Section 8-1-1.9-5 - Wastewater utility not under commission jurisdiction; requirements if enforcement order issued(a) This section applies to a wastewater utility that:(1) is not subject to the jurisdiction of the commission for the approval of rates and charges; and(2) has been issued one (1) or more enforcement orders after June 30, 2022.(b) As used in this section, "department enforcement action" means an action of the department of environmental management commenced under IC 13-30-3.(c) As used in this section, "enforcement order" means an order, including an agreed order under IC 13-30-3-3: (1) resulting from a department enforcement action; and(2) relating to environmental or health and human safety issues.(d) As used in this section, "wastewater utility" means any of the following that provides wastewater service in Indiana:(1) A public utility (as defined in IC 8-1-2-1(a)).(2) A municipally owned utility (as defined in IC 8-1-2-1(h)).(3) A not-for-profit utility (as defined in IC 8-1-2-125(a)).(4) A cooperatively owned corporation.(5) A conservancy district established under IC 14-33.(6) A regional sewer district established under IC 13-26.(e) The following apply to a wastewater utility that is subject to this section: (1) Upon the issuance of the first enforcement order with respect to the wastewater utility, the commission shall: (A) perform an informal review, using such procedures as the commission may choose, of the rates and charges of the wastewater utility to determine if the rates and charges are sufficient to: (i) operate and maintain the wastewater utility's collection and treatment system; and(ii) pay all obligations of the wastewater utility's collection and treatment system; and(B) determine whether all elements of an adequate asset management program are in place with respect to the wastewater utility's collection and treatment system. In making a determination under clause (B), the commission may consult with the drinking water and wastewater infrastructure research and extension program authorized by IC 5-1.2-11.5-10. Notwithstanding IC 8-1-1-5(b), commission staff shall not be subject to cross examination in any subsequent proceeding in connection with any documents prepared during an informal review under this subdivision.
(2) If a second enforcement order is issued with respect to the wastewater utility within two (2) years of the effective date of the first enforcement order, the wastewater utility: (A) shall undergo a base rate case before the commission; and(B) becomes subject to the jurisdiction of the commission for the approval of rates and charges upon the effective date of the second enforcement order. After this first required rate case, the wastewater utility shall undergo one (1) subsequent rate case before the commission not earlier than three (3) years after the effective date of the commission's order in the first rate case under this subdivision. The wastewater utility shall remain subject to the jurisdiction of the commission for the approval of rates and charges for a minimum of five (5) years from the effective date of the commission's order in the first rate case under this subdivision and for at least one (1) year after the effective date of the commission's order in the second rate case under this subdivision. For purposes of determining rates and charges under this subdivision, if the wastewater utility also provides storm water services or is considered a combined sewer system, the commission may consider any revenues collected by the wastewater utility for storm water services. However, the commission may not order storm water rates to be adjusted.
(3) Notwithstanding IC 8-1-2.7, if the wastewater utility: (A) satisfies the requirements set forth in subdivision (2); and(B) is not issued any additional enforcement orders during the rate regulation period described in subdivision (2); the wastewater utility shall provide to the commission written notice to that effect. If the commission determines that the wastewater utility has satisfied the requirements set forth in subdivision (2) and has not been issued any additional enforcement orders during the rate regulation period described in subdivision (2), the wastewater utility shall be withdrawn from the commission's jurisdiction.
(4) If, during the rate regulation period described in subdivision (2):(A) one (1) or more additional enforcement orders are issued with respect to the wastewater utility; or(B) the commissioner of the department of environmental management otherwise determines that environmental or health and human safety considerations so warrant; the commission may, in consultation with the department of environmental management, initiate a receivership proceeding with respect to the wastewater utility.
(5) Subdivision (1) applies with respect to any enforcement order that is issued with respect to the wastewater utility after the completion of the rate regulation period described in subdivision (2).(f) The commission may enter into an agreement with the department to carry out the requirements set forth in subsection (e).(g) An action by the department of environmental management under this section is subject to review under IC 4-21.5.(h) An action by the commission under this section is subject to review under IC 8-1-3.Added by P.L. 18-2022,SEC. 12, eff. 7/1/2022.