TITLE 170 INDIANA UTILITY REGULATORY COMMISSION

Final Rule

LSA Document #07-514(F)

DIGEST

Amends 170 IAC 1-1.1-3, 170 IAC 1-1.1-4, 170 IAC 1-1.1-7 through 170 IAC 1-1.1-10, 170 IAC 1-1.1-12, 170 IAC 1-1.1-15, 170 IAC 1-1.1-16, 170 IAC 1-1.1-18, 170 IAC 1-1.1-21, 170 IAC 1-1.1-23, and 170 IAC 1-1.1-24 concerning practice and procedure before the commission. Effective 30 days after filing with the Publisher.

SECTION 1. 170 IAC 1-1.1-3 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 8-1-1-5; IC 8-1-1.1-5.1

Sec. 3. (a) The filing of any communication, paper, or pleading with the commission may be made through the United States mail or in person as follows:

(b) A presiding officer at any hearing may permit appropriate pleadings or other papers to be filed with the presiding officer at the hearing.

(c) Unless otherwise provided by this rule, the petitioner or other party shall file with the secretary of the commission an original pleading and eight (8) four (4) copies, one (1) of which must be unbound and printed on only on one (1) side of the page, in proceedings assigned only to an administrative law judge. The petitioner or other party shall file with the secretary of the commission an original and thirteen (13) five (5) copies, one (1) of which must be unbound and printed on only on one (1) side of the page, in proceedings assigned to a commissioner and administrative law judge. A presiding officer may require that a different number of copies be filed. Filings other than:

(d) All time periods within which to make filings with the commission are given in calendar days unless otherwise stated. In computing any period of time prescribed or allowed by this rule, by order of the commission or the presiding officer, or by any applicable statute that does not contain a provision regarding computation of time, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included unless it is a:

(e) In any event, the period runs until the end of the next day that is not a:

(f) Remittances to the commission should be made by money order or check payable to the Indiana utility regulatory commission, except that remittances in payment of the statutory fees for the issuance of securities by municipalities shall be:

SECTION 2. 170 IAC 1-1.1-4 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 5-14-3; IC 8-1-1-8; IC 8-1-2-29

Sec. 4. (a) If a party desires to file with or submit to the commission any writing, paper, report, study, map, photograph, book, card, tape recording, or other material that the party believes is confidential in accordance with IC 8-1-2-29 and IC 5-14-3, the party shall apply for a finding by the commission, on or before the date (if any) information is required to be filed, that the information is confidential. The written application for a confidentiality finding must be served on all parties of record. At any time after ten (10) days, or earlier with the consent of the parties or as ordered by the presiding officers, following an application by any party under this subsection, the commission may take any one (1) or more of the following actions:

(b) The application required by subsection (a) shall be accompanied by the sworn statement or testimony of a party that describes the following:

(c) At the request of the presiding officer or any party, an in camera inspection shall be conducted for the purpose of hearing argument on confidentiality of information submitted under this rule. If an in camera inspection is conducted under this section, the information for which confidential treatment is requested shall be made available during the in camera inspection on a provisional basis for the limited purpose of determining its confidentiality. An in camera inspection conducted under this section may, at the discretion of the presiding officer, be publicly noticed under IC 8-1-1-8.

(d) Subject to the rules of evidence and discovery, If, during the in camera inspection, the presiding officer determines that the information determined in question is not to be confidential shall be deemed automatically withdrawn or is only partially confidential, the commission shall maintain the confidentiality of the information until:

(e) Information filed with or submitted to the commission prior to a finding by the commission that such the information is confidential shall be available to the public pursuant to under IC 8-1-2-29.

(f) Parties seeking protective orders to prevent or limit discovery of trade secret or other confidential:

(g) After receiving a preliminary determination by the commission that any material is entitled to confidential upon any subsequent filing of such material by a party, the party shall reference the cause number under which the confidentiality treatment, documents submitted shall comply with the specific directives set forth in the determination. was made.

SECTION 3. 170 IAC 1-1.1-7 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 8-1-1-5; IC 8-1-1.1-5.1

Sec. 7. (a) Any person filing an appearance pro se to represent his or her own interest is required to:

(b) The interest of another person or entity may only be represented by an attorney admitted to practice before the supreme court of Indiana in good standing.

(c) An attorney not admitted to practice before the supreme court of Indiana in good standing but admitted to practice before the Supreme Court of the United States, or the highest court of any other state or territory of the United States, in good standing, may appear at the discretion of the presiding officer before the commission upon filing a verified petition for limited admission to practice before the commission that meets the requirements of the Indiana Rules for Admission to the Bar and the Discipline of Attorneys Rule 3, Section 2(a). Upon being granted limited admission to practice before the commission, an attorney must appear with co-counsel admitted to practice in Indiana. Pending approval of the petition, such an attorney may be permitted to appear, at the discretion of a presiding officer, at any hearing. Local counsel shall:

(d) Any withdrawal of appearance by an attorney on behalf of any party must:

(e) Except for good cause shown, the presiding officer may not grant a request for withdrawal of appearance by an attorney unless the request has been must be filed with the commission at least ten (10) days prior to the next scheduled hearing date.

SECTION 4. 170 IAC 1-1.1-8 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 8-1-1-5; IC 8-1-1.1-5.1; IC 35-44-2-1

Sec. 8. (a) An attorney eligible to practice before the commission shall sign all pleadings filed with the commission or as otherwise required by statute or as follows:

(b) Petitions and complaints may be amended or supplemented upon written or oral motion. Leave to amend a petition or complaint shall be freely granted upon failure of any other party to the proceeding to demonstrate undue prejudice. If the amended or supplemented petition or complaint seeks relief substantially different than that originally prayed for:

(c) A party may amend his or her pleading once as a matter of course at any time before a responsive pleading is served, or, if the pleading is one to which no responsive pleading is permitted and the cause has not been set for an evidentiary hearing, he or she may so amend it at any time within thirty (30) days after it is served. Otherwise, a party may amend his or her pleading only by leave of the presiding officer or by written consent of the adverse party, and leave shall be given when justice so requires. A party shall plead in response to an amended pleading within:

(d) The signature of the party, if an individual, or of a duly authorized representative, if the party is an entity, or of the attorney for the party constitutes a certificate that:

"I (we) affirm under penalties for perjury that the foregoing representation(s) is (are) true to the best of my (our) knowledge, information, and belief.

(e) An individual who knowingly falsifies an affirmation or representation of fact is subject to the same penalties as prescribed by law for perjury under IC 35-44-2-1.

(f) Every pleading of a party represented by an attorney must:

SECTION 5. 170 IAC 1-1.1-9 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 8-1-1-5; IC 8-1-1.1-5.1

Sec. 9. (a) In addition to the matters required by section 8 of this rule, petitions must comply with the requirements of the statute under which they are filed and must contain the following:

(b) In any utility rate proceeding where the petitioner in its petition requests a specific test year and cutoff date, the commission shall, within thirty (30) days following the initiation of such proceeding, in consultation with the parties at the time of the prehearing conference or by agreement of the parties in writing as set forth in section 15 of this rule, by order, fix the test year and cutoff date for purposes of accounting, engineering, and other evidence to be presented in such proceeding, which shall be binding upon all parties. The commission may, on its own motion, by order, fix such test year and cutoff date at any time following the filing of any such petition. The commission, a commissioner, or a presiding officer shall confer with the petitioner and the office of the utility consumer counselor before issuing such an order.

(c) In any proceeding in which the petitioner is required by law to publish notice of the filing of the petition, such the petitioner shall, following publication of such the notice, certify to the commission that such the publication has occurred, listing the names of the newspapers and the county or counties in which such the notice was published.

SECTION 6. 170 IAC 1-1.1-10 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 8-1-1-5; IC 8-1-1.1-5.1

Sec. 10. (a) In addition to the matters required by sections 8 and 9 of this rule, complaints must also state the name of each respondent and each individual or entity, if any, who, under any applicable statute or commission rule, is required to be named in the complaint because of the individual's or entity's interest or possible interest in the subject matter. The complaint must state the address of each respondent, individual, or entity, if known. If such the address is unknown, the complaint must state that each of the parties joining in the complaint has been unable to ascertain the address upon reasonable inquiry.

(b) Concurrently with the filing of any complaint with the commission, the complainant shall serve a copy on each named respondent.

(c) Answers to any complaint must conform to the following:

SECTION 7. 170 IAC 1-1.1-12 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 8-1-1-5; IC 8-1-1.1-5.1; IC 8-1-3-1

Sec. 12. (a) A motion must state the grounds therefor and the relief sought. Parties may file motions:

(b) Motions based on a matter which that does not appear of record shall be supported by affidavit.

(c) Motions may be accompanied by memoranda in support thereof.

(d) A party may make a motion in writing. Motions made during hearings may be stated orally upon the record. The presiding officer may require that such oral motions be:

(e) Responses to motions made during hearings may be stated orally on the record, or the presiding officer may require that oral responses be:

(f) The moving party may reply to a response made to the party's motion. A reply to responses made orally during a hearing may be stated orally on the record, or the presiding officer may require that a reply be reduced to writing and filed separately. Any written reply to a response shall be filed with the commission within seven (7) days after service of the written response or after the response is made orally on the record unless the presiding officer prescribes a different time.

(g) A presiding officer is authorized to rule upon any and all motions. No ruling by a presiding officer upon any motion shall be deemed a final ruling of the commission for purposes of IC 8-1-3-1 until the commission:

(h) Motions not specifically provided for by this rule shall be made in accordance with any Indiana rule of trial procedure applicable, consistent with section 26(a) of this rule.

SECTION 8. 170 IAC 1-1.1-15 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 8-1-1-5; IC 8-1-1.1-5.1; IC 8-1-2-29

Sec. 15. (a) In order to:

(b) The commission, or the presiding officer, with or without motion, and after consideration of the probability of beneficial results to be derived therefrom, may direct:

(c) The presiding officer may consider, among other things, the following should be considered at the preliminary hearing: a prehearing conference:

(d) Representatives of all parties shall:

(e) If the parties have previously reached agreement on any or all procedural matters to be considered at a prehearing conference, the agreement may be reduced to writing and filed for approval in lieu of the prehearing conference.

(e) (f) Failure of a party to attend a preliminary hearing, after being served with due notice of the time and place thereof, shall constitute waiver of all objections to any agreements reached by the parties in attendance at the preliminary hearing or to the disposition of any issues on which evidence was taken at the preliminary hearing as reflected in any order or ruling made at the preliminary hearing or issued as a result of the preliminary hearing. If a party is excused from attendance at the preliminary hearing, prehearing conference, the determination of whether a waiver of all objections to such agreements or the disposition issues still applies is at the discretion of the presiding officer.

(f) If the parties have previously reached agreement on any or all procedural matters to be considered at a preliminary hearing, the agreement may be reduced to writing and filed for approval in lieu of the preliminary hearing. Commission approval of such an agreement may not be in lieu of a preliminary hearing if a petition to intervene is filed at least five (5) days prior to the date originally set for the preliminary hearing.

(g) The presiding officer at any such preliminary hearing may dispose of any procedural matters during the course of the proceeding.

(h) (g) The presiding officer is authorized, but not limited to, the following actions at the preliminary hearing: attorney and technical conferences:

SECTION 9. 170 IAC 1-1.1-16 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 8-1-1-5; IC 8-1-1.1-5.1; IC 8-1-2-29

Sec. 16. (a) Parties shall be entitled to all the discovery provisions of Rules 26 through 37 of the Indiana Rules of Trial Procedure as from time to time amended by the Indiana supreme court or general assembly.

(b) Any petitioner, applicant, complainant, respondent, or intervenor party may issue a written request in writing, for discovery from to any other party. Unless otherwise directed by the presiding officer, if the party against whom the discovery is directed does not satisfy such the request within ten (10) calendar days following receipt thereof or reach an agreement with the requesting party as to the nature, scope, and time for the requested discovery, the party seeking discovery may make written application to the commission for an order compelling discovery, specifically setting forth and detailing the:

(c) No discovery shall be ordered with regard to rulemaking proceedings. The commission may, however, in the exercise of its authority, obtain information relating to the subject matter of the proposed rules from any entity under its jurisdiction. Such information shall be available to the public under IC 8-1-2-29.

(d) In order to serve the public interest and expedite the discovery process, the presiding officer, with or without motion, may call one (1) or more informal attorneys' conferences for the purpose of discussing, hearing argument on, and resolving discovery disputes, including discovery issues and discovery schedules. The presiding officer may:

(e) Upon a showing of good cause by the party seeking Parties may request a protective order pursuant to the requirements set forth in Indiana Trial Rule 26(C) and, as appropriate, section 4 of this rule. Upon such a request, the presiding officer may grant appropriate protective relief, Such appropriate relief which may include the convening of an informal, off the record attorneys' conference to be conducted off the record of the proceedings for in order to conduct an in camera review of the material sought in discovery. Requests for protective orders shall be governed by Rule 26(C) of the Indiana Rules of Trial Procedure.

SECTION 10. 170 IAC 1-1.1-18 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 8-1-1-5; IC 8-1-1.1-5.1

Sec. 18. (a) Hearings must be conducted by a commissioner or administrative law judge.

(b) The presiding officer may make rulings with respect to pleadings and other matters not ruled upon.

(c) The presiding officer conducting the hearing must enter upon the record all appearances, with a notation in whose behalf each appearance is made.

(d) In hearings upon complaints or petitions, the complainant, petitioner, or other party having the burden of proof must open and close the presentation of evidence and arguments. In hearings on investigations and in proceedings that have been consolidated for hearing, the presiding officer may direct who shall open and close the record. In proceedings where the evidence is particularly within the knowledge or control of another party, the presiding officer may vary the order of presentation. The presiding officer may, at any time during the hearing, limit repetitive or redundant:

(e) When objections to the admission or exclusion of evidence before the commission or the presiding officer are made, the objecting party must briefly state all the grounds relied upon.

(f) The presiding officer may, at his or her discretion, permit a party to furnish designated exhibits after the close of the hearing with copies to all parties of record. The presiding officer must specifically describe and assign an identifying exhibit number at the time of hearing and may admit it into the record of the proceeding with physical production at a later time, provided a party does not object, or if a party objects, the presiding officer shall direct the mode of admissibility, including granting the objecting party reasonable opportunity to question the sponsor of the exhibit regarding its contents. However, this subsection does not make evidence admissible that would otherwise be inadmissible.

(g) The direct testimony of a witness for any party may be presented in written question and answer form and must have any related exhibits attached unless the presiding officer prescribes another format. In any utility rate proceeding, unless otherwise provided in any prehearing conference order or by stipulation of the parties, such prepared testimony and exhibits shall be filed with the commission and served on all parties at least fifteen (15) days prior to the date of the hearing at which the same is to be offered into evidence. This requirement shall not apply to matters provided for in section 21(f)-(h) 21(f) of this rule. Unless otherwise provided by the presiding officer, any prepared testimony and exhibits must be filed with the commission secretary in accordance with section 3 of this rule and served on all parties to the proceeding within the deadline established by the preliminary hearing order or docket entry of the presiding officer. However, nothing in this section requires the prefiling of any testimony without the specific order of a presiding officer or the commission.

(h) Unless otherwise directed by the commission, prefiled testimony, when properly authenticated by the witness under oath or affirmation, may be offered as an exhibit. The written testimony shall be subject to the same rules of admissibility and cross-examination of the sponsoring witness as if the testimony were being presented orally.

(i) Any party to a proceeding may move in writing for an extension of time in which to prefile testimony. The motion should be filed prior to the time set for the filing of the testimony unless a supporting affidavit establishes that the facts, which are the basis of the motion, did not then exist or were not then known to the moving party. For good cause shown, the presiding officer may reschedule a hearing to a later date, if necessary, and fix the extension of time in which to prefile such testimony in order to avoid undue delay and provide reasonable opportunity for all parties to properly prepare their cases. All parties shall be given an opportunity to object to any motion for extension of time.

(j) With the approval of the presiding officer, corrections or changes in the stenographic record may be made upon the written agreement of all parties of record filed with the commission within ten (10) days after parties have been notified that the stenographic record has been completely transcribed. Other corrections or changes may be made only upon order of the commission.

(k) Parties may obtain copies of the stenographic record from the official reporter upon payment of the appropriate charges fixed by the commission.

(l) Due legal notice of the initial evidentiary hearing on the merits, having been given and published as required by law, notice of further hearings or other matters agreed upon or ordered by the presiding officer at the hearing do not need to be published. It is the obligation of counsel and parties to a formally docketed cause to keep themselves informed of all actions taken in a proceeding before the commission.

(m) After being duly notified, a party who fails to be represented at a scheduled conference or hearing in any proceeding is deemed to have waived the opportunity to participate in such the conference or hearing, and is deemed to have consented to, and may not be permitted thereafter to reopen, any matter resolved or accomplished at such conference or hearing, and may not be permitted to recall for further examination witnesses who were excused unless the presiding officer determines that the failure to be represented was unavoidable or that the interests of the other parties and of the public would not be unduly prejudiced by permitting such reopening for further examination. If any witness is recalled for further examination, then the recalling party must pay any expert fees, costs, and expenses.

SECTION 11. 170 IAC 1-1.1-21 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 8-1-1-5; IC 8-1-1.1-5.1

Sec. 21. (a) The presiding officer has all necessary authority to control the receipt and admissibility of evidence, including, but not limited to, the following:

(b) Except as otherwise provided in this rule, when writings, recordings, or photographs are offered in evidence, copies shall be furnished to the presiding officer and to the parties present at the hearing unless the presiding officer otherwise directs. The presiding officer may require a party to furnish additional copies of exhibits.

(c) Verified petitions, complaints, and answers thereto, and similar verified documents upon which hearings are held, may, without further action, be admitted into evidence:

(d) A party may move for the admission of evidence into the record upon presentation of the sponsoring witness, after authentication, or pursuant to stipulation or agreement.

(e) An offer to prove may be requested when a ruling has been made holding that the witness was not competent to testify or that the evidence to be offered was inadmissible. An offer to prove may also be made when the presiding officer has sustained an objection to the admission of tangible evidence. If the proffered evidence is tangible, the commission shall mark it for identification purposes and that constitutes the offer to prove. If the proffered evidence is oral testimony, the offer to prove must consist of a summary of the evidence that the counsel contends would be adduced by such testimony. The presiding officer may, when requested, permit an offer to prove to be made orally or by the written prefiled testimony of a witness. The presiding officer may also request a statement of the basis for admissibility of such evidence.

(f) When a party desires to offer in evidence any portion of the testimony in another commission proceeding, such portion shall be plainly designated in the stenographic record, and, if admitted, shall be deemed read in evidence as a part of the testimony in the pending proceeding.

(g) (f) When a party desires to offer in evidence any official publication of the commission, any order of the commission in another proceeding, any exhibit introduced in evidence in another commission proceeding, or any other document in the commission's official files, or any part thereof, it shall be:

(h) With the approval of the presiding officer, verified pleadings or affidavits may be received in evidence as proof of the matters contained therein, provided the affiant or affiants are made available for cross-examination.

(i) (g) The commission shall take administrative notice of any fact that must be judicially noticed by a court of Indiana.

(j) (h) The commission may take administrative notice, on its own motion or upon a party's motion, of relevant administrative rules, commission orders, or other documents previously filed with the commission.

(k) The commission may take administrative notice on its own motion or upon a party's motion.

(l) (i) In order for the commission to take administrative notice of a fact or other material, the parties must be:

(m) (j) A request by a party for administrative notice of a factual matter that should be included in a party's prefiled testimony shall be made at the same time the related evidence is prefiled.

(n) An (k) Any documents administratively noticed by the commission shall become part of the record for the proceeding.

SECTION 12. 170 IAC 1-1.1-23 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 8-1-1-5; IC 8-1-1.1-5.1

Sec. 23. (a) Briefs and proposed orders are to be filed and oral arguments heard only at the request of or approval by the commission or the presiding officer and at the times fixed therefor.

(b) An original and four (4) copies of all briefs shall be filed with the commission and a copy served by the submitting party upon all other parties to the proceeding, such service and proof thereof to be in accordance with section 13 of this rule.

SECTION 13. 170 IAC 1-1.1-24 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 8-1-1-5; IC 8-1-1.1-5.1

Sec. 24. (a) The commission may, in its discretion, dismiss any proceeding that has been pending upon the commission docket: for six (6) months

(b) Prior to such dismissal, the commission shall notify all parties to the proceeding by United States mail of its intention to dismiss. Notice shall be served at least ten (10) days prior to the entry of dismissal.

DIN: 20080618-IR-170070514FRA

Composed: Apr 25,2024 9:21:07AM EDT

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