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 August 2, 2022, 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.

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 the Department of Public Service Regulation no later than 5:00 p.m. on July 29, 2022, to advise us of the nature of the accommodation that you need. Please contact Tarin Slayton, Department of Public Service Regulation, 1701 Prospect Avenue, P.O. Box 202601, Helena, Montana, 59620-2601; telephone (406) 444-6170; fax (406) 444-7618; or e-mail tarin.slayton@mt.gov.

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 is a party to any proceeding upon filing a notice of intervention before the intervention deadline. After the deadline for intervention, the Montana Consumer Counsel 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) to the extent known, the position taken by the movant and the basis in fact and law for that position; and

(b) sufficient detail to demonstrate that:

(i) the movant has a right to participate which is expressly conferred by statute or by commission rule, order, or other action;

(ii) the movant has or represents an interest that is presently and directly affected by the outcome of the proceeding, including any interest as a consumer, customer, competitor, or security holder of a party; or

(iii) the movant's participation is in the public interest.

(4) Objections to any motion for intervention must be filed within seven days after the date the motion was filed. Objections must be in the form of a brief and contain a short and plain statement of the reasons why intervention should be denied. Movants may file a reply brief to an objection within seven days after the date the objection was filed. No additional briefing is permitted without prior commission approval.

(5) Timely motions for intervention will be deemed granted if no objection is filed and the commission does not otherwise act on the motion before the deadline provided in (4).

(6) If a motion is filed after the deadline for intervention, the movant 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) 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) When necessary to avoid delay, unreasonable duplication of positions, or prejudice to other parties, the commission or hearing examiner may, for good cause and at any time in the proceeding, limit or condition an intervenor's participation in the proceeding.

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 rule reflects current commission practice, where intervention deadlines are set in an initial notice, where appropriate.

Section (2) of the rule recognizes that the Montana Consumer counsel 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). Subsection (3)(a) requires movants to state their position, but only to the extent it is known at the time the motion is filed. Subsection (3)(b) is disjunctive, and a movant need only establish one of the three grounds for intervention. Subsection (3)(b)(ii) is intended to apply to only those parties that can show a present interest that will be affected by the proceeding. The broader basis for intervention in (3)(b)(iii) allows intervention by parties who may not have a present interest, but whose participation would nonetheless be in the public interest.

Because commission proceedings operate on short statutory deadlines, (4) creates a standard schedule for briefing motions for intervention. In the interest of administrative efficiency, if no objections are filed with respect to a motion and the commission has not acted on the motion within the time allowed in (4), the motion will be deemed granted.

Sections (6) and (7) provide clear standards for evaluating late motions for intervention and the circumstances under which a late motion may delay the normal course of a proceeding.

Section (8) is carried forward from existing commission regulations. Consistent with the commission's authority to efficiently manage its proceedings, the proposed rule allows the commission to limit intervention when necessary to avoid delay, unreasonable duplication of positions, or prejudice to other parties. The specific circumstances in which intervention may be limited under this rule protect the due process rights of parties appearing before the commission.

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 written data, views, or arguments to Tarin Slayton, Legal Division, Department of Public Service Commission, 1701 Prospect Avenue, P.O. Box 202601, Helena, MT 59620-2601, telephone (406)444-6170, fax (406) 444-7618, or email tarin.slayton@mt.gov and must be received no later than 5:00 p.m., on August 8, 2022.

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 the department. Persons who wish to have their name added to the list shall make a written request which includes the name, e-mail address, and mailing address of the person to receive notices and specifies that 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. Such 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, e-mailed to tarin.slayton@mt.gov, or may be made 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.

/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 June 28, 2022.