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Colstrip

Power plants at Colstrip pump steam high into the air.

Montana has missed its chance to weigh in on a Washington utility’s early plans for shuttering half of the Colstrip Power Plant, say lawyers for regulators overseeing the matter.

In Washington, where Puget Sound Energy is laying out its multi-year plan for future rates and the shutdown of Colstrip Units 1 and 2, legal staff for that state's utility commission are arguing that Montana’s testimony, submitted Aug. 9 on behalf of Attorney General Tim Fox, was not only irrelevant, but also more than a month too late and should be thrown out.

Staff for the Washington Utility and Transportation Commission made their arguments in documents filed Wednesday morning.

“Montana waived its right to present that testimony,” staff said, calling Montana’s filing “a legal brief addressing a number of material issues while purporting to be testimony.”

Washington officials earlier told The Gazette the deadline for Montana to make recommendations about the environmental and economic impacts of closing Colstrip’s oldest units was June 30. That deadline passed without testimony filed by Montana’s attorney general.

An administrative judge will decide whether to throw out Montana's testimony.

Speaking for Fox, Department of Justice communications director Eric Sell said in an email that there will be a response.

“The state of Montana’s testimony is well within the parameters of this proceeding. It’s becoming increasingly clear that the state of Washington has little interest in hearing out Montana’s concerns regarding the closure of Colstrip, and the UTC staff’s motion is yet another example of that," Sell said. "Fortunately, this rate case is not the final say on shutdown costs related to Colstrip Units 1 and 2, and the more consequential proceedings will take place in Montana, on our home turf, over the next several years.”

Fox, a Republican, has repeatedly said nothing was filed because he didn’t want to reveal his legal strategy for future proceedings. However, neither the attorney general, nor his staff have said specifically what future proceedings are being referenced.

Montana's Department of Environmental Quality will oversee the cleanup and remediation of power plants. It is currently working with Colstrip owners on cleanup plans for the coal ash ponds servicing the power plants. Those ponds of toxic coal ash and water have contaminated Colstrip groundwater over the last 30 years.

Colstrip is one of the largest coal-fired power plants in the West. In 2015, it was the nation's 15th-largest producer of greenhouse gases, emitting 13.5 million metric tons annually, according to the U.S. Environmental Protection Agency.

Fox had earlier in the year asked Washington regulators to allow him to file testimony saying “the state of Montana wants to make sure the company makes good on its legal obligations to Montana’s communities, workers and environment affected by the operation and potential retirement of coal-fired generating units in our state.”

Puget has half ownership in the power plant units, which the utility and co-owner Talen Energy agreed to close within the next six years in order to settle a clean air lawsuit. Puget’s general rate case, underway before the Washington Utility and Transportation Commission, will determine how much Puget should raise to pay for shutting down Colstrip’s two oldest units and cleaning them up.

Montana’s Legislature had set aside $80,000 and directed Fox to spend the money representing the state’s interests in the Washington rate case. The money has not been spent.

Wednesday’s arguments for throwing out Montana’s case were brutal. Testimony in the rate case is supposed to come from expert witnesses, that is people with scientific, technical or other special knowledge useful in deciding the case. UTC staff argued that Montana’s “expert” was anything but.

Montana’s expert was state attorney Patrick Riskin, who in the Aug. 9 filing listed no familiarity with utilities or Colstrip.

Riskin “can offer the Commission nothing in the way of specialized knowledge that will help the Commission decide whether Puget Sound Energy has proposed fair, just, reasonable, and sufficient rates. He can offer only legal opinion. His testimony is unhelpful and inadmissible.”

Because Montana didn’t speak directly to Puget Sound Energy’s plans by the June 30 deadline, Washington regulators would only allow Montana to address the June 30 testimony of other third parties, who like Montana had been granted seats at the bargaining table earlier in the year.

Montana had this month attempted to speak beyond testimony of other third parties rather than respond to, or “cross-answer,” the others’ claims. The state raised several points that UTC staff said were now out of bounds and should have been made by the June 30 deadline.

“Montana cannot wait until cross-answering testimony to set out its case concerning protecting the interests of its workers, communities, and tax base from the impacts of shutting down Colstrip Units 1 and 2,” the UTC staff said.

One third party to the rate case that did submit testimony was the Sierra Club, which late Wednesday also requested the attorney general's testimony be stricken.

It was the Sierra Club, in partnership with the Montana Environmental Information Center, that brought against Puget and Talen the clean air lawsuit that ended in the companies agreeing to shutter Colstrip's two oldest units.

Sierra Club attorney, Travis Ritchie, asserted that all of Montana's points filed in August could have been filed by June 30.

Ritchie suggested Montana's August filing "can best be viewed as an attempt by the Montana attorney general to avoid further embarrassment for the perception of having failed to adequately represent the interests of Montana in this proceeding.

"However, political embarrassment is not a valid excuse to allow late-filed testimony," Ritchie told the judge.

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Agriculture and Politics Reporter

Politics and agriculture reporter for The Billings Gazette.