PROPOSED RULEMAKING
PENNSYLVANIA EMERGENCY MANAGEMENT AGENCY
[4 PA. CODE CH. 118]
Reductions of Major Water Use
[30 Pa.B. 5735] The Pennsylvania Emergency Management Agency (PEMA) proposes to amend Chapters 118, 119, 119a and 120 (relating to reductions of major water use in the Delaware River Basin Drought Emergency Area; prohibition of nonessential water uses in a Commonwealth drought emergency area; Philadelphia Drought Water Emergency Plan; and local water rationing plans). The proposed amendments to Chapter 118 will make its provisions applicable Statewide, rather than just in the Delaware River Basin. The proposed amendments to Chapter 119 include proposed changes to the definition section and to the list of exceptions to the nonessential water use bans. The provisions of Chapter 119a are proposed to be eliminated and to be incorporated into Chapter 119. The proposed amendments to Chapter 120 are primarily procedural. Overall, the proposed amendments will move the Commonwealth toward full-time drought preparedness and management. Implementation of actual emergency provisions of the regulations, including the nonessential water use bans, will only be effective during a declared drought emergency and within the declared drought emergency area.
A. Effective Date
These amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information, contact Mark L. Goodwin, Chief Counsel, Pennsylvania Emergency Management Agency, 2605 Interstate Drive, Harrisburg, PA 17110-9364, (717) 651-2010. Information regarding submitting comments on these proposed amendments appear in Section I of this Preamble. This proposal is available electronically through the PEMA website at http://www.pema.state.pa.us. It is also available on the Department of Environmental Protection (DEP) website at http://www.dep.state.pa.us by choosing ''Subjects'' then ''Drought Information'' and then clicking on ''Drought Regulations.''
C. Statutory Authority
The rulemaking is proposed under Pennsylvania Emergency Management Services Code (code), 35 Pa.C.S. § 7313(3), which grants PEMA the authority to adopt rules and regulations as may be deemed necessary to carry out the provisions of the code.
D. Background and Purpose
The drought experience of 1998-99 offered insight into many ways in which the drought emergency regulations found at Chapters 118, 119, 119a and 120 have become outdated with the passage of nearly 20 years since they were initially written and nearly 10 years since they were last revised. Technology and social trends have advanced in ways that earlier drafters of the regulations could not have envisioned. As an example, irrigation practices have advanced with new technologies, and it may now be more efficient to irrigate in many cases with automated irrigation systems than to water with a hand-held hose.
Overall, the Commonwealth's experience with droughts has also shown the potential for more efficient ways to manage water use during drought emergencies. Experience has shown, for example, that a permanent Commonwealth Drought Coordinator (CDC), with authority to approve drought plans prior to a drought, rather than during an emergency, would enable the Agency to focus more closely on drought emergency operations, and at the same time would provide for more meaningful reductions in and more efficient use of available water resources.
The proposed amendments will move the Commonwealth toward full-time drought preparedness and management. Implementation of actual emergency provisions of the regulations, including the nonessential water use bans, will only be effective during a declared drought emergency and within the declared drought emergency area, as is presently the case. However, the revised regulations will be effective at all times, rather than only during declared drought emergencies. They will also be effective Statewide, rather than only in the declared emergency area. This will enable the designation of a permanent CDC within the DEP. The proposed amendments will authorize the CDC to receive and approve drought management plans on an ongoing basis from water users across this Commonwealth, thus allowing more opportunity to provide education and technical assistance to water users to guide them in the development of their individual drought plans. It will also allow more time for the CDC and DEP staff to adequately review plans and to approve them prior to an actual emergency. This is in concert with new provisions in the regulations that require certain classes of water users, such as golf courses, to operate according to an approved plan during an emergency.
Drafts of the proposed amendments were made available at informational meetings held during April 2000 in Harrisburg, Bethlehem and Pittsburgh. Notices of the meetings and the availability of the draft amendments also were published in newspapers of general circulation across this Commonwealth and in the Pennsylvania Bulletin with a public comment period that ended April 30, 2000. The public comments received have been taken into consideration in the drafting of these proposed amendments to the drought regulations.
E. Summary of Regulatory Requirements
1. Discussion of Proposed Amendments to Chapter 118
The Chapter 118 regulations were originally written to apply only to the Delaware River Basin portion of the Commonwealth. References to the Delaware River Basin are being removed from the regulations to make them applicable Statewide. Many of the activities involved in submittal and review of drought contingency plans, as required by the regulations, included duplications of effort by both PEMA and the CDC. To the extent practicable, references to PEMA with regard to those activities are being removed from the regulations, and authority and responsibility for those activities are being delegated tothe CDC, as agent for PEMA. In a similar manner, the current authorities and responsibilities of the Pennsylvania Emergency Management Council in the appeal process, are being assigned to PEMA and further delegated to the extent practicable to the Pennsylvania Public Utility Commission's administrative law judges or others.
In § 118.1 (relating to definitions), the terms ''consumptive water,'' ''designated drought emergency area'' and ''water user'' have been added, and the definition of ''Commonwealth Drought Coordinator'' has been revised, consistent with Chapters 119 and 120.
In § 118.2 (relating to purpose), the requirement for drought contingency plans has been limited to only those public water suppliers serving more than 50 customer connections.
In § 118.3 (relating to scope), the scope has been revised to include the entire Commonwealth, rather than just the Delaware River Basin.
In § 118.4 (relating to contingency plans--public water supply agencies), revisions will allow the CDC as well as the Governor's Emergency Proclamation to order preparation of drought contingency plans by public water suppliers, including those whose sources or service areas may be located within the emergency area. Plans approved by the CDC within 3 prior years will meet the requirement. Provisions and criteria for variances from the plans are added to the requirements.
Revisions to § 118.5 (relating to contingency plans-self supplied commercial and industrial users) will allow the CDC as well as the Governor's Emergency Proclamation to order preparation of drought contingency plans by large self-supplied industrial and commercial water users.
Revisions to § 118.6 (relating to implementation of reductions) include criteria to guide the CDC's consideration of equitable reductions when ordering the implementation of industrial/commercial contingency plans.
Revisions to § 118.8 (relating to procedure for exemptions or variance from water use reductions) clarify and improve the due process protections provided to those parties who request variances due to extraordinary hardship.
Revisions to § 118.9 (relating to implementation period) establish requirements for establishment and operations of county drought management task forces.
2. Discussion of Proposed Amendments to Chapter 119
Chapter 119 contains the bans on nonessential water use, which are effective during a declared drought emergency. Many revisions are being proposed in Chapter 119. As in Chapter 118, to the extent practicable, responsibilities and authorities are being assigned from the Council to PEMA and delegated from PEMA to the CDC. These procedures again affect plan or variance submissions, reviews, approvals and appeals.
The effective emergency area is being expanded to include the complete service area of any public water supply agency whose source of water is located in the declared emergency area. This will eliminate problems experienced previously when public water supply service areas extended beyond an emergency county into a non-emergency county with the result that only a part of the service area was subject to emergency restrictions.
In § 119.1 (relating to definitions) the definitions have been added or revised to clarify the meanings of athletic field, effective conservation, irrigation contractor, newly seeded and sodded grass, paved surface, and professional landscaper and for consistency with Chapters 118 and 120.
In § 119.4, revisions are added to specifically address athletic fields, which were previously considered part of the ''lawn'' section. Regulations are provided separately for normal athletic fields and sand-based fields, because the sand-based fields (similar to golf greens) require more frequent and greater quantities of watering. Irrigation of sand-based fields will require metering and reporting and must be done according to a plan approved by the CDC. Normal athletic fields will be limited to watering one time per week; while sand-based fields will be limited to 1 1/2 inches of water per week.
The golf course regulations in § 119.4 (relating to prohibition of nonessential water uses) have been rewritten. As with the sand-based athletic fields, irrigation of golf courses will require metering and reporting and must be done according to a plan approved by the CDC. The golf courses will be required to reduce their watering to 70% of the average daily quantity of water used, by month, in the previous 5 years, within lower and upper limits.
The grass and landscape/nursery regulation in § 119.4 is being modified primarily to recognize the efficiencies in using automated irrigation systems, compared to the ''hand-held bucket and hose'' techniques allowed in the current regulations.
Fountains or waterfalls necessary to sustain fish life will be allowed to operate under the § 119.4 revisions; water will be allowed to be used to replenish fish ponds and water gardens to sustain fish and aquatic life.
Revisions in the mobile equipment and paved surface regulations in § 119.4 recognize the need to wash equipment or areas related to food vending and hauling. The use of a hand-held hose with automatic shutoff nozzle will be allowed, up to 2 minutes, for washing personal cars. This process will generally require less water than the ''bucket'' method allowed in the current regulations.
The fire hydrant regulations previously contained in Chapter 119a are being incorporated into § 119.4; while Chapter 119a, which dealt specifically with the County/City of Philadelphia, is being eliminated.
In § 119.6 (relating to procedure for exemptions or variance from the prohibition of nonessential uses of water), the revisions provide that a public water supply agency whose sources are not in jeopardy, although located within a declared emergency county, may request a variance from the nonessential use bans, if the agency is following a drought contingency plan that was approved by the CDC within the previous 3 years.
Section 119.6 variance procedures are modified to improve due process.
Section 119.7 (relating to implementation period) is being rescinded to make the regulations effective full-time; although restrictions will only be effective during a declared drought emergency.
3. Discussion of Proposed Amendments to Chapter 119a
This chapter, which applies specifically to the County/City of Philadelphia, is being eliminated and the section on fire hydrants is being incorporated into § 119.4.
4. Discussion of Proposed Amendments to Chapter 120
This chapter applies solely to public and municipal water supply systems and allows either the municipality or the water supply agency to institute water rationing if the bans on nonessential water uses effected through Chapter 119 are insufficient to protect local water supplies. The suggested revisions to this chapter are primarily procedural in nature, some of them reflecting the proposed assignments and delegations of authority from the Council or PEMA, or both, to PEMA or the CDC, or both. Revisions are included to improve due process and notification provisions.
Section 120.1 (relating to definitions) has been revised for consistency with Chapters 118 and 119 definitions.
Section 120.2 (relating to purpose) revisions authorize the CDC to approve water rationing plans, as an agent of PEMA.
In § 120.9 (relating to excess use charges), the appeal processes reflect the intended use of Pennsylvania Public Utility Commission administrative law judges as hearing officers.
Section 119.10 is being rescinded, as unnecessary. It is not envisioned that a rationing plan would be suspended. Water supply recovery would result in repeal rather than suspension of the rationing plan.
In § 120.14 (relating to notification of termination), the repeal process has been clarified and simplified.
F. Benefits, Costs and Compliance
Benefits
The proposed amendments to the regulations will benefit the public by protecting water resources during a declared drought emergency and will prevent water supply shortages by curtailing nonessential water use. The procedures will be streamlined for adoption of drought contingency plans and local water rationing plans.
The exact fiscal impact of the proposed amendments cannot be calculated. For most affected persons or businesses, the impact will be positive in terms of reducing possible economic hardship. Paperwork will be reduced by the proposed amendments to Chapter 119 by reducing the number of variance applications prepared by individuals, business and industry. Additionally, DEP and PEMA will not have to process as many applications.
The benefits of the proposed amendments in conserving a natural resource are impossible to quantify. Reductions in water use, although inconvenient to many users, will serve to extend available supplies, thus insuring that water is available for public health and safety needs and economic productivity. The availability of existing supplies will be extended by reducing the daily withdrawal of water from sources, providing an opportunity for replenishment over time should there be adequate precipitation. Extending water supplies also provides an opportunity for water suppliers to develop alternative sources of water.
Savings will generally accrue to all the regulated community, to the extent that property and employment is protected by the revisions. These savings will occur in the form of reduced damage to or loss of grass or landscape materials, for not only the athletic field and golf course owners, but other businesses and homeowners as well. All the revisions have been designed to better protect property, health and employment. Jobs in the golf, landscape/nursery, mobile washing, and food processing and vending industries will be better protected. Athlete safety will be enhanced on athletic fields. Actual or estimated values for these savings, which will only accrue during an actual declared drought emergency, are not available.
Savings may likewise accrue to local governments or school districts, to the extent that they own or maintain athletic fields, golf courses and landscape/nursery materials. Health, safety and employment will be better protected for them also.
Savings will accrue to DEP through reduced time required for processing requests for variances from the nonessential water use bans. The revisions are designed to resolve most of the problems in the current regulations that lead to requests for variances. In the 1999 drought, nearly 250 variance requests were processed, requiring approximately 1 man-hour each.
Compliance Costs
In general, the revisions will not result in additional costs to the regulated community. Exceptions may include golf course and sand-based athletic field owners. In both of these cases, the revisions will require metering of irrigation water used during drought emergencies, and in the case of golf courses, metering of 5 prior years' irrigation water use will also be required. Meter installation costs for athletic fields should be less than $250. For golf courses, meter installation should be in the $700--$1,500 range, depending upon the size and type of meters required. Meter reading costs for athletic fields should be minimal. For golf courses, meter reading on a daily basis by grounds keepers should not impose any significant additional costs. Automatic recorders may be installed, if desired, to avoid the need for manual daily reading.
Because the revisions are designed to make the regulations clearer, and more efficient, and many of the compliance problems experienced with the current regulations are being addressed in the revisions, costs to local enforcement agencies should be reduced. Local governments may experience additional costs associated with municipally-owned athletic fields or golf courses, as previously described.
The primary cost to DEP will be in staff time to review and approve irrigation plans submitted by approximately 800 golf courses and 50 sand-based athletic fields. Approximately 0.5 to 2.5 hours per plan may be required for review and approval. This represents a one-time resource commitment of up to 2000 man-hours. Semi-automation of the process may reduce this requirement significantly, perhaps to as little as 250-500 man-hours.
Compliance Assistance Plan
DEP provides guidance, sample plans and technical assistance to public water suppliers for developing drought contingency plans, water rationing plans and water conservation plans and programs. Similar materials will be developed for industrial/commercial water users to aid them in development of drought contingency plans, to the extent practicable.
Web-based, self-instructional application forms will be developed for submitting golf course and athletic field drought operations plans, and technical assistance will be provided as appropriate.
Paperwork Requirements
Owners of golf courses and sand-based athletic fields will be required to submit a drought operations plan for approval by the CDC, prior to irrigation of those facilities within a declared drought emergency area. The regulations will allow submittal and approval of the plans prior to the declaration of an emergency, at the option and advantage of the owner.
During declared drought emergencies only, owners of golf courses and sand-based athletic fields within the declared emergency area will be required to report irrigation usage to the CDC, on a monthly basis. Owners of golf courses should also record usage for a 5-year period prior to a drought emergency. This information will be included in their application for approval of a drought operations plan.
Owners of public water supply systems and large self-supplied industrial or commercial water users whose sources or service areas are located within a declared emergency area may be required by the Governor or the CDC to submit drought contingency plans, during the declared emergency. The regulations provide for the submittal and approval of the plans prior to an emergency, again at the option and advantage of the owner.
G. Sunset Review
These regulations will be reviewed in accordance with the sunset review schedule published by PEMA to determine whether the regulations effectively fulfill the goals for which they were intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on October 24, 2000, PEMA submitted a copy of these proposed amendments to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House Veterans Affairs and Emergency Preparedness Committee and Senate State Government Committee. In addition to submitting the proposed amendments, PEMA has provided IRRC and the Committees with a copy of a detailed regulatory analysis form prepared by PEMA in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposed amendments, it will notify PEMA within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria which have not been met by that portion of the proposed amendments to which an objection is made. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the amendments, by PEMA, the General Assembly and the Governor of objections raised.
I. Public Comment
Written Comments--Interested persons are invited to submit comments, suggestions or objection regarding the proposed amendments to Mark L. Goodwin, Pennsylvania Emergency Management Agency, 2605 Interstate Drive, Harrisburg, PA 17110-9364. Comments submitted by facsimile will not be accepted. Comments, suggestions or objections must be received by PEMA by December 4, 2000.
Electronic Comments--Comments may be submitted electronically to PEMA at mgoodwin@state.pa.us and must also be received by the Agency by December 4, 2000. A subject heading of the proposal and a return name and address must be included in each transmission. If an acknowledgement of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.
DAVID L. SMITH,
DirectorFiscal Note: 30-55. (1) General Fund; (2) Implementing Year 2000-01 is Unknown; (3) 1st Succeeding Year 2001-02 is Unknown; 2nd Succeeding Year is Unknown; 3rd Succeeding Year is Unknown; 4th Succeeding Year is Unknown; 5th Succeeding Year is Unknown; (4) 1999-00 Program--Not Applicable; 1998-99 Program--Not Applicable; 1997-98 Program--Not Applicable; (7) Various appropriations in the Department of Environmental Protection; (8) recommends adoption. Any additional cost that the Commonwealth incurs due to this rulemaking is expected to be minimal and would be absorbed in the Department of Environmental Protection budget.
Annex A
TITLE 4. ADMINISTRATION
PART V. EMERGENCY MANAGEMENT AGENCY
CHAPTER 118. REDUCTIONS OF MAJOR WATER USE IN [THE DELAWARE RIVER BASIN] A COMMONWEALTH DROUGHT EMERGENCY AREA § 118.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
[Any water--Any type of water, including fresh water, brackish water, waste water or reclaimed waste water.
Brackish water--Water containing more than 1000 parts per million of dissolved salts.
Commission--The Delaware River Basin Commission, created by the Delaware Basin Compact (32 P. S. §§ 815.101--815.106).]
Commonwealth Drought Coordinator--An officer of the Department appointed by the Secretary[, in consultation with the Governor and PEMA,] of the Department to carry out responsibilities established in the Pennsylvania Drought Contingency Plan to coordinate Commonwealth planning, preparedness and response action to a drought or water shortage emergency.
Consumptive water--Water that in the process of being used or is evaporated, transpired or incorporated into a product.
[Council--The Pennsylvania Emergency Management Council, created by 35 Pa.C.S. §§ 7101--7707 (relating to emergency management services) and section 2 of the act of November 26, 1978 (P. L. 1332, No. 323).
Delaware River Basin--The area of drainage into the Delaware River and its tributaries, including the Delaware Bay.]
Department--The Department of Environmental [Resources] Protection of the Commonwealth.
Designated drought emergency area--The area of this Commonwealth described in the Governor's proclamation or executive order declaring a state of drought and water shortage emergency.
[Fresh water--Water withdrawn from a surface or groundwater source, or from a public water supply system, located within the Delaware River Basin, which has not been previously used, other than brackish water and water from a nonpotable source. The term does not include water collected directly from precipitation in rain barrels or cisterns.]
PEMA--The Pennsylvania Emergency Management Agency[, created by 35 Pa.C.S. §§ 7101--7707 (relating to emergency management services) and section 2 of the act of November 26, 1978 (P. L. 1332, No. 323).]
Public water supply agency--A [person, partnership, association, corporation, municipality or municipal authority, district or other entity supplying or authorized to supply water to the public] ''community water system'' as that term is defined in section 3 of the Pennsylvania Safe Drinking Water Act (35 P. S. § 721.3).
[Reclaimed water--Waste water which has been treated to allow reuse.
Secretary--The Secretary of the Department.
Waste water--Water which has been previously used for industrial, municipal, domestic or other purposes, and has not been returned to the surface or groundwater sources.
Water from a nonpotable source--Water from the surface or groundwater source which the Department determines is not used for public or private drinking water supply, and is not capable of being rendered suitable for drinking water supply by standard and economically feasible methods of treatment.]
Water user--
(i) An individual, partnership, association, company, corporation, municipality, municipal authority, political subdivision or an agency of Federal, State, county or municipal government.
(ii) The term includes the officers, employes and agents of a partnership, association, company, corporation, municipality, municipal authority, political subdivision or an agency of Federal, state, county or municipal government.
§ 118.2. Purpose.
This chapter provides for the preparation and implementation of contingency plans by public water supply agencies providing service to 50 or more customer connections, and by major commercial and industrial water users, to reduce water use [by public water supply agencies, and by major commercial and industrial water users,] in response to [the] a state of drought and water shortage emergency within specified areas of this [Commonwealth's portion of the Delaware River Basin] Commonwealth. The objective of this chapter is to conserve water, to balance demand with limited available supplies, and to assure that sufficient water is available to serve essential health, safety and economic needs. This chapter is intended to implement the Pennsylvania Drought Contingency Plan, and [to assist in implementing the conservation orders promulgated by the Commission under Article 10 of the Delaware River Basin Compact (32 P. S. § 815.101)] a Governor's proclamation of drought emergency that directs by directing the preparation of contingency plans and implementation of water use reductions [in a manner comparable to other Delaware River Basin States and consistent with the requirements of the Commission].
§ 118.3. Scope.
This chapter applies to all water uses within this [Commonwealth's portion of the Delaware River Basin, which are included in the Governor's Proclamation or Executive Order as being included in that area declared to be in a state of drought or water shortage emergency. The area may encompass all or part of the following counties: Berks, Bucks, Carbon, Chester, Delaware, Lackawanna, Lebanon, Lehigh, Luzerne, Monroe, Montgomery, Northampton, Philadelphia, Pike, Schuylkill, and Wayne, or it may be limited to specific designated areas within the Delaware River Basin] Commonwealth.
§ 118.4. Contingency plans--public water supply agencies.
(a) Preparation and submission.
(1) [By May 27, 1985] Within the time frame specified in the Governor's proclamation of drought emergency or order issued during an emergency by the Commonwealth Drought Coordinator each public water supply agency which provides service to 50 or more customer connections and which has either a source of water or a service area within the designated drought emergency area shall develop, adopt, and submit a drought contingency plan meeting the requirements set forth in this section.
(2) Each public water supply agency shall submit three copies of the drought contingency plan to the Commonwealth Drought Coordinator, for distribution to PEMA, the Department and other interested Commonwealth agencies, including the Pennsylvania Public Utility Commission if applicable. Each public water supply agency shall submit a copy of the drought contingency plan to the counties in which the public water supply agency serves water.
(3) If a public water supply agency has previously prepared and submitted to the [Department] Commonwealth Drought Coordinator a drought contingency plan containing the information required by this section and the plan was approved by the Commonwealth Drought Coordinator, or his designee, not more than 3 years prior to the Governor's proclamation of drought emergency, the plan may be deemed to satisfy the requirements of this section; however, the public water supply agency may affirm, modify or amend the plan as it deems appropriate, through submittal of a modified or amended plan to the Commonwealth Drought Coordinator for approval.
(b) Contents. Drought contingency plans for public water supply agencies shall, at a minimum, contain the following:
* * * * * (6) A plan of actions which will be taken by the public water supply agency to respond to drought or water shortage conditions, including public notice, a water conservation program, development of emergency supplies, and rationing. The plan shall provide for actions to be taken to achieve a phased reduction of total system withdrawal and use [by the amounts of 5.0%, 15%, 25%, 35% and 50% of the rates of water withdrawal and use existing during nondrought periods].
(7) A procedure for the granting of variances or exemptions to the provisions of a plan to address extraordinary hardships which may exist as a result of a plan, including a provision for appeal as specified in § 120.9(d) (relating to excess use charges). For purposes of this section, ''extraordinary hardship'' means a permanent damage to property, including perishable raw or processed product, or other personal or economic loss which is substantially more severe than the sacrifices borne by other water users subject to public water supply agency's drought contingency plan. The procedure shall include, when appropriate, consideration of:
(i) Relative impact of water use reductions upon:
(A) Public health and safety, including pharmaceuticals.
(B) Food and raw fiber production, including consideration for protection of perishable raw or processed products.
(C) Provision of essential public utility services; and the maintenance of employment.
(ii) The measures and efforts previously undertaken to conserve water or to provide for water storage and releases, and the ability of users to implement additional conservation measures.
(c) Implementation of contingency plans by public water supply agencies. Each public water supply agency which has either a source of water or a service area within the designated drought emergency area shall implement its approved drought contingency plan during the effective period of the Governor's proclamation of drought emergency.
§ 118.5. Contingency plans--self supplied commercial and industrial users.
(a) Preparation and submission.
(1) [By May 27, 1985, each] Within the time frame specified in the Governor's proclamation of drought emergency or order issued during an emergency by the Commonwealth Drought Coordinator, the owner or operator of a commercial or industrial facility which withdraws ground or surface water [from the Delaware River Basin] within the designated drought emergency area in excess of an average of 100,000 gallons per day in any 30 day period shall develop and adopt, and have available for inspection at the facility, a drought contingency plan under this section.
(2) [By May 27, 1985,] Within the time frame specified in the Governor's proclamation of drought emergency or order issued during an emergency by the Commonwealth Drought Coordinator the owner or operator of a commercial or industrial facility which withdraws ground or surface water [from the Delaware River Basin] within the designated drought emergency area in excess of an average of 500,000 gallons per day in a 30-day period shall develop, adopt and submit a drought contingency plan to the Commonwealth Drought Coordinator.
(3) [The] During the effective period of the Governor's proclamation of drought emergency, the Commonwealth Drought Coordinator, [Council or PEMA,] may direct the owner or operator of [another] any commercial or industrial facility [subject to this section] not included in paragraph (2) whose source of water is located within the designated drought emergency area, to [file] develop, adopt and submit a drought contingency plan [within a reasonable time with] to the Commonwealth Drought Coordinator within a reasonable time.
(b) Contents. Drought contingency plans for self-supplied commercial and industrial facilities shall, at a minimum, contain the following:
* * * * * (6) A description of [conservation] measures previously undertaken to [reduce] conserve water [use] at the facility or to provide for water storage and releases, and potential measures which could be implemented to reduce water use under emergency conditions. The descriptions should include information regarding the impacts of the measures on the production, employment[,] and economics of the facility, including consideration for protection of perishable raw or processed products.
(7) A plan of actions which [will] can be undertaken at the facility in response to drought and water shortage conditions to achieve a phased reduction of total withdrawal and use by amounts of [5.0] 5%, 15%, 25%, 35% and 50% of the rates of water withdrawal and use existing during [non-drought] nondrought periods.
§ 118.6. Implementation of reductions by self-supplied industrial and commercial water users.
(a) As necessary to respond to drought and water shortage conditions, during the effective period of the Governor's proclamation of drought emergency, the [Council] Commonwealth Drought Coordinator may order equitable reductions of water withdrawal and use by [public water supply agencies and] self-supplied industrial and commercial facilities within the designated drought emergency area. In determining the amount of equitable reductions, the [Council] Commonwealth Drought Coordinator will consider the following, in priority order:
(1) [The measures and efforts previously undertaken by public water supply agencies, and self-supplied industrial and commercial facilities, to conserve water, and the ability of users to implement additional conservation measures.
(2)] The relative impact of water use reductions upon [public]:
(i) Public health and safety, including pharmaceuticals.
(ii) [food] Food and raw fiber production, including consideration for protection of perishable raw or processed products.
(iii) [provision] Provision of essential public utility services[, and the maintenance].
(iv) Maintenance of employment.
(2) The measures and efforts previously undertaken by self-supplied industrial and commercial facilities to conserve water or to provide for water storage and releases, and the ability of users to implement additional conservation measures.
(b) Each [public water supply agency and the] owner or operator of each self-supplied commercial or industrial facility shall implement, under the contingency plans required under § [§ 118.4 and] 118.5 (relating to contingency plans--[public water supply agencies and contingency plans] self supplied commercial and industrial users) measures that are necessary to achieve the withdrawal and use reductions ordered by the [Council] Commonwealth Drought Coordinator.
(c) Notice of orders issued by the [Council] Commonwealth Drought Coordinator to implement reductions will be provided to affected users by notice published in the Pennsylvania Bulletin and in newspapers of general circulation in the affected area [or] and by service of the notice by mail or other means [within 48 hours of issuance of the order].
§ 118.7. Penalties and enforcement.
A person who violates this chapter, fails to carry out duties and responsibilities imposed by this chapter, or impedes or interferes with [action] actions undertaken or ordered under this chapter shall be subject to the penalties under 35 Pa.C.S. § 7707. Violation of any provision of this chapter is a summary offense enforceable by proper law enforcement authorities or private citizens in accordance with 234 Pa. Code Chapters 50 and 6000 (relating to summary cases;[) and 6000 (relating to] Rules of Criminal Procedure for the Municipal Court of Philadelphia).
§ 118.8. Procedure for exemptions or variance from water use reductions by self-supplied industrial or commercial water users.
(a) If compliance with water use reductions ordered under this chapter would result in extraordinary hardship upon a self-supplied industrial or commercial water user, [he] the water user may apply for an exemption or variance.
(b) For purposes of this [chapter] section, extraordinary hardship means a permanent damage to property, including perishable raw or processed product or other personal or economic loss which is substantially more severe than the sacrifices borne by other water users subject to this chapter.
(c) A [person or business entity believing] self-supplied industrial or commercial water user who believes he suffers an extraordinary hardship and [desiring] desires to be wholly or partially exempt from the reductions ordered under this chapter may apply for an exemption or variance under the following procedures:
(1) The applicant shall submit a written request with full documentation supporting the need for the requested relief to:
Commonwealth Drought Coordinator
c/o Department of Environmental [Resources]
Protection
P. O. Box [1467] 8555
Harrisburg, Pennsylvania [17120] 17105-8555* * * * * (3) The Commonwealth Drought Coordinator or a designee, will review the application in consultation with [the staff of PEMA and] other appropriate Commonwealth agencies, and may request the applicant to provide within a reasonable time additional information as necessary to review the application.
(4) The Commonwealth Drought Coordinator or a designee [as agent for PEMA and Council] is authorized to render a decision regarding applications received for exemption or variance. The Commonwealth Drought Coordinator or a designee will provide the applicant [and other interested parties] notice in writing of the decision and the reasons for the decision. [Where] When possible, the Commonwealth Drought Coordinator or a designee will provide a written decision within 7 working days, or if perishable products are involved, within 1 working day of submission of an application or [of] will request additional information as necessary to review the application. When appropriate, the Commonwealth Drought Coordinator may issue a Statewide exemption or variance to similarly situated water users. A notice of the decision will be published in the Pennsylvania Bulletin. Unless appealed under this section, the decision of the Commonwealth Drought Coordinator or a designee, shall be considered a final action on the application.
(5) A person aggrieved by a decision of the Commonwealth Drought Coordinator, or a designee, may, within 30 days of written notice of the decision or publication of notice of the decision in the Pennsylvania Bulletin, appeal the decision to [the Council] PEMA.
(6) An appeal from an initial decision of the Commonwealth Drought Coordinator [may], or a designee will not act as [a] an automatic supersedeas, but, upon cause shown and [where] when the circumstances require it, [the Drought Coordinator and the Council, or both,] PEMA will have the power to grant a supersedeas.
(7) When an initial decision is appealed, [the Commonwealth Drought Coordinator] PEMA will provide the applicant with an opportunity for a hearing. [The Commonwealth Drought Coordinator may act as the hearing examiner, or] PEMA may appoint a hearing examiner who may be an administrative law judge of the Pennsylvania Public Utility Commission. Hearings may be held telephonically. [A hearing will be conducted under 1 Pa. Code Part II (relating to general rules of administrative practice and procedure).]
(8) The hearing examiner will provide the record of the hearing, if any, and a recommendation to PEMA [and Council] for review and adoption.
(9) [The Council] PEMA will notify the applicant in writing of its final decision and the reasons for the decision regarding the appeal.
* * * * * (e) An exemption or variance [approved by the Council] may be modified or rescinded by the Commonwealth Drought Coordinator if public health, safety and welfare require further reduction in water use.
(f) An exemption or variance granted to [an applicant] a water user for a specific property, purpose or person is not transferable to another property, purpose or person without prior written approval from [PEMA and Council] the Commonwealth Drought Coordinator.
§ 118.9. [Implementation period] County drought management task force.
[This chapter shall be implemented upon declaration by the Governor of a drought or water shortage emergency, and shall remain in effect during the period of the emergency until terminated by action of the Governor, or by order of PEMA. Notice of the termination of the drought emergency and the reversion of this chapter to a standby status shall be submitted to the Legislative Reference Bureau for suggested publication in the Pennsylvania Bulletin.
(a) Within the time frame specified in the Governor's proclamation of drought emergency, the county commissioners of all counties located within the designated drought emergency area shall establish a drought management task force within their county.
(1) The county task force shall coordinate and monitor all drought reporting and water conservation measures undertaken within their county as necessary to ensure the provision of safe and reliable drinking water sources.
(2) The county task forces shall be comprised of county emergency management officials, public water supply agency representatives, elected officials, health officials, fire officials, law enforcement officials, affected business and industry representatives, and others as the county may determine.
(3) The county commissioners will coordinate, and report to the Commonwealth Drought Coordinator on county task force activities to include public information, planning, water system vulnerabilities, enforcement coordination, fire protection and other areas of public concern.
(b) For the duration of the drought emergency, each county drought management task force shall prepare and submit to the Commonwealth Drought Coordinator a monthly report describing the severity and impact of drought conditions. The report is due the first day of each month and shall describe the drought impact on the public, business and industry and the agriculture community. The report will identify steps taken to implement water conservation and public education.
(c) The county drought management task force meetings shall be open to the public and shall comply with state public meeting sunshine requirements.
§ 118.10. [Effective date] (Reserved).
[This chapter shall take effect immediately upon adoption by the council.]
[Pa.B. Doc. No. 00-1906. Filed for public inspection November 3, 2000, 9:00 a.m.]
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