NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[39 Pa.B. 1278]
[Saturday, March 7, 2009]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. § 645.5b).
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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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 Issued7-426 Environmental Quality Board
Long-Term 2 Enhanced Surface Water Treatment Rule
(Safe Drinking Water)1/20/09 2/19/09 38 Pa.B. 7035 (December 20, 2008) 7-427 Environmental Quality Board
Safe Drinking Water
(Stage 2 Disinfectants and Disinfection Byproducts Rule1/20/09 2/19/09 38 Pa.B. 7055 (December 20, 2008) 7-424 Coal and Clay Mine Subsidence
Insurance Board
Mine Subsidence Fund1/20/09 2/19/09 38 Pa.B. 6931 (December 20, 2008)
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Environmental Quality Board
Regulation #7-426 (IRRC #2735)
Long-Term 2 Enhanced Surface Water Treatment Rule; (Safe Drinking Water)
February 19, 2009 We submit for your consideration the following comments on the proposed rulemaking published in the December 20, 2008 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 Environmental Quality Board (Board) to respond to all comments received from us or any other source.
Section 109.1202. Monitoring requirements.--Fiscal impact; Protection of public health, safety and welfare; Reasonableness; Need.
The Philadelphia Water Department submitted comments noting research indicating ''a poor correlation between E.coli and Cryptosporidium oocysts.'' The research raises concerns relating to the options provided by this proposed regulation for monitoring Cryptosporidium levels in small public water systems. We recognize that this option is provided by the Federal regulations, and it gives smaller systems a less expensive alternative for monitoring Cryptosporidium. However, if it is not an effective tool for screening for possible threats from Cryptosporidium, this raises questions concerning the need for and costs of tests that do not necessarily produce reliable results. Doubts over reliability also raise public health concerns. We recommend that the Board and Department of Environmental Protection work closely with the U.S. Environmental Protection Agency in reviewing all the scientific data and bases for using E.coli tests as screening tool for Cryptosporidium.
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Environmental Quality Board
Regulation #7-427 (IRRC #2736)
Safe Drinking Water (Stage 2 Disinfectants and Disinfection Byproducts Rule)
February 19, 2009 We submit for your consideration the following comments on the proposed rulemaking published in the December 20, 2008 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 Environmental Quality Board (EQB) to respond to all comments received from us or any other source.
1. General--Possible conflict with existing regulation; Protection of the public health, safety and welfare; Economic impact.
In the Preamble, the EQB states:
The draft proposed amendments were submitted for review to the Small Water Systems Technical Assistance Center Advisory Board (TAC) for review and discussion on November 15, 2007. The TAC Board noted that the revisions are required for the Department to receive primacy and are not more stringent than the Federal rule. The TAC Board approved the proposed revisions in a letter dated December 12, 2007.Additionally, the EQB approved this proposed regulation on August 19, 2008.
However, the Environmental Protection Agency (EPA) filed comments on this regulation and a clarification of its comments, both dated January 20, 2009. The EPA cited what it characterized as concerns related to six ''major changes,'' ten ''minor changes'' and ''other changes'' to the existing regulation. In light of the EPA concerns, the final-form regulation should include an explanation of how these EPA concerns were addressed and a summary of the communications the EQB had with the EPA to make sure Pennsylvania will maintain primacy with the implementation of the final-form regulation.
2. Section 109.701. Reporting and recordkeeping.--Protection of the public health, safety and welfare; Clarity.
There are three discrepancies in this section between the regulatory package submitted by the EQB on November 24, 2008, and the publication in the December 20, 2008 edition of the Pennsylvania Bulletin. First, Subparagraph (a)(8)(ii) is missing a bracket, and therefore, it is unclear what language the EQB proposes to delete. Second, Paragraph (a)(9) in the Pennsylvania Bulletin has a missing bracket, as it appears that the EQB intended to delete (9) in its entirety and renumber (10) to (9). Finally, in Paragraph (a)(10) in the Pennsylvania Bulletin, the word ''precursors'' should not be shown in bold type.
These discrepancies may have caused confusion and impacted public comment. Ideally, a correction would have been published in the Pennsylvania Bulletin before the close of the public comment period. Since the opportunity for that correction has passed, the EQB should make efforts to ensure that the regulated community is both aware of the discrepancies and has had the opportunity to address any concerns before the final-form regulation is submitted.
Also, the City of Philadelphia commented that the requirement to make written reports of operational evaluation levels available to the public under clauses 109.701(g)(2)(iii)(B) and (C) could present security concerns. These reports are required to include ''an examination of system treatment and distribution operational practices, including storage tank operations....changes in sources . . . .'' See § 109.701(g)(2)(iii)(C). The EQB should explain how it considered security concerns in relation to this requirement and how the requirement will not make information available to the public that could be used for nefarious purposes.
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Coal and Clay Mine Subsidence Insurance Board Regulation #7-424 (IRRC #2737)
Mine Subsidence Fund
February 19, 2009 We submit for your consideration the following comments on the proposed rulemaking published in the December 20, 2008 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 Coal and Clay Mine Subsidence Insurance Board (Board) to respond to all comments received from us or any other source.
1. Section 401.11. Eligibility for insurance.--Reasonableness; Clarity.
Subsections (d)(1) and (2) contain the phrase ''to the Board's satisfaction.'' This phrase is vague and contains no direct guidance for the regulated community. What criteria will be used to determine if ''satisfaction'' is achieved? The Board should establish these criteria in the final-form regulation or should remove this phrase.
2. Section 401.42. Commission rates.--Reasonableness; Clarity.
This section states, ''The Board will annually establish commission rates.'' How will these rates be established? How will the regulated community be notified of what the annual rate is? The final-form regulation should set forth how the annual commission rates will be established and where they can be found.
3. Section 401.43. Payment of commissions.--Reasonableness; Clarity.
This section states that ''[t]he Board may authorize other forms of payment.'' How could one obtain this authorization? Also, what other forms of payment could be authorized by the Board? This should be included in the final-form regulation.
4. Section 401.44. Repayment of commissions.--Clarity.
Under this section, in what timeframe must an insurance producer repay the unearned commissions? This should be specified in the final-form regulation.
5. Section 401.45. Confidentiality of policyholder information.--Reasonableness; Clarity.
This section states that insurance producers must ''safeguard all applicant and policyholder information and are responsible for the misuse of information that is under their control.'' The term ''safeguard'' and the phrase ''misuse of information'' are vague. The regulation does not provide the regulated community a clear understanding of the expectations of the Board. In addition, the lack of clarity could lead to different enforcement standards. We recommend that this section be amended to provide more precise language that would allow the regulated community to understand what the Board expects of them and also provide a uniform standard that could be applied evenly to all insurance producers.
6. Section 401.51. Loans and grants.--Statutory authority; Legislative intent; Reasonableness; Clarity.
This section allows the Board to authorize loans and grants to entities to develop technologies, perform services or engage in other activities that benefit the fund. We acknowledge that Section 19 of the act of August 23, 1961 (P. L. 1068, No. 484) (52 P. S. § 3219) (act) provides the Board with broad rulemaking authority to fulfill the purposes of the act. However, Section 1 of the act (52 P. S. § 3201), relating to purposes, does not contemplate the issuance of loans or grants by the Board. What is the Board's authority to provide loans or grants, and how is this consistent with the intent of the General Assembly when it passed the act?
If the Board is able to demonstrate that it has the statutory authority to provide loans and grants, we recommend that the final-form regulation include more detail on how the loan and grant program will be administered. The application process, criteria for reviewing applications and timeframes for applying for loans and grants should be included.
ARTHUR COCCODRILLI,
Chairperson
[Pa.B. Doc. No. 09-446. Filed for public inspection March 6, 2009, 9:00 a.m.]
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