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PA Bulletin, Doc. No. 03-949

NOTICES

INDEPENDENT REGULATORY REVIEW COMMISSION

Notice of Comments Issued

[33 Pa.B. 2441]

   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 Committee 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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 Comment Period IRRC Comments Issued
7-381 Environmental Quality Board
Safe Drinking Water; Radionuclides Rule
(33 Pa.B. 1239 (March 8, 2003))		4/7/03 5/7/03
7-382 Environmental Quality Board
Safe Drinking Water; Filter Backwash Recycling Rule (FBRR)
(33 Pa.B. 1234 (March 8, 2003))		4/7/03 5/7/03

____

Environmental Quality Board Regulation No. 7-381

Safe Drinking Water; Radionuclides Rule

May 7, 2003

   We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Environmental Quality Board (EQB) must respond to these comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.

1.  General.--Consistency with Federal regulations; Clarity.

   In comments dated April 3, 2003, the Environmental Protection Agency Region III (EPA) questioned areas of the proposed regulation that are inconsistent with Federal regulations. These comments include the following:

   The proposed regulation does not include compliance dates in 40 CFR 141.66(f).

   A sentence in 40 CFR 141.26(a) concerning whether the ''gross alpha result will be used to determine the future monitoring frequency'' is omitted from § 109.301(14)(i)(C) of the proposed regulation.

   The proposed regulation does not contain a provision consistent with 40 CFR 141.66(g) which lists ''best available technologies (BAT).''

   The EQB should address these comments by amending the final-form regulation or by providing explanations on how these issues may be resolved without amending the regulation.

2.  Section 109.301(14)(i). Monitoring requirements for gross alpha particle activity, radium-226, radium-228 and uranium.--Implementation procedures; Reasonableness; Clarity.

   Clause (D) uses the phrases ''historical monitoring data,'' ''monitoring data,'' ''appropriate historical monitoring data'' and ''appropriate historical data.'' Do these terms have the same meaning? If so, we recommend that one term be used consistently.

   Clause (D)(III) states:

''. . . provided that the Department finds that the historical data satisfactorily demonstrate that each entry point is expected to be in compliance based upon the historical data and reasonable assumptions about the variability of radionuclide levels between entry points. The system shall supply sufficient information to allow the Department to make a written finding indicating how the data conform to these requirements.'' (Emphasis added.)

   We have two concerns.

   First, what happens if the entry point is tested and the results do not comply with the requirements? What are the consequences for the community water system?

   Second, the phrase ''reasonable assumptions'' is vague. What sort of assumptions would be considered reasonable?

3.  Section 109.301(14)(ii). Monitoring requirements for beta-particle and photon radioactivity.--Implementation procedures; Reasonableness; Clarity.

   Clause (A) states ''Systems designated by the Department as vulnerable to beta-particle or photon radioactivity or both shall sample for beta particle or photon radioactivity.'' (Emphasis added.) We have two concerns.

   First, how will the Department determine if a community water system is vulnerable?

   Second, the Preamble states that the EPA recommends the use of a 15-mile radius from the nuclear facilities as the designation for vulnerability. The EQB has chosen a ''watershed-based approach'' to determine contamination. Explain what a ''watershed-based approach'' is and how it would be implemented. Is this approach more or less stringent than the federal requirements?

   Clause (A)(II) states ''For systems in the vicinity of a nuclear facility, the system may utilize environmental surveillance data collected by the nuclear facility in lieu of monitoring at the system's entry points, when the Department determines that the data is applicable to the system.'' (Emphasis added.) We have three concerns.

   First, what criteria will the Department use to determine if a community water system is in the vicinity of a nuclear facility?

   Second, the proposed regulation does not contain a definition of a ''nuclear facility.'' However, the term is defined in the Preamble. What is the Department's rationale for not including the definition of nuclear facility in the regulation?

   Third, the term ''environmental surveillance data'' needs to be clarified. It is our understanding that the United States Nuclear Regulatory Commission (NRC) requires routine monitoring of release points of power plants. If these NRC requirements are contained in Federal regulations, this subclause should contain a specific reference to those Federal rules.

   Clause (B) states ''Systems designated by the Department as utilizing waters contaminated by effluents from nuclear facilities shall sample. . . .'' How will the Department notify a system that it is designated as using waters contaminated by a nuclear facility?

4.  Section 109.301(14)(iii). General monitoring and compliance requirements.--Clarity.

   Clause (A) states ''The Department may require more frequent monitoring than specified in subparagraphs (i) and (ii), or may require confirmation samples.'' We have two concerns.

   First, when would the Department require more frequent monitoring?

   Second, monitoring refers to all of the responsibilities of a community water system. Sampling is a specific action. This provision would be clearer if it stated, ''The Department may require more frequent sampling. . . .'' (Emphasis added.)

   Clause (B) states ''Each system shall monitor at the time designated by the Department during each compliance period.'' How will a system be notified of the time designated by the Department?

5.  Section 109.303. Sampling requirements.--Clarity.

   Subsection (j) states ''Performance samples required under § 109.301(14)(i)(B)(V) (relating to general monitoring requirements) shall be taken immediately following treatment for the radionuclide, or at another location approved by the Department.'' (Emphasis added.) We have two concerns.

   First, the use of the phrase ''immediately following treatment'' is unclear. It is our understanding that the phrase relates to a location or place where sampling may occur. That location is downstream from the radionuclide treatment area. The final-form regulation should be revised to indicate that the phrase ''immediately following'' refers to a place and not a time.

   Second, if a system opts to use another location, how would they apply for approval of the Department?

____

Environmental Quality Board Regulation No. 7-382

Safe Drinking Water; Filter Backwash Recycling Rule (FBRR)

May 7, 2003

   We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Environmental Quality Board must respond to these comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.

1.  Section 109.1. Definitions.--Clarity.

   The definition of ''recycle flows'' states, in subparagraph (ii), that ''recycle streams'' also has the same meaning. For clarity, subparagraph (ii) should be deleted and one term should be used consistently throughout the regulation.

2.  Section 109.202. State MCLs, MRDLs and treatment technique requirements.--Clarity.

   Subsection (h)(2), as printed in the Pennsylvania Bulletin, is missing a reference after the word ''paragraph.'' The reference should be added to the final-form regulation.

   Subsection (h)(3) provides a description of circumstances, which would trigger the later compliance date of June 8, 2006. However, it contains the vague phrases ''nonrecurring, significant modification'' and ''nonroutine, long-term physical improvements.'' These criteria do not clearly indicate what projects would qualify. The regulation should identify the specific criteria, such as a cost threshold or the time needed to complete the project, which would allow a public water supply system to use the later compliance date.

JOHN R. MCGINLEY, Jr.,   
Chairperson

[Pa.B. Doc. No. 03-949. Filed for public inspection May 16, 2003, 9:00 a.m.]


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