§ 8-1-1.9-5 — Water or wastewater utility not under commission jurisdiction; requirements if enforcement order issued

Indiana § 8-1-1.9-5

• Jurisdiction: Indiana
• Art. 1: UTILITIES GENERALLY
• Ch. 1.9: Regulation of New Water and Wastewater Utilities

Text

(a) This section applies to a water or 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:
(A) June 30, 2022, in connection with the provision of
wastewater service; or
(B) June 30, 2025, in connection with the provision of water
service.
(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) Notwithstanding section 3 of this chapter, as used in this section,
"water or wastewater utility" means any of the following that provides
water service, wastewater service, or both water service and wastewater
service to the public 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 water or sewer district established under IC 13-26.
(e) The following apply to a water or wastewater utility that is
subject to this section:
(1) Except as provided in clause (C) in the case of a water utility,
upon the issuance of the first enforcement order with respect to
the water or wastewater utility, the commission shall do the
following:
(A) Perform an informal review, using such procedures as the
commission may choose, of the rates and charges of the water
or wastewater utility to determine if the rates and charges are
sufficient to:
(i) operate and maintain the water or wastewater utility's
distribution system or collection and treatment system, as
applicable; and
(ii) pay all obligations of the water or wastewater utility's
distribution system or collection and treatment system, as
applicable.
(B) Determine whether all elements of an adequate asset
management program are in place with respect to the water or
wastewater utility's distribution system or collection and
treatment system, as applicable.
(C) In the case of a water utility, the commission shall not:
(i) initiate an informal review of the water utility's rates and
charges under clause (A); or
(ii) proceed to determine whether all elements of an adequate
asset management program are in place with respect to the
water utility's distribution system under clause (B);
unless twelve (12) months have elapsed since the effective date
of the first enforcement order and the water utility has not
remedied within that time the violation for which the
enforcement order was issued.
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 within two (2) years of the effective date of the first
enforcement order a second enforcement order is issued with
respect to the water or wastewater utility in connection with the
same type of service for which the first enforcement order was
issued, the water or 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;
with respect to that service. After this first required rate case, the
water or 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 water or 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 a 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 water or 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 water or wastewater utility shall provide to the commission
written notice to that effect. If the commission determines that the
water or 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 water or 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 water or wastewater utility in connection
with the same service for which the first two (2) enforcement
orders were issued; 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 water or wastewater utility.
(5) Subdivision (1) applies with respect to any enforcement order
that is issued with respect to the water or 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.

Legislative History

As added by P.L.18-2022, SEC.12. Amended by P.L.24-2025, SEC.1.