Continuing Operating Authority

PURPOSE: This rule establishes continuing operating authority requirements for public water systems. (1) Applicability. This rule applies to— (A) Public water systems commencing operation after October 1, 1999; (B) Public water systems changing ownership; and (C) Community water systems and nontransient noncommunity water systems in significant noncompliance. (2) Definitions. (A) The terms and definitions in 10 CSR 60-2.015 apply to this rule. (B) Continuing operating authority means the permanent organization, entity or person identified on the permit to dispense water who is responsible for the management, operation, replacement, maintenance and modernization of the public water system in compliance with the Missouri Safe Drinking Water Law and rules. (3) Public Water Systems Commencing Operation After October 1, 1999. Owners/operators of public water systems applying for written construction authorizations or permits to dispense water, or both, shall show in accordance with section (6) of this rule, as part of their application, that a permanent organization exists which will serve as the continuing operating authority for the management, operation, replacement, maintenance and modernization of the facility for which the application is made. The department will not issue written construction authorizations and permits to dispense unless the applicant provides proof satisfactory to the department that a continuing operating authority exists that shall have jurisdiction over the facility. Written construction authorizations and permits to dispense water will be issued to the continuing operating authority. The permit shall be valid only for the continuing operating authority to which the permit is issued. (4) Permit Review Upon Change in Ownership. (A) Prior to a change of continuing operating authority, the current continuing operating authority shall notify the department of the pending change at least ninety (90) calendar days prior to ownership transfer. The department will perform a permit review within forty-five (45) calendar days of notice of the ownership transfer to assess the following: 1. The proposed continuing operating authority meets the continuing operating authority requirements of this rule; 2. The public water system is in compliance with applicable maximum contaminant levels and monitoring requirements of 10 CSR 60-4; and 3. The public water system is in compliance with the minimum positive pressure requirement of 10 CSR 60-4.080(8). (B) The permit to dispense water shall continue in effect until the department takes an action to issue a permit to the proposed new continuing operating authority or to deny the permit to the proposed new continuing operating authority based on the following criteria: 1. If the review shows that the proposed continuing operating authority and public water system meet all requirements in subsection (4)(A), the department will issue a new permit to dispense when ownership transfer is complete showing the new owner as the continuing operating authority responsible for the management, operation, replacement, maintenance, and modernization of the public water system in compliance with the Missouri Safe Drinking Water Law and rules; 2. If the review shows the new continuing operating authority meets the requirement in paragraph (4)(A)1., but the public water system does not meet the requirements in paragraphs (4)(A)2. and 3., the department will negotiate an agreement with the proposed continuing operating authority for achieving compliance with these requirements. Upon completion of the agreement and when ownership transfer is complete, the department will issue a new permit to dispense water to the new continuing operating authority; and 3. If the review shows the proposed continuing operating authority does not meet the requirement in paragraph (4)(A)1., the permit to dispense water will be denied. (5) Requirements for Community Water Systems and Nontransient Noncommunity Water Systems in Significant Noncompliance. (A) Any community public water system or nontransient noncommunity public water system against which an administrative order has been issued for significant noncompliance with the federal Safe Drinking Water Act as amended or sections 640.100–640.140, RSMo or federal or state rules promulgated thereunder shall show that— 1. A permanent organization exists that serves as the water system’s continuing operating authority; and 2. The continuing operating authority has the necessary technical, managerial, and financial capability for the management, operation, replacement, maintenance, and modernization of the public water system. (B) If the public water system cannot show that such continuing operating authority exists, or if the public water system is not making substantial progress toward compliance with the administrative order, the public water system’s technical, managerial and financial capacity will be reviewed and the permit to dispense may be revoked. The continuing operating authority may reapply for a permit to dispense when the compliance issues identified in the administrative order are resolved. (6) Continuing Operating Authorities. (A) Continuing operating authorities to whom the department will issue written construction authorizations under section (3) of this rule and permits to dispense water are listed here in preferential order. An applicant proposing a facility within the legal boundaries of an existing higher preference continuing operating authority may utilize a lower preference continuing operating authority by submitting, as part of the application, documentation that water service is not available from each existing higher preference continuing operating authority, or a statement from each existing higher preference continuing operating authority waiving its preferential status. 1. Municipality, public water supply district, and water system regulated by the Missouri Public Service Commission (PSC). (Note: Written construction authorizations and permits to dispense water will not be issued to a continuing operating authority regulated by the PSC until the continuing operating authority has obtained a certificate of convenience and necessity from the PSC.) 2. Any person showing complete control over and responsibility for the public water system and all property served by it. 3. Any incorporated association of property owners served by a public water system provided that— A. The incorporated association owns the facility and has authority to lay all necessary water lines; B. All property owners within the boundaries of the association have adopted covenants covering the land of each property owner, which assure connection to the system when it is available and compliance with the bylaws and rules of the association; C. The bylaws of the association, or other appropriate documents, provide for the proper management, operation, replacement, maintenance, and modernization of the facility including at a minimum: (I) The power to regulate the use of the facility; (II) The power to levy assessments on its members and enforce these assessments on each owner; and (III) The power to convey the facility to one (1) of the continuing operating authorities listed in subsection (6)(A) of this rule; D. The documents establishing the continuing operating authority and the covenants called for in subparagraph (6)(A)3.B. of this rule shall be properly recorded with the recorder of deeds in the county or counties where the land within the boundaries of the association lies and a certified copy of the recorded document shall be provided to the department. Additionally, a current title search certified by a title insurance company authorized to do business in Missouri showing the owners of record of all real estate within the boundaries of the association and all lienholders must be provided to the department; all lienholders must subordinate their interest to the covenants; and E. The association is incorporated as a corporation under the laws of the state of Missouri and a current Certificate of Good Standing from the Missouri secretary of state and a certified copy of the Articles of Incorporation are provided to the department. (B) The term “available” as used in subsection (6)(A) of this rule shall mean the water system’s distribution line is located within a reasonable distance of the potential water customer; the water system will be accessible in a timely manner that will not cause a hardship on the potential water customer; and the water service will be provided at reasonable cost. (7) Continuing Operating Authority Responsibilities. To ensure the dispensing of safe and adequate supplies of drinking water to its customers, the continuing operating authority for each public water system shall be responsible for all necessary: source withdrawal facilities, treatment facilities, and/or distribution facilities which the public water system owns or leases. The continuing operation authority shall have such valid lease agreements, contracts and properly recorded easements, as necessary, to allow access for new construction, repair, replacement, maintenance, and operation of all facilities. (8) Private Water Corporations. Private corporations which are not incorporated under the laws of the state of Missouri shall be represented by a registered agent in the state of Missouri before a written authorization to construct or a permit to dispense water will be issued by the department. AUTHORITY: sections 640.100 and 640.115, RSMo 2016.* Emergency rule filed Sept. 20, 1999, effective Sept. 30, 1999, expired March 27, 2000. Original rule filed July 1, 1999, effective March 30, 2000. Amended: Filed June 13, 2018, effective Feb. 28, 2019. *Original authority: 640.100, RSMo 1939, amended 1978, 1981, 1982, 1988, 1989, 1992, 1993, 1995, 1996, 1998, 1999 and 640.115, RSMo 1939, amended 1949, 1978, 1998, 2015.