Missouri Public Service Commission (Commission) Rule 4 CSR 240-4.020(2) provides that any “regulated entity” that intends to file a case likely to be a contested case must file a notice with the Commission a minimum of sixty days prior to filing such case. Until the Commission’s rejection of Grain Belt Express’ application for a certificate of convenience and public necessity (CCN) for its proposed Clean Line project, it was arguably unclear which applicants were “regulated entities” subject to the notice requirement.

Following an endorsement by Missouri Governor Jay Nixon of the Clean Line project (discussed in our client alert published July 1), Grain Belt Express filed an application seeking Commission approval to construct the line. Grain Belt Express did not file a 60-day notice in advance of its application, and the Commission directed Grain Belt Express to file a response showing why the Commission should not reject its application for failing to file.

Grain Belt Express filed its response on that same date, arguing that the Commission’s Order “is wholly incongruent with its own precedent,” in that the Commission had not previously required “new entrants” to Missouri who are not yet “regulated entities” to file such a notice. It further argued that Grain Belt Express is not a “regulated entity” because it currently has no regulated operations in the state of Missouri and requested in the alternative that the Commission waive the requirement for good cause on the grounds that the term “regulated entity” has been neither defined nor interpreted by the Commission and that the applicant had a good faith belief that the notice provision did not apply.

On July 12, the Commission issued an order denying the waiver and directing the Secretary to reject the application, finding that:

While the term “regulated entity” is not defined in the rule, for the purposes of this section, it is most reasonable to infer that a regulated entity is simply one that is subject to the authority of the Commission, as is any entity that asks the Commission for permission to construct transmission in Missouri. To interpret this term in such a way as to exempt Grain Belt from this section of the rule would subvert the section’s purpose by allowing some entities to avoid the protections of the notice requirement based solely on whether they have previously received a certificate from the Commission.

The Commission found that the rule was applicable to Grain Belt Express, and noted that Grain Belt Express was “evidently well aware of the requirements as it filed a 60-day notice in its previous application proceeding,” a “highly contentious” CCN case involving a similar request that was rejected on other grounds. The Secretary rejected the filing on July 13.

This order suggests that any and every application seeking Commission authority to construct transmission lines in Missouri should therefore be accompanied by a 60-day notice unless grounds for a waiver are present. It also suggests that drawing a distinction in other contexts between entities on the basis of whether they have previously received a certificate also may not be supported by the Commission.