NOTICES
PENNSYLVANIA PUBLIC UTILITY COMMISSION
Memorandum of Understanding between the Pennsylvania Emergency Management Agency and Pennsylvania Public Utility Commission; Doc. No. M-0000 1360
[30 Pa.B. 3129] Commissioners Present: John M. Quain, Chairperson; Robert K. Bloom, Vice Chairperson; Nora Mead Brownell; Aaron Wilson, Jr.; Terrance J. Fitzpatrick
Public Meeting held
June 2, 2000
Order By The Commission:
Given the reoccurring nature of droughts in Pennsylvania and in the interest of coordinating our functions and activities with other Commonwealth departments and agencies pursuant to The Administrative Code of 1929, Act of April 9, 1929, P. L. 177, art. V. §§ 501 and 502, as amended, (71 P. S. §§ 181), the Commission wishes to execute the following interagency Memorandum of Understanding (MOU) with the Pennsylvania Emergency Management Agency (PEMA). The MOU is intended to establish an administrative appeals process that PEMA and the Commission may implement whenever the Governor issues a Proclamation of Drought Emergency in Pennsylvania.
Once a drought emergency is declared, the PEMA regulations contained in 4 Pa. Code Chapter 119 become operative. Although these regulations prohibit nonessential water uses in a drought emergency area, the regulations outline a process by which a water user can apply for a waiver. To obtain a waiver, the water user must submit a written request with supporting documentation to the Department of Environmental Protection (DEP). A decision on the request is made by the Commonwealth Drought Coordinator, a DEP employe acting as an agent for PEMA. If the water user is not satisfied with the Coordinator's decision, he or she then has 30 days to appeal the decision to PEMA. After filing a notice of appeal, the aggrieved water user has a right to an on-the-record hearing conducted by a hearing officer appointed by PEMA.
The administrative process set forth in the following MOU establishes PEMA as the docketing clerk for any appeals by aggrieved water users. Within 2 business days of receiving this appeal, PEMA will send the docketed appeal, together with other relevant records, to the Commission. The Commission will then schedule and conduct an expedited appeal hearing following the administrative practice and procedure rules set forth in 1 Pa. Code Part II. Within 5 business days after the conclusion of an appeal hearing, the Commission will provide PEMA with the record of the hearing together with the written recommendation of the hearing officer. The Commission will have no further involvement with the appeal process once these materials are forwarded to PEMA.
Also pursuant to the MOU, the Commission will keep a record of its administrative costs for conducting any appeal hearings. These costs may include personnel, stenographic, office supply, travel, mailing, and other costs incurred by the Commission. At the conclusion of the drought emergency, or as otherwise appropriate, an invoice for costs will be submitted to PEMA unless the Commission determines that its administrative costs were minimal in which case the Commission may inform PEMA that no invoice will be forwarded.
Even though no appeals were filed during any drought emergency to date, during the one declared in July 1999 both DEP and PEMA anticipated that appeals would be filed because over 200 waiver requests had been received. This far exceeded the number of waiver requests processed in prior drought emergencies. Consequently, in August of 1999, PEMA and DEP asked if the Commission would be willing to provide hearing officers, as required by 4 Pa. Code § 119.6(c)(7), to conduct appeal hearings about water use restrictions during the 1999 drought emergency. With the Commission's tentative consent, an MOU between PEMA and the Commission was drafted to appoint Law Judges as hearing officers. However, because the drought emergency expired in October with no appeals filed, the draft MOU has been rewritten to apply generally to any subsequent drought emergency.
Concurrently, PEMA has undertaken to review and revise the regulations that become effective during drought emergencies. Revisions to 4 Pa. Code Chapters 118, 119, and 120 are currently being proposed. PEMA expects to send a final proposed draft of these revisions to the Office of General Counsel shortly to initiate the formal rulemaking process. PEMA is desirous of including, as part of these revised regulations, a reference to the following MOU through which the Commission agrees to provide hearing officers to conduct appeals of water restrictions effective during a drought emergency.
Upon review of the following MOU, the Commission finds that it is in the public interest to cooperate with other Commonwealth agencies in allocating water resources during drought emergencies and such cooperation is also consistent with The Administrative Code of 1929, Act of April 9, 1929, P. L. 177, art. V. §§ 501 and 502, as amended, (71 P. S. §§ 181). Accordingly, we conclude that the following Memorandum of Understanding should be approved; Therefore,
It Is Ordered That:
1. The Commission hereby approves the Memorandum of Understanding (MOU) following as Appendix A to this Order.
2. A copy of this Order together with Appendix A be served upon the Office of Consumer Advocate, the Office of Small Business Advocate, the Secretary of the Department of Environmental Protection, and the Pennsylvania Emergency Management Agency.
3. Upon execution of the MOU, the Order and the MOU shall be published in the Pennsylvania Bulletin.
JAMES J. MCNULTY,
Secretary
Appendix A
MEMORANDUM OF UNDERSTANDING THIS MEMORANDUM OF UNDERSTANDING is entered into this ____ day of ______ , 2000, by and between the Pennsylvania Emergency Management Agency, hereinafter referred to as the PEMA,
and
the Pennsylvania Public Utility Commission, hereinafter referred to as the PUC.
W I T N E S S E T H: Whereas, pursuant to Section 7301(c) of the Emergency Management Services Code, 35 Pa.C.S. § 7301(c), the Governor is authorized to issue a Declaration of Disaster Emergency in Pennsylvania upon finding that a disaster has occurred or the threat of a disaster is imminent; and
Whereas, the issuance of a Governor's Declaration of Drought Emergency authorizes PEMA to implement its drought regulations set forth in 4 Pa. Code Chapter 119 for the purpose of prohibiting and restricting nonessential uses of water within a designated drought emergency area; and
Whereas, 4 Pa. Code § 119.6(d) will establish an administrative process by which a water user may seek an exemption or variance from the prohibition of nonessential uses of water by filing a written application with the Commonwealth Drought Coordinator; and
Whereas, 4 Pa. Code § 119.6(d)(6) will permit a water user aggrieved by a decision of the Commonwealth Drought Coordinator to appeal to PEMA within 30 days of notice of the decision; and
Whereas, 4 Pa. Code § 119.6(d)(8) will give PEMA the authority to appoint a hearing examiner for any appeal filed by an aggrieved water user; and
Whereas, because of the cyclical nature of droughts in Pennsylvania, there is likely to be, from time to time, a recurring need for the appointment of hearing officers to hear the appeals that water users file from decisions of the Commonwealth Drought Coordinator; and
Whereas, Commonwealth departments and agencies are to coordinate their work and activities with other Commonwealth departments and agencies pursuant to The Administrative Code of 1929, Act of April 9, 1929, P. L. 177, art. V. §§ 501 and 502, as amended, (71 P. S. §§ 181 and 182).
Now, Therefore, the parties to this MEMORANDUM OF UNDERSTANDING set forth the following as the terms and conditions of their understanding:
1. PEMA will act as the docketing clerk for any appeals by water users filed with PEMA within 30 days of issuance of the Commonwealth Drought Coordinator's decision concerning their requests for variances or exemptions from the prohibition of nonessential uses of water.
2. Within two business days of the receipt of any appeal, PEMA will send the docketed appeal, together with the Commonwealth Drought Coordinator's initial decision and any other records, to the PUC for the purpose of scheduling and conducting an appeal hearing.
3. The PUC will assign a hearing officer to hear each water user's appeal. The PUC will provide the water user and the Commonwealth Drought Coordinator with notice of the appeal hearing.
4. The PUC will follow the administrative practice and procedure rules set forth in 1 Pa. Code, Part II when conducting an appeal hearing. The PUC is authorized to waive specific provisions of those administrative rules during the existence of a Governor's Proclamation of Drought Emergency if strict compliance with those administrative rules would prevent, hinder, or delay necessary action concerning any appeals.
5. Within five business days after the conclusion of an appeal hearing, the PUC will provide PEMA with the record of the hearing together with the written recommendation of the hearing officer. After this recommenda-tion is sent to PEMA, the PUC will have no further involvement in the appeal process.
6. After reviewing the record and recommendation, the PEMA will notify the water user in writing of its final decision.
7. The PUC will keep a record of its administrative costs for conducting any appeal hearings. These costs may include PUC personnel, stenographic, office supply, travel, mailing, or other costs incurred by the PUC.
8. An invoice for all administrative costs incurred in conducting the various appeal hearings shall be submitted to PEMA within 30 days after the conclusion of the last docketed appeal hearing relative to each drought emergency. If, however, a Governor's Proclamation has not expired within two months prior to the end of the PUC's fiscal year, then the PUC may submit an invoice for costs prior to the end of the PUC's fiscal year.
9. If the PUC determines that its administrative costs were minimal, then the PUC may inform PEMA that no invoice will be forwarded to PEMA for payment.
10. If PEMA receives an invoice from the PUC requesting payment for the PUC's administrative costs, PEMA will process that invoice and reimburse the PUC as quickly as possible.
11. This Memorandum of Understanding is not intended to and does not create any contractual rights or obligations with respect to the signatory agencies or any other parties.
12. Any dispute arising hereunder shall be submitted to the Office of General Counsel for final resolution.
13. This Memorandum of Understanding is intended to establish an administrative appeals process that PEMA and the PUC may implement whenever the Governor declares a Proclamation of Drought Emergency in Pennsylvania.
IN WITNESS WHEREOF, the parties hereby acknowledge the foregoing as the terms and conditions of their understanding.
PENNSYLVANIA EMERGENCY MANAGEMENT AGENCY
BY: _________________ Date: ______ David L. Smith, Director PENNSYLVANIA PUBLIC UTILITY COMMISSION BY: _________________ Date: ______ John M. Quain, Chairman BY: _________________ Date: ______ Robert K. Bloom,
Vice ChairmanBY: _________________ Date: ______ Nora Mead Brownell,
CommissionerBY: _________________ Date: ______ Aaron Wilson, Jr.,
CommissionerBY: _________________ Date: ______ Terrance J. Fitzpatrick,
CommissionerThe undersigned have reviewed and approved the foregoing Memorandum of Understanding: COUNSEL, PENNSYLVANIA EMERGENCY
MANAGEMENT AGENCYBY: _________________ Date: ______ Mark L. Goodwin,
Chief CounselCOMPTROLLER, PENNSYLVANIA EMERGENCY
MANAGEMENT AGENCYBY: _________________ Date: ______ Ross E. Starner, Comptroller COUNSEL, PUBLIC UTILITY COMMISSION BY: _________________ Date: ______ Bohdan R. Pankiw,
Chief CounselCOMPTROLLER, PUBLIC UTILITY COMMISSION BY: _________________ Date: ______ Ross E. Starner, Comptroller OFFICE OF GENERAL COUNSEL BY: _________________ Date: ______ Deputy General Counsel
[Pa.B. Doc. No. 00-1068. Filed for public inspection June 16, 2000, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
