This web page provides general guidance about the mission and processes of the Public Service Board (Board). Please feel free to contact the Clerk of the Board if you have questions about the contents of this web page. For specific guidance, you should review the applicable statutes, rules, and legal precedent, and seek assistance from a lawyer if you have questions. This web page cannot be cited as an alternative to statutory or regulatory requirements.
AAFM – Vermont Agency of Agriculture, Food and Markets. AAFM facilitates and supports agriculture in Vermont, while protecting the working landscape, human health, animal health, plant health, consumers, and the environment. AAFM is a statutory party (i.e., an automatic party) in certain Board proceedings when primary agricultural soils occur on the site.
ANR – Vermont Agency of Natural Resources. ANR manages the state’s natural resources and administers Vermont’s environmental regulations. ANR is a statutory party (i.e., an automatic party) in cases under 30 V.S.A. § 248.
Board or PSB – Vermont Public Service Board. The Board is a quasi-judicial agency with supervisory authority over activities related to providing public utility services in Vermont. This includes the provision of energy and telecommunications service, and siting new energy facilities. (see About Us pages)
DHP – Vermont Division of Historic Preservation in the Agency of Commerce. The DHP reviews proposed projects before the Board for impacts on historic buildings and structures, historic districts, historic landscapes and settings, and known or potential archaeological resources. The DHP is not a statutory party (i.e., not an automatic party) to Board cases, but may request to be a party.
Department or DPS – Vermont Department of Public Service. The Department is responsible for long-term utility planning in the state. The Department is a statutory party (i.e., an automatic party) in Board proceedings and is charged with representing the interest of the people of the State in cases before the Board. (Note that elsewhere in state government, DPS refers to the Department of Public Safety, and PSD refers to the Department of Public Service. However, for historical reasons, documents issued by the Board use DPS or Department, not PSD.)
EEU – Energy Efficiency Utility. An EEU provides energy efficiency services to residential and business customers in Vermont. EEU services help consumers invest in measures that will reduce energy consumption and save money that would otherwise be spent on energy costs. EEU services are provided throughout most of the state by Efficiency Vermont. The City of Burlington Electric Department delivers EEU services in its service territory. Vermont Gas Systems, Inc., delivers EEU services for natural gas customers throughout the state.
EVT - Efficiency Vermont is Vermont’s statewide energy efficiency utility. Beginning in 2010, the Board appointed Vermont Energy Investment Corporation to serve as Efficiency Vermont.
FCC – Federal Communications Commission. The FCC is a federal government agency that regulates interstate and international communications by radio, television, wire, satellite, and cable.
FERC – Federal Energy Regulatory Commission. FERC is a federal government agency that regulates the wholesale electricity market and the interstate transmission of electricity, natural gas, and oil; reviews proposals to build interstate natural gas pipelines; and licenses hydropower plants.
NRB - Vermont Natural Resources Board. The NRB is the State board responsible for implementing Act 250, Vermont’s land use law.
VTrans – Vermont Agency of Transportation. VTrans manages the statewide transportation network.
- For transmission line projects, an adjoining landowner owns land:
- that will be crossed by the right-of-way for the line
- that will share a boundary with the right-of-way for the line
- that would share a boundary with the right-of-way for the line but for the presence of an intervening river, stream, public highway, or railroad line
- For projects involving a generation facility, substation, or other transmission facility that is not part of a transmission line, an adjoining landowner is someone who owns land:
- that shares a property boundary with the tract on which the facility or substation would be located
- that is adjacent to the tract of land on which the project would be located, and the two properties are separated only by a river, stream, railroad line, or public highway
Advance Notice – any requirement for an applicant to notify designated people and entities before a filing is submitted to the Board. Advance notice requirements vary depending on the type of case. For instance, in Section 248 cases, the advance notice provides basic information on the proposed project so that the recipients can contact the applicant directly to try to resolve any issues or concerns they have about the project.
Board Case – a case in which the procedural steps are conducted directly by the three Board members, and not by a hearing officer (see hearing officer case). For a Board case, the Board members will conduct the site visit, the public hearing, and the evidentiary hearing. Board staff assist the Board with the procedural steps and substantive analysis of the case.
Briefs – a written document filed with the Board to present a party’s legal and factual arguments for consideration by the Board. Briefs deal with matters such as the parties’ interpretation of the applicable law that is relevant to the case or their views of how the Board should understand the evidence that has been presented to them.
The Board may provide an opportunity for parties to file briefs following the evidentiary hearing in a case. Briefs are not evidence. Rather, they are an opportunity to cite relevant facts in the record, point to applicable statutes, rules, regulations, and precedent, and explain their position for the Board to consider in arriving at the judgment that is set forth in the Board’s final order. Typically, two rounds of briefs are filed, an initial brief, and a reply brief. A reply brief, if needed, is limited to responding to arguments raised by other parties in their initial briefs. It should not be seen as an opportunity to raise new issues.
The Board may solicit briefs from the parties at any point during a case.
Capacity – the maximum power output a generation facility can produce under specific conditions. Nameplate or rated capacity means the intended full-load output of a power generation facility. Nameplate capacity is determined by the generator’s manufacturer.
Certificate of Public Good or CPG – When the Board approves a project, it issues a Certificate of Public Good (CPG). A CPG is accompanied by an order that documents the details of the Board’s decision to issue the CPG. A CPG may contain conditions that are binding on the holder of the CPG and are necessary to ensure that the project complies with the law.
After a CPG has been issued by the Board, modifications to the authorized project that have the potential for significant impact under any of the relevant review criteria must be approved by the Board.
CPG Holder – one who possesses a CPG whether through issuance by the Board or through transfer from the previous possessor. The transfer of a CPG must be approved by the Board. The CPG holder is responsible for complying with all conditions of the CPG regardless of whether the CPG was obtained directly from the Board or through a subsequent transfer.
Certificate of Service – For filings submitted to the Board on paper or electronically, a certificate of service is a list of all recipients to whom a particular filing was sent, or “served,” and a statement by the sender that the document has been sent to everyone on the list. Parties to a case are required to provide copies of any filings to all other parties in the case, and when filing any documents with the Board on paper, must include a certificate of service confirming that they have done so.
With the Board’s electronic filing system, ePSB, the system provides “electronic service” automatically to all parties and others who are either required to be or who requested to be notified in a specific case. The electronic filing system generates a notice to each person or entity on the service list that a document has been filed and is available for access and downloading through ePSB. One exception to this is discovery; discovery requests served on parties to a case must be filed in ePSB, as well as discovery certificates, but the discovery responses need not be filed in ePSB.
Contested Case Proceedings – a case before the Board that is conducted like a trial. This means that there are formal parties to the case who are required to follow legal rules for developing their cases by conducting discovery and presenting evidence through witnesses and cross-examination in hearings.
Critical Energy Infrastructure Information or CEII – specific engineering, vulnerability, or detailed design information about proposed or existing critical infrastructure (physical or virtual) that meets certain criteria. The Federal Energy Regulatory Commission (FERC) has established rules regarding the protection of such information from public disclosure. CEII is exempt from mandatory disclosure under FERC procedures related to the Freedom of Information Act and therefore is handled so as to guard against unprotected disclosure. A party in a case before the Board must file a motion or other request that specified information in the case be treated as CEII.
Decision – Board decisions are documented in orders and Certificates of Public Good (CPGs). The final order in a contested case proceeding must be based on the evidentiary record, and generally contains findings of fact, conclusions of law, and an evaluation of the applicable review criteria.
Cases before the Board can be conducted directly by the Board (referred to as “a Board case”) or by a hearing officer appointed by the Board.
If the Board does not hear the case directly, a hearing officer hears the case and will issue a proposal for decision (referred to as a PFD or “P for D") that recommends an outcome to the Board. Parties in the case will then have an opportunity to comment to the Board on the PFD and ask for oral argument before the Board. The Board will consider the hearing officer’s PFD, the parties’ comments on it, and any arguments made at oral argument. The Board may accept, reject, or modify the proposal for decision. In so doing, the Board will issue a final order deciding the case. If the decision is to approve the project, the final order will be accompanied by a certificate of public good.
If the Board hears the case directly, no PFD is circulated for comment. The Board will issue its final order at the conclusion of the proceedings.
Final Board orders are subject to reconsideration by filing a motion for reconsideration under the Vermont Rules of Civil Procedure. Any final decision by the Board may be appealed to the Vermont Supreme Court, except for decisions made by the Board regarding compensation in condemnations, which are appealed to Vermont Superior Court. Any appeal of a Board order is governed by the Rules of Appellate Procedure.
In order to appeal a Board decision, you must have been a formal party to the case and you must file a notice of appeal with the Clerk of the Board.
Deposition – an opportunity to ask questions of another party’s witness before the evidentiary hearing and outside the presence of the Board. In certain circumstances, transcripts of depositions can be entered into evidence at the evidentiary hearing. Taking a deposition can help a party understand another party’s position, formulate responsive testimony, and prepare cross-examination.
DigSafe – a not-for-profit, multi-state clearinghouse that facilitates the exchange of information about proposed excavation activities and the location of underground utility lines and other equipment to avoid damage during excavation. DigSafe in Vermont addresses matters related to Vermont’s Underground Utility Damage Prevention System (30 V.S.A. Sections 7001-7008, and Public Service Board Rule 3.800).
Discovery - an opportunity for parties in a case to ask other parties about what their witnesses have said in the prefiled testimony and exhibits. The discovery process helps the parties develop their respective positions in a case, and identify issues on which there is agreement or that require resolution by the Board.
Discovery can be either written (called “interrogatories” or “requests for information”) or oral (called “depositions”). Written discovery is served on parties by mail or in person (parties may also agree to serve discovery through e-mail), and is typically in the form of written questions (e.g., What is Ms. Smith’s basis for her belief that . . .) or information requests (e.g., Please provide all the documents Mr. Johnson relied on in coming to the conclusion that . . . ).
When a party in good faith believes that it is not required to respond to a discovery request, that party may object to the request. At that point, the parties are obligated under the Vermont Rules of Civil Procedure to work in good faith to resolve the dispute. If no such agreement can be reached, parties may ask the Board to resolve the discovery dispute, provided they submit an affidavit detailing the good faith efforts to resolve their differences.
Discovery is not automatically part of the evidentiary record, although parties may seek to introduce it as evidence in prefiled testimony or exhibits. Parties may also introduce a witness’s written responses to discovery questions into evidence during the cross-examination of that witness.
A certificate of service that is filed in ePSB is proof that discovery responses were provided to all those entitled to receive them.
Exhibits – documents that support a party’s case. They are often attached to a witness’s testimony. Exhibits may be charts, spreadsheets, reports, letters, or other forms of documentation that support the conclusions contained in the testimony.
In order to be admitted into the record, an exhibit must be sponsored by a witness competent to answer questions about its origin and contents. An exhibit must also be marked and labelled so that it can be identified and referenced precisely by the parties and the Board (see Testimony).
Ex Parte Restrictions - Certain types of communication between Board members or staff and other persons are referred to as “ex parte” communications. In a contested case, ex parte communications are prohibited by Vermont state law as follows:
members or employees of any agency assigned to render a decision or to make findings of fact and conclusions of law in a contested case shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, nor, in connection with any issue of law, with any party or his representative, except upon notice and opportunity for all parties to participate. (3 V.S.A. Section 813)
In addition, Board Rule 2.201(E) details additional ex parte restrictions that apply in Board proceedings.
Ex parte restrictions do not apply in Board proceedings that are uncontested case proceedings.
Filing – any information submitted to the Board. For example, a filing can be an application or a petition, a motion, testimony and exhibits, or a brief. Board Rules 2.204 to 2.208 provide information on the requirements for filings made with the Board. Participants in Board cases are encouraged to use ePSB for case filings. Non-electronic filings are accepted by the Board; persons relying on filing outside of ePSB must ensure that the Board’s rules of procedure, including requirements pertaining to service and certificate of service, are met.
Friend-of-the-Court – not a formal party to a case, but someone who petitions the Board or is requested by the Board to file a brief in the case because that person has a strong interest in the subject matter. A friend-of-the-court is also referred to as an “amicus.”
Hearing - a proceeding before the Board or a hearing officer. A Board hearing is generally similar to a court trial, but can be less formal when it is not contested. Board hearings are recorded by a court reporter, resulting in a written transcript of the proceeding. The main types of hearings held by the Board are prehearing conferences, status conferences, public hearings, and evidentiary hearings (also referred to as “technical hearings”).
Prehearing Conference - The Board holds a prehearing conference to determine how a case will be managed. In general, the purpose of the prehearing conference is to discuss procedural matters and to set the schedule for the case.
Prehearing Conference Order – Following a prehearing conference, an order will be issued to document who was present and what was discussed. The order often contains the schedule for the next steps in the proceeding. The order will include a service list, which is a list of the formal parties in the case and other persons receiving a copy of the order.
Status Conference – At any time after a prehearing conference, the Board may hold a status conference to discuss procedural matters and set or revise the schedule for the case. Following the status conference, the Board will issue a status conference order.
Public Hearing – Public hearings are held to help the Board understand the proposed project by hearing what the public thinks of it. Public hearings are required in certain types of proceedings, such as Section 248 cases (although not under Section 248(j) and in cases involving requests to renew a cable company’s CPG). The Board can also choose to conduct a public hearing in any other proceeding. Customarily, the Board will conduct a public hearing in an investigation into utility rates or rate designs. In addition, the Board typically conducts a public hearing in cases that attract significant public interest or that have the potential to affect significant numbers of customers.
Public hearings are held in a suitable, neutral location in a utility’s service territory or in the town(s) where a proposed project is located. Public hearings are transcribed by a court reporter so that there is a written record that contains all the public comments made at the hearing. The public hearing is an opportunity to speak directly to the Board or the hearing officer assigned to the case.
In a Board case, the Board conducts the public hearing. In a case that is assigned to a hearing officer, the hearing officer conducts the public hearing. The project applicant may be asked to provide a summary description of the project at the beginning of the public hearing.
The public can also submit written comments to the Board at any time during a case.
Public comments play an important role by raising new issues or offering perspectives for the Board to consider in questioning the parties and developing the record during the evidentiary hearing. The Board values these comments. In some instances, but for public comments, the Board may remain unaware of an important issue. Public comments do not become part of the evidentiary record in a case because they are not sworn testimony that is subject to cross-examination during an evidentiary hearing. Under Vermont law, the Board’s decision must be based exclusively upon the evidence presented by formal parties during the evidentiary hearing. However, public comments serve a valuable function in bringing up important issues for the Board to pursue through the formal case proceedings.
- the Board to formally admit the parties’ prefiled testimony and exhibits into the evidentiary record for the case
- the parties to question the witnesses who prepared the testimony and exhibits
- the Board to question the witnesses about the testimony and exhibits
Evidentiary hearings are very much like a trial, except that most of the testimony is “prefiled” with the Board in written form in advance of the hearing. During an evidentiary hearing, witnesses are called to testify under oath and may be cross-examined by parties and the Board. Absent any objections, each witness’s prefiled written testimony is admitted into the evidentiary record under oath, with a statement made by the witness regarding whether there are any corrections or changes that should be made to their testimony as it was originally filed with the Board. If there is an objection to the testimony, the Board must resolve the objection before the testimony is admitted. In some instances, the Board will take the objection “under advisement,” which means the objection will be resolved after the hearing, but the parties can cross-examine the witness on the testimony during the hearing.
The Rules of Evidence, as modified by 3 V.S.A. § 810, apply in evidentiary hearings conducted by the Board. All testimony and exhibits to be entered into the record at the hearing must be “marked” for identification. Testimony and exhibits are marked for identification with individual labels that are unique to each document. For instance, the direct testimony of Jane Doe who testifies for the Acme Electric Company could be marked for identification as AEC-JD-Direct. Two exhibits attached to Jane Doe’s testimony could be marked as Exh. AEC-JD-1 and Exh. AEC-JD-2.
There is no right or wrong method for marking documents for identification in Board cases. The important thing is to assign a label that is easy to use and unique in the case so that references to the document are clear in the transcript and later in briefs and orders.
All evidentiary hearings are transcribed and the transcript is made available to the public.
Hearing Officer Case - a case in which the procedural steps are conducted directly by a hearing officer assigned to the case and not by the Board members (see Board Case). In a hearing officer case, the hearing officer will conduct the site visit, the public hearing, and the evidentiary hearing.
Host Landowner – the legal owner of the real property on which a project is or will be located. The term is generally used when the landowner has agreed to host a project that is proposed for construction and operation by someone other than the landowner.
Integrated Resource Plan or IRP – prepared by an electric or gas utility; it outlines a plan for meeting its customers’ need for utility service at the lowest societal cost. Such least-cost planning is required of electric and gas utilities pursuant to 30 V.S.A. § 218c.
Intervention, Intervenor, and Motion to Intervene - the procedure by which a person, organization, or group with an interest in the case can become formal parties to the case to protect their interests by participating in the proceeding before the Board. Those who meet the criteria for intervention may be granted party status by the Board, and are known as “intervenors.” A request to intervene is made by filing a “motion to intervene.”
A motion to intervene must address the following standards, as described in Board Rule 2.209(A) and (B):
- the person demonstrates a substantial interest which may be adversely affected by the outcome of the case
- whether the applicant’s interest will be adequately protected by other parties
- whether alternative means exist by which the applicant’s interest can be protected
- whether intervention will unduly delay the proceeding or prejudice the interests of existing parties or the public
Please read Board Rule 2.209 before you file a motion to intervene. You must make sure your motion to intervene describes your particular circumstances and the reasons why you meet the standards for intervening.
The motion to intervene, as well as any other filings in the case, must be filed with the Board and all parties. Existing parties may comment on the intervention motion, after which the Board will issue in order granting or denying the motion to intervene.
In order to manage the case efficiently, the Board may restrict an intervenor’s participation to the specific issues in which the intervenor may be affected, or may require that parties work cooperatively.
Often intervenors are represented by an attorney. Individuals may, however, represent themselves without the assistance of counsel (a pro se representation). Additionally, the Board may allow partnerships, corporations, and associations to be represented by an officer or an employee designated in writing by an officer of the corporation or association.
A motion to intervene must be accompanied by a Notice of Appearance, which lists the name and contact information for the individual or group. It is your responsibility to update this information by contacting the Clerk of the Board.
Intervention – Statutory Right - By law in certain types of cases, some persons or entities can intervene by simply letting the Board know in writing that they are intervening in a specific case. This includes intervention requests in Section 246 and 248 cases filed by municipal legislative bodies and planning commissions (30 V.S.A. § 248(a)(4)(H)) and regional planning commissions (30 V.S.A. § 248(a)(4)(G)). The right of intervention under these statutes extends to adjacent towns and regional planning commissions provided the proposed facility’s nearest component to the boundary of the adjacent town or region is 500 feet or 10 times the height of the facility’s tallest component, whichever is greater.
Intervention Under Net-Metering Rule - For projects reviewed under the net-metering rule (Section 8010), some persons and groups, including the affected town(s) and adjoining landowners, can request to intervene by filing an intervention form.
Meteorological Tower or MET tower – typically between 160 and 200 feet high, that measures wind speed and wind direction. It often precedes an application for construction of wind generation facilities; if so, the owner must obtain a CPG under Sections 246 and 248 prior to construction.
Memorandum of Understanding or MOU – also referred to as a Stipulation, is a document formalizing agreements among parties to a case. Such agreements often resolve issues in dispute, subject to the Board’s review and approval.
Motion – a request for the Board or a hearing officer to decide an issue or grant a request for some kind of relief. For example, a party may move for permission to intervene in a case, or move to admit testimony or exhibits, or move for the Board to reconsider or amend a decision. Specific types of motions have timelines for responses that are established under the Board’s procedural rules and the Vermont Rules of Civil Procedure.
Motion to alter or amend – a request that a certificate of public good issued for a project be amended or modified in some way as a result of a proposed change in the project
Motion to intervene – a motion requesting party status in a case
Motion objecting to testimony – a request that certain testimony or exhibits not be admitted into the evidentiary record for legal or factual reasons
Motion for reconsideration – a motion asking the Board to reconsider its final decision in a case
Motion to strike – a request that the Board require that all or part of another party’s testimony be removed from the evidentiary record after it has been submitted based on legal or factual reasons
Motion to transfer – a motion requesting the transfer of a certificate of public good to another entity
Net-Metering or NM – the process of measuring the difference between the electricity supplied to a customer by a utility and the electricity fed back to the utility by a net-metering system owned by the customer. Net-metering systems can be solar panels, wind turbines, or other renewable energy generators. The owner of the net-metering system uses as much of the power as it needs and any power that it generates in excess of what it needs is transferred to the grid for use by the utility. The utility pays the net-metering owner for this surplus power, allowing the net-metering system owner to offset its costs for the power it receives from the utility (i.e., the system owner sees this as a credit on its electric bill).
Net-metering systems can be owned by a single entity or can be a group system that provides electricity to multiple users.
Net-metering applications can request Board authorization to construct and operate a new net-metered system, or to convert an existing power source to a net-metering billing arrangement.
Notice – a requirement that information be provided to other parties in a case or to a list of interested persons or entities. See Advance Notice for requirements to provide notice to specific entities before submitting an application to the Board. In some cases, there are notice requirements that must be met when an application is filed with the Board.
Notice of Appearance – a filing that provides the Board and the parties to the case with the identity and contact information for the person legally representing a party in a case. The person listed in the notice of appearance is the only person who may make formal filings with the Board in that case. Parties or their legal representatives are required to file a notice of appearance under Board Rule 2.201(A). In the Board’s electronic filing system, ePSB, the contact person is designated for each party and participant to the case when that information is entered into ePSB. Persons or entities who appear pro se simply put their own names and contact information in the notice of appearance. Persons not using ePSB must provide a written notice of appearance that conforms with the Board’s rules of procedure, including certification of service.
Oral Argument – an opportunity for parties to present arguments orally directly to the Board, often before the Board makes its final decision in a case. For instance, oral argument can be requested by parties in response to a hearing officer’s Proposal for Decision after it has been distributed for review and comment by the parties.
Order – written documents used to convey Board decisions. Board orders may convey final decisions made by the Board, or procedural decisions related to the case schedule, rulings on motions, or other matters. The Board’s final decision in a case is announced and explained in a “final order.” If a Board decision is to approve a project, the final order will be accompanied by a certificate of public good. In a hearing officer case, the hearing officer is empowered to issue procedural orders. In all cases, the “final order” is signed by the Board members.
Party - The term “party” refers to any person who has the requisite legal status to directly participate in a case before the Board. The Department of Public Service, the Agency of Natural Resources, and in some cases, the Agency of Agriculture, Food, and Markets have been designated by law as parties to Board cases. Other entities can request to be a “party” to a case by filing a motion to intervene. A party to a case has rights and responsibilities in Board proceedings.
Parties to a case can provide testimony and participate in evidentiary hearings. They may be represented by an attorney, or represent themselves (which is referred to as appearing “pro se”). All parties must follow the Board’s procedural rules, and are subject to the rules governing discovery and cross-examination. The Board’s rules incorporate the Vermont Rules of Civil Procedure and the Vermont Rules of Evidence.
Statutory Parties – Statutory parties are automatically parties to a case based on Vermont law. For instance, there are two state agencies that are automatically parties to all Section 248 proceedings: the Department of Public Service and the Agency of Natural Resources.
Prefiled Testimony – see Testimony
Prehearing Conference – see Hearing
Proposal for Decision (PforD or PFD) – the hearing officer’s recommended decision in a case. The PFD is typically circulated among the parties to a case to provide them with the opportunity to comment. The parties may also request the opportunity to present oral argument before the Board. The PFD, any party’s comments, and points made at any oral argument are reviewed by the Board in making a final decision on a case.
Pro Se – a person or an entity who participates and represents their interest in a Board case without retaining an attorney. Representing yourself is referred to as appearing “pro se.” When individuals appear pro se, they have the rights and responsibilities of attorneys and must follow all applicable rules and procedures. If a pro se representative is unable to comply with obligations under Board rules and Vermont law, the Board has the authority to require the party to retain counsel.
Protective Agreements – an agreement executed among two or more parties to a case as to whether and how to afford confidential treatment to information that either is or may be legally entitled to protection from public disclosure. In most cases, a protective agreement is entered into to afford confidential treatment to information exchanged in discovery without first obtaining a ruling from the Board that legally establishes the confidential nature of the information.
Protective Orders – an order issued by the regarding how confidential material (or material that a party claims should be treated as confidential) is to be treated in the record of a case. A protective order covers entire documents or portions of documents. The purpose of a protective order is to treat designated information as confidential in light of the fact that Board proceedings are open to the public and case filings are considered public information. Parties must file a motion or other request for confidential treatment for consideration by the Board.
Public Comments – Members of the public can submit comments on an application at any time in a Board proceeding. In some cases, there is a comment deadline to ensure that the comments are available for the Board to consider in reaching its decision on the case. Public comments are useful to the Board for raising issues that the Board and the parties should consider during the case. Public comments received prior to holding an evidentiary hearing may be used by the Board to ask questions of the parties at the hearing that will result in issues being documented as formal evidence in the case. Public comments are not considered “evidence” in a case because they are not given under oath and subject to cross-examination. The Board is required by statute to base its decisions on the evidentiary record in a case. However, public comments can raise issues that the Board would not otherwise know to consider, and therefore, can influence the evidentiary record on which the Board makes its findings.
Public Hearing - see Hearing
Rebuttable Presumption – an assumption made by a court that is taken to be true unless a party disputes the assumption and rebuts it. (For example, a defendant in a criminal case is presumed innocent until proved guilty). In Board cases, a presumption is rebutted by presenting evidence or argument as to why the Board should not rely on the presumption in deciding a related issue in the case. If the presumption is successfully rebutted, then the presumption disappears and the party who initially relied on it must prove the truth of the matter that was assumed to be true. A rebuttable presumption can be created by state law or an administrative law rule (such as a Board rule) or by legal precedent such as a court case or a Board order.
Here is how a rebuttable presumption works in a Board case: a Board Rule may contain a presumption that generation projects of a specified type and size do not have an adverse effect on aesthetics. This means that, unless facts or arguments are raised that show why the Board should not rely on that presumption in a particular case (this is called “rebutting the presumption”), there will be a finding in the Board’s final order that the project at issue will not have an adverse effect on aesthetics. However, if the Board is persuaded that the presumption of “no adverse aesthetic effect” should not apply in this particular case, the project applicant will be required to produce evidence (e.g., testimony or documents) to prove that the project will have no adverse effect on aesthetics.
Regional Greenhouse Gas Initiative or RGGI – a cooperative effort among northeastern and mid-Atlantic states (including Vermont) to reduce carbon dioxide emissions by electric power generators. This is accomplished through a multi-state cap-and-trade program with a market-based emissions trading system.
Renewable Energy Certificate or REC – Every unit of electricity produced has certain “attributes” associated with it. The attributes that make electricity renewable can be sold separately from the power itself. These renewable attributes are sold in the form of renewable energy certificates.
Rules and Rulemaking – regulations developed by the Board that have the force and effect of law. The process of developing and approving a new rule is a “rulemaking.” Rulemaking is an uncontested process that generally begins with developing a recommended, draft rule, followed by formal rulemaking procedures governed by the Vermont Administrative Procedures Act.
The Board has broad rulemaking authority; 30 V.S.A. § 2(c) authorizes the Board to initiate rulemaking proceedings on any matter within its jurisdiction. In addition, many specific statutory sections direct or authorize the Board to implement their provisions “by rule or order.” The Board has implemented new procedures and requirements using both rules and orders.
Typically, rulemaking proceedings are initiated either by the Board, or upon request by a state agency, a utility, or a group of individuals. Often when the Board is asked to open a rulemaking proceeding, a draft proposed rule accompanies the request. If no draft proposed rule has been filed, the Board will develop one. To facilitate the development of a proposed rule, it is common for a hearing officer to conduct an informal process prior to the commencement of the formal rulemaking process. This informal process generally includes one or more workshops and one or more opportunities for written comments. It may also include circulating one or more drafts of a proposed rule to interested persons for comment.
The Board submits its recommended, draft rule for the formal rulemaking process, which requires filing with several committees and the Secretary of State. There are opportunities for public involvement in the State’s formal rulemaking procedure. Completion of the formal rulemaking process results in a final adopted rule.
Rules of Civil Procedure – rules that are followed in state civil court proceedings. The Board procedures follow the Vermont Rules of Civil Procedure, and should be read with the following replacement of terms:
- judge or trial court - deemed to be a reference to the Board
- trial - deemed to be a reference to a Board hearing
- complaints – deemed to be a reference to a petition, application, or complaint
- actions – deemed to be a reference to proceedings before the Board
Rules of Practice - set out in Board Rule 2.000, apply in all Board proceedings. These rules describe administrative requirements such as formats for filings, service and notice requirements, motions, pro se appearances, ex parte communications, prehearing conferences, testimony, discovery, conduct of hearings, and briefs.
Section 248 – a petition filed pursuant to, or a proceeding conducted under, 30 V.S.A. § 248. Section 248 proceedings typically involve siting new generation or transmission facilities (including gas transmission), and expanding or modifying existing facilities. Section 248 also grants the Board the authority to approve large, long-term power purchases from out of state.
Typical Section 248 siting projects include:
- construction or modification of solar, wind, and biomass power generation projects that are connected to the electric grid
- construction or modification of electrical transmission lines and natural gas pipelines
- construction or modification of substations and natural gas transmission infrastructure, including compressor stations
Prior to beginning site preparation or constructing a proposed project, the project must be certified by the Board to be in the public good. When determining whether to grant a certificate of public good (CPG), the Board considers whether the proposed project meets the statutory criteria from 30 V.S.A. § 248 (see Section 248 criteria). These criteria include site-specific environmental criteria incorporated from Act 250, in addition to other issues such as need, reliability, and economic benefit. The Board may only issue a CPG if it finds that the proposed project promotes the general good of the state, after considering the relevant statutory criteria.
Section 248 criteria – document
Section 248a – a petition filed pursuant to, or a proceeding conducted under, 30 V.S.A. § 248a. Under Section 248a, applicants may seek approval from the Board for the construction or installation of wireless telecommunications facilities that are to be interconnected with other telecommunications facilities.
Section 248(j) – a petition filed pursuant to, or a proceeding conducted under, 30 V.S.A. § 248(j). Section 248(j) provides for an expedited review of Section 248 petitions (see Section 248) provided that the Board finds that the project is of limited size and scope, does not raise a significant issue under the Section 248 criteria, and the public interest is satisfied by the abbreviated procedures. Under the abbreviated procedures for a Section 248(j), there is a 28-day comment period, no public hearing is held, and no evidentiary hearing is held unless the application raises a significant issue.
As with Section 248 projects, prior to beginning site preparation or constructing a proposed project under Section 248(j), the project must be certified by the Board to be in the public good. When determining whether to grant a certificate of public good (CPG), the Board considers whether the proposed project meets the statutory criteria from 30 V.S.A. § 248 (see Section 248 criteria). These criteria include site-specific environmental criteria incorporated from Act 250, in addition to other issues such as need, reliability, and economic benefit. The Board may only issue a CPG if it finds that the proposed project promotes the general good of the state, after considering the relevant statutory criteria.
Serve, Service – the act of providing a document to a mandatory recipient in a case. In the Board’s electronic case management system, ePSB, notification of filed information in a case is provided by ePSB. Persons not using ePSB to make a filing must serve the information on all applicable entities.
Service List – a list of the names and contact information of the parties who are entitled to receive a copy of all filings made and all orders and notices issued in a Board case. The service list also contains contact information for anyone other than a party who has asked to receive copies of all notices and orders in the case. Such persons are not required to be sent copies of filings made by the parties. If you are not a party to a case but would like to be placed on the service list to receive copies of notices and orders, please refer to the case in ePSB or contact the Clerk of the Board.
Service Quality and Reliability Plan or SQRP – All electric utilities, Vermont Gas, FairPoint, and Efficiency Vermont have plans documenting how the utility plans to meet certain service quality and reliability standards or compensate customers affected by the utility in the event of the utility’s poor performance.
Site Visit – The Board or a hearing officer may conduct a site visit, depending on the nature and requirements of the case. The purpose of the site visit is to provide the Board with a better sense of possible impacts of the proposed project. The site visit will typically include walking through some or all of the areas to be affected by the proposed project to view existing conditions, and the opportunity for the project proponent to describe what the project would include and how the existing conditions would be altered by the proposed project.
The site visit may also include identification of relevant landscape features, discussion of how such landscape features have affected or potentially should affect the project design and location, identification of and visits to potential alternative locations for the proposed project, and any other relevant matters for which a first-hand viewing of the site(s) may assist in understanding the issues before the Board.
Most Section 248 proceedings include a site visit. For most other types of cases, a site visit is only scheduled if the Board determines that viewing the site would be beneficial in reaching a decision in a case.
Observations and facts from the site visit are not a part of the evidentiary record and are not considered formal “findings” on which the Board will base its final decision in a case, unless the Board or one of the parties to a case requests to have observations or facts from the site visit entered into the evidentiary record at the evidentiary hearing.
Standard-Offer Program – the program authorized under 30 V.S.A. Secs. 8001-8009, in particular Section 8005a. The purpose of the Standard-Offer Program is to support the State’s renewable energy goals through encouraging the development of small- and medium-sized renewable energy plants distributed across the State’s electric grid. The Standard-Offer Program is implemented through Board orders, particularly those issued under Dockets 7533, 7873, and 7874.
Statutory Parties – persons or entities that are automatically parties to a case by a designation under Vermont law. For example, there are two state agencies that are automatically parties to all Section 248 proceedings: the Department of Public Service and the Agency of Natural Resources.
Subscriber – A person may “subscribe” to receive notification of the filing of any document filed by parties or issued by the Board in a specific Board case. The subscriber will receive an e-mail notification when something new is filed in the case. In order to be a subscriber in a Board case, you must create an ePSB account.
Tariff or Tariff Filing – a collection of rules defining the relationship between a utility and its customers. A tariff defines the rates and terms of service of a utility. These terms are intended to ensure that utilities apply non-discriminatory practices to all customers. A utility’s tariff filings include explanations of the various factors that contribute to customer utility rates, such as fixed costs, consumption rates, demand rates, and seasonal rates.
Testimony, Prefiled Testimony - information that is sworn to be true and that either supports or criticizes the position of a party in a Board case. The applicant’s prefiled testimony and exhibits describe the project and how it complies with the applicable legal criteria under review. The application must address all the relevant criteria in order to be considered complete, including the applicant’s arguments for why any of the review criteria may not be applicable for the project.
The other parties to a case may file testimony that provides information supporting their position on whether the project complies with the applicable legal criteria and would serve the general good of the State of Vermont. The other parties to the case are provided the opportunity to file written testimony and exhibits after an opportunity to ask the petitioner about its filing during a process called discovery, and before the evidentiary hearing.
Testimony must be prepared by witnesses who are qualified to provide truthful, accurate information that is relevant and to answer questions about it. The need for specialized, expert testimony depends on the complexity of the proposed project and the nature and scope of the project’s impacts. For example, if the proposed project will have an impact on a wetland, an environmental expert may be required to address that impact.
Exhibits are documents that support the testimony, such as site plans, photographs, reports, charts, spreadsheets, letters, or other forms of documentation that support the conclusions contained in the testimony.
Board Rule 2.213(c) provides further requirements on the format for prefiled testimony (e.g., must be in question and answer form, double-spaced, with line numbers indicated on the left-hand margin).
For complex cases there may be several rounds of testimony to respond to what other parties have submitted, referred to as “rebuttal” and “surrebuttal” testimony. The scope of prefiled testimony is narrowed with each round of testimony such that it may address only the testimony filed in the previous round. While rebuttal and surrebuttal testimony is normally submitted in the same manner as prefiled testimony, there are occasions when such testimony is provided live during the evidentiary hearings.
Any objections to the admissibility of prefiled testimony or exhibits must be filed with the Board in writing no more than 30 days from the date the testimony or exhibit was prefiled, or five days before the date of the evidentiary hearing at which the testimony or exhibit will be offered into the evidentiary record, whichever occurs sooner (see Board Rule 2.216(C)). Assuming the testimony is entered into the record at the evidentiary hearing, the witness is then subject to cross-examination on the testimony. Intervenors are also allowed to cross-examine the witnesses of the other parties. The parties’ testimony and exhibits, if admitted, become part of the evidentiary record upon which the Board may rely in its final order.
Transcript – a written record of what is said in court proceedings. Board hearings are transcribed by a court reporter. The transcript of a Board hearing is made available to the public free of charge. Transcripts are accessible through ePSB. Transcripts are generated as a ptx file in RealLegal E-Transcript software. A free E-Transcript viewer is available to download so that you can open and view Board transcripts as a ptx file. Transcripts will be available in ePSB as both a ptx file and as a pdf file.
Transmission and Distribution or T&D –Transmission and distribution collectively make up the regional power grid. “Transmission and distribution” is often used as an adjective as in T&D infrastructure, or T&D plan.
For electricity, transmission generally refers to power conveyance from a generating site, such as a power plant, to an electrical substation. Distribution generally refers to local wiring between substations and customers.
For natural gas, transmission refers to gas supplied from interstate supply locations to delivery ports called “gate stations.” Distribution refers to pipelines that convey gas from the gate station to individual customers.
Workshop – an informal Board proceeding convened to bring stakeholders and interested members of the public together to discuss a particular case or a proposed rule or program. Workshops are one way for the Board to get input and facilitate discussion of issues in uncontested case proceedings.