Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF PUBLIC SERVICE REGULATION

OF THE STATE OF MONTANA

In the matter of the adoption of NEW RULE I and the repeal of ARM 38.2.2401, 38.2.2403, 38.2.2404, 38.2.2405, and 38.2.2406 pertaining to interventions

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION AND

REPEAL

TO: All Concerned Persons

1. On January 10, 2023, at 1:00 p.m., the Department of Public Service Regulation will hold a public hearing in the Bollinger Room, 1701 Prospect Avenue, Helena, Montana, to consider the proposed adoption and repeal of the above-stated rules. The hearing will be livestreamed at https://psc.mt.gov/livestream. Parties seeking to participate in the hearing must contact the department at 1-800-646-6150, by 5:00 p.m., January 9, 2023, to receive the necessary call-in information for the hearing.

2. The Department of Public Service Regulation will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Public Service Regulation no later than 5:00 p.m. on January 9, 2023, to advise us of the nature of the accommodation that you need. Please contact the Department of Public Service Regulation, 1701 Prospect Avenue, P. O. Box 202601, Helena, Montana, 59620-2601; telephone (406) 444-6199; fax (406) 444-7618; or e-mail [email protected].

3. The rule as proposed to be adopted provides as follows:

NEW RULE I INTERVENTION (1) The Commission may establish a deadline for intervention in commission proceedings.

(2) The Montana Consumer Counsel (MCC) is a party to any proceeding upon filing a notice of intervention before the intervention deadline. After the deadline for intervention, the MCC may intervene by filing a late motion as described in (6).

(3) Except as provided in (2), any person seeking to intervene in a commission proceeding must file a motion to intervene. Motions must state:

(a) the movant's name and contact information, including telephone number, physical address, and electronic mail address;

(b) the name and contact information of the movant's attorney or authorized representative, including telephone number, physical address, and electronic mail address;

(d) the nature and extent of the movant's interest in the proceedings;

(e) to the extent known, the position taken by the movant and any issues the movant intends to raise in the proceedings; and

(f) any special knowledge or expertise of the movant that would assist the Commission in resolving the issues in the proceedings.

(4) Objections to any intervention must be filed within seven days of a motion for intervention. Objections must be in the form of a brief and contain a short and plain statement of the reasons why intervention should be denied or conditioned. Movants may file a response brief to an objection within seven days of the filing of an objection. No additional briefing is permitted without prior Commission approval. The Commission will render a decision on the motion and briefing.

(5) Timely motions for intervention will be deemed granted if no timely objection is filed and the Commission does not otherwise act on a motion within seven days of its filing.

(6) If a motion is filed after the deadline for intervention, any person seeking intervention must demonstrate why late intervention should be granted. When ruling on a motion for late intervention, the Commission or hearing examiner may consider whether:

(a) the movant had good cause for the failure to file a timely motion;

(b) any delay might result from granting intervention;

(d) granting intervention might result in prejudice to or undue burden upon existing parties; and

(e) the motion conforms to the requirements of (3).

(7) If it appears, after consideration, that a motion to intervene discloses a substantial interest in the subject matter of the proceeding, that participation of the movant will be in the public interest, or that the granting of the motion would not unduly broaden the issues in the proceeding, the Commission may grant the motion. Except in extraordinary circumstances, an untimely intervention will not be permitted to delay or defer any procedural schedule established before a party's late intervention.

(8) Any movant granted intervention under these rules shall be known as an "intervenor" and have the same rights and responsibilities as other parties to the proceeding.

(9) When necessary to avoid delay, unreasonable duplication of positions, prejudice to other parties, or upon a finding of good cause, the Commission or hearing examiner may impose appropriate conditions upon any intervenor's participation in the proceedings. The Commission or hearing examiner must provide notice and a reasonable opportunity to be heard.

AUTH: 69-1-110, 69-2-101, 69-3-103, 69-12-201, MCA

IMP: 69-2-101, MCA

REASON: The Commission's rules regarding intervention have not been revised since 1977. Consistent with its obligations under 2-4-314, MCA, the Commission has determined that its existing intervention rules can be modernized and simplified into a single rule.

Section (1) of the proposed new rule reflects current Commission practice, where intervention deadlines are set in an initial notice, where appropriate.

Section (2) of the proposed new rule recognizes that the MCC has a statutory right to participate in Commission proceedings, and no formal action granting a timely request for intervention should be required. All other interested parties will be required to file a motion for intervention that satisfies the requirements of (3).

Section (3) establishes the minimum information that must be in a motion for intervention filed by any person except the MCC. These criteria are modeled after the Oregon Public Utility Commission's rule on intervention and are designed to assist the Commission in determining whether granting intervention is appropriate.

Because Commission proceedings operate on short statutory deadlines, (4) creates a standard schedule for briefing motions for intervention.

Section (5) of the proposed new rule is designed to enhance administrative efficiency, automatically granting a timely motion if no objections to it are timely filed and the Commission has not acted on the motion within seven days of its filing.

Section (6) provides clear standards for evaluating late motions for intervention.

Section (7) carries forward the standards currently found in ARM 38.2.2405 for granting intervention. It also describes the circumstances under which a late motion may delay the normal course of a proceeding.

Section (8) carries forward language currently found in ARM 38.2.2405 that describes the rights and responsibilities of persons granted intervention.

Section (9) carries forward from existing Commission rules the Commission's authority to efficiently manage its proceedings. The proposed rule allows the Commission or hearing examiner to impose appropriate conditions upon an intervenor's participation in the proceedings when (1) necessary to avoid delay, unreasonable duplication of positions, or prejudice to other parties; or (2) a finding of good cause exists to impose appropriate conditions. Under the proposed new rule, the imposition of appropriate conditions upon an intervenor's participation in the proceedings may only occur after (1) the intervenor has been informed of the contemplated conditions; and (2) the intervenor has been given the opportunity to explain why the contemplated conditions should not be imposed.

4. The department proposes to repeal the following rules:

38.2.2401 CONTENTS OF PETITION

AUTH: 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA

IMP: 69-2-101, MCA

38.2.2403 GENERAL INTERVENTION

AUTH: 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA

IMP: 69-2-101, MCA

38.2.2404 SPECIAL INTERVENTION

AUTH: 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA

IMP: 69-2-101, MCA

38.2.2405 DISPOSITION OF PETITIONS AND MOTIONS TO INTERVENE

AUTH: 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA

IMP: 69-2-101, MCA

38.2.2406 LIMITATION ON INTERVENTION

AUTH: 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA

IMP: 69-2-101, MCA

REASON: The Commission's proposed intervention rule will replace all currently effective intervention rules.

5. Interested persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Department of Public Service Regulation, 1701 Prospect Avenue, P.O. Box 202601, Helena, MT, 59620-2601; telephone (406) 444-6199; fax (406) 444-7618; or e-mail [email protected], and must be received no later than 5:00 p.m. on January 13, 2023.

6. The Montana Consumer Counsel, 111 North Last Chance Gulch, Suite 1B, Helena, MT 59620-1703, telephone (406) 444-2771, is available and may be contacted to represent consumer interests in this matter.

7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list may do so by submitting a written request to the department. The request must include the name, e-mail address, and mailing address of the person to receive notices. The request must specify which of the following matters the person wishes to receive notices regarding: electric utilities, providers, and suppliers; natural gas utilities, providers, and suppliers; telecommunications utilities and carriers; water and sewer utilities; common carrier pipelines; motor carriers, rail carriers; and/or administrative procedures. The written request may be mailed or delivered to the Department of Public Service Regulation, Legal Division, 1701 Prospect Avenue, P. O. Box 202601, Helena, MT 59620-2601 or emailed to [email protected]. Persons may also have their name added to the list of interested persons by completing a request form at any rules hearing held by the department.

8. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption and repeal of the above-referenced rules will not significantly and directly impact small businesses.

9. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sosmt.gov/ARM/Register.

10. The bill sponsor contact requirements of 2-4-302, MCA do not apply.

11. A commissioner or a duly appointed presiding officer shall preside over and conduct the hearing.

/s/ LUCAS HAMILTON /s/ JAMES BROWN

Lucas Hamilton James Brown

Rule Reviewer President

Montana Public Service Commission

Department of Public Service Regulation

Certified to the Secretary of State November 29, 2022.