CHAPTER 28. WATER UTILITY ENVIRONMENTAL COMPLIANCE PLANS
IC 8-1-28
Chapter 28. Water Utility Environmental Compliance Plans
IC 8-1-28-1
"Clean Water Act" defined
Sec. 1. As used in this chapter, "Clean Water Act" refers to theFederal Water Pollution Control Act (33 U.S.C. 1251 et seq.) andregulations adopted under the Federal Water Pollution Control Act.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-2
"Environmental compliance plan" defined
Sec. 2. As used in this chapter, "environmental compliance plan"means a plan developed by a public utility to comply in whole or inpart with the requirements of the Safe Drinking Water Act or theClean Water Act.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-3
"Public utility" defined
Sec. 3. As used in this chapter, "public utility" means a publicutility, a municipally owned utility, or a cooperatively owned utility.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-4
"Safe Drinking Water Act" defined
Sec. 4. As used in this chapter, "Safe Drinking Water Act" refersto the federal Safe Drinking Water Act (Public Health Service Act,42 U.S.C. 300f et seq.) and regulations adopted under the SafeDrinking Water Act.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-5
Submission of plan to commission; required information
Sec. 5. (a) A public utility that is subject to provisions of the SafeDrinking Water Act or Clean Water Act may voluntarily submit anenvironmental compliance plan that sets forth the manner in whichthe public utility intends to comply with requirements of the SafeDrinking Water Act or the Clean Water Act to the commission forthe commission's review and approval under this chapter.
(b) An environmental compliance plan described in subsection (a)must include any information that the commission may require. Thecommission shall require a plan described in subsection (a) toinclude at least the following information:
(1) A description of the requirements of the Safe DrinkingWater Act or Clean Water Act applicable to the operations ofthe public utility.
(2) A description of the measures the public utility proposes toimplement to comply with the requirements.
(3) The schedule under which the public utility proposes to
implement the measures.
(4) An estimate of the cost of implementing each of themeasures proposed by the public utility.
(5) An analysis of the comparative estimated costs of meetingthe applicable requirements of the Safe Drinking Water Act orClean Water Act through the measures proposed by the publicutility and other alternative compliance measures considered bythe public utility.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-6
Public hearing on plan; notice
Sec. 6. The commission shall hold a public hearing for eachenvironmental compliance plan submitted by a public utility underthis chapter. The public utility shall publish a notice of the filing ofits petition for approval of an environmental compliance plan in one(1) newspaper of general circulation published in each county inwhich the utility renders service. The provisions of IC 8-1-2-62through IC 8-1-2-67 shall apply to a public hearing under thissection.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-7
Order approving plan; conditions
Sec. 7. The commission shall issue an order approving anenvironmental compliance plan if the commission:
(1) finds that the environmental compliance plan:
(A) is reasonably designed to meet or exceed applicablerequirements of the Safe Drinking Water Act or Clean WaterAct;
(B) constitutes a reasonable and least cost strategy consistentwith providing reliable, efficient, and economical waterservice; and
(C) is in the public interest; and
(2) approves the cost and schedule estimate for developing andimplementing the environmental compliance plan.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-8
Rejection of plan; modified plan; withdrawal of plan withoutprejudice
Sec. 8. (a) If the commission finds that an environmentalcompliance plan submitted by a public utility does not satisfy therequirements of section 7 of this chapter, the commission may rejectthe plan.
(b) If the public utility's environmental compliance plan isrejected by the commission, the public utility may voluntarily submitto the commission a modified plan intended to satisfy therequirements of section 7 of this chapter.
(c) A modified plan submitted under subsection (b) shall be
considered by the commission under sections 6 and 7 of this chapter.
(d) A public utility may withdraw a proposed environmentalcompliance plan without prejudice.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-9
Submission of plan to government environmental agency; conflicts
Sec. 9. A public utility shall submit its environmental complianceplan or modified environmental compliance plan to any applicablestate government environmental agency on or before the date that thepublic utility submits the plan to the commission under this chapter.If there is a conflict between the commission and a federal or stategovernment environmental agency concerning the necessarycomponents of a public utility's environmental compliance plan ormodified environmental compliance plan, the determination by thegovernment environmental agency shall control.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-10
Modification of previously approved plan; review by commission
Sec. 10. If a public utility:
(1) chooses to; or
(2) because of action by a federal or state governmentenvironmental agency, is required to;
modify a portion of an environmental compliance plan that haspreviously been approved by the commission in order to comply withthe requirements of the Safe Drinking Water Act or Clean Water Act,the public utility shall submit a modified environmental complianceplan to the commission for the commission's review. The conflictprovisions of section 9 of this chapter apply to a modifiedenvironmental compliance plan submitted under this section.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-11
Recovery of costs by public utility for capital projects orimplemented plan
Sec. 11. (a) If the commission issues an order approving anenvironmental compliance plan submitted by a public utility underthis chapter, the commission shall, absent fraud, concealment, grossmismanagement, or inadequate quality control, allow the publicutility to do the following:
(1) If a public utility is allowed by law to earn a return on thepublic utility's investment, the public utility may add to the fairvalue of the public utility's property the fair value of acompleted capital project, or part of a capital project, that:
(A) is constructed and consists of:
(i) new systems, equipment, or facilities; or
(ii) modifications to existing systems, equipment, orfacilities; and
(B) is part of the environmental compliance plan approved
by the commission;
up to the amount approved by the commission under section7(2) or 12 of this chapter, whichever is applicable.
(2) The public utility may recover the costs and expenseincurred by the public utility in the development andimplementation of the approved environmental complianceplan, up to the amount approved under section 7(2) or 12 of thischapter, whichever is applicable.
(b) The public utility may not recover costs in excess of the costestimate approved by the commission under section 7(2) or 12 of thischapter, whichever is applicable, unless the commission finds thatthe additional costs were necessary and prudent.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-12
Revised cost and schedule estimate for developing andimplementing plan; submission to commission
Sec. 12. (a) If a public utility makes a substantial change in a costand schedule estimate for developing and implementing anenvironmental compliance plan or a modified environmentalcompliance plan after the estimate has been approved by thecommission under this chapter, the public utility shall file with thecommission for the commission's review and approval the revisedcost and schedule estimate.
(b) To the extent the commission approves a revised cost andschedule estimate, the estimate shall be the approved cost andschedule estimate for the plan.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-13
Utility's recovery of expenditures as result of plan modification
Sec. 13. If the commission issues an order under section 7 or 15of this chapter that approves modifications to a public utility'senvironmental compliance plan, the commission shall, absent fraud,concealment, gross mismanagement, or inadequate quality control,allow the public utility to recover under section 11 of this chapter, tothe extent permitted under section 11 of this chapter, the following:
(1) The public utility's expenditures made under theenvironmental compliance plan before the date the commissionissued the order approving the modified environmentalcompliance plan.
(2) The public utility's expenditures made under the modifiedenvironmental compliance plan after the date the commissionissued the order approving the modified environmentalcompliance plan.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-14
Recovery of costs incurred by utility in implementing measure setforth in plan but disapproved by commission upon review Sec. 14. If a public utility cancels the implementation of ameasure set forth in an environmental compliance plan as a result ofan order issued by the commission under section 15 or 16 of thischapter that withdraws the commission's approval of the inclusion ofthe measure in the environmental compliance plan, the public utilitymay, absent fraud, concealment, or gross mismanagement, recover:
(1) over a reasonable time; and
(2) through the rates of the public utility;
the costs incurred by the public utility in implementing the measureand a reasonable return on the unamortized balance, to the extent theimplementation and the costs were approved previously by thecommission. The public utility may not recover costs in excess of thecost estimate approved by the commission under section 7(2) of thischapter unless the commission finds that the additional costs werenecessary and prudent.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-15
Review of plan by commission; withdrawal of approval ormodification of plan
Sec. 15. (a) If the commission, after an investigation commencedupon its own initiative or upon a petition of a class of personssatisfying the standing requirements of IC 8-1-2-54 (including theoffice of the utility consumer counselor), finds that substantialchanges:
(1) in the need for or estimated cost of an approvedenvironmental compliance plan have occurred; or
(2) in the estimated cost of alternative compliance measureshave occurred;
the commission may commence a review of the approval of theenvironmental compliance plan.
(b) If the commission finds that all or part of an environmentalcompliance plan no longer meets the requirements of section 7 of thischapter, the commission may, consistent with sections 7 and 9 of thischapter, issue an order:
(1) withdrawing the commission's approval of all or part of theenvironmental compliance plan, whichever is applicable; or
(2) approving modifications to the environmental complianceplan.
(c) If the commission approves modifications to an environmentalcompliance plan under subsection (b), the modified environmentalcompliance plan shall constitute the public utility's approvedenvironmental compliance plan for purposes of this chapter.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-16
Ongoing review of cost and implementation of plan; progressreport; recovery of costs; final approval by commission
Sec. 16. (a) In addition to the review of the continuedappropriateness of an environmental compliance plan under section
15 of this chapter, the commission shall, at the request of a publicutility, conduct an ongoing review of the cost and implementation ofthe public utility's approved environmental compliance plan. Thepublic utility shall submit to the commission:
(1) each year; or
(2) at other times the commission and the public utility agreeon;
a progress report that includes any information the commission mayrequire.
(b) If the commission approves the cost and implementation of thepart of the environmental compliance plan under review, then, absentfraud, concealment, or gross mismanagement, the approvalforecloses subsequent challenges to:
(1) the recovery in rates of those costs; and
(2) if the public utility is allowed by law to earn a return on thepublic utility's investment, the addition to the fair value of thepublic utility's property of the fair value of a completed capitalproject, or portion of a capital project, that:
(A) is constructed and consists of:
(i) new systems, equipment, or facilities; or
(ii) modifications to existing systems, equipment, orfacilities; and
(B) is part of the environmental compliance planimplementation approved by the commission;
up to the amount approved under section 7(2) or 12 of thischapter, whichever is applicable. The public utility may notrecover costs in excess of the cost estimate approved by thecommission under section 7(2) or 12 of this chapter, whicheveris applicable, unless the commission finds that the additionalcosts were necessary and prudent.
(c) If the commission does not issue an order disapproving all orpart of the implementation of the part of the environmentalcompliance plan under review within six (6) months of thecommencement of the action seeking the commission's approval, thecommission shall be considered to have approved all of theimplementation of that part of the environmental compliance planunless the commission issues an order extending the time for suchreview.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-17
Disapproval or approval of all or part of plan; effect
Sec. 17. If the commission disapproves all or part of theimplementation of the part of the environmental compliance planunder review:
(1) the commission may, consistent with section 9 of thischapter, issue an order withdrawing the commission approvalof all or part of the environmental compliance plan; and
(2) the public utility may voluntarily submit a modifiedenvironmental compliance plan to the commission for the
commission's approval under this chapter.
If the commission issues an order approving all or part of themodified environmental compliance plan, the environmentalcompliance plan constitutes the public utility's approvedenvironmental compliance plan to the extent of the approval forpurposes of this chapter.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-18
General rate proceedings; consideration of change in risk to utilityfollowing approval of plan
Sec. 18. In a general rate proceeding following the issuance of anorder by the commission approving an environmental complianceplan under this chapter, the commission shall, in reviewing andauthorizing the public utility's return, give due consideration to anychange in risk to the public utility as a result of the commission'sapproval of the environmental compliance plan and include in theorder issued with respect to the general rate proceeding a finding onthe change.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-19
Voluntary nature of chapter procedure
Sec. 19. (a) Use of the procedure in this chapter is voluntary to apublic utility. The failure of a public utility to use the approvalprovisions of this chapter may not create a presumption ofimprudence or nonrecovery in rates for environmental complianceplan costs.
(b) This chapter does not require a public utility to utilize thischapter to recover a cost or expense otherwise recoverable in thepublic utility's rates. A higher standard for the recovery of such costsor for determining the appropriateness of an environmentalcompliance plan may not be imposed because of a public utility'selection not to use the provisions of this chapter.
(c) An order of the commission approving an environmentalcompliance plan under this chapter may not limit or define themeasures that may be proposed in a compliance plan submitted byanother public utility or approved by the commission.
As added by P.L.76-1991, SEC.2.