, No. 131 (Adj. Sess.), § 2.

§ 8091. Access to facilities.

  1. Any company shall allow and enable access to its plant and equipment where possible for the installation and maintenance of communications facilities by communications service providers.
  2. When constructing or substantially reconstructing lines or structures used for electric or gas transmission or electric distribution, a company shall allow for the construction and maintenance of communications facilities thereupon if requested by a communications service provider.
  3. Access and services required by this section shall be subject to regulation by the Public Utility Commission and the Department of Public Service and shall be offered on rates, terms, and conditions, including terms of ownership of facilities, established in section 8092 of this chapter, except that services under tariffs developed pursuant to Public Utility Commission rules regarding pole attachments shall be governed by those rules.
  4. Owners of self-generation facilities, those not connected to the electric grid and net-metered generators, shall not be obligated to comply with this section.
  5. If a communications service provider requests services from a company pursuant to this title, then the communications service provider shall be responsible for all of the costs the company incurs to obtain any easements or limited rights in property necessary to provide those services to the communications service provider, including compensation, legal fees, and the administrative costs of the utility.

    Added 2007, No. 131 (Adj. Sess.), § 2.

§ 8092. Rates; terms; conditions.

  1. Any company providing electric or gas service under Public Utility Commission jurisdiction pursuant to this title shall prepare and file with the Public Utility Commission, with a copy provided to the Commissioner of Public Service and the Director for Public Advocacy, a statement of generally available rates, terms, and conditions for attachments and installations required under section 8091 of this chapter. The nature and specificity of such statement may take into account the nature and size of the company, an assessment of the types of communications facilities for which requests are most likely, and such other factors as necessary to ensure that the rates, terms, and conditions set forth in the statement are sufficiently flexible to meet the capacities of the company, the interests of the company's ratepayers, and the goal of facilitating broadband and wireless service.
  2. The Department and the Commission shall review the statement of generally available rates, terms, and conditions filed by each company. In the event that the Commission or the Department has grounds to believe that the rates, terms, or conditions are not just and reasonable, the Commission may open an investigation into the statement. In the absence of an investigation, or while such an investigation is pending, the company's filed statement of rates, terms, and conditions shall take effect or shall remain in effect without requiring the approval of the Commission. Changes to any company's filed statement of rates, terms, and conditions shall not take effect until 45 days after the statement has been filed with the Commission and the Department.
  3. In the event of a Commission investigation into a company's statement of rates, terms, and conditions pursuant to this chapter, the Commission may alter or change the rates, terms, or conditions in effect for attachments and installations after notice and hearing, upon a finding that the company's rates, terms, or conditions are not just and reasonable. In making its determination, the Commission shall consider evidence that may be presented regarding the commercial reasonableness of the rates given the local market and the public interest in reasonable rates for electric or gas service and availability of communications services in the State. Any change in rates, terms, and conditions required as a result of a Commission investigation shall be effective as of the date of the Commission's order without any refund.
  4. The statement shall include rates, terms, and conditions for services for which the company may reasonably expect to receive requests, including at a minimum:
    1. For wireline communications facilities:
      1. Attachment of communications facilities to electric transmission facilities and maintenance of these communications facilities.
      2. Contribution to construction for communications facilities installed concurrently with the construction or reconstruction of electric and gas company facilities when requested by a communications service provider.
    2. For wireless communication facilities:
      1. Attachment of communications facilities to electric transmission and generation facilities and maintenance of these communications facilities.
      2. Contribution to construction for communications facilities installed concurrently with the construction or reconstruction of electric company facilities when requested by a communications service provider.
  5. Rates, terms, and conditions for contributions to construction and for maintenance of communications facilities installed concurrently when companies are constructing or substantially reconstructing electric transmission or distribution lines or structures or gas transmission lines shall be based on the incremental cost of adding the communications facility to the project, as long as the communications facilities will provide service in the municipality in which they are located and surrounding municipalities.
  6. The company may negotiate rates, terms, and conditions of service that deviate from the statement of rates, terms, and conditions on file, but the company may not refuse a request to provide service in accordance with the rates, terms, and conditions on file. Section 229 of this title does not apply to deviations from the statement of rates, terms, and conditions, unless a company provides service pursuant to this chapter to an affiliate of the company that is not an electric or gas utility.
  7. Companies with facilities meeting the requirements of this section shall submit their statement of rates, terms, and conditions within 150 days of the date of the enactment of this legislation.
    1. A company may limit wireline attachments on electric transmission structures exclusively carrying voltages of 110 kV or higher to fiber-optic facilities attached and maintained by the company, if the company allows communications service providers to use fiber-optic facilities installed and maintained by the company and offers to install such fiber-optic facilities on such electric transmission structures where there are not sufficient facilities for use by communications service providers. Rates, terms, and conditions for access to such company-attached and company-maintained facilities shall be made available consistent with the requirements of this section. (h) (1)  A company may limit wireline attachments on electric transmission structures exclusively carrying voltages of 110 kV or higher to fiber-optic facilities attached and maintained by the company, if the company allows communications service providers to use fiber-optic facilities installed and maintained by the company and offers to install such fiber-optic facilities on such electric transmission structures where there are not sufficient facilities for use by communications service providers. Rates, terms, and conditions for access to such company-attached and company-maintained facilities shall be made available consistent with the requirements of this section.
    2. Notwithstanding any law or rule to the contrary, a company may not enter into a contract with a communications service provider that provides exclusive access to its company-attached and company-maintained fiber-optic facilities by including terms that expressly prohibit any other communications service provider from leasing or purchasing unused strands of fiber. The terms and conditions of any contract entered into under this section shall include a provision specifying that, if a communications service provider leases fiber-optic capacity but fails to use that capacity within one year from the date the contract is entered into, the communications service provider shall report such nonuse to the Department of Public Service. The Commissioner of Public Service shall determine if such nonuse constitutes anticompetitive behavior that unreasonably precludes another communications service provider from leasing fiber-optic capacity. If the Commissioner determines that such nonuse constitutes anticompetitive behavior, he or she shall commence an investigation with the Public Utility Commission. The Commission is authorized to impose a remedy it deems appropriate under the circumstances. Such remedy may include termination of the lease with respect to the unused portion of the leased fiber-optic capacity.
  8. The Public Utility Commission may establish rules to implement this chapter. Such rules may include default rates, terms, and conditions to implement subsections (c) and (h) of this section. As part of the implementation of this chapter, the Commission shall establish rules to require, to the extent the Commission is not preempted, communications providers to extend their facilities as far as the Commission's authority permits.
  9. A company having electric transmission or distribution structures carrying voltages of 110 kV or lower may not enter into a contract with a communications service provider that provides exclusive access to its company-attached and company-maintained fiber-optic facilities by including terms that expressly prohibit any other communications service provider from leasing or purchasing unused strands of fiber. The terms and conditions of any contract entered into under this section shall include a provision specifying that, if a communications service provider leases fiber-optic capacity but fails to use that capacity within one year from the date the contract is entered into, the communications service provider shall report such nonuse to the Department of Public Service. The Commissioner of Public Service shall determine if such nonuse constitutes anticompetitive behavior that unreasonably precludes another communications service provider from leasing fiber-optic capacity. If the Commissioner determines that such nonuse constitutes anticompetitive behavior, he or she shall commence an investigation with the Public Utility Commission. The Commission is authorized to impose a remedy it deems appropriate under the circumstances. Such remedy may include termination of the lease with respect to the unused portion of the leased fiber-optic capacity.

    Added 2007, No. 131 (Adj. Sess.), § 2; amended 2011, No. 53 , § 10, eff. May 27, 2011.

History

Amendments--2011. Subsec. (h): Added the subdiv. (1) designation and subdiv. (2).

Subsec. (j): Added.

§ 8093. Notification.

  1. For cases of gas transmission projects, and for projects involving electric transmission lines requiring approval pursuant to section 248 of this title, companies shall provide notice to the Vermont Telecommunications Authority at the same time that they provide notice pursuant to subdivision 248(a)(4)(C) of this title.
  2. In cases of projects involving electric transmission or distribution lines which do not require approval pursuant to section 248 of this title, and which are greater than 2,500 feet, companies under the jurisdiction of the Public Utility Commission shall notify the Vermont Telecommunications Authority of the project at least 90 days prior to planned commencement of construction for company-initiated projects, or as soon as possible for customer-initiated projects or projects required for urgent reasons of service quality or reliability.
  3. The notice shall include:
    1. the location of the project, including the town and a description of the route to be followed;
    2. the nature of the project;
    3. the date the project is planned to commence; and
    4. the contact person for the project and his or her contact information.
  4. For good cause shown by a company, the Public Utility Commission may shorten or eliminate the notice period required under this section.
  5. In the alternative to filing notice under subsection (b) of this section, a company may file with the Public Utility Commission, the Department of Public Service, and the Vermont Telecommunications Authority its capital plan or construction work plan, describing the location of linear projects which do not require approval pursuant to section 248 of this title, and in the case of a multiyear plan, the year in which a linear project is scheduled to commence. No construction called for under the capital plan or construction work plan shall commence until the plan has been on file for at least 90 days, unless the construction is required for customer-initiated projects or for urgent reasons of service quality or reliability.
  6. A company may specify in its statement of rates, terms, and conditions a deadline or procedure for requests to attach or add communications facilities to a project. Unless otherwise specified by the company in its statement of rates, terms, and conditions, a company shall provide a period for responses of not less than either 45 days after notice is provided, if the company provides notice pursuant to subsection (b) of this section, or 45 days before the planned construction commences, if the company provides notice pursuant to subsection (e) of this section. If a company does not receive a response by the deadline or according to the procedure established for responding to the notice required by this section, it may commence construction of a project prior to the end of the notice period required under subsection (b) or (e) of this section.

    Added 2007, No. 131 (Adj. Sess.), § 2.

§ 8094. Evaluation of commercial wireless networks.

  1. No company subject to Public Utility Commission jurisdiction and providing electric service shall begin construction of a two-way point-to-multipoint mobile wireless communication network for the purpose of communication between its facilities for its own personnel unless:
    1. the company has solicited proposals from commercial wireless service providers; and
    2. for solicitations issued after July 1, 2008, the company has provided notice prior to the solicitation to the Vermont Telecommunications Authority and to the Commissioner of Public Service and the Director for Public Advocacy.
  2. Nothing in this section shall be construed to authorize or disallow the costs of such a network for the purpose of a rate proceeding for the company.

    Added 2007, No. 131 (Adj. Sess.), § 2.

§ 8095. Limitation.

Nothing in this chapter limits the existing rights and obligations of entities currently authorized to attach to poles and other facilities pursuant to Commission Rule 3.700.

Added 2007, No. 131 (Adj. Sess.), § 2.

History

Reference in text. "Commission Rule 3.700" refers to a rule of the Public Utility Commission.

§ 8096. Legislative intent.

The General Assembly intends that this chapter will result in improved and increased access to mobile telecommunications and broadband services for all underserved Vermont households and businesses.

Added 2007, No. 131 (Adj. Sess.), § 2.

CHAPTER 93. VERMONT VILLAGE GREEN PILOT PROGRAM

Sec.

History

2009 This chapter, comprising of sections 8100 - 8105, was enacted by 2009, No. 45 , § 15a and by 2009, No. 54 , § 67. Both sections were identical.

Legislative findings and purpose. 2009, No. 45 , § 15 and 2009, No. 54 , § 66 provide: "The general assembly finds all of the following:

"(1) The use of fossil fuels for heat and power contributes to emissions of greenhouse gases and climate change.

"(2) Fossil fuel prices in recent years have been highly volatile, and significant potential exists for those prices to reach rates that are equal to or greater than the exceptionally high prices seen within the last few years.

"(3) Payments for fossil fuels by Vermonters involve the movement of significant sums of money outside the state and the country to pay for heating fuel, draining Vermont's economy.

"(4) The state of Vermont seeks to ensure that Vermonters obtain a greater measure of control over the environmental impacts of energy use and energy costs.

"(5) The state of Vermont seeks to increase its efforts to limit its emissions of greenhouse gases.

"(6) Community energy infrastructure that uses renewable fuels can reduce the environmental impacts of energy use and provide a community with the opportunity to obtain heat and potentially power at stable prices that reduce the economic risks associated with fossil fuels. Local energy purchases recirculate money in the Vermont economy and can provide businesses with competitive energy rates.

"(7) The state of Vermont seeks to establish incentives for communities to host energy generation that is renewable and efficiently utilized and that provides heat and potentially power to groups of commercial, industrial, or residential uses, or combinations of such uses, within the community."

§ 8100. Definitions.

In this chapter:

  1. "Commission" means the Public Utility Commission created under section 3 of this title.
  2. "Certification" or "certified," except when part of the phrase "third party certified," refers to certification of a Vermont village green renewable project by the Department under subsection 8101(b) of this title.
  3. "Combined heat and power" or "CHP" shall have the meaning stated in section 8015(b) of this title, except that:
    1. CHP excludes facilities using fossil fuel.
    2. CHP using woody biomass as a fuel must achieve, for that fuel, no less than a 50-percent net annual efficiency of energy utilized and, during the heating season, a minimum energy conversion efficiency of 70 percent considering all energy inputs and outputs at normal load.
  4. "Department" means the Department of Public Service created under section 1 of this title.
  5. "District heating" means a system for distributing heat generated in a centralized location within a host community to multiple residential, commercial, or industrial uses within that community or a combination of such uses. The source of heat may be a dedicated heat-only facility using renewable energy as a fuel or waste heat from electrical generation that uses renewable energy as a fuel to form a CHP system.
  6. "District power" means a system for distributing electricity generated in a centralized location within a host community to multiple residential, commercial, or industrial uses in that community or a combination of such uses. The electricity must be produced using renewable energy as a fuel source and may include CHP.
  7. "Host community" means the municipality in which a Vermont village green renewable project is to be located.
  8. "Renewable energy" shall have the meaning stated in subsection 8015(b) of this title, except that renewable energy using woody biomass as a fuel must achieve, for that fuel, no less than a 50-percent net annual efficiency of energy utilized and, during the heating season, a minimum energy conversion efficiency of 70 percent considering all energy inputs and outputs at normal load.
  9. "Vermont village green renewable project" means district heating, either with or without district power, to serve a downtown development district designated as such pursuant to 24 V.S.A. § 2793 or a growth center designated as such pursuant to 24 V.S.A. § 2793 c. As long as the end uses served by the project are within such a district or center, the generation of heat and power may be outside the district or center.

    Added 2009, No. 45 , § 15a, eff. May 27, 2009; 2009, No. 54 , § 67, eff. June 1, 2009.

History

2016. In subdivs. (3) and (8), corrected cross-referenced statutes in light of 2011, No. 47 , § 20m.

§ 8101. Pilot program; certification.

  1. The Vermont Village Green Renewable Pilot Program is created to consist of no more than two Vermont village green renewable projects, one each in the City of Montpelier and in the Town of Randolph. Another municipality may seek certification under this chapter in the event either the City of Montpelier or the Town of Randolph, or both, decline to seek or are denied certification.
  2. On application of a host community, the Department may certify a Vermont village green renewable project under this chapter on finding each of the following:
    1. The host community proposes a Vermont village green renewable project.
    2. The host community has submitted an application to the Commission that includes each of the following:
      1. A description and map of the proposed Vermont village green renewable project, showing its location within the host community.
      2. A complete description of the existing industrial, commercial, or residential uses to be served by the Vermont village green renewable project, of how the project will serve those uses, and of the billing, payment, and customer service arrangements.
      3. A letter submitted by the host community in support of the application and, if the host community has a town plan, the letter shall confirm that the proposed project is consistent with that plan.
      4. A letter issued by the appropriate regional planning commission indicating that the regional impacts of the proposed project and selected site have been considered and that the project conforms with the applicable regional plan.
      5. A letter from the Vermont Downtown Development Board, as described under 24 V.S.A. § 2792 , that the Development Board has been notified of the Vermont village green renewable project.
    3. The Vermont village green renewable project is consistent with the purposes of the Clean Energy Development Fund as established in section 8015 of this title.
    4. The host community will invest in the Vermont village green renewable project the incentive created under section 8102 of this title and has provided a plan that demonstrates that such investment will be made.
    5. The Vermont village green renewable project, if it uses woody biomass as a fuel, will use procurement standards, management practices, and a supply chain that are third party certified using a performance-based audit.
    6. The Vermont village green renewable project will comply with all applicable national ambient air quality standards and air pollution control regulations of the Agency of Natural Resources. If, during 2009, the U.S. Environmental Protection Agency proposes updated emissions standards applicable to wood-fueled boilers to be used in connection with the project, the project shall comply with such proposed standards.
    7. The Vermont village green renewable project meets all applicable requirements of this chapter.
  3. Notwithstanding any other provision of law, certification under this section shall not be subject to the provisions of 3 V.S.A. chapter 25 and shall not be subject to appeal.
  4. A host community does not need to obtain certification unless it seeks its Vermont village green renewable project to be eligible for incentives under section 8102 of this title or rates for electricity as provided under subsection 8104(b) of this title. Certification shall not be required to qualify for net metering under section 219a of this title.

    Added 2009, No. 45 , § 15a, eff. May 27, 2009; 2009, No. 54 , § 67, eff. June 1, 2009.

History

2016. In subdiv. (b)(2)(E), corrected cross-reference in light of 2009, No. 136 (Adj. Sess.), § 2.

In subdiv. (b)(3), corrected cross-reference in light of 2011, No. 47 , § 20m.

2009. Act No. 54, § 68 provides: "No later than July 1, 2010, the City of Montpelier and the Town of Randolph shall each issue a letter of intent to the department of public service stating whether or not the city or the town, respectively, intends to seek certification under 30 V.S.A. § 8101."

§ 8102. Incentives.

  1. The Clean Energy Development Fund created under section 8015 of this title shall provide at least $100,000.00 in incentives to customers who will connect to a certified Vermont village green renewable project. Any such incentive shall be applied by the customer to the cost of constructing the customer's connection to the project.
  2. Notwithstanding the provisions of subsection (a) of this section or any other law, on and after April 1, 2012, the Clean Energy Development Fund shall make up to $100,000.00 of funds that would otherwise have been available to customers connecting to Vermont village green renewable projects under this section available to other district heating on a competitive basis. The use of such funds shall not be limited to customer connections. For the purpose of this subsection, it shall not be necessary that the district heating be proposed by a municipality, serve a downtown development district or growth center under 24 V.S.A. § 2793 or 2793c, or obtain certification under this chapter.

    Added 2009, No. 45 , § 15a, eff. May 27, 2009; amended 2009, No. 54 , § 67, eff. June 1, 2009; 2011, No. 155 (Adj. Sess.), § 22, eff. May 16, 2012.

History

Amendments--2011 (Adj. Sess.). Deleted "; customer connections" from the section catchline; added the subsec. (a) designation, and therein substituted "The clean energy development fund created under section 8015 of this title" for "Notwithstanding any other provision of law, the development fund created under 10 V.S.A. § 6523"; and added subsec. (b).

§ 8103. Heat availability.

All of the heat generated by a Vermont village green renewable project shall be made available to the commercial, industrial, and residential users identified in the host community's application to the Commission under subsection 8101(b) of this title.

Added 2009, No. 45 , § 15a, eff. May 27, 2009; 2009, No. 54 , § 67, eff. June 1, 2009.

§ 8104. Rates for electricity.

  1. All or a portion of the electricity generated by a Vermont village green renewable project, if it includes district power, shall be made available to the commercial, industrial, and residential users identified in the host community's application to the Commission under subsection 8101(b) of this title.
  2. If a Vermont village green renewable project includes district power and does not qualify or opt for treatment as a net metering system under section 8010 of this title:
    1. On petition of the host community, the Commission after notice and opportunity for hearing shall create a rate class for the commercial, industrial, and residential uses served by the project, the rates for which class at a minimum shall be consistent with the following principle: An end user shall pay the same share of the distribution utility's fixed costs as a similar end user not served by the project.
    2. Excess electricity may be sold to the distribution utility at the market rate or by contract.

      Added 2009, No. 45 , § 15a, eff. May 27, 2009; amended 2009, No. 54 , § 67, eff. June 1, 2009; 2013, No. 99 (Adj. Sess.), § 7, eff. Jan. 1, 2017.

History

Amendments--2013 (Adj. Sess.). Subsec. (b): Substituted "8010" for "219a" following "section".

§ 8105. Repealed. 2019, No. 31, § 3.

History

Former § 8105. Former § 8105, relating to reporting, was derived from 2009, No. 45 , § 15a and 2009, No. 54 , § 67 and amended by 2013, No. 142 (Adj. Sess.), § 52 and 2017, No. 113 (Adj. Sess.), § 175c.