(a) The PSC shall promulgate and enforce such rules as are necessary to certify and monitor the economic viability of wastewater management entities. Such regulations may include, but may not be limited to, the following:
(1) Financial viability requirements necessary to insure the long-term operation and maintenance of wastewater systems.
(2) Conditions for the operation or permitting, or both, of cluster wastewater and community wastewater systems.
(3) A system of notice to report any violations of certifications, permits, law, regulations, directives, or orders, or any combination of these, of the PSC, ADEM, or ADPH.
(4) Enforcement mechanisms to insure compliance with law, regulations, certificates, and directives of the PSC.
(5) Standardized financial operations and management of cluster and community wastewater systems and wastewater management entities.
(b) The PSC may make the determination of economic viability utilizing its own resources or may consult with or contract with other agencies of government or appropriate consultants. In determining the grant or denial of the certificate of economic viability, the PSC shall consider the economic viability of an existing entity or the expectation of economic viability of a proposed entity based upon the following criteria or any combination thereof:
(1) Opinion by an independent certified public accountant.
(2) Previous economic history of the entity.
(3) Assets, income, and expenses as related to liabilities of the entity.
(4) Financial stability and previous financial history of the principal of the entity, and the business plan and rate plan of the entity.
(5) Insurability, bondability, and creditworthiness of the entity as determined by standard business methods.
(c) Before the PSC issues any certificate of economic viability, the PSC shall require the wastewater management entity to submit to the PSC evidence of financial assurances. Financial assurances shall include at least one of the following: A performance bond, letter of credit made payable to the commission, pledge of assets, or other similar instrument or mechanism in an amount sufficient to continue management of the system if the entity ceases to exist or fails to fulfill its obligations to the clients served by the entity.
(d) The bond, pledge, letter of credit, or other instrument may be declared forfeited when the operational permit is expired, unless renewal application is under review by the department, or revoked. The PSC may present the declaration of forfeiture to the obligor on the instrument for payment.
(e) Failure of the obligor to make full and timely payment on its financial obligations shall constitute a cause of action for recovery in a civil action at the instance of the PSC.
(f) A wastewater management entity shall not sell, assign, or divest in any way assets or responsibilities without the express written consent of the PSC.
(g) Rate charges to customers for wastewater system service by a certified wastewater management entity shall be approved by the PSC pursuant to the laws, rules, regulations, and procedures pertaining to utilities.
(h) The failure of any wastewater management entity to comply with any requirement, rule, or directive of the PSC or to maintain its operating or discharge permit or other permits in good standing, may result in the revocation by the PSC of the wastewater management entity's certification or the assessment of a civil penalty, or both, in accordance with statutory procedures and regulations of the PSC. Upon the revocation of a certificate of economic viability, the commission shall promptly notify the department.
Last modified: May 3, 2021