NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Actions Taken by the Commission
[27 Pa.B. 3000] The Independent Regulatory Review Commission met publicly at 11 a.m., Thursday, June 5, 1997, and took the following actions:
Regulations Approved:
Environmental Quality Board # 7-299: Corrections to Drainage Lists (amends 25 Pa. Code §§ 93.9(c)--93.9(g), 93.9(i), 93.9(l), 93.9(n), 93.9(o), 93.9(p), 93.9(q), 93.9(r), 93.9(s), 93.9(t), 93.9(w), 93.9(x) and 93.9(y))
Board of Claims # 105-3: Rules of Procedure (rescinds 4 Pa. Code Chapter 121 and amends 61 Pa. Code Chapter 899)
Insurance Department # 11-154: Premium Taxes for Foreign Fire Insurance (amends 31 Pa. Code Chapter 113)
Insurance Department # 11-156: Investments of Fire and Casualty Companies (amends 31 Pa. Code Chapter 101)
Insurance Department # 11-158: Conversion of Certain Mutual Insurance Companies (repeals 31 Pa. Code, Chapter 109, Sections 109.1--109.6)
Regulations Disapproved:
Environmental Quality Board # 7-294: Administration of Sewage Facilities, Planning Program and Standards for Sewage Disposal Facilities (Act 149) (amends 25 Pa. Code Chapters 71--73)
Commissioners Present: Robert J. Harbison, III, Vice Chairperson; Alvin C. Bush; Arthur Coccodrilli; John F. Mizner
Public Meeting held
June 5, 1997Environmental Quality Board--Corrections to Drainage Lists; Doc. No. 7-299
Order On July 24, 1996, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Quality Board (EQB). This rulemaking would amend 25 Pa. Code §§ 93.9(c)--93.9(g), 93.9(i), 93.9(l), 93.9(n), 93.9(o), 93.9(p), 93.9(q), 93.9(r), 93.9(s), 93.9(t), 93.9(w), 93.9(x) and 93.9(y). The authority for this regulation is sections 5(b)(1) and 402 of The Clean Streams Law (35 P. S. §§ 691.5(b)(1) and 691.402), and Section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20). The proposed regulation was published in the August 3, 1996 Pennsylvania Bulletin with a 45-day public comment period. The final-form regulation was submitted to the Commission on May 6, 1997.
This rulemaking represents an extensive editing project. The amendments to 25 Pa. Code § 93.9 in this regulation include minor corrections and reinstatements of information inadvertently dropped from the drainage lists during a reformatting of Chapter 93 in 1992. No additional costs will be imposed on the Commonwealth, local governments or private sector by this regulation.
We have reviewed this regulation and find it to be in the public interest. These amendments are intended to correct errors in the stream listings and will not change current stream designations that are being implemented for these streams. This regulation is beneficial because it provides the public with the proper information for stream designations that are already in effect.
Therefore, It Is Ordered That:
1. Regulation No. 7-299 from the Environmental Quality Board, as submitted to the Commission on May 6, 1997, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: Robert J. Harbison, III, Vice Chairperson; Alvin C. Bush; Arthur Coccodrilli; John F. Mizner
Public Meeting held
June 5, 1997Board of Claims--Rules of Procedure; Doc. No. 105-3
Order On May 9, 1997, the Independent Regulatory Review Commission (Commission) received this regulation from the Board of Claims (Board). This rulemaking would rescind 4 Pa. Code Chapter 121 and amend 61 Pa. Code Chapter 899. The authority for this regulation is found at 72 P. S. § 4651-10. Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
The Board is proposing to rescind two outdated sets of rules of practice and procedure and replace them with a single set of procedural rules. The Board's enabling statute and caselaw requires that all matters before the Board be governed by the Pennsylvania Rules of Civil Procedure (Pa.R.C.P.). The new rules supplement the Pa.R.C.P. to conform to the Board's authority and to allow for the efficient handling of claims.
Two major procedural changes are proposed. First, the new rules require a party filing preliminary objections to also file a supporting brief. Failure to file the brief may result in the dismissal of the preliminary objections. Second, the new rules delete the filing of discovery material with the Board and limit each party in an action to the service of 60 interrogatories or requests for admission.
During our review, we discovered drafting errors in three of the proposed rules. The more substantive of the errors is in Rule 402(b) relating to discovery motions. As submitted, the rule provided that a brief need not be filed by a moving party when a motion to compel answers to interrogatories or production of documents is filed. However, the Board intended to eliminate the brief requirement in situations when the motion avers only that a response or objection has not been timely served. As drafted, a brief need not be filed if any motion avers that a response or objection has not been timely served.
The Board submitted a letter to the Commission on May 30, 1997, amending the regulation. The amendments clarify the very limited exception to the brief requirement and correct additional drafting errors.
We have reviewed this regulation and find it to be in the public interest. The regulation deletes obsolete procedural rules and replaces them with rules of procedure consistent with the Pa.R.C.P. The new rules will allow the Board to expeditiously and efficiently process claims.
Therefore, It Is Ordered That:
1. Regulation No. 105-3 from the Board of Claims, as submitted to the Commission on May 9, 1997, and amended on May 30, 1997, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: Robert J. Harbison, III, Vice Chairperson; Alvin C. Bush; Arthur Coccodrilli; John F. Mizner
Public Meeting held
June 5, 1997Insurance Department--Premium Taxes for Foreign Fire Insurance; Doc. No. 11-154
Order On May 15, 1997, the Independent Regulatory Review Commission (Commission) received this proposed rulemaking from the Insurance Department (Department). It would amend 31 Pa. Code Chapter 113 by deleting sections 113.21--113.23 as obsolete and unnecessary. The authority for this rulemaking is found in sections 206, 506, 1501 and 1502 of The Administrative Code of 1929 (71 P. S. §§ 66, 186, 411 and 412); and the Foreign Fire Insurance Tax Distribution Law (1984 Law) (53 P. S. §§ 895.701--895.803). Notice of proposed rulemaking was omitted for these amendments; they will become effective upon publication in the Pennsylvania Bulletin.
The affected sections were adopted in April of 1970, under the authority of the act of June 25, 1895, P. L. 108 (1895 Act) (72 P. S. § 2262). The 1895 Act provided that a 2% premium tax paid by foreign fire insurers be distributed to political subdivisions and used for relief or pension funds for the paid and volunteer employes of fire departments. The regulations require foreign fire insurers to assign a code number to each policy to identify the political subdivision in which the insured property is located. The Department of Revenue (Revenue) used the codes to assure that tax revenue was properly distributed among the various political subdivisions. The 1895 Act was repealed by section 801 of the 1984 Law (53 P. S. § 895.801).
The 1984 Law provides a formula for the distribution of the 2% tax, which is different than that provided under the 1895 Act. The distribution is now based on population and market values of property. Revenue no longer requires information concerning location of insured properties and no longer assigns codes to political subdivisions. Section 706 of the 1984 Law (53 P. S. § 895.706) sets forth specific requirements that municipalities are to follow in connection with the use of foreign fire insurance tax moneys.
We have reviewed this regulation and find it to be in the public interest. The Department's repeal of the obsolete provisions of sections 113.21--113.23 of 31 Pa. Code will eliminate confusion by deleting outdated and inapplicable requirements.
Therefore, It Is Ordered That:
1. Regulation No. 11-154 from the Insurance Department, as submitted to the Commission on May 15, 1997, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: Robert J. Harbison, III, Vice Chairperson; Alvin C. Bush; Arthur Coccodrilli; John F. Mizner
Public Meeting held
June 5, 1997Insurance Department--Investments of Fire and Casualty Companies; Doc. No. 11-156
Order On May 15, 1997, the Independent Regulatory Review Commission (Commission) received this regulation from the Insurance Department. This rulemaking would amend 31 Pa. Code Chapter 101, by deleting sections 101.1 and 101.2. The authority for this regulation is contained in sections 206, 506, 1501 and 1502 of The Administrative Code of 1929 (71 P. S. §§ 66, 186, 411 and 412); and sections 802.1 and 803.1 of The Insurance Company Law (40 P. S. §§ 912.1 and 913.1). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
Sections 101.1 and 101.2 subject mutual fire insurance companies and mutual casualty insurance companies to investment laws applicable to stock fire insurance companies and stock casualty insurance companies. These provisions were promulgated in 1958 under sections 517, 602 and 802 of The Insurance Company Law (40 P. S. §§ 652, 722 and 912). Sections 517, 602 and 802 of The Insurance Company Law have since been repealed by Act 106 of 1989 (Act 106). Further, Act 106 enacted new requirements at sections 802.1 and 803.1 relating to investments of mutual fire and mutual casualty companies.
We have reviewed this regulation and find it to be in the public interest. Repeal of the obsolete information at sections 101.1 and 101.2 of the Department regulations will eliminate potential confusion by removing outdated information and citations.
Therefore, It Is Ordered That:
1. Regulation No. 11-156 from the Insurance Department, as submitted to the Commission on May 15, 1997, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: Robert J. Harbison, III, Vice Chairperson; Alvin C. Bush; Arthur Coccodrilli; John F. Mizner
Public Meeting held
June 5, 1997Insurance Department--Conversion of Certain Mutual Insurance Companies; Doc. No. 11-158
Order On May 15, 1997, the Independent Regulatory Review Commission (Commission) received this regulation from the Insurance Department (Department). This rulemaking would repeal 31 Pa. Code, Chapter 109, sections 109.1--109.6, and is proposed under the Department's authority under sections 206, 506, 1501 and 1502 of The Administrative Code of 1929 (71 P. S. §§ 66, 186, 411 and 412). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
The purpose of Chapter 109 was to implement the provisions of Act 279 of 1970 and to facilitate compliance. However, Act 279 was repealed by Act 79 of 1995. The currently effective requirements for the conversion of mutual companies are found in sections 801-A--818-A of the Insurance Company Mutual-to-Stock Conversion Act (act) (40 P. S. §§ 911-A--928-A).
The repeal of Chapter 109 has no fiscal impact because the currently effective requirements relating to the conversion of mutual companies are found in the act. All mutual insurance companies licensed to do business in Pennsylvania will be impacted by the repeal of Chapter 109 because they will now rely on the language of the act for the requirements governing the conversion of mutual insurance companies. The repeal of Chapter 109 will benefit insurance companies by eliminating the potential confusion created by having outdated requirements in the regulations and the current requirements in the act.
We have reviewed this regulation and find it to be in the public interest. The repeal of Chapter 109 will eliminate an obsolete, unnecessary regulation.
Therefore, It Is Ordered That:
1. Regulation No. 11-158 from the Insurance Department, as submitted to the Commission on May 15, 1997, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: Robert J. Harbison, III, Vice Chairperson; Alvin C. Bush; Arthur Coccodrilli; John F. Mizner
Public Meeting held
June 5, 1997Environmental Quality Board--Administration of Sewage Facilities, Planning Program and Standards for Sewage Disposal Facilities (Act 149); Doc. No. 7-294
Order On March 12, 1996, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Quality Board (EQB). This rulemaking would amend 25 Pa. Code Chapters 71--73. The authority for this regulation is contained in section 9 of the Pennsylvania Sewage Facilities Act (act) (35 P. S. § 750.9), section 1920-A of The Administrative Code of 1929 (71 P. S. § 510.20), and The Clean Streams Law (35 P. S. §§ 691.1--691.1001.). The proposed regulation was published in the March 30, 1996 Pennsylvania Bulletin with a 60-day public comment period. The final-form regulation was submitted to the Commission on May 6, 1997.
This regulation implements various amendments to the act which were enacted on December 14, 1994 (P. L. 1250, No. 149). The regulatory amendments to Chapters 71, 72 and 73 are necessary to bring existing regulations into compliance with amendments to the act and to update some technical standards for onlot sewage treatment systems. Among the more significant regulatory amendments are provisions relating to procedures for private requests for permitting authorized under section 5 of the act (35 P. S. § 750.5); review of official plans, update revisions, requests for exceptions to the requirements to revise an official plan, responsibilities of and administrative procedures for delegated agencies, and reimbursement to and expanded authority of local agencies under sections 6 and 8 of the act (35 P. S. §§ 750.6 and 750.8); individual spray irrigation systems authorized under section 7.3 of the act (35 P. S. § 750.7c); and fees for the review of planning modules and certain permit applications and certain responsibilities of sewage enforcement officers.
There was extensive comment on the proposed regulation. We received written comments from the following parties on the proposed regulation:
Chester County Health Department
City of Philadelphia Health Department
Cook Township Supervisors
Shamokin Dam Borough
Montgomery County Department of Health
Pennsylvania State Association of Township
Supervisors
Pennsylvania Builders Association
Pennsylvania Society of Land Surveyors
Pennsylvania Society of Professional Engineers
(PSPE)
Pennsylvania Association of Sewage Enforcement
Officers
Pennsylvania Septage Management Association
Pennsylvania Association of RealtorsWe also received numerous written comments from Sewage Enforcement Officers (SEOs) and Professional Engineers (PEs). Most of the comments focused on the question of whether an SEO is authorized by statute or qualified by training and education to design the individual residential spray irrigation systems (IRSIS).
In response to these comments, Department of Environmental Protection (DEP) sent a request dated May 14, 1996, to the State Registration Board for Professional Engineers, Land Surveyors, and Geologists (PE Board) for a formal determination as to who may design IRSIS. The PE Board responded on May 28, 1996, stating that its members voted unanimously to oppose the proposed regulation because, in the PE Board members' opinion, the design of IRSIS constitutes the practice of engineering. Section 3 of the Engineers, Land Surveyors, and Geologists Registration Law (63 P. S. § 150) prohibits the practice of engineering in the Commonwealth by any person unless he or she is licensed and registered under the laws of the Commonwealth as a PE.
In our comments on the proposed regulation, we raised two concerns with the proposal to authorize SEOs to design onlot systems. First, based upon our review of arguments raised in comments and review of the act, we could not find any provisions which indicated that the Legislature intended or authorized SEOs to design onlot sewage systems. Second, the SEO ''design'' course on IRSIS does not require any proof of the expertise of a student to design such a system because there is no examination at the conclusion of the course. Accordingly, we recommended that the EQB delete the provisions which would allow SEOs to design IRSIS. We also recommended that the EQB review the qualifications of landscape architects with the State Registration Board for Landscape Architects to determine if their training would qualify them to design all phases of IRSIS including the effluent requirements.
In the final-form regulation, the EQB deleted qualifications of designers from the final-form regulation, leaving the regulation silent as to who could design IRSIS. After the submittal of the final-form regulation, we received a letter from PSPE urging disapproval of the regulation because it no longer contains any guidance regarding the qualifications for designers of pressurized onlot systems including IRSIS. PSPE believes the language in the final-form regulation could be interpreted to allow almost anyone to prepare a spray irrigation system or other complex pressurized distribution system.
We have reviewed this regulation and find it not to be in the public interest. Specifically, we believe that the regulation may result in unnecessary costs being imposed on individuals who desire to have an IRSIS system installed and does not meet the clarity and reasonableness criteria in the Regulatory Review Act (71 P. S. §§ 745.5(e)(1) and (3)). The EQB responded to comments from commentators and the PE Board by deleting the proposed language allowing SEOs to design IRSIS and pressure systems, but went a step further by deleting the existing and proposed language stating that IRSIS and pressure systems must be designed by a PE. This action creates an unacceptable level of ambiguity. EQB deleted existing language and proposed language establishing the qualifications for designers of pressurized distribution, dosing pumps and IRSIS systems in Sections 73.44(c)(1), 73.46(a)(7) and 73.161(a). Given this absence of direction in the final-form regulation, it could be logically concluded that anyone could design these systems and have a permit approved by this regulation. However, DEP staff admits this is not their intent.
We recognize the fact that many people believe SEOs should be allowed to design IRSIS systems. The preamble of the final-form regulation states that the EQB and DEP believe some SEOs who are not PEs are qualified to design such systems. At our public meeting, the DEP staff made it clear that they are pursuing two options to allow SEOs to design these systems. First, they are working to develop a training course to be approved by the PE Board that would qualify SEOs to design IRSIS systems. In addition, they believe that the General Assembly may pass legislation to amend the Engineers, Land Surveyors and Geologists Registration Law to exempt SEOs from the PE license requirement for designing onlot systems. We do not disagree with the EQB's and DEP's policy goals. However, we are constrained by current law and our statutory criteria as established in the Regulatory Review Act. We are required to consider the clarity, reasonableness and consistency of a regulation with existing statutes.
Given the decision of the PE Board, we believe that the EQB has no other choice than to amend the regulation to state that only PEs can design IRSIS systems. DEP staff stated in our public meeting that their preference would be to keep the regulation neutral in anticipation of a policy change by the PE Board or legislative change in the statutes. However, DEP counsel admits that the EQB does not have the authority to ignore or overrule the decision by the PE Board.
DEP has informed all registered SEOs by letter that if an application for IRSIS does not have a PE seal, the permit application should be returned as incomplete. If the DEP and EQB recognize the PE Board's legal authority to make the PE seal a requirement for these systems, this requirement needs to be in the regulation. The regulation does not provide the necessary guidance on the qualifications of designers. We believe any confusion caused by this omission is unnecessary. DEP is following the PE Board's ruling. Hence, the requirement for IRSIS to be designed by a PE needs to be in the regulation.
In the preamble of the final-form regulation, the EQB reasoned that the act does not provide a statutory basis for the EQB to determine the qualifications of system designers. The EQB believes qualification of designer determinations must be made under appropriate statutes related to registration or licensing of professionals. We strongly disagree with the EQB's position. Although the EQB may not have the authority to contradict or contravene the PE Board, we believe it has the power, if not the duty, to establish qualifications for designers in this regulation. The act does provide a statutory basis for the EQB to establish qualifications of system designers as part of the permit standards for sewage systems. For example, section 7 of the act (35 P. S. § 750.7) states the following:
(b)(1) Application for permit shall be in writing to the local agency in accordance with the provisions of section 8 of this act, and shall be made in such form and shall include such data as the department may prescribe. (Emphasis added.)
Section 7.3. Individual Residential Spray Irrigation Systems (35 P. S. § 750.7c) provides the following:
Permits for the construction of individual residential spray irrigation systems may be issued by a local agency under this act when all of the following have been met:
* * *
(2) The site, soil conditions and system design meet the Department's standards for these systems. (Emphasis added.)
Furthermore, the EQB has authority under Section 9. Powers and Duties of the Environmental Quality Board (35 P. S. § 750.9) which provides the following:
The Environmental Quality Board shall have the power and its duty shall be to adopt such rules and regulations of the department, applicable throughout the Commonwealth, as shall be necessary for implementation of the provisions of this act. Such rules and regulations shall establish standards for the construction, installation, alteration, maintenance and operation of individual sewage systems and community sewage systems and of sewage treatment plants in such systems, . . . (Emphasis added.)
These provisions clearly provide the EQB with authority to establish qualifications of system designers as part of the permit standards for sewage systems
Deleting any qualifications for designers from the regulation, creates unnecessary confusion for home builders, property owners, SEOs, or anyone who looks to the regulation for the legal requirements applicable to IRSIS or pressurized systems. We recommend that the regulation not be written to overrule or ignore the decisions of the PE Board, but be written to conform with the PE Board decision and current law. Further, the regulation's requirements should not differ from standards that DEP intends to impose. When there is a change in the PE Board's decision or in current law on this particular issue, we stand ready to work with the EQB to expedite the appropriate change in the regulation.
Therefore, It Is Ordered That:
1. Regulation No. 7-294 from the Environmental Quality Board, as submitted to the Commission on May 6, 1997, is disapproved;
2. The Environmental Quality Board shall, within 7 days of receipt of this Order, notify the Governor, the designated Standing Committees of the House of Representatives and the Senate, and the Commission of its intention to either proceed with the promulgation of the regulation without revisions, to revise the regulation, or to withdraw the regulation. Failure to submit notification within the 7-day period shall constitute withdrawal of the regulation;
3. The Commission will transmit a copy of this Order to the Legislative Reference Bureau; and
4. This Order constitutes a bar to final publication of Regulation No. 7-294 under section 6(b) of the Regulatory Review Act (71 P. S. § 745.6(b)).
JOHN R. MCGINLEY, Jr.,
Chairperson
[Pa.B. Doc. No. 97-997. Filed for public inspection June 20, 1997, 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.
