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 the
Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) and
regulations 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 in
part with the requirements of the Safe Drinking Water Act or the
Clean 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 public
utility, 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" refers
to the federal Safe Drinking Water Act (Public Health Service Act,
42 U.S.C. 300f et seq.) and regulations adopted under the Safe
Drinking 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 Safe
Drinking Water Act or Clean Water Act may voluntarily submit an
environmental compliance plan that sets forth the manner in which
the public utility intends to comply with requirements of the Safe
Drinking Water Act or the Clean Water Act to the commission for
the 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. The
commission shall require a plan described in subsection (a) to
include at least the following information:
(1) A description of the requirements of the Safe Drinking
Water Act or Clean Water Act applicable to the operations of
the public utility.
(2) A description of the measures the public utility proposes to
implement 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 the
measures proposed by the public utility.
(5) An analysis of the comparative estimated costs of meeting
the applicable requirements of the Safe Drinking Water Act or
Clean Water Act through the measures proposed by the public
utility and other alternative compliance measures considered by
the 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 each
environmental compliance plan submitted by a public utility under
this chapter. The public utility shall publish a notice of the filing of
its petition for approval of an environmental compliance plan in one
(1) newspaper of general circulation published in each county in
which the utility renders service. The provisions of IC 8-1-2-62
through IC 8-1-2-67 shall apply to a public hearing under this
section.
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 an
environmental compliance plan if the commission:
(1) finds that the environmental compliance plan:
(A) is reasonably designed to meet or exceed applicable
requirements of the Safe Drinking Water Act or Clean Water
Act;
(B) constitutes a reasonable and least cost strategy consistent
with providing reliable, efficient, and economical water
service; and
(C) is in the public interest; and
(2) approves the cost and schedule estimate for developing and
implementing 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 without
prejudice
Sec. 8. (a) If the commission finds that an environmental
compliance plan submitted by a public utility does not satisfy the
requirements of section 7 of this chapter, the commission may reject
the plan.
(b) If the public utility's environmental compliance plan is
rejected by the commission, the public utility may voluntarily submit
to the commission a modified plan intended to satisfy the
requirements 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 environmental
compliance 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 compliance
plan or modified environmental compliance plan to any applicable
state government environmental agency on or before the date that the
public utility submits the plan to the commission under this chapter.
If there is a conflict between the commission and a federal or state
government environmental agency concerning the necessary
components of a public utility's environmental compliance plan or
modified environmental compliance plan, the determination by the
government 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 government
environmental agency, is required to;
modify a portion of an environmental compliance plan that has
previously been approved by the commission in order to comply with
the requirements of the Safe Drinking Water Act or Clean Water Act,
the public utility shall submit a modified environmental compliance
plan to the commission for the commission's review. The conflict
provisions of section 9 of this chapter apply to a modified
environmental 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 or
implemented plan
Sec. 11. (a) If the commission issues an order approving an
environmental compliance plan submitted by a public utility under
this chapter, the commission shall, absent fraud, concealment, gross
mismanagement, or inadequate quality control, allow the public
utility to do the following:
(1) If a public utility is allowed by law to earn a return on the
public utility's investment, the public utility may add to the fair
value of the public utility's property the fair value of a
completed 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, or
facilities; and
(B) is part of the environmental compliance plan approved
by the commission;
up to the amount approved by the commission under section
7(2) or 12 of this chapter, whichever is applicable.
(2) The public utility may recover the costs and expense
incurred by the public utility in the development and
implementation of the approved environmental compliance
plan, up to the amount approved under section 7(2) or 12 of this
chapter, whichever is applicable.
(b) The public utility may not recover costs in excess of the cost
estimate approved by the commission under section 7(2) or 12 of this
chapter, whichever is applicable, unless the commission finds that
the 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 and
implementing plan; submission to commission
Sec. 12. (a) If a public utility makes a substantial change in a cost
and schedule estimate for developing and implementing an
environmental compliance plan or a modified environmental
compliance plan after the estimate has been approved by the
commission under this chapter, the public utility shall file with the
commission for the commission's review and approval the revised
cost and schedule estimate.
(b) To the extent the commission approves a revised cost and
schedule estimate, the estimate shall be the approved cost and
schedule 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 15
of this chapter that approves modifications to a public utility's
environmental 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, to
the extent permitted under section 11 of this chapter, the following:
(1) The public utility's expenditures made under the
environmental compliance plan before the date the commission
issued the order approving the modified environmental
compliance plan.
(2) The public utility's expenditures made under the modified
environmental compliance plan after the date the commission
issued the order approving the modified environmental
compliance plan.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-14
Recovery of costs incurred by utility in implementing measure set
forth in plan but disapproved by commission upon review
Sec. 14. If a public utility cancels the implementation of a
measure set forth in an environmental compliance plan as a result of
an order issued by the commission under section 15 or 16 of this
chapter that withdraws the commission's approval of the inclusion of
the measure in the environmental compliance plan, the public utility
may, 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 measure
and a reasonable return on the unamortized balance, to the extent the
implementation and the costs were approved previously by the
commission. The public utility may not recover costs in excess of the
cost estimate approved by the commission under section 7(2) of this
chapter unless the commission finds that the additional costs were
necessary and prudent.
As added by P.L.76-1991, SEC.2.
IC 8-1-28-15
Review of plan by commission; withdrawal of approval or
modification of plan
Sec. 15. (a) If the commission, after an investigation commenced
upon its own initiative or upon a petition of a class of persons
satisfying the standing requirements of IC 8-1-2-54 (including the
office of the utility consumer counselor), finds that substantial
changes:
(1) in the need for or estimated cost of an approved
environmental compliance plan have occurred; or
(2) in the estimated cost of alternative compliance measures
have occurred;
the commission may commence a review of the approval of the
environmental compliance plan.
(b) If the commission finds that all or part of an environmental
compliance plan no longer meets the requirements of section 7 of this
chapter, the commission may, consistent with sections 7 and 9 of this
chapter, issue an order:
(1) withdrawing the commission's approval of all or part of the
environmental compliance plan, whichever is applicable; or
(2) approving modifications to the environmental compliance
plan.
(c) If the commission approves modifications to an environmental
compliance plan under subsection (b), the modified environmental
compliance plan shall constitute the public utility's approved
environmental 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; progress
report; recovery of costs; final approval by commission
Sec. 16. (a) In addition to the review of the continued
appropriateness of an environmental compliance plan under section
15 of this chapter, the commission shall, at the request of a public
utility, conduct an ongoing review of the cost and implementation of
the public utility's approved environmental compliance plan. The
public utility shall submit to the commission:
(1) each year; or
(2) at other times the commission and the public utility agree
on;
a progress report that includes any information the commission may
require.
(b) If the commission approves the cost and implementation of the
part of the environmental compliance plan under review, then, absent
fraud, concealment, or gross mismanagement, the approval
forecloses 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 the
public utility's investment, the addition to the fair value of the
public utility's property of the fair value of a completed capital
project, 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, or
facilities; and
(B) is part of the environmental compliance plan
implementation approved by the commission;
up to the amount approved under section 7(2) or 12 of this
chapter, whichever is applicable. The public utility may not
recover costs in excess of the cost estimate approved by the
commission under section 7(2) or 12 of this chapter, whichever
is applicable, unless the commission finds that the additional
costs were necessary and prudent.
(c) If the commission does not issue an order disapproving all or
part of the implementation of the part of the environmental
compliance plan under review within six (6) months of the
commencement of the action seeking the commission's approval, the
commission shall be considered to have approved all of the
implementation of that part of the environmental compliance plan
unless the commission issues an order extending the time for such
review.
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 the
implementation of the part of the environmental compliance plan
under review:
(1) the commission may, consistent with section 9 of this
chapter, issue an order withdrawing the commission approval
of all or part of the environmental compliance plan; and
(2) the public utility may voluntarily submit a modified
environmental compliance plan to the commission for the
commission's approval under this chapter.
If the commission issues an order approving all or part of the
modified environmental compliance plan, the environmental
compliance plan constitutes the public utility's approved
environmental compliance plan to the extent of the approval for
purposes 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 utility
following approval of plan
Sec. 18. In a general rate proceeding following the issuance of an
order by the commission approving an environmental compliance
plan under this chapter, the commission shall, in reviewing and
authorizing the public utility's return, give due consideration to any
change in risk to the public utility as a result of the commission's
approval of the environmental compliance plan and include in the
order issued with respect to the general rate proceeding a finding on
the 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 a
public utility. The failure of a public utility to use the approval
provisions of this chapter may not create a presumption of
imprudence or nonrecovery in rates for environmental compliance
plan costs.
(b) This chapter does not require a public utility to utilize this
chapter to recover a cost or expense otherwise recoverable in the
public utility's rates. A higher standard for the recovery of such costs
or for determining the appropriateness of an environmental
compliance plan may not be imposed because of a public utility's
election not to use the provisions of this chapter.
(c) An order of the commission approving an environmental
compliance plan under this chapter may not limit or define the
measures that may be proposed in a compliance plan submitted by
another public utility or approved by the commission.
As added by P.L.76-1991, SEC.2.