291 Neb. Admin. Code, ch. 1, § 009

Current through June 17, 2024

Section 291-1-009 - PETITIONS FOR DECLARATORY ORDER:

009.01Generally: A request for a declaratory order must be made by a petition that meets the requirements of section 009.

009.02Who May File: Any person may petition the Commission for issuance of a declaratory order as to the applicability to specified circumstances of a statute, rule, regulation, or order which is within the primary jurisdiction of the Commission.

009.03When Order Is Appropriate: A declaratory order may be requested on the applicability of a statute, rule, regulation, or order enforced by the Commission. "Applicability" refers to the appropriateness of the relation of the law to the person, property, or state of facts, or its relevance under the circumstances given. It may include such questions as whether the law applies at all, to whom it applies, when it applies, how it applies, or which law applies. Considerations as to whether issuance of a declaratory order is appropriate include:

009.03A A declaratory order may be requested only on the applicability of existing statutes and rules and regulations.

009.03B A declaratory order may be requested to obtain a determination of proposed conduct, not to obtain a determination of the effect of conduct that has already occurred.

009.03C A declaratory order is not a mechanism for review or appeal of a decision made by the Commission in a contested case.

009.03D A declaratory order may not be requested to obtain a declaration by the Commission that a statute or regulation is unconstitutional or that a regulation of the Commission is invalid.

009.03E A declaratory order may not be issued by the Commission that would substantially prejudice the rights of a person who would be a necessary party and who does not consent in writing to the determination of the matter by a declaratory order proceeding.

009.04Form of Petition: A petition for declaratory order must be in the form of either a pleading or letter which shall contain each of the following:

009.04A A caption, which must include:

009.04A1 The venue "BEFORE THE NEBRASKA PUBLIC SERVICE COMMISSION";

009.04A2 A heading specifying the subject matter and the name of the petitioner; and

009.04A3: The name of the pleading as "PETITION FOR DECLARATORY ORDER".

009.04B The statements required in subsection 009.05 of this chapter.

009.04C The signature of the petitioner, or when represented by an attorney, the signature of the attorney.

009.04D The name and address of the petitioner, and when represented by an attorney, the name, address, telephone number, and bar number of the attorney.

009.04E The petition must be made on white, letter-sized (8-1/2" x 11") paper.

009.04F The petition must be legibly typewritten, photo statically reproduced, printed, or handwritten. If handwritten, the petition must be written in ink. Only one side of a page must contain any writing.

009.04G Any documents attached to a petition must be securely fastened to the pleading, must meet the requirements of 009.04E and 009.04F and, when possible, be reproduced on 8-1/2" x 11" paper or placed in an 8-1/2" x 11" envelope and clearly marked as an attachment to the petition.

009.05Contents of Petition: To be considered, the petition must include the following:

009.05A The name and address of the petitioner;

009.05B The name and address of all persons or entities, known to the petitioner, who may have a specific interest in the applicability of the statute, rule, regulation, or order or who may be adversely affected by the issue sought to be resolved by the petitioner.

009.05C The statute, rule, regulation, or order upon which the petitioner seeks issuance of a declaratory order;

009.05D A detailed statement of all of the material facts and specific circumstances which apply to petitioner's request for issuance of a declaratory order;

009.05E All propositions of law or contentions asserted by the petitioner;

009.05F A demand for the relief to which the petitioner alleges entitlement. The petition must state the petitioner's position as to how the Commission should rule and why the Commission should rule in the manner requested; and

009.05G Any documents pertinent to the petition that the petitioner wishes to be considered by the Commission.

009.06Verification: The Petition must be subscribed and verified by the petitioner. If the petitioner is a corporation, political subdivision, or other entity, then the petition must be subscribed and verified by a duly authorized agent of the petitioning entity.

009.07Sample Petition: The petitioner may use the sample form of a petition which is attached as "Appendix A" and incorporated within this chapter. The petitioner may also prepare a reasonable facsimile of "Appendix A" so long as the requirements of 9.04, 009.05, and 009.06 of this chapter are satisfied.

009.08Written Consents: The petitioner must also attach to the petition any written consents obtained from any necessary party that the petition may be determined by use of a declaratory order proceeding.

009.09Submission and Service of Declaratory Order Petition:

009.09A The original petition for declaratory order must be filed with the Commission by mail or in person during the Commission's normal business hours.

009.09B The petition will be deemed as filed when it is actually received by the Commission. The Commission will date stamp all petitions upon receipt.

009.09C At the same time the petition is filed with the Commission, the petitioner will serve a copy of the petition, by certified mail, return receipt requested, on all necessary parties, including all persons, political subdivisions, corporations, organizations, or other entities who are known to have or claim any interest, legal right, duty, privilege, or immunity which would be directly affected by issuance of a declaratory order in this matter by the Commission.

009.10Disposition of the Petition:

009.10A Upon the filing of a petition, the Commission may, in its discretion, do one or more of the following:

009.10A1 Require that additional information be filed before the petition will be further considered;

009.10A2 Require a petitioner to provide notice to persons or entities who may be necessary parties and other persons that a request for a declaratory order has been filed with the Commission;

009.10A3 Schedule a date, time, and location at which the petitioner and any other parties to the proceeding may make an oral presentation on the petition; or

009.10A4 Consider the petition and any attachments without oral presentation.

009.10B Within thirty (30) days after the petition is filed, the Commission will, in writing:

009.10B1 Issue an order declaring the applicability of the statute, regulation, rule, or order in question to the specified circumstances; or

009.10B2 Agree to issue an order by a specified time declaring the applicability of the statute, regulation, rule, or order in question to the specified circumstances; or

009.10B3 Set the matter for specified proceedings as set forth in subsection 009.09 of this Chapter; or

009.10B4 Decline to issue a declaratory ruling, stating the reasons for the Commission's decision.

009.10C Notwithstanding section 009.09B of this rule, the Commission may determine at any time that it will not issue a declaratory order if issuance of an order under the circumstances would be contrary to any provisions of section 009.013 of this Chapter. The Commission will notify the petitioner and, if applicable, any intervenor or necessary party in writing when the Commission determines not to issue a declaratory order.

009.11Intervention in Declaratory Order Proceeding: Intervention by any person or entity in a declaratory order proceeding will be allowed when the following requirements are met:

009.11A A petition for intervention must be filed in writing with the Commission. Copies must be mailed to all parties to the proceeding.

009.11B The petition for intervention must be submitted to the Commission, in writing, on 8 1/2" x 11" white paper, and must include each of the following:

009.11B1 The statute, regulation, rule, or order that may apply to or effect the person, property, entity, or facts at issue in the matter;

009.11B2 A statement of facts sufficient to show the intervenor's interest;

009.11B3 A statement of facts which demonstrate that the intervenor's legal rights, duties, privileges, immunities, or other legal interests may be substantially affected by the proceeding or that the intervenor may intervene pursuant to a provision of law;

009.11B4 All propositions of law or contentions asserted by the intervenor; and

009.11B5 A statement of the specific relief requested by the intervenor.

009.11C The Commission must determine that the interests of justice and the orderly and prompt conduct of the proceedings will not be impaired by allowing the intervention.

009.11D The Commission may, at its discretion, invite any person or entity to file a petition for intervention.

009.11E The Commission will grant a petition for intervention if the requirements of§ 009.010 are satisfied.

009.11F The Commission will deny a petition for intervention upon determining that the interests of justice or the orderly and prompt conduct of the proceedings would be impaired by allowing the intervention.

009.11G The Commission's decision to grant or deny a petition for intervention will be in writing and served upon all parties.

009.12Declaratory Order Proceedings:

009.12A Oral argument will be had only on specific order of the Commission. A petitioner, intervenor, necessary party, or the Commission may file a motion for oral argument with the Commission. If opportunity for oral argument is granted, then argument will be scheduled to be conducted not more than forty-five (45) days after filing of the petition. Petitioner and all other parties or, when represented, their attorneys, must be served by the Commission with a notice of the date, time, and location for oral argument. The Commission will provide each of the parties with notice of the proceeding not less than seven (7) days in advance of the scheduled date. Service will be made by certified mail, return receipt requested.

009.12B Oral argument will be made before the Commission. The Hearing Officer will be in control of the proceeding and will:

009.12B1 Identify the proceeding and introduce himself or herself and identify each party for the record;

009.12B2 Hear the oral argument of the petitioner, intervenor, or necessary parties; and

009.12B3 Close the proceedings.

009.12C At the declaratory order proceeding, Commission staff will have the right to present oral argument.

009.12D The Hearing Officer may impose reasonable time limits on the amount of time allocated to each party for oral argument.

009.12E The parties and Commission staff may file briefs in support of their respective positions. The Hearing Officer may fix the time and order of filing briefs and may direct that briefs be filed prior to the date of oral argument.

009.12F The oral argument may be conducted either in person or by telephone conference call.

009.13Issuance of Declaratory Order:

009.13A The Commission will issue its declaratory order within sixty (60) days of the date on which the petition was filed.

009.13B The declaratory order will be in writing and shall include the following:

009.1381 The names of all parties to the proceeding upon which the order is based;

009.13B2 The facts upon which the order is based;

009.13B3 The statute, regulation, rule, or order at issue in the matter;

009.13B4 The Commission's conclusion as to the applicability of the statute, regulation, rule, or order to the facts;

009.13B5 The Commission's conclusion as to the legal effect or result of applying the statute, regulation, rule, or order to the facts; and

009.13B6 The reasons relied upon by the Commission to support its conclusions.

009.13C A copy of the declaratory order must be served upon each party by certified mail, return receipt requested.

009.13D A declaratory order will have the same status and binding effect as any other order issued in a contested case.

009.13E If the Commission has not issued a declaratory order within sixty (60) days after the petition has been filed, then the petition will be deemed to have been denied by the Commission.

009.14Circumstances Under Which Commission Will Not Issue Declaratory Orders:

009.14A Grounds upon which the Commission may refuse to issue a declaratory order include, but are not limited to, the following:

009.14A1 The petition requests a declaratory order on a matter that is outside the scope of authority of the Commission;

009.14A2 The petition requests review or appeal of a decision made by the Commission in a contested case;

009.14A3 The petition requests a declaratory order on the effect of past conduct;

009.14A4 An investigation for purposes of a formal adjudication, a contested case, or a petition to issue, amend, or repeal regulations is pending before the Commission involving the petitioner on substantially the same or similar facts or issues raised in the petition;

009.14A5 The petition seeks a declaration that a statute or rule or regulation is unconstitutional or invalid;

009.14A6 The issue raised in the petition has been settled by a change in circumstances or other means so as to render moot the need for a declaratory order;

009.14A7 An order would substantially prejudice the rights of a person or entity who would be a necessary party and who does not consent in writing to the determination of the matter by a declaratory order proceeding;

009.14A8 An order would not resolve the controversy or uncertainty; or

009.14A9 The question posed or facts presented are insufficiently specific, overly broad, or are otherwise inappropriate as a basis upon which to decide the matter.

009.14B Grounds upon which the Commission may determine to refuse to issue a declaratory order include, but are not limited to, the following:

009.14B1 Refusal is necessary to assure adequate allocation of Commission resources are available for issuing rulings on petitions raising questions of greater urgency or significance;

009.14B2 The question presented is of such complexity that the Commission has had insufficient opportunity or resources to develop a fully matured ruling; or

009.14B3 The petitioner fails to file any additional information requested by the Commission or files such information after the date established by the Commission.

009.15Appeal: A declaratory order is subject to review in accordance with Nebraska Statute.

291 Neb. Admin. Code, ch. 1, § 009

Adopted effective 4/21/2019