PRINTER'S NO. 3954
No. 2918 Session of 1992
INTRODUCED BY HARLEY, MUNDY, MELIO, JOSEPHS, TOMLINSON,
STEELMAN, ITKIN, HASAY, CORNELL, M. N. WRIGHT, MIHALICH,
SCHEETZ, PETRONE AND DONATUCCI, JULY 2, 1992
REFERRED TO COMMITTEE ON CONSERVATION, JULY 2, 1992
AN ACT
1 Relating to the conservation of water resources by the
2 establishment of Statewide standards for plumbing fixtures.
3 TABLE OF CONTENTS
4 Section 1. Short title.
5 Section 2. Declaration of purpose.
6 Section 3. Definitions.
7 Section 4. Water conservation standards.
8 Section 5. Powers and duties of board.
9 Section 6. Powers and duties of department.
10 Section 7. Prohibited acts.
11 Section 8. Inspections and searches.
12 Section 9. Public nuisances.
13 Section 10. Penalties and remedies.
14 Section 11. Local plumbing codes.
15 Section 12. Safe Drinking Water Account.
16 Section 13. Construction.
17 Section 14. Severability.
1 Section 15. Effective date.
2 The General Assembly of the Commonwealth of Pennsylvania
3 hereby enacts as follows:
4 Section 1. Short title.
5 This act shall be known and may be cited as the Water
6 Conservation Performance Standards Act.
7 Section 2. Declaration of purpose.
8 The purpose of this act is to protect and conserve the water
9 resources of this Commonwealth by implementing a uniform set of
10 Statewide regulations governing water conservation performance
11 standards for plumbing fixtures and fittings.
12 Section 3. Definitions.
13 The following words and phrases when used in this act shall
14 have the meanings given to them in this section unless the
15 context clearly indicates otherwise:
16 "ANSI." American National Standards Institute.
17 "Board." The Environmental Quality Board established under
18 section 1920-A of the act of April 9, 1929 (P.L.177, No.175),
19 known as The Administrative Code of 1929.
20 "Department." The Department of Environmental Resources of
21 the Commonwealth.
22 "Person." Any individual, partnership, association, company,
23 corporation, municipality, municipal authority or political
24 subdivision, or any agency of the Federal or State Government.
25 The term includes the officers, employees and agents of any
26 partnership, association, company, corporation, municipality,
27 municipal authority or political subdivision, or of any agency
28 of the Federal or State Government.
29 "Public building." Any building or portion thereof used or
30 controlled by any department or branch of State or local
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1 government or which is constructed wholly or partially through
2 State or municipal funds, including tax funds, funds obtained
3 through bond issues or grants or loans under any State law,
4 which is likely to be used by the public, including, but not
5 limited to, theaters, concert halls, auditoriums, museums,
6 schools, libraries, recreation facilities, transportation
7 terminals and stations, factories, office buildings and building
8 establishments. In addition, the term includes those facilities
9 such as stores, restaurants and hotels which have restrooms
10 which are open to the public or the clientele of the facility,
11 but not including private restrooms which are part of sleeping
12 quarters in such a facility. The term does not include privately
13 owned residential structures, public housing structures or
14 police, fire or correction structures.
15 "Safe Drinking Water Act." The act of May 1, 1984 (P.L.206,
16 No.43), known as the Pennsylvania Safe Drinking Water Act.
17 Section 4. Water conservation standards.
18 (a) Water conservation standards.--No water shall be
19 provided for internal or external use to any residential,
20 commercial, governmental or public building or structure of any
21 kind which is constructed or remodeled and in which plumbing,
22 water piping or water fixtures are to be installed, extended or
23 altered in any way, and for which construction a permit is
24 required to be obtained, or would be required except for an
25 exemption from a permit requirement for public or governmental
26 agencies, unless the new, extended or altered plumbing, water
27 piping and other water using fixtures therein conform to the
28 requirements and standards as established by this act.
29 (b) Establishment of standards.--The following water saving
30 performance standards are hereby established:
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1 (1) For sink and lavatory faucets, maximum flow shall
2 not exceed an average of three gallons of water per minute
3 and those faucet models designed and manufactured for
4 installation in public buildings or facilities must be of a
5 self-closing variety. The fixture shall perform in accordance
6 with the test requirements of ANSI A112.18.1M.
7 (2) For shower heads, maximum flow shall not exceed an
8 average of three gallons of water per minute. The fixture
9 shall perform in accordance with the test requirements of
10 ANSI A112.18.1M.
11 (3) For urinals and associated flush valves, if any,
12 each flush shall not exceed an average of one and one-half
13 gallons of water per flush. The fixture shall perform in
14 accordance with the test requirements of ANSI A112.19.2M and
15 ANSI A112.19.6M.
16 (4) For water closets, including tank-type toilets,
17 flushometer-tank toilets, flushometer-valve toilets,
18 electromechanical hydraulic toilets and all other types of
19 toilets that use water, flow shall not exceed an average of
20 one and six-tenths gallons per flushing cycle. The fixtures
21 shall perform in accordance with the test requirements ANSI
22 A112.19.2M and ANSI A112.19.6M.
23 (5) Drinking water fountains must be of a self-closing
24 variety.
25 (c) Review and modification.--Periodically, but not less
26 than once every five years, the department shall reevaluate the
27 performance standards established by this act to determine their
28 efficiency in promoting water conservation, taking into account
29 that information deemed relevant by the department. Pursuant to
30 the reevaluation, the department may recommend to the board
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1 alteration of the established water conservation standards or
2 apply similar standards to a broader class of fixtures and
3 fittings.
4 (d) Exemptions.--
5 (1) The performance standards, as established by this
6 act, shall not apply to fixtures and fittings such as
7 emergency showers, aspirator faucets and blowout fixtures
8 that, in order to perform a specialized function, cannot meet
9 the specified standards.
10 (2) Any person may apply to the department for an
11 exemption to the terms of this act, which may be granted by
12 the department, upon proof that some other device, system or
13 procedure will save as much or more water as those provided
14 in this section or that those provided in this section cannot
15 be complied with, without undue hardship.
16 (3) The department may permit the sale and installation
17 of water closets and associated flush valves, if any, which
18 do not meet the standards provided for by this act if, after
19 application therefor, it is determined by the department that
20 the installation of fixtures which meet the standards would
21 be detrimental to the operation of the existing sewage system
22 or part of such system serving such fixtures.
23 (4) The provisions of this act shall not apply to
24 fixtures installed prior to the effective date of this act
25 which are removed and relocated to another room or area of
26 the same building after the effective date of this act.
27 (5) The provisions of this act shall not apply to those
28 fixtures which have been ordered by or are in the inventory
29 of contractors, wholesalers or retailers on or before the
30 effective date of this act.
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1 Section 5. Powers and duties of board.
2 The board shall have the power and its duty shall be to adopt
3 rules and regulations of the department as it deems necessary
4 for the implementation of this act.
5 Section 6. Powers and duties of department.
6 The department shall have the power and its duty shall be to:
7 (1) Administer and enforce this act and any rules and
8 regulations adopted under this act.
9 (2) Issue orders and initiate proceedings as may be
10 necessary for the enforcement of this act and any rules and
11 regulations adopted under this act. Those actions shall
12 include, but are not limited to, the initiation of criminal
13 prosecutions, including the issuance of summary citations by
14 agents of the department.
15 (3) Enter into agreements, at its discretion, with any
16 State agency or local agency for the purpose of delegating
17 any of its authority under this act. Any State agency or
18 local agency acting under a delegation agreement shall have
19 the same powers and duties otherwise vested in the department
20 to implement this act, to the extent delegated by the
21 agreement.
22 Section 7. Prohibited acts.
23 On or after the effective date of this act, no person shall,
24 for purposes of use within this Commonwealth, distribute, sell,
25 offer for sale, import, install or modify any plumbing fixture
26 or fitting subject to the provisions of this act, unless it
27 meets the water conservation performance standards set forth in
28 this act.
29 Section 8. Inspections and searches.
30 (a) Authority of department.--The department is authorized
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1 to make inspections and conduct tests or samplings, including
2 the sampling of plumbing products and materials and the
3 examination and copying of books, papers, records and data
4 pertinent to any matter under investigation in order to
5 determine compliance with this act. For these purposes, the duly
6 authorized agents and employees of the department are authorized
7 at all reasonable times to enter and examine any property,
8 facility, operation or activity.
9 (b) Access.--The owner, operator or other person in charge
10 of the property, facility, operation or activity under
11 subsection (a), upon presentation of proper identification and
12 purpose for inspection by the agents or employees of the
13 department, shall give these agents and employees free and
14 unrestricted entry and access. Upon refusal to grant entry or
15 access, the agent or employee may apply for a search warrant
16 authorizing entry and inspection to any Commonwealth official
17 authorized to issue a search warrant. The warrant shall be
18 issued upon a showing of probable cause. It shall be sufficient
19 probable cause to issue a search warrant authorizing the entry
20 and inspection if there is probable cause to believe that the
21 object of the investigation is subject to regulation under this
22 act and that access, examination or inspection is necessary to
23 enforce the provisions of this act.
24 (c) Time of inspection.--Public water systems and places
25 where plumbing supplies are sold are subject to inspection by
26 the department and its employees and agents once a year for
27 purposes of ascertaining compliance with this act. Residential
28 or nonresidential facilities subject to the requirements of this
29 act are subject to inspection by the department and its
30 employees and agents once during the construction, modification
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1 or repair of the facilities.
2 (d) Additional inspections, etc.--The department and its
3 employees and agents may conduct additional inspections,
4 including:
5 (1) Follow-up inspections.
6 (2) Inspections to observe any practice or condition
7 related to public health or safety.
8 (3) Inspections to determine compliance with this act,
9 the other statutes administered by the department, the
10 department's regulations or any requirement of an order
11 issued by the department.
12 (e) Threats to health, safety, etc.--The department and its
13 employees and agents may also conduct inspections whenever any
14 person presents information to the department giving the
15 department reason to believe that a condition exists which may
16 pose a threat to public health, safety or welfare or to the
17 environment, or that there exists a violation of this act,
18 regulations adopted under this act, orders issued under this act
19 or any other statute or regulation administered by the
20 department.
21 (f) Construction of section.--Nothing in this section shall
22 be construed or understood to place any duty or obligation upon
23 the department to conduct a minimum number of inspections a year
24 to conduct a minimum number of inspections during a certain
25 period or to inspect for particular reasons.
26 Section 9. Public nuisances.
27 Any violation of any provision of this act, any rule or
28 regulation of the department or any order of the department
29 shall constitute a public nuisance. Any person who commits such
30 a violation shall be liable for the costs of the abatement of
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1 the public nuisance caused by the violation. The board and any
2 court of competent jurisdiction are hereby given jurisdiction
3 over actions to recover the costs of the abatement. Any activity
4 or condition which is declared by this act to be a nuisance or
5 which is otherwise in violation of this act shall be abatable in
6 the manner provided by law or equity for the abatement of public
7 nuisances.
8 Section 10. Penalties and remedies.
9 (a) Duty to comply with orders of department.--It shall be
10 the duty of any person to proceed diligently to comply with any
11 order issued by the department under this act. If such person
12 fails to proceed diligently or fails to comply with the order
13 within such time, if any, as may be specified, the person shall
14 be guilty of contempt and shall be punished by the court in an
15 appropriate manner. For this purpose, application may be made by
16 the department to the Commonwealth Court, which court is hereby
17 granted jurisdiction.
18 (b) Equitable relief.--The department may proceed in equity
19 in the Commonwealth Court or in a court of common pleas having
20 jurisdiction to restrain or prevent violations of this act or to
21 compel compliance with this act or any rule, regulation or order
22 issued under this act.
23 (c) Summary offense.--A person who violates any provision of
24 this act, any rule or regulation of the department or any order
25 of the department, or who resists or interferes with an officer,
26 agent or employee of the department in the performance of his
27 duties, commits a summary offense and shall, upon conviction in
28 the county in which the offense was committed, be sentenced to
29 pay a fine of not less than $100 nor more than $1,000, and
30 costs, for each separate offense or, in default of payment
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1 thereof, shall be sentenced to imprisonment for not more than 30
2 days.
3 (d) Misdemeanor of the third degree.--Any person who
4 willfully or negligently violates any provision of this act, any
5 rule or regulation of the department or any order of the
6 department commits a misdemeanor of the third degree and shall,
7 upon conviction, be sentenced to pay a fine of not less than
8 $250 nor more than $2,500 for each separate offense or to
9 imprisonment for not more than one year, or both.
10 (e) Misdemeanor of the second degree.--Any person who,
11 within two years after a conviction of a misdemeanor for any
12 violation as provided in subsection (d), willfully or
13 negligently violates any provision of this act, any rule or
14 regulation of the department or any order of the department
15 commits a misdemeanor of the second degree and shall, upon
16 conviction, be sentenced to pay a fine of not less than $500 nor
17 more than $5,000 for each offense or to imprisonment for not
18 more than two years, or both.
19 (f) Civil penalties.--In addition to proceedings under any
20 other remedy available at law or in equity for a violation of
21 any provision of this act, any rule or regulation of the
22 department or any order of the department, the department may
23 assess a civil penalty upon a person for the violation. The
24 penalty may be assessed whether or not the violation was willful
25 or negligent. When the department assesses a civil penalty, it
26 shall inform the person of the amount of the penalty. The person
27 charged with the penalty shall have 30 days to pay the penalty
28 in full, or, if the person wishes to contest either the amount
29 of the penalty or the fact of the violation, the person shall,
30 within the 30-day period, file an appeal of the action with the
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1 board. Failure to appeal within 30 days shall result in a waiver
2 of all legal rights to contest the violation or the amount of
3 the penalty. The maximum civil penalty which may be assessed
4 under this section is $1,000 per day for each violation. Each
5 violation for each separate day and each violation of any
6 provision of this act, any rule or regulation under this act or
7 any order of the department shall constitute a separate and
8 distinct offense under this section.
9 (g) Civil action to compel compliance.--Any person having an
10 interest which is or may be adversely affected may commence a
11 civil action on his own behalf to compel compliance with this
12 act or any rule, regulation or order issued pursuant to this act
13 against any person alleged to be in violation of any provision
14 of this act or any rule, regulation or order issued under this
15 act. Any other provision of law to the contrary notwithstanding,
16 the courts of common pleas shall have jurisdiction of such
17 actions, and venue in such actions shall be as set forth in the
18 Pennsylvania Rules of Civil Procedure concerning actions in
19 assumpsit.
20 (h) Additional remedies.--The penalties and remedies
21 prescribed by this act shall be deemed concurrent, and the
22 existence or exercise of any remedy shall not prevent the
23 department from exercising any other remedy in this act, at law
24 or in equity.
25 (i) Separate offenses.--Violations on separate days shall
26 constitute separate offenses for purposes of this act.
27 Section 11. Local plumbing codes.
28 This act and the regulations adopted under this act shall
29 supersede plumbing codes of local agencies to the extent that
30 those codes are less stringent than or otherwise inconsistent
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1 with this act and the regulations adopted under this act.
2 Section 12. Safe Drinking Water Account.
3 All fines and penalties collected under the penalty
4 provisions of this act shall be paid into the Safe Drinking
5 Water Account, as established by section 14 of the Safe Drinking
6 Water Act. Such funds are hereby appropriated to and shall be
7 administered by the department for such purposes as are
8 authorized in this act and in the Safe Drinking Water Act.
9 Section 13. Construction.
10 The terms and provisions of this act are to be liberally
11 construed so as to fully protect the public health, welfare and
12 safety and to achieve and effectuate the goals and purposes of
13 this act.
14 Section 14. Severability.
15 The provisions of this act are severable. If any provision of
16 this act or its application to any person or circumstance is
17 held invalid, the invalidity shall not affect other provisions
18 or applications of this act which can be given effect without
19 the invalid provision or application.
20 Section 15. Effective date.
21 This act shall take effect in one year.
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