INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[50 Pa.B. 6748]
[Saturday, November 21, 2020]
Section 5(g) of the Regulatory Review Act (71 P.S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b).
The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Reg. No. Agency/Title Close of the Public
7-553 Environmental Quality Board
Water Quality Standard for Manganese and Implementation
50 Pa.B. 3724 (July 25, 2020)
9/25/20 10/26/20 125-230 Pennsylvania Gaming Control Board
50 Pa.B. 4516 (September 5, 2020)
Environmental Quality Board Regulation # 7-553 (IRRC # 3260)
Water Quality Standard for Manganese and Implementation
October 26, 2020
We submit for your consideration the following comments on the proposed rulemaking published in the July 25, 2020 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (RRA) (71 P.S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P.S. § 745.5a(a)) directs the Environmental Quality Board EQB to respond to all comments received from us or any other source.
1. Whether the regulation is consistent with the intent of the General Assembly; Comments, objections or recommendations of a committee; Possible conflict with or duplication of statutes or existing regulations.
This proposed rulemaking deletes manganese and the existing criterion of 1.0 mg/L from Table 3 of Section 93.7 (relating to specific water quality criteria) and adds manganese and the criterion of 0.3 mg/L to Table 5 of Section 93.8c (relating to human health and aquatic life criteria for toxic substances). Table 3 identifies a specific water use and was established for the protection of potable water supply use. Table 5 identifies organisms to be protected by the criterion, such as human health and aquatic life.
The rulemaking also proposes two alternatives for point of compliance for the manganese water quality standard. The first alternative, as required by Act 40 of 2017 (Act 40), moves the point of compliance to the point of all existing or planned surface potable water supply withdrawals. The specific language of Act 40 that forms the basis for part of this rulemaking reads as follows:The board shall promulgate regulations under the act of June 22, 1937 (P.L. 1987, No. 394) known as the ''Clean Streams Law (CSL),'' or other laws of this Commonwealth that require that the water quality criteria for manganese established under 25 Pa. Code Chapter 93 (relating to water quality standards) shall be met, consistent with the exception in 25 Pa. Code Section 96.3(d) (relating to water quality protection requirements). Within ninety days of the effective date of this subsection, the board shall promulgate proposed regulations. (See Section 1920-A(j) of the Administrative Code of 1929 (71 P.S. Section 510-20(j)).
The second alternative is to maintain the existing point of compliance in all surface waters, which is the point of discharge. In addition to Act 40, the EQB has cited the other environmental laws as part of its statutory authority for this proposed rulemaking. These laws include the Clean Streams Law (CSL) (35 P.S. § 691.1 et seq.), the Pennsylvania Safe Drinking Water Act (35 P.S. § 721.1 et seq.) and the Federal Clean Water Act (CWA) (33 U.S.C.A. § 1251 et seq.). The Board states that these statutes, and the regulations promulgated under those statutes, require the Department to protect the waterways of the Commonwealth.
The EQB is seeking comment on both alternatives.
The House Environmental Resources and Energy Committee (House Committee) submitted a letter stating that the proposed regulation and the inclusion of two possible points of compliance for manganese is contrary to Act 40 and the intention of the General Assembly. According to the Committee, the intent of Act 40 was to move the point of compliance for manganese from the point of discharge to the point of potable water withdrawal. Commentators from the industrial and mining sectors have expressed the same concern. Other commentators, including water supply companies and environmental organizations are opposed to Act 40 and moving the point of compliance for manganese downstream.
While a goal of the RRA is the reaching of consensus among interested parties, this Commission must first and foremost determine whether the agency has the statutory authority to promulgate a specific regulation and whether the regulation conforms to the intention of the General Assembly in the enactment of the statute upon which the regulation is based. In making that determination, the RRA directs this Commission to consider, among other things, written comments submitted by a committee.
We recognize that the other environmental laws cited above require the Department of Environmental Protection (DEP) to protect the waterways of the Commonwealth and also the health, safety and welfare of its citizens. Commentators have argued that the requirement of Act 40 and this proposal conflict with the other environmental laws. However, the mandate of Act 40 is clear and does not provide discretion to the EQB. Given the language of Act 40, the comments submitted by the Committee, and the requirements of the RRA, we ask the EQB to explain why this rulemaking and the inclusion of two possible points of compliance is consistent with the intent of the Act 40 and the General Assembly.
2. Compliance with the provisions of the RRA or the regulations of IRRC in promulgating the regulation.
The House Committee, Senate Environmental Resources and Energy Committee (Senate Committee) and some commentators representing the industrial sector believe it is inappropriate for a proposed regulation to offer two alternatives for the regulation of manganese. The House Committee states, in part, ''. . . proposing two different alternatives within the same regulatory package is not the process that the Regulatory Review Act envisions or authorizes.'' They contend this approach does not provide the interested parties with a clear picture of what the final regulation will require of the regulated community, and therefore, it is not possible to provide appropriate comments.
In the Preamble to the final-form regulation, we ask the EQB to explain why it included two alternative points of compliance in a single regulatory package. We also ask the EQB to explain why this approach is in compliance with the RRA and the regulations of IRRC. Specifically, the EQB should explain why this proposal meets the RRA definition of a ''proposed regulation'' which reads as follows:A document intended for promulgation as a regulation which an agency submits to the commission and the committees and for which the agency gives notice of proposed rulemaking and holds a public comment period pursuant to the act of July 31, 1968 (P.L. 769, No. 240), referred to as the Commonwealth Documents Law.
3. Whether the regulation is supported by acceptable data; Reasonableness; Need.
The proposed lowering of the manganese standard from 1.0 mg/L to .3 mg/L has generated significant comment from the regulated community. The House and Senate Committees also commented on this issue. Commentators that support the lower standard believe it is appropriate and backed by the science cited and reviewed by the EQB in support of the rulemaking. Commentators opposed to the lower standard do not believe the regulation of manganese at this level is needed to protect human health and is not backed by the most recent scientific data.
We ask the EQB to review and consider the scientific data and studies provided by the commentators that are opposed to the lower standard. In the Preamble to the final-form regulation, the EQB should clearly state and justify why the lower standard is needed and why the science on which the rulemaking is ultimately based is the most appropriate for the Commonwealth.
We also ask the EQB to explain why it is reasonable to impose a manganese standard that is lower than other states and why it is reasonable to regulate manganese in a manner different than the Environmental Protection Agency.
Finally, we acknowledge the process used by the EQB to promulgate this rulemaking. This process included the issuance of an Advanced Notice of Proposed rulemaking, consultation with the DEP's Water Recourses Advisory Committee, the Agricultural Advisory Board and the Small Water Systems Technical Assistance Center Advisory Board. The EQB also held three public hearings to solicit additional input. We believe other advisory boards of DEP could provide valuable input on this rulemaking. Since the representatives of the coal and aggregate industry have submitted comments questioning the science, need and cost associated with this proposal, we suggest that the final-form regulation be presented to the Mining Reclamation Advisory Board and the Aggregate Advisory Board for input. We believe these Boards could provide valuable input that could lead to a final regulation that is in the best interest of all citizens of the Commonwealth.
4. Direct and indirect costs to the Commonwealth, its political subdivisions and to the private sector.
The Regulatory Analysis Form (RAF) and the Preamble submitted with this proposal do not provide specific estimates of the costs or savings that may be experienced by the regulated community, local governments and state government. Potential cost of the rulemaking is an issue raised by commentators. For example, some believe that moving the point of compliance will shift costs from dischargers to public water suppliers and those costs would be passed on to consumers. Others believe that the lower standard for manganese will be impossible for some dischargers, including those involved in remining and abandoned mine reclamation projects, to meet because of increased cost.
The Senate Committee also raised the issue of cost. They question how the lower standard will affect the remediation of legacy acid mine drainage sites, bond forfeiture sites and note the potential increased costs for state and local agencies related to public highway construction.
The EQB's response regarding cost does not provide this Commission with sufficient information to determine if the regulation is in the public interest. After the language of the rulemaking is finalized, the EQB should work with the regulated community and the advisory boards noted above to determine actual costs or savings that could be realized and this information should be included in the RAF and Preamble.
5. Implementation procedures.
In response to Question # 29 of the RAF, the EQB indicates that the effective date of the final-form regulation will be upon publication in the Pennsylvania Bulletin for CSL permit and approval actions, or as approved by the United States Environmental Protection Agency (EPA) for purposes of CWA permits. A commentator does not believe the lower manganese standard will be approved by EPA because it is not based on sound science and it is not consistent with the manner in which EPA regulates manganese. If EPA does not approve the lower standard, how will the Department proceed with the implementation of this rulemaking? We ask EQB to explain this in the Preamble to the final-form rulemaking.
Pennsylvania Gaming Control Board Regulation
# 125-230 (IRRC # 3262)
November 4, 2020
We submit for your consideration the following comments on the proposed rulemaking published in the September 5, 2020 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P.S. § 745.5a(a)) directs the Pennsylvania Gaming Control Board (Board) to respond to all comments received from us or any other source.
1. Protection of the public health, safety and welfare; Implementation procedures.
Act 42 of 2017 amended Title 4 Pa.C.S., relating to Amusements, to expand gaming opportunities in the Commonwealth. As it pertains to this rulemaking, Act 42 legalized video gaming terminals (VGTs) at truck stop establishments.
Under Act 42, the Board was given authority to promulgate temporary regulations to administer VGT gaming. Those temporary VGT regulations were published in the March 17, 2018 edition of the Pennsylvania Bulletin. The temporary regulations, except for regulations related to security and surveillance, expired two years after publication.
This proposed regulation begins the process of converting the Board's temporary VGT regulations to permanent regulations. In response to Regulatory Analysis Form (RAF) question # 29, the Board indicates that the expected date of delivery of the final-form regulation is the third or fourth quarter of 2021. A cornerstone of the Pennsylvania Race Horse Development and Gaming Act (Act) (4 Pa.C.S. §§ 1101—4506) is the protection of the public health, safety and welfare and also the protection of the integrity of gaming. How will Board protect the public and also the integrity of the games it is charged with overseeing without temporary or permanent regulations in place? We urge the Board to return this regulatory package for final review to the Independent Regulatory Review Commission (IRRC) and the designated standing committees of the General Assembly as quickly as possible to ensure that VGTs are properly regulated.
2. Compliance with the RRA and regulations of IRRC.
Section 5.2 of the RRA (71 P.S. § 745.5b) directs IRRC to determine whether a regulation is in the public interest. When making this determination, IRRC considers criteria such as economic or fiscal impact and reasonableness. To make that determination, IRRC must analyze the text of the proposed regulation and the reasons for the new or amended language. IRRC also considers the information a promulgating agency is required to provide under Section 5 of the RRA in the RAF (71 P.S. § 745.5(a)).
There are several instances where the Board's responses to RAF questions are incomplete. We ask the Board to provide more complete answers as directed below:
• Identify what other states allow VGTs and how those states administer video gaming in response to RAF question # 12; and
• Categorize those entities mentioned in response to RAF question # 15 as either small businesses or another size business.
3. Section 1101a.2. Definitions.—Clarity; Reasonableness.
The Board is defining the term ''commercial motor vehicle'' by referencing that definition from the Uniform Commercial Driver's License Act found in 75 Pa.C.S. § 1603 (relating to definitions.) Why did the Board decide to use this definition for the term ''commercial motor vehicle''?
4. Section 1102a.3. Conditional terminal operator and procurement agent licenses.—Clarity.
We have two concerns with this section. First, the title of this section references two types of licenses. However, the text of this section only addresses conditional terminal operator licenses. We suggest that the title be amended to reflect the correct subject matter of this section.
Second, the last subsection of this section, Subsection (f), states the following: ''A request for conditional licensure must include a $100 fee in addition to the applicable fee under 4 Pa.C.S. § 4101 (relating to fee).'' This is the first reference to the fact that the request for conditional licensure is separate and optional from that of a permanent license. We believe the clarity of the section would be improved if this was mentioned at the beginning of the section. Also, is the request made on a form or in some other manner? This should also be clarified in the final-form regulation.
We note that similar language is found in §§ 1103a.3 (relating to conditional establishment licenses) and 1104a.2 (relating to conditional procurement agent principal licenses) and ask the Board clarify those sections as well.
5. Section 1102a.4. Terminal operator licensee change of control.—Clarity.
This section uses phrase the ''change of control'' and ''controlling interest'' interchangeably. We have two concerns. First, the phrase ''controlling interest'' is defined in Section 3102 of the Act (4 Pa.C.S. § 3102). We believe it would be beneficial to the regulated community if that term was included in § 1101a.2, relating to definitions.
Second, we believe the clarity of Subsection (a) would be improved by adding the phrase ''or acquisition of controlling interest'' after the phrase ''controlling interest.'' We note that similar language is found in §§ 1103a.4(a) (relating to establishment licensee change of control), 1106a.1(g)(1) (relating to supplier licenses) and 1107a.1(g)(1) and ask the Board to clarify those sections as well.
6. Section 1103a.1. Establishment licenses.—Need; Reasonableness.
Subsection (b) states that truck stop establishments must meet certain requirements. Subsection (b)(2) requires at least 20 parking spots for commercial motor vehicles. The definition of ''commercial motor vehicle'' noted above addresses the weight or type of vehicle that qualifies as such, but it does not address the length or width of a particular vehicle. Why does Subsection (b)(2) require parking spaces to be ''of sufficient size to accommodate vehicles which are 8 feet in width and 53 feet in length'' or of a certain weight? What is the need for the length and width requirements of this subsection? This should be explained in the Preamble to the final-form regulation.
7. Section 1106a.1. Supplier licenses.—Protection of the public health, safety and welfare; Clarity; Reasonableness.
We have two concerns with this section. First, Subsection (a)(1) states the following: ''A supplier filing an application of licensure under this chapter shall not be required to file a diversity plan as set forth in § 431a.2(a)(3).'' Why is a diversity plan not needed for this type of license? We ask the Board to explain the need for this provision in the Preamble to the final-form regulation. We note a similar provision can be found at § 1107a.1(a)(1), relating to manufacturer licenses.
Second, Subsection (b)(5) requires an applicant to submit details of ''any supplier license issued by the Board to the applicant under section 1317 of the act (relating to supplier licenses).'' To protect the integrity of gaming, we believe it would be beneficial to amend this subsection to require applicants to notify the Board of any supplier license that was not only issued, but also denied. This would be similar to requirement of Subsection (b)(6) to notify the Board if a license was granted or denied by other gaming jurisdictions.
We note that similar language is found in § 1107a.1(b) (relating to manufacturer licenses) and ask the Board to clarify that section as well.
8. Chapter 1112a. Video gaming terminal, redemption terminal and associated equipment testing and certification.—Clarity.
Section 1112a.1, relating to definitions, includes a definition for ''educational institution.'' This term is not used in the body of Chapter 1112a. However, it is used in Chapter 1113a, relating to possession of video gaming terminals. When the Board prepares the final-form regulation, we ask that it review the definitions included in Chapter 1112a to ensure they are being used in that chapter and to delete or add definitions as appropriate.
9. Section 1112a.1. Definitions.—Clarity.
The definition of ''asset number'' reads as follows: ''A unique number assigned to a video gaming terminal by a terminal operator for the purpose of tracking the video gaming terminal, while owned by the terminal operator.'' It is our understanding that VGTs can also be leased by terminal operators. We suggest that this definition be amended to reflect that fact or amended to delete the reference to ownership of VGTs.
10. Section 1112a.9. Redemption terminals.—Clarity.
Subsection (g)(1) requires a lock securing a storage box. Subsection (g)(3) requires a lock securing the contents of the storage box and the key to lock ''must be different from the keys referenced in paragraphs (1) and (2).'' These provisions are unclear because Subsection (g)(1) and (g)(2) reference locks, but Subsection (g)(3) references keys. In addition, it is unclear if the lock or key referenced in Subsection (g)(1) must be different than the lock or key referenced in Subsection (g)(3). This should be clarified in the final-form regulation.
11. Section 1113a.1. Possession of video gaming terminals generally.—Clarity.
Subsection (b)(1) includes a reference to VGTs outside of a ''licensed facility.'' We believe the intent of this subsection is to regulate the possession of VGTs outside of the establishment licensee's facility and suggest that the final-form regulation be amended to reflect that distinction.
12. Section 1116a.3. Redemption terminals.—Clarity.
Subsection (d) reads as follows: ''The redemption terminal must only accept redemption tickets from video gaming terminals in the same video gaming area.'' We note that § 1112a.9(e), allows a redemption terminal to function as bill breaker. We believe the clarity of Subsection (d) would be improved if it included a reference to § 1112a.9(e) and the fact that redemption terminals can also be used as bill breakers.
13. Section 1118a.5. Penalties.—Clarity.
Chapter 1118a relates to compulsive and problem gaming. This section reads as follows: ''An establishment licensee that fails to fulfill any of the requirements of this chapter shall be assessed an administrative penalty and may have its establishment license suspended by the Board.'' It is our understanding that Section 3516 of the Act (relating to issuance and renewal) (4 Pa.C.S. § 3516) allows the Board to suspend, revoke or deny renewal of a license. Since the Board has the authority to revoke and deny renewal of a license, we suggest that those potential actions also be included in this section of the rulemaking and other sections as the Board deems appropriate.
14. Chapter 1119a. Self-exclusion.—Protection of the public health, safety and welfare; Clarity.
On January 29, 2020, IRRC submitted comments related to the Board's proposed regulation # 125-225 (IRRC # 3246) entitled ''Slot Machine Licenses; Accounting and Internal Controls; Compulsive and Problem Gambling Requirements; Casino Self-Exclusion; Table Game Equipment; Credit.'' IRRC's comment # 1 related to self-exclusion and raised several concerns regarding how the Board would handle the self-exclusion process as relates to the various forms of gaming. The Board has communicated with IRRC that the language included in Chapter 1119a has been amended to align with the language in proposed regulation # 125-225. We ask the Board to ensure that the language in this final-form regulation mirrors, as appropriate, the language in final-form regulation # 125-225 in order to protect the public health, safety and welfare and to provide clarity for the regulated community.
15. Chapter 1120a. Exclusion of persons from video gaming.—Clarity.
Subsection 1120a.2(a) states that the Board will maintain a list of persons to be excluded or ejected from an ''establishment licensee facility.'' This term is also used in §§ 1120a.3(a)(1) and (2). However, other subsections of this chapter such as §§ 1120a.3(a)(3) and (4) and (b)(1) use the term ''licensed facility.'' These defined terms have different meanings. We ask the Board to review the use of these two terms throughout this chapter to ensure that the proper terminology is used consistently.
16. Miscellaneous clarity.
• § 1104a.1(e) should be amended to include the word ''applicant'' after the word ''principal.''
• § 1105a.1(e) should be amended to include the word ''applicant'' after the phrase ''key employee.''
GEORGE D. BEDWICK,
[Pa.B. Doc. No. 20-1634. Filed for public inspection November 20, 2020, 9:00 a.m.]
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