TITLE 5. CORPORATIONS

STATE CORPORATION COMMISSION

Final Regulation

REGISTRAR'S NOTICE: The State Corporation Commission is exempt from the Administrative Process Act in accordance with § 2.2-4002 A 2 of the Code of Virginia, which exempts courts, any agency of the Supreme Court, and any agency that by the Constitution is expressly granted any of the powers of a court of record.

Title of Regulation: 5VAC5-20. State Corporation Commission Rules of Practice and Procedure (amending 5VAC5-20-10, 5VAC5-20-20, 5VAC5-20-80, 5VAC5-20-90, 5VAC5-20-100, 5VAC5-20-120 through 5VAC5-20-150, 5VAC5-20-170, 5VAC5-20-180, 5VAC5-20-240 through 5VAC5-20-280).

Statutory Authority: §§ 12.1-13 and 12.1-25 of the Code of Virginia.

Effective Date: March 11, 2009.

Agency Contact: William H. Chambliss, General Counsel, State Corporation Commission, 1300 East Main Street, PO Box 1197, Richmond, VA 23218, telephone (804) 371-9671, FAX (804) 371-9240, or email william.chambliss@scc.virginia.gov.

Summary:

The amendments modify and clarify the operation of the rules of practice before the State Corporation Commission relating to pleadings, discovery, and the treatment of confidential information in regulatory, adjudicatory, and other proceedings before the commission. Minor edits to form and structure of the rules are also made. In response to comments presented by interested parties and further review by the commission’s staff, several changes to the initially proposed revisions, as well as additional revisions were made to the rules with regard the standard for reviewing designations of information as confidential in a formal proceeding, access to confidential information between parties, treatment of confidential information provided to the commission outside of formal proceedings, and access to staff workpapers. Further additional minor edits to form and structure are also included.

AT RICHMOND, FEBRUARY 24, 2009

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. CLK-2008-00002

Ex Parte: In the matter concerning revised
State Corporation Commission Rules of
Practice and Procedure

FINAL ORDER

The Rules of Practice and Procedure, now codified at 5 VAC 5‑10‑10 et seq. ("Rules"), were last revised in Case No. CLK-2007-00005,¹ in which the State Corporation Commission ("Commission") incorporated procedures for electronic filing.  Prior to Case No. CLK‑2007‑00005, the Rules were last revised in 2001 in Case No. CLK‑2000‑00311.²

On August 7, 2008, the Commission entered an Order for Notice of Proceeding to Consider Revisions to Commission's Rules of Practice and Procedure ("Order"). In the Order, the Commission permitted interested persons to review the Commission Staff's ("Staff") proposed revisions to the Commission's Rules of Practice and Procedure ("Proposed Rules") and to file comments and suggestions thereon. A copy of the Proposed Rules was attached to the Order.

Comments were filed on October 3, 2008, by the following: Appalachian Power Company ("Appalachian Power"); the Office of the Attorney General, Division of Consumer Counsel ("Consumer Counsel"); Potomac Edison Company d/b/a Allegheny Power ("Allegheny Power"); Columbia Gas of Virginia, Inc. ("Columbia Gas"); Virginia Electric and Power Company d/b/a Dominion Virginia Power ("Virginia Power"); Washington Gas Light Company ("Washington Gas"); and the Virginia Industrial Energy Users Groups ("VIEUG").³ Columbia Gas and Virginia Power requested a hearing, and Appalachian Power requested that the Commission require the Staff to file a report and to permit responses by parties to other comments and the Staff Report.

On November 21, 2008, the Commission entered an Order Scheduling Hearing and Directing Parties and Staff to File Additional Comments, directing the Staff to file a Report on the comments to the Proposed Rules, permitting the parties to file a response to the Staff Report, and permitting the Staff to file a reply to these responses. A public hearing was also scheduled for February 4, 2009.

The Staff Report was filed on December 16, 2008, addressing the numerous comments and proposed changes filed by the parties. Attached to the Staff Report were further changes recommended by the Staff as a result of the parties' comments ("Revised Proposed Rules"). Appalachian Power, Columbia Gas, Consumer Counsel, Allegheny Power, VIEUG, Virginia Power, and Washington Gas each filed a response to the Staff Report and the Revised Proposed Rules on January 9, 2009. The Staff filed a reply to these responses on January 23, 2009.

The Commission convened a hearing on February 4, 2009. All parties who submitted comments, as well as the Staff, appeared by counsel at the hearing. The Staff advised that they had met with those who had filed comments in advance of the hearing and had been able to reach accord on a number of the revisions remaining at issue after the filing of the Staff Report and the Revised Proposed Rules attached thereto.⁴ Resolution was reached either by agreement to new language, withdrawal of additional proposals, or withdrawal of objections to text included in the Revised Proposed Rules. However, two Rules were the subject of proposals that remained contested at the hearing.⁵ Accordingly, full arguments on each contested proposal, as described below, were heard by the Commission.⁶

Rule 80⁷

Appalachian Power proposed in its initial comments that subsection B of Rule 80 be revised to require a respondent to update its notice of intent to participate.⁸ Currently, Rule 80 B requires in part that a notice of participation state a specific action sought to the extent then known and the factual and legal basis for the action.  Appalachian Power's proposal would modify Rule 80 B to require a respondent to state actions sought and facts underlying them as soon as such actions and facts are known and without regard to whether such respondent had completed discovery or whether the date for filing written testimony had passed.⁹ While the Staff opposed the Appalachian Power proposal in the Staff Report, the Staff and Virginia Power offered an alternative approach at the hearing that was intended to require respondents to update the information provided in the notice of participation if the respondent did not prefile testimony.¹⁰  Both the VIEUG and Consumer Counsel opposed the changes, arguing that the present language in the Rule was adequate.¹¹

Separately, Columbia Gas proposed a revision to Rule 80 B to change the way in which groups or associations file their notices of participation.  In filed comments, Columbia Gas recommended that Rule 80 require that a group or association include the name of each member of the association in the notice of participation.¹² At the hearing, Columbia Gas revised its proposal to address only associations consisting of utility customers that are grouped together to participate collectively rather than individually in a Commission proceeding.¹³ VIEUG and the Staff opposed the proposal noting that there are alternative methods by which such information could be discovered if it is relevant to the proceeding.¹⁴

Rule 260

Columbia Gas sought to amend Rule 260 to permit interrogatories and requests for production of documents to be sent to individual members of an association appearing as a respondent in a Commission proceeding.¹⁵ As with Rule 80, Columbia Gas modified its proposal at the hearing to make it applicable specifically to groups or associations of utility customers.¹⁶ Columbia Gas contends that it is unfair for associations such as VIGUA to have the ability to propound discovery upon Columbia Gas on behalf of individual customers in a Commission proceeding while Columbia Gas is not authorized to serve interrogatories on those same customers.¹⁷

VIEUG opposed the Columbia Gas proposal.¹⁸ Counsel for VIEUG argued that when his law firm represents an association in a Commission proceeding, the law firm is not counsel for the individual members of the group and, as such, has no authority to answer discovery on behalf of these individual companies.¹⁹ VIEUG also argued that modifying Rule 260 in the manner proposed by Columbia Gas could discourage participation in Commission proceedings.²⁰

Allegheny Power and Washington Gas each proposed a change in the rules of discovery related to the Staff.  Initially, both Allegheny Power and Washington Gas sought to amend Rule 260 to provide for full discovery on the Staff.²¹ In its response to the Staff Report, Allegheny Power amended its proposal to provide for discovery on the Staff when it acts as a litigant in a Commission proceeding.²² Allegheny Power argued that the right of full discovery between participants in a proceeding, including the Staff, promotes "judicial efficiency" and "just results."²³ Washington Gas stated in its comments that it needs discovery on the Staff to foster the opportunity to resolve issues on which an applicant, the Staff, and parties have differing opinions.²⁴

The Staff opposed the proposals, noting that Rule 270 already requires the Staff to make available workpapers that support the Staff's recommendations in testimony and in reports to parties in a regulatory proceeding and that Rule 260 permits parties to discover factual information that supports those workpapers.²⁵ The Staff argued that this method of furnishing information continues to strike an appropriate balance between the interests of the parties to a regulatory proceeding and the Staff's unique role in Commission proceedings.²⁶ The Staff also opposed expanding discovery beyond the present level as an unnecessary expense on the Commission's limited resources.²⁷

NOW THE COMMISSION, upon consideration of this matter, is of the opinion and finds that the current Rules of Practice and Procedure shall be revised as set forth in the attachment to this Final Order. The Commission has considered all of the comments, revisions, argument of the participants, and applicable law in making its determination in this matter. The Commission commends the parties and the Staff for narrowing the issues in dispute prior to the start of the hearing. The uncontested revisions shall be adopted.²⁸

We find that the contested proposals, discussed above, need not be adopted in this proceeding. We find that Rule 80 B's requirement for notice of participation is presently adequate. Any abuse of the Rule is currently subject to challenge on a case-by-case basis, and discovery options present parties with alternatives for addressing relevant concerns in the course of a proceeding. We further find that the proposal to permit discovery on non-parties to a proceeding — i.e., individual members of an association — is not reasonable and should not be adopted. Finally, we find that the proposals for full or expanded discovery upon the Staff should be rejected. As the Staff serves a unique role in Commission proceedings, the two avenues for access to Staff workpapers and discovering facts relied upon by the Staff in those workpapers, pursuant to Rule 260 and Rule 270, remain sufficient for parties participating in the Commission's regulatory proceedings.

The revisions to these Rules adopted herein shall be effective March 11, 2009.

Accordingly, IT IS ORDERED THAT:

(1) The current Rules of Practice and Procedure as set forth in 5 VAC 5-20-10 et seq. are hereby revised and adopted as set forth on the attachment to this Final Order. 

(2) The revisions to these Rules adopted herein shall be effective March 11, 2009.

(3) A copy of this Final Order and the Rules adopted herein shall be forwarded to the Virginia Register of Regulations for publication.

(4) This case shall be dismissed from the Commission's docket of active proceedings, and the papers filed herein shall be placed in the Commission's file for ended causes.

Commissioner Dimitri did not participate in this proceeding.

AN ATTESTED COPY hereof shall be sent by the Clerk of the Commission to:  Donald G. Owens, Esquire, and Thomas C. Walker, Jr., Esquire, Troutman Sanders LLP, 1001 Haxall Point, P.O. Box 1122, Richmond, Virginia 23218-1122; Karen L. Bell, Esquire, and Lisa S. Booth, Esquire, Dominion Resources Services, Inc., P.O. Box 26532, Richmond, Virginia 23261-6532; Vishwa B. Link, Esquire, and Andrea R. Chase, Esquire, McGuireWoods LLP, One James Center, 901 East Cary Street, Richmond, Virginia 23219-4030; Anthony Gambardella, Esquire, Woods Rogers, PLC, 823 East Main Street, Suite 1200, Richmond, Virginia 23219; Charles E. Bayless, Esquire, and James R. Bacha, Esquire, Appalachian Power Company, Three James Center, Suite 702, 1051 East Cary Street, Richmond, Virginia 23219; C. Meade Browder, Jr., Senior Assistant Attorney General, and Kiva Bland Pierce, Assistant Attorney General, Division of Consumer Counsel, Office of the Attorney General, 900 East Main Street, Richmond, Virginia 23219; Richard D. Gary, Esquire, and Noelle J. Coates, Esquire, Hunton & Williams LLP, Riverfront Plaza, East Tower, 951 East Byrd Street, Richmond, Virginia 23219; Jeffrey P. Trout, Esquire, Allegheny Power, 800 Cabin Hill Drive, Greensburg, Pennsylvania 15601; James S. Copenhaver, Esquire, and T. Borden Ellis, Esquire, Columbia Gas of Virginia, Inc., 1809 Coyote Drive, Chester, Virginia 23836; Meera Ahamed, Esquire, Washington Gas Light Company, 101 Constitution Avenue, N.W., Washington, D.C. 20080; Louis R. Monacell, Esquire, Edward L. Petrini, Esquire, and Cliona Mary Robb, Esquire, Christian & Barton, L.L.P., 909 East Main Street, Suite 1200, Richmond, Virginia 23219-3095; and the Commission's Office of General Counsel.

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¹ Commonwealth of Virginia ex rel. State Corporation Commission, Ex Parte:  In the Matter concerning revised State Corporation Commission Rules of Practice and Procedure, Case No. CLK‑2007‑00005 (Final Order, January 15, 2008).

² Commonwealth of Virginia, ex rel. State Corporation Commission, Ex Parte: In the Matter concerning revised State Corporation Commission Rules of Practice and Procedure, Case No. CLK‑2000‑00311, 2001 S.C.C. Ann. Rpt. 55 (Final Order, April 30, 2001).

³ The VIEUG is comprised of the Virginia Committee for Fair Utility Rates, the Old Dominion Committee for Fair Utility Rates, and the Virginia Industrial Gas Users Association ("VIGUA").

⁴ See Tr. at 7-39; 166‑168.

⁵ See Tr. at 9, 28, 30, 39-40, 104, 107, 166.

⁶ Tr. at 40‑166.

⁷ Each rule discussed herein will be referred to in this short form. The full citation for the Rule is 5 VAC 5‑20‑80.

⁸ Appalachian Power October 3, 2008 Comments at 4‑5.

⁹ Id.

¹⁰ Staff Report at 3-4; Tr. at 40-43, 46-48, 71-74, 77-80.

¹¹ See Consumer Counsel January 9, 2009 Response at 3-4; Tr. at 51-54, 71, 74-77.

¹² Columbia Gas October 3, 2008 Comments at 18-19, 29; Columbia Gas January 9, 2009 Response at 15-18.

¹³ Tr. at 82.

¹⁴ VIEUG January 9, 2009 Response at 7, n.10; Staff Report at 4-5; Tr. at 98-99, 102.

¹⁵ Columbia Gas October 3, 2008 Comments at 19-22; Columbia Gas January 9, 2009 Response at 33-37.

¹⁶ Tr. at 139-140.

¹⁷ Tr. at 116-124; 135-141; Columbia Gas January 9, 2009 Response at 34-36.

¹⁸ VIEUG January 9, 2009 Response at 2-7.

¹⁹ Tr. at 142.

²⁰ VIEUG January 9, 2009 Response at 6; Tr. at 141, 144-145.

²¹ Allegheny Power October 3, 2008 Comments at 3-4; Washington Gas October 3, 2008 Comments at 9-12.

²² Allegheny Power January 9, 2009 Response at 1-4.

²³ Id. at 2.

²⁴ Washington Gas October 3, 2008 Comments at 10-11; Tr. at 150-151.

²⁵ Staff Report at 13-16.

²⁶ Id. at 15-16; Staff January 23, 2009 Reply at 15-18.

²⁷ Staff Report at 16.

²⁸ See Tr. at 7-39, 166-168.  The Commission has made technical changes where necessary to improve uniformity and clarity of the Rules as revised. These technical changes are in addition to, but consistent with, the uncontested revisions.

Part I
General Provisions

5VAC5-20-10. Applicability.

The State Corporation Commission Rules of Practice and Procedure are promulgated pursuant to the authority of § 12.1-25 of the Code of Virginia and are applicable to the regulatory and adjudicatory proceedings of the State Corporation Commission except where superseded by more specific rules for particular types of cases or proceedings. When necessary to serve the ends of justice in a particular case, the commission may grant, upon motion or its own initiative, a waiver or modification of any of the provisions of the these rules, except 5VAC5-20-220, under terms and conditions and to the extent it deems appropriate. These rules do not apply to the internal administration or organization of the commission in matters such as the procurement of goods and services, personnel actions, and similar issues, nor to matters that are being handled administratively by a division or bureau of the commission.

5VAC5-20-20. Good faith pleading and practice.

Every pleading, written motion, or other document presented for filing by a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, and the attorney's mailing address and telephone number, and where available, telefax number and email address, shall be stated. An individual not represented by an attorney shall sign the individual's pleading, motion, or other document, and shall state the individual's mailing address and telephone number. A partnership not represented by an attorney shall have a partner sign the partnership's pleading, motion, or other document, and shall state the partnership's mailing address and telephone number. A nonlawyer may only represent the interests of another before the commission in the presentation of facts, figures, or factual conclusions, as distinguished from legal arguments or conclusions. In the case of an individual or entity not represented by counsel, each signature shall be that of the individual or a qualified officer or agent of the entity. [ The ] pleadings [ document Documents signed pursuant to this rule ] need not be under oath unless so required by statute.

The commission allows electronic filing. Before filing electronically, the filer shall complete an electronic document filing authorization form, establish a filer authentication password with the Clerk of the State Corporation Commission and otherwise comply with the electronic filing procedures adopted by the commission. Upon establishment of a filer authentication password, a filer may make electronic filings in any case. All documents submitted electronically must be capable of being printed as paper documents without loss of content or appearance.

The signature of an attorney or party constitutes a certification that (i) the attorney or party has read the pleading, motion, or other document; (ii) to the best of the attorney's or party's knowledge, information, and belief formed after reasonable inquiry, it the pleading, motion or other document is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and (iii) it the pleading, motion or other document is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. A pleading, written motion, or other document will not be accepted for filing by the Clerk of the Commission if it is not signed.

An oral motion made by an attorney or party in a commission proceeding constitutes a representation that the motion (i) is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and (ii) is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

Part II
Commencement of Formal Proceedings

[ 5VAC5-20-80. Regulatory proceedings.

A. Application. Except where otherwise provided by statute, rule or commission order, a person or entity seeking to engage in an industry or business subject to the commission's regulatory control authority, or to make changes in any previously authorized service, rate, facility, or other aspect of such industry or business that, by statute or rule, must be approved by the commission, shall file an application requesting authority to do so. The application shall contain (i) a specific statement of the action sought; (ii) a statement of the facts that the applicant is prepared to prove that would warrant the action sought; (iii) a statement of the legal basis for such action; and (iv) any other information required by law or regulation. Any person or entity filing an application shall be a party to that proceeding.

B. Participation as a respondent. A notice of participation as a respondent is the proper initial response to an application. A notice of participation shall be filed within the time prescribed by the commission and shall contain (i) a precise statement of the interest of the respondent; (ii) a statement of the specific action sought to the extent then known; and (iii) the factual and legal basis for the action. Any person or entity filing a notice of participation as a respondent shall be a party to that proceeding.

C. Public witnesses. Any person or entity not participating in a matter pursuant to subsection A or B of this section may make known their position in any regulatory proceeding by filing written comments in advance of the hearing if provided for by commission order or by attending the hearing, noting an appearance in the manner prescribed by the commission, and giving oral testimony. Public witnesses may not otherwise participate in the proceeding, be included in the service list, or be considered a party to the proceeding.

D. Commission staff. The commission staff may appear and participate in any proceeding in order to see that pertinent issues on behalf of the general public interest are clearly presented to the commission. The staff may, inter alia, conduct investigations and discovery, evaluate the issues raised, testify and offer exhibits, file briefs and make argument, and be subject to cross-examination when testifying. Neither the commission staff collectively nor any individual member of the commission staff shall be considered a party to the case for any purpose by virtue of participation in a proceeding. ]

5VAC5-20-90. Adjudicatory proceedings.

A. Initiation of proceedings. Investigative, disciplinary, penal, and other adjudicatory proceedings may be initiated by motion of the commission staff or upon the commission's own motion. Further proceedings shall be controlled by the issuance of a rule to show cause, which shall give notice to the defendant, state the allegations against the defendant, provide for a response from the defendant and, where appropriate, set the matter for hearing. A rule to show cause shall be served in the manner provided by § 12.1-19.1 or § 12.1-29 of the Code of Virginia. The commission staff shall prove the case by clear and convincing evidence.

B. Answer. An answer is the proper initial responsive pleading to a rule to show cause. An answer or other responsive pleading shall be filed within 21 days of service of the rule to show cause, unless the commission shall order otherwise. The answer shall state, in narrative form, each defendant's responses to the allegations in the rule to show cause and any affirmative defenses asserted by the defendant. Failure to file a timely answer or other responsive pleading may result in the entry of judgment by default against the party failing to respond.

5VAC5-20-100. Other proceedings.

A. Promulgation of general orders, rules, or regulations. Before promulgating a general order, rule, or regulation, the commission shall, by order upon an application or upon its own motion, require reasonable notice of the contents of the proposed general order, rule, or regulation, including publication in the Virginia Register of Regulations, and afford interested persons an opportunity to comment, present evidence, and be heard. A copy of each general order, rule, and regulation adopted in final form by the commission shall be filed with the Registrar of Regulations for publication in the Virginia Register of Regulations.

B. Petitions in other matters. Persons having a cause before the commission, whether by statute, rule, regulation, or otherwise, against a defendant, including the commission, a commission bureau, or a commission division, shall proceed by filing a written petition containing (i) the identity of the parties; (ii) a statement of the action sought and the legal basis for the commission's jurisdiction to take the action sought; (iii) a statement of the facts, proof of which would warrant the action sought; (iv) a statement of the legal basis for the action; and (v) a certificate showing service upon the defendant.

Within 21 days of service of a petition under this rule, the defendant shall file an answer or other responsive pleading containing, in narrative form, (i) a response to each allegation of the petition and (ii) a statement of each affirmative defense asserted by the defendant. Failure to file a timely answer may result in entry of judgment by default against the defendant failing to respond. Upon order of the commission, the commission staff may participate in any proceeding under this rule in which it is not a defendant to the same extent as permitted by 5VAC5-20-80 D.

C. Declaratory judgments. Persons having no other adequate remedy may petition the commission for a declaratory judgment. The petition shall meet the requirements of subsection B of this section and, in addition, contain a statement of the basis for concluding that an actual controversy exists. In the proceeding, the commission shall by order provide for the necessary notice, responsive pleadings, and participation by interested parties and the commission staff.

5VAC5-20-120. Procedure before hearing examiners.

A. Assignment. The commission may, by order, assign a matter pending before it to a hearing examiner. Unless otherwise ordered, the hearing examiner shall conduct all further proceedings in the matter on behalf of the commission in accordance with the these rules. In the discharge of his duties, the hearing examiner shall exercise all the adjudicatory powers possessed by the commission including, inter alia, the power to administer oaths; require the attendance of witnesses and parties; require the production of documents; schedule and conduct pre-hearing conferences; admit or exclude evidence; grant or deny continuances; and rule on motions, matters of law, and procedural questions. The hearing examiner shall, upon conclusion of all assigned duties, issue a written final report and recommendation to the commission at the conclusion of the proceedings.

B. Objections and certification of issues. An objection to a ruling by the hearing examiner [ during a hearing ] shall be stated with the reasons therefor at the time of the ruling [ , and the. Any ] objection [ to a hearing examiner's ruling ] may be argued to the commission as part of a response to the hearing examiner's report. A ruling by the hearing examiner that denies further participation by a party in interest or the commission staff in a proceeding that has not been concluded may be immediately appealed to the commission by filing a written motion with the commission for review. Upon the motion of any party or the staff, or upon the hearing examiner's own initiative, the hearing examiner may certify any other material issue to the commission for its consideration and resolution. Pending resolution by the commission of a ruling appealed or certified, the hearing examiner shall retain procedural control of the proceeding.

C. Responses to hearing examiner reports. Unless otherwise ordered by the hearing examiner, responses supporting or objecting to the hearing examiner's final report must be filed within 21 days of the issuance of the report. A reply to a response to the hearing examiner's report may only be filed with leave of the commission. The commission may accept, modify, or reject the hearing examiner's recommendations in any manner consistent with law and the evidence, notwithstanding an absence of objections to the hearing examiner's report.

5VAC5-20-130. Amendment of pleadings.

No amendment shall be made to any formal pleading after it is filed except by leave of the commission, which leave shall be liberally granted in the furtherance of justice. The commission shall make such provision for notice and for opportunity to respond to the amended pleadings as it may deem necessary and proper.

5VAC5-20-140. Filing and service.

A formal pleading or other related document shall be considered filed with the commission upon receipt of the original and required copies by the Clerk of the Commission no later than the time established for the closing of business of the clerk's office on the day the item is due. The original and copies shall be stamped by the Clerk to show the time and date of receipt.

Electronic filings may be submitted at any time and will be deemed filed on the date and at the time the electronic document is received by the commission's database; provided, that if a document is received when the clerk's office is not open for public business, the document shall be deemed filed on the next regular business day. A filer will receive an electronic notification identifying the date and time the document is was received by the commission's database. An electronic document may be rejected if it is not submitted in compliance with these rules.

When a filing would otherwise be due on a day when the clerk's office is not open for public business [ during all or part of a business day ], the filing will be timely if made on the next regular business day when that the office is open to the public. [ When Except as otherwise ordered by the commission, when ] a period of 15 days or fewer is permitted to make a filing or take other action pursuant to commission rule or order, intervening weekends or holidays shall not be counted in determining the due date.

Service of a formal pleading, brief, or other document filed with the commission required to be served on the parties to a proceeding or upon the commission staff, shall be effected by delivery of a true copy to the party or staff, or by deposit of a true copy into the United States mail [ or overnight express mail delivery service ] properly addressed and [ stamped postage prepaid, or via hand-delivery ], on or before the date of filing. Service on a party may be made by service on the party's counsel. Alternatively, electronic service shall be permitted on parties or staff in cases where all parties and staff have agreed to such service, or where the commission has provided for such service by order. At the foot of a formal pleading, brief, or other document required to be served, the party making service shall append a certificate of counsel of record that copies were mailed or delivered as required. Notices, findings of fact, opinions, decisions, orders, or other documents to be served by the commission may be served by United States mail. However, all writs, processes, and orders of the commission, when acting in conformity with § 12.1-27 of the Code of Virginia, shall be attested by the Clerk of the Commission and served in compliance with § 12.1-19.1 or 12.1-29 of the Code of Virginia.

5VAC5-20-150. Copies and format.

Applications, petitions, motions, responsive pleadings, briefs, and other documents filed by parties must be filed in an original and 15 copies unless otherwise directed by the commission. Except as otherwise stated in these rules, submissions filed electronically are exempt from the copy requirement. One copy of each responsive pleading or brief must be served on each party and the commission staff counsel assigned to the matter, or, if no counsel has been assigned, on the general counsel.

Each document must be filed on standard size white opaque paper, 8-1/2 by 11 inches in dimension, and must be capable of being reproduced in copies of archival quality, and only one side of the paper may be used. Submissions filed electronically shall be made in portable document format (PDF).

Pleadings Each document shall be bound or attached on the left side and contain adequate margins. Each page following the first page shall be numbered. If necessary, a document may be filed in consecutively numbered volumes, each of which may not exceed three inches in thickness. Submissions filed electronically may not exceed 100 pages of printed text of 8-1/2 by 11 inches.

Pleadings Each document containing more than one exhibit should have dividers separating each exhibit and should contain an index. Exhibits such as maps, plats, and photographs not easily reduced to standard size may be filed in a different size, as necessary. Submissions filed electronically that otherwise would incorporate large exhibits impractical for conversion to electronic format shall be identified in the filing and include a statement that the exhibit was filed in hardcopy and is available for viewing at the commission or that a copy may be obtained from the filing party. Such exhibit shall be filed in an original and 15 copies.

All filed documents shall be fully collated and assembled into complete and proper sets ready for distribution and use, without the need for further assembly, sorting, or rearrangement.

The Clerk of the Commission may reject the filing of any document not conforming to the requirements of this rule.

5VAC5-20-170. Confidential information.

A person who proposes in good faith in a formal proceeding that information to be filed with or submitted delivered to the commission [ , or to be supplied to a party under Part IV (5VAC5-20-240 et seq.) of these rules, ] be withheld from public disclosure on the ground that it contains trade secrets, privileged, or confidential commercial or financial information shall file this information under seal with the Clerk of the Commission, or otherwise submit deliver the information under seal to the commission staff, [ requesting party, ] or both, as may be required. Items filed or delivered under seal shall be securely sealed in an opaque container that is clearly labeled "UNDER SEAL," and, if filed, shall meet the other requirements for filing contained in these rules. An original and 15 copies of all such information shall be filed with the clerk. One additional copy of all such information also shall also be submitted delivered under seal to the commission staff counsel assigned to the matter, or, where no counsel has been assigned, to the general counsel who, until ordered otherwise by the commission, shall disclose the information only to the members of the commission staff directly assigned to the matter as necessary in the discharge of their duties. Staff counsel and all members of the commission staff, until otherwise ordered by the commission, shall maintain the information in strict confidence and shall not disclose its contents to members of the public, or to other staff members not assigned to the matter. The commission staff or any party may object to the proposed withholding of the information.

[ When an application (including supporting documents and prefiled testimony) contains information that the applicant claims to be confidential, the filing shall be made under seal and accompanied by a motion for protective order or other confidential treatment. The provision to a party of information claimed to be trade secrets, privileged, or confidential commercial or financial information shall be governed by a protective order or other individual arrangements for confidential treatment. ]

On every document filed or delivered under seal, the producing party shall mark each individual page of the document that contains confidential information, and on each such page shall clearly indicate the specific information requested to be treated as confidential by use of highlighting, underscoring, bracketing or other appropriate marking. All remaining materials on each page of the document shall be treated as nonconfidential and available for public use and review. If an entire document is confidential, or if all information provided [ electronically in electronic format ] under Part IV [ (5VAC5-20-240 et seq.) ] of these rules is confidential, a marking prominently displayed on the first page of such document or at the beginning of any information provided [ electronically in electronic format ], indicating that the entire document is confidential shall suffice. [ No document containing any confidential material may be filed electronically with the Clerk of the Commission. ]

Upon challenge, the filing party shall demonstrate to the satisfaction of the commission that the information should be withheld from public disclosure [ the ] information shall be treated as confidential pursuant to these rules only where the party requesting confidential treatment can [ prove it is more likely than not that public disclosure of the information will result in unreasonable harm the information shall be treated as confidential pursuant to the rules only where the party requesting confidential treatment can demonstrate to the satisfaction of the commission that the risk of harm of publicly disclosing the information outweighs the presumption in favor of public disclosure ]. If the commission determines that the information should be withheld from public disclosure, it may nevertheless require the information to be disclosed to parties to a proceeding under appropriate protective order.

Whenever a document is filed with the clerk under seal, an original and [ 15 copies one copy ] of an expurgated or redacted version of the document deemed by the filing party or determined by the commission to be confidential shall be filed with the clerk for use and review by the public. A document containing confidential information shall not be submitted electronically. An expurgated or redacted version of the document may be filed electronically. Documents containing confidential information must be filed in hardcopy and in accordance with all requirements of these rules. [ Upon a determination by the commission or a hearing examiner that all or portions of any materials filed under seal are not entitled to confidential treatment, the filing party shall file one original and one copy of the expurgated or redacted version of the document reflecting the ruling. ]

When the information at issue is not required to be filed or made a part of the record, a party who wishes to withhold confidential information from filing or production may move the commission for a protective order without filing the materials. In considering such a motion, the commission may require production of the confidential materials for inspection in camera, if necessary.

A party may request additional protection for extraordinarily sensitive information by motion filed pursuant to 5VAC5-20-110, and filing the information with the Clerk of the Commission under seal and delivering a copy of the information to commission staff counsel under seal as directed above. Whenever such treatment has been requested under Part IV of these rules, the commission may make such orders as necessary to permit parties to challenge the requested additional protection.

The commission, hearing examiners, any party and the commission staff may make use of confidential material in orders, filing pleadings [ or, ] testimony [ , or other documents, ] as directed by order of the commission. When a party or commission staff uses confidential material in a filed pleading [ or, ] testimony, [ or other document, ] the party or commission staff must file both confidential and nonconfidential versions of the pleading [ or, ] testimony [ , or other document ] . Confidential versions of filed pleadings [ or, ] testimony [ , or other documents ] shall clearly indicate the confidential material contained within by highlighting, underscoring, bracketing or other appropriate marking. When filing confidential pleadings [ or, ] testimony, [ or other documents, ] parties must submit the confidential [ pleadings or testimony version ] to the Clerk of the Commission securely sealed in an opaque container that is clearly labeled "UNDER SEAL." Nonconfidential versions of filed pleadings [ or, ] testimony [ , or other documents ] shall [ expurgate, redact, or otherwise ] omit all references to confidential material.

The commission may issue such order as it deems necessary to prevent the use of confidentiality claims for the purpose of delay or obstruction of the proceeding.

[ A person who proposes in good faith that information to be delivered to the commission staff outside of a formal proceeding be withheld from public disclosure on the ground that it contains trade secrets, privileged, or confidential commercial or financial information may deliver the information under seal to the commission staff, subject to the same protections afforded confidential information in formal proceedings. ]

5VAC5-20-180. Official transcript of hearing.

The official transcript of a hearing before the commission or a hearing examiner shall be that prepared by the court reporters retained by the commission and certified by the court reporter as a true and correct transcript of the proceeding. Transcripts of proceedings shall not be prepared except in cases assigned to a hearing examiner, when directed by the commission, or when requested by a party desiring to purchase a copy. Parties desiring to purchase copies of the transcript shall make arrangement for purchase with the court reporter. When a transcript is prepared, a copy thereof shall be made available for public inspection in the Clerk of the Commission's clerk's office. [ If the transcript includes confidential information, an expurgated or redacted version of the transcript shall be made available for public inspection in the clerk's office. Only the parties who have executed an agreement to adhere to a protective order or other arrangement for access to confidential treatment in such proceeding and the commission staff shall be entitled to access to an unexpurgated or unredacted version of the transcript. ] By agreement of the parties, or as the commission may by order provide, corrections may be made to the transcript.

Part IV
Discovery and Hearing Preparation Procedures

5VAC5-20-240. Prepared testimony and exhibits.

Following the filing of an application dependent upon complicated or technical proof, the commission may direct the applicant to prepare and file the testimony and exhibits by which the applicant expects to establish its case. In all proceedings in which an applicant is required to file testimony, respondents shall be permitted and may be directed by the commission or hearing examiner to file, on or before a date certain, testimony and exhibits by which they expect to establish their case. Any respondent that chooses not to file testimony and exhibits by that date may not thereafter present testimony or exhibits except by leave of the commission, but may otherwise fully participate in the proceeding and engage in cross-examination of the testimony and exhibits of commission staff and other parties. The commission staff also shall file testimony and exhibits when directed to do so by the commission. Failure to comply with the directions of the commission, without good cause shown, may result in rejection of the testimony and exhibits by the commission. With leave of the commission and unless a timely objection is made, the commission staff or a party may correct or supplement any prepared testimony and exhibits before or during the hearing. In all proceedings, all evidence must be verified by the witness before introduction into the record, and the admissibility of the evidence shall be subject to the same standards as if the testimony were offered orally at hearing, unless, with the consent of the commission, the staff and all parties stipulate the introduction of testimony without need for verification. An original and 15 copies of prepared testimony and exhibits shall be filed unless otherwise specified in the commission's scheduling order and public notice, or unless the testimony and exhibits are filed electronically and otherwise comply with these rules. Documents of unusual bulk or weight and physical exhibits other than documents need not be filed in advance, but shall be described and made available for pretrial examination.

5VAC5-20-250. Process, witnesses, and production of documents and things.

A. Subpoenas. Commission staff and a any party to a proceeding shall be entitled to process, to convene parties, to compel the attendance of witnesses, and to compel the production of books, papers, documents, or things provided in this rule.

B. Commission issuance and enforcement of other regulatory agency subpoenas. Upon motion by commission staff counsel, the commission may issue and enforce subpoenas at the request of a regulatory agency of another jurisdiction if the activity for which the information is sought by the other agency, if occurring in the Commonwealth, would be a violation of the laws of the Commonwealth that are administered by the commission.

A motion requesting the issuance of a commission subpoena shall include:

1. A copy of the original subpoena issued by the regulatory agency to the named defendant;

2. An affidavit of the requesting agency administrator stating the basis for the issuance of the subpoena under that state's laws; and

3. A memorandum from the commission's corresponding division director providing the basis for the issuance of the commission subpoena.

C. Documents Document subpoenas. In a pending case proceeding, at the request of commission staff or any party, the Clerk of the Commission shall issue a subpoena. When a matter is under investigation by commission staff, before a formal proceeding has been established, whenever it appears to the commission by affidavit filed with the Clerk of the Commission by the commission staff or an individual, that a book, writing, document, or thing sufficiently described in the affidavit, is in the possession, or under the control, of an identified person and is material and proper to be produced, the commission may order the Clerk of the Commission to issue a subpoena and to have the subpoena duly served, together with an attested copy of the commission's order compelling production at a reasonable place and time as described in the commission's order.

D. Witnesses Witness subpoenas. In a pending case proceeding, at the request of commission staff or any party, the Clerk of the Commission shall issue a subpoena.

5VAC5-20-260. Interrogatories to parties or requests for production of documents and things.

The commission staff and a any party in a formal proceeding before the commission, other than a proceeding under 5VAC5-20-100 A [ and C ], may serve written interrogatories or requests for production of documents upon a party, to be answered by the party served, or if the party served is an entity, by an officer or agent of the entity, who shall furnish to the staff or requesting party information as is known. Interrogatories or requests for production of documents [ , including workpapers pursuant to 5VAC5-20-270, ] that cannot be timely answered before the scheduled hearing date may be served only with leave of the commission for good cause shown and upon such conditions as the commission may prescribe. [ Such otherwise untimely interrogatories or requests for production of documents, including workpapers pursuant to 5VAC5-20-270, may not be served until such leave is granted. ] No interrogatories or requests for production of documents may be served upon a member of the commission staff, except to discover factual information that supports the workpapers submitted by the staff [ to the Clerk of the Commission ] pursuant to 5VAC5-20-270. All interrogatories and requests for production of documents shall be filed with the Clerk of the Commission. Responses to interrogatories and requests for production of documents shall not be filed with the Clerk of the Commission.

The response to each interrogatory or document request shall identify by name the person making the response. Any objection to an interrogatory or document request shall identify the interrogatory or document request to which the objection is raised, and shall state with specificity the basis and supporting legal theory for the objection. Objections, if any, to specified questions shall be stated with specificity, citing appropriate legal authority, and shall be served with the list of responses or in such manner as the commission may designate by order. Responses and objections to interrogatories or requests for production of documents shall be served within 14 10 days of receipt, unless otherwise ordered by the commission. Upon motion promptly made and accompanied by a copy of the interrogatory or document request and the response or objection that is subject to the motion, the commission will rule upon the validity of the objection; the objection otherwise will be considered sustained.

Interrogatories or requests for production of documents may relate to any matter not privileged, which is relevant to the subject matter involved, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things, and the identity and location of persons having knowledge of evidentiary value. It is not grounds for objection that the information sought will be inadmissible at the hearing if the information appears reasonably calculated to lead to the discovery of admissible evidence.

Where the response to an interrogatory or document request may only be derived or ascertained from the business records of the party questioned, from an examination, audit, or inspection of business records, or from a compilation, abstract, or summary of business records, and the burden of deriving or ascertaining the response is substantially the same for one entity as for the other, a response is sufficient if it (i) identifies by name and location all records from which the response may be derived or ascertained; and (ii) tenders to the inquiring party reasonable opportunity to examine, audit, or inspect the records subject to objection as to their proprietary or confidential nature. The inquiring party bears the expense of making copies, compilations, abstracts, or summaries.

 [ 5VAC5-20-270. Hearing preparation.

In a formal proceeding, a party or the commission staff may serve on a party a request to examine the workpapers supporting the testimony or exhibits of a witness whose prepared testimony has been filed in accordance with 5VAC5-20-240. The movant may request abstracts or summaries of the workpapers, and may request copies of the workpapers upon payment of the reasonable cost of duplication or reproduction. Copies requested by the commission staff shall be furnished without payment of copying costs. In actions pursuant to 5VAC5-20-80 A, the commission staff shall, upon the filing of its testimony, exhibits, or report, will compile and file with the Clerk of the Commission three copies provide (in either paper or electronic format) a copy of any workpapers that support the recommendations made in its testimony or report to any party upon request and may additionally file a copy of such workpapers with the Clerk of the Commission. The Clerk of the Commission shall make the any filed workpapers available for public inspection and copying during regular business hours. ]

5VAC5-20-280. Discovery in applicable only to 5VAC5-20-90 proceedings.

The following This rule applies only to proceedings a proceeding in which a defendant is subject to a monetary penalty or injunctive penalties injunction, or revocation, cancellation, or curtailment of a license, certificate of authority, registration, or similar authority previously issued by the commission to the defendant:

1. Discovery of material in possession of the commission staff. Upon written motion of the defendant, the commission shall permit the defendant to inspect and, at the defendant's expense, copy or photograph any relevant written or recorded statements, the existence of which is known, after reasonable inquiry, by the commission staff counsel assigned to the matter to be within the custody, possession, or control of commission staff, made by the defendant, or representatives, or agents of the defendant if the defendant is other than an individual, to a commission staff member or law enforcement officer.

A motion by the defendant under this rule shall be filed and served at least 10 days before the hearing date. The motion shall include all relief sought. A subsequent motion may be made only upon a showing of cause as to why the motion would be in the interest of justice. An order granting relief under this section rule shall specify the time, place, and manner of making discovery and inspection permitted, and may prescribe such terms and conditions as the commission may determine.

Nothing in this rule shall require the disclosure of any information, the disclosure of which is prohibited by statute. The disclosure of the results of a commission staff investigation or work product of commission staff counsel shall not be required.

2. Depositions. After commencement of an action a proceeding to which this rule applies, the commission staff or a party may take the testimony of a party or another a person or entity not a party, other than a member of the commission staff, by deposition on oral examination or by written questions. Depositions may be used for any purpose for which they may be used in the courts of record of the Commonwealth. Except where the commission or hearing examiner finds that an emergency exists, no deposition may be taken later than 10 days in advance of the formal hearing. The attendance of witnesses at depositions may be compelled by subpoena. Examination and cross-examination of the witness shall be as at hearing. Depositions may be taken in the City of Richmond or in the town, city, or county in which the deposed party person resides, is employed, or does business. The parties and the commission staff, by agreement, may designate another place for the taking of the deposition. Reasonable notice of the intent to take a deposition must be given in writing to the commission staff counsel and to each party to the action, stating the time and place where the deposition is to be taken. A deposition may be taken before any person (the "officer") authorized to administer oaths by the laws of the jurisdiction in which the deposition is to be taken. The officer shall certify his authorization in writing, administer the oath to the deponent, record or cause to be recorded the testimony given, and note any objections raised. In lieu of participating in the oral examination, a party or the commission staff may deliver sealed written questions to the officer, who shall propound the questions to the witness. The officer may terminate the deposition if convinced that the examination is being conducted in bad faith or in an unreasonable manner. Costs of the deposition shall be borne by the party noticing the deposition, unless otherwise ordered by the commission.

3. Requests for admissions. The commission staff or a party to a proceeding may serve upon a party written requests for admission. Each matter on which an admission is requested shall be stated separately. A matter shall be deemed admitted unless within 21 days of the service of the request, or some other period the commission may designate, the party to whom the request is directed serves upon the requesting party a written answer addressing or objecting to the request. The response shall set forth in specific terms a denial of the matter set forth or an explanation as to the reasons the responding party cannot truthfully admit or deny the matter set forth. Requests for admission shall be filed with the Clerk of the Commission and simultaneously served on commission staff counsel and on all parties to the matter proceeding.

VA.R. Doc. No. R08-1540; Filed February 24, 2009, 11:11 a.m.