NOTICES

INDEPENDENT REGULATORY REVIEW COMMISSION

Actions Taken by the Commission

[26 Pa.B. 5766]

   The Independent Regulatory Review Commission met publicly on Thursday, November 7, 1996, at 10:30 a.m. and took the following actions:

Regulations Disapproved:

   Department of Public Welfare # 14-414--Eligibility for Services Funded Through the Medical Assistance Transportation Program [Order has not yet been issued]

   Environmental Quality Board # 7-282--Sewage Sludge (amends 25 Pa. Code Chapters 271--273, 275, 277, 279, 281, 283, 285 and 287)

Regulations Approved:

   Department of Education # 6-251--Grants for Public Library Construction (amends 22 Pa. Code Chapter 142)

   Environmental Quality Board # 7-287--Hazardous and Municipal Waste (amends 25 Pa. Code Chapters 260--266, 270, 273 and 283)

   Pennsylvania Liquor Control Board # 54-48--I. D. Cards/Sunday Sales/Advertising Displays (amends 40 Pa. Code Chapters 11 and 13)

   (Editor's Note:  For the text of the regulations pertaining to this order, see 26 Pa.B. 5699 (November 23, 1996).)

   Department of Revenue # 15-378--Pennsylvania Lottery 25th Anniversary TV Game Show (adds 61 Pa. Code Chapter 869)

   (Editor's Note:  For the text of the regulations pertaining to this order, see 26 Pa.B. 5712 (November 23, 1996).)

   Department of Community and Economic Development # 4-60--Neighborhood Assistance Program (amends 16 Pa. Code §§ 15.41b and 15.49a)

Commissioners Present:  John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli, Dissenting; John F. Mizner, Dissenting; Irvin G. Zimmerman

Public meeting held
November 7, 1996

Environmental Quality Board--Sewage Sludge; Doc. No. 7-282

Order

   On September 9, 1994, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Quality Board (EQB). This rulemaking would amend 25 Pa. Code Chapters 271--273, 275, 277, 279, 281, 283, 285 and 287. The authority for this regulation is contained in section 105(a) of the Solid Waste Management Act (35 P. S. § 6018.105(a)). The proposed regulation was published in the October 1, 1994 Pennsylvania Bulletin with a 113-day public comment period. The final-form regulation was submitted to the Commission on October 15, 1996.

   The Solid Waste Management Act (SWMA), as amended in 1989, provided that the EQB establish waste regulations to effectuate the beneficial use of municipal waste and residual waste. Beneficial use of waste occurs when a waste can be used for commercial, industrial or governmental purposes in a manner that will not adversely affect the environment. The SWMA specifically provides that the Department of Environmental Protection (DEP) shall encourage the beneficial use of municipal and residual waste when the DEP determines that the use does not harm the health, safety or welfare of the people or environment of the Commonwealth. The SWMA also gives the DEP the power to issue general permits for any category of beneficial use of residual or municipal waste.

   In this rulemaking, the EQB has set up two separate provisions for the establishment of a general permit for the beneficial use of residual and municipal waste as well as provisions for a permit by rule for municipal waste processing facilities. The regulation will also provide a more streamlined process for the permitting of individuals responsible for the land application of sewage sludge. Specifically, sewage sludge will be able to be land applied under a general permit if the sewage sludge meets the same characteristics as those contained in the general permit. This is in contrast to the current regulation which requires an operator to obtain a site specific permit for every site on which it applies sewage sludge. The regulation includes specific management practices that require specific setback distances from streams, wetlands and other environmental features where sewage sludge may not be applied. In addition, an operator utilizing a general permit must provide notification to adjacent landowners, the county conservation district and the DEP 30 days prior to the first application of sewage sludge. The notification to adjacent landowners must be a delivered written notification as well as a posting at the property line.

   If the sewage sludge meets the qualities of exceptional quality (EQ) sewage sludge, it is exempt from the management practices and notification requirements. EQ sewage sludge is considered a high quality sewage sludge because it contains mineral levels of metals and pathogens. EQ sewage sludge is equivalent in quality to many fertilizers and may be safely applied with few restrictions based upon EPA's risk assessment and studies.

   The final provision of the regulation concerns the standards for the handling and storage of residual waste. The residual waste regulations were initially implemented in 1992 and the DEP has determined that several changes needed to be made to the provisions relating to the general permit and permit by rule provisions.

   During the public comment period, the DEP held a series of public meetings and public hearings in Philadelphia, Pittsburgh and Harrisburg. Letters of comment and testimony were received from more than 115 businesses, organizations, and local governments and from 40 individuals. During consideration of the final-form regulation, we received a letter from the Pennsylvania Coal Association in support of the regulation.

   We support the EQB's efforts to provide a more streamlined approach for the permitting and disposal of municipal and residual waste. We believe the new permitting provisions for the land application of sewage sludge are necessary and applaud the EQB for amending the final-form reglation to be more consistent with the EPA's regulations, as we and other commentators have recommended. However, we believe there are several important areas of the regulation that must be addressed prior to final adoption to help ensure the successful implementation of the sewage sludge program.

   Our first concern relates to the unbridled discretion contained in several provisions which afford the DEP with unbridled discretion to take a course of action different than that provided for in the regulation. We believe that this discretion contradicts the purpose and nature of a regulation, which is to give notice of a binding norm of general applicability and future effect. As such, the regulation is binding on the DEP, as well as persons who come under the DEP's jurisdiction. Allowing the DEP unbridled discretion to impose more stringent or additional requirements for obtaining a permit or for performing a specific activity without specifying what those standards may include or under what circumstances they may be imposed is contrary to the public interest. Accordingly, we believe the following sections need to be amended prior to final adoption.

   Subchapter J specifies how the DEP will issue general permits for land application of sewage sludge, as well as the specific notification requirements and management practices for the application of sewage sludge. Many of the provisions in the subchapter are similar to those contained in the EPA regulation; they contain specific standards for pollution limits and pathogen controls, including the areas where sewage sludge may not be applied. Although the regulation contains specific standards for the application of sewage sludge, based in part on EPA studies and experiences, section 271.904 provides:

On a case by case basis, the Department may impose requirements in addition to or more stringent standards than the requirements in this subchapter when necessary to protect the public health and the environment from any adverse effect of a pollutant in the sewage sludge.

   As written, the regulation essentially provides no notice to a permit applicant as to what requirements he or she will be required to satisfy. The regulation does not indicate under what circumstances a more stringent standard will be mandated or how the DEP will make this determination. We believe the regulation needs to be amended to clearly indicate under what general circumstances a more stringent standard will be imposed, how the DEP will make this determination, and what the additional standards may be.

   Similarly, the EQB has included discretionary language for the regulation of EQ sewage sludge. As mentioned, EQ sewage sludge is high quality sewage sludge that meets specific pollution standards and pathogen controls, based upon EPA risk assessments and studies. Sewage sludge determined to meet these specific standards are not required to meet the management practices or general requirements for land application. However, section 271.911(d) provides:

The Department may apply any or all of the general requirements in Section 271.913 and the management practices in Section 271.915 to the sewage sludge in Section 271.911(b)(1) on a case by case basis after determining that some or all of the general requirements or management practices set forth in those sections are needed to protect public health and the environment from any reasonably anticipated adverse effect that may occur from any pollutant in the sewage sludge.

   Again, this section does not indicate under what general circumstances a more stringent practice will be required or how the DEP will make this determination. If the EQB or DEP believes there are more specific standards EQ sewage sludge must meet in order to protect the environment, the standards should be spelled out in the rulemaking.

   The last provision that contains overly broad discretionary language concerns the requirements and standards for a residual waste general permit. Section 287.632(b) provides:

The Department may waive or modify any application and operating requirements in this article, except the Department may not waive or modify Subchapter A, Sections 287.124, 287.125 and 287.128 of Subchapter C, Subchapter E in accordance with Subsection 287.621(d) or Subchapter F.

   We believe that if the DEP needs to modify any of the application or operating requirements, the regulation must clearly indicate under what general circumstances the DEP will do so and what the additional or different requirements will be.

   In response, the DEP stated at our November 7, 1996 public meeting that it did not believe it was necessary to spell out in the regulation when more stringent or additional standards may be required. The DEP believes that only in certain rare instances will it utilize the discretionary language to impose additional or more stringent standards and that it would be difficult to include every specific instance it may impose additional requirements. The DEP also noted that for the sewage sludge program, the discretionary language is similar to that contained in the EPA's Part 503 regulation. The DEP believes that the EPA may express concern with the Commonwealth's program if it is not able to, on a case by case basis, require additional or more stringent requirements.

   We agree that it would be difficult to include every specific instance where the DEP may need to impose additional requirements. However, we believe that the regulation can and should provide the general circumstances when the additional or more stringent requirements may be imposed and what the additional requirements may be. Doing so will provide some notice to the regulated parties of what may be expected of them and how this expectation will be determined. We do not believe that in authorizing the DEP to impose more stringent standards on a case by case basis, the EPA intended that the DEP should be excused from giving at least minimal notice. Therefore, we believe that our recommendation is consistent with the EPA Part 503 regulation.

   Our second concern with the final-form regulation is with the training course requirements for individuals land applying sewage sludge. The proposed regulation merely required all individuals and municipalities applying sewage sludge, either under a general permit or a site specific permit, to satisfactorily complete a training course offered or certified by the DEP. The proposed regulation did not provide the length of the course, the number of courses that must be taken, how successful completion of the course would be determined, and who must complete the course. Therefore, in our Comments we recommended that the EQB amend the regulation to clearly include these provisions in the final-form regulation to provide clear notice of the course requirements. In addition, we recommended that prior to the EQB submitting the final-form regulation, the DEP be prepared to offer these training courses to avoid any delays in operators meeting this requirement.

   In response, the EQB amended section 271.915(j) to provide that the DEP will require persons land applying sewage sludge to complete training courses sponsored by the DEP in a timely and satisfactory manner. This section defines satisfactory completion as attendance at all training sessions and attainment of a minimum grade of 70% on tests given as part of the training courses. In addition, the regulation states that if a person or municipality is applying sewage sludge and has not complied with the training requirements, the DEP may impose a minimum civil penalty of $1,000.

   We are still troubled with the training course requirement. First, although the regulation requires that an operator comply with the training course in a timely manner and provides 2 years to complete this requirement, the DEP has yet to develop the training course. We do not believe it is in the public interest to mandate a requirement and establish penalties for non-compliance when the DEP is not prepared to offer the required training course to allow timely compliance. Second, we believe the regulation needs to specify the number of training courses that will be required, as well as the length (number of hours) for each course or courses. In doing so, the regulation will provide adequate notice of the necessary training requirements that must be met. Third, we question the arbitrariness of establishing a 70% passing grade on tests given as part of the training course. Since the DEP has yet to determine the course structure or how comprehensive the tests will be, we believe establishing a 70% passing score is meaningless.

   We recommend that the EQB delete the educational requirements in this rulemaking. Instead, we recommend the EQB promulgate another regulation once the DEP has finalized the course structure and is prepared to provide the course. The regulation should clearly include who must take the training course, the number of training courses that must be taken, the length of each course, and how successful completion will be determined. This recommendation is consistent with other Commonwealth regulations governing the educational certification of specific activities and professions.

   Our third concern relates to an inconsistent requirement for the submittal of the sewage sludge quality enhancement report. Section 271.921(a) provides that a person who generates sewage sludge, except for a person who generates residential septage or a person who generates sewage sludge meeting the requirements of section 271.911(b)(1) (for example, exceptional quality sewage sludge), shall prepare a sewage sludge quality enhancement plan in accordance with this section. In contrast, section 271.921(d) provides that the DEP may, in writing, waive or modify the requirements of this section for generators of sewage sludge that meet the requirements of section 271.911(b)(1). Thus, while subsection (a) expressly provides that generators of sewage sludge meeting the requirements of section 271.911(b)(1) are exempt from submitting the plan, Subsection (d) indicates that the DEP may waive or modify the requirements for submitting the plan. Therefore, the regulation does not provide clear and consistent requirements for generators of EQ sewage sludge concerning submission of the sewage sludge quality enhancement plan.

   At the Commission's November 7, 1996 public meeting, the DEP staff admitted that the language in section 271.921 is ambiguous as it pertains to the requirements for generators of EQ sewage sludge. However, the DEP staff believes this ambiguity does not result in a contradiction in the requirements for the submittal of the sewage sludge enhancement plan. The DEP staff explained that all generators of EQ sewage sludge are exempt from submitting the sewage sludge enhancement plan. The purpose of section 271.921(d) is to encourage sewage sludge generators to upgrade the quality of their sewage sludge to EQ by allowing the DEP to exempt those who upgrade their sludge from the requirement to file a plan. Therefore, the DEP staff concludes that this latter section is necessary to provide an incentive for generators to produce EQ sewage sludge.

   We agree that generators who upgrade their sludge should be eligible for this exception. However, as currently worded, we believe that section 271.921 contains a conflicting requirement for the submittal of the sewage enhancement plan. Since the DEP staff agrees that all generators of EQ sewage sludge are exempt from submitting this plan, section 271.921(d) is unnecessary because it allows the DEP to require the submittal of a plan by generators of EQ sewage sludge, regardless if the generator has been producing EQ sewage sludge for years or just recently upgraded its sludge quality. We recommend that the EQB delete section 271.921(d) so that the regulation clearly exempts generators of EQ sewage sludge from submitting the sewage sludge quality enhancement plan. This section without Paragraph (d) provides the encouragement the DEP desires to give.

   Our fourth concern is with section 271.920. This section provides that a person operating under a land application of sewage sludge permit shall allow authorized representatives of the Commonwealth, without advance notice or a search warrant, upon presentation of appropriate credentials, and without delay, to have access to areas which the activities covered by the land application of sewage sludge permit will be, are being, or have been conducted to ensure compliance with the Clean Streams Law and the Solid Waste Management Act and a permit issued under this chapter. We have two concerns with this provision.

   First, we question who is an ''authorized representative'' of the Commonwealth since that term is not defined in the rulemaking. The regulation in other sections concerning compliance refers to a representative of the Department. Therefore, we believe the regulation should be amended to either define who the EQB considers is an ''authorized representative of the Commonwealth'' or replace this term with ''a representative of the Department.''

   Second, the provision allows Commonwealth representatives to enter the property at any time. We believe this represents an unreasonable right of entry and is inconsistent with a long line of Supreme Court cases. The leading case is New York v. Burger, 428 U. S. 691, 107 S.Ct. 2636 (1987).

   In Burger, police conducted a statutorily-authorized administrative inspection of an auto junkyard. The Court found that since auto junkyards are ''pervasively regulated'' in the state of New York, the state may conduct warrantless inspections. The Court cautioned, however, that a warrantless inspection will be deemed reasonable only so long as three criteria are met. First, there must be a substantial government interest that ''informs the regulatory scheme pursuant to which the inspection is made.'' Id. at 107 S.Ct. 2644. Second, the warrantless inspections must be necessary to further the regulatory scheme. Finally, the regulation must ''advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers'' Id. The Court further defined the third criterion by noting that the regulation must be ''sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.'' In limiting the discretion of the inspectors, the Court observed that the regulation ''must be carefully limited in time, place, and scope.''

   We believe the regulation meets the place and scope criteria of Burger. However, we believe the regulation lacks language limiting the time that inspections will be conducted, such as during reasonable hours of operation. Therefore, we believe the regulation needs to be amended to provide that inspections will only occur during hours of operation.

   Our final concern relates to the numerous substantive errors contained in the final-form regulation. A number of the errors involve incorrect citations to regulatory requirements or citations to sections that do not exist. The DEP agrees that the regulation contains numerous errors and submitted an errata sheet with the corrections to the rulemaking on November 1, 1996. The DEP believes that the Legislative Reference Bureau can make the necessary revisions during their normal editing process prior to publication.

   We disagree. Under section 5(b.5) of the Regulatory Review Act (71 P. S. § 745.5(b.5)), no changes to a regulation shall be accepted, except as provided in section 7, after the submission of the regulation to the Commission and the designated standing committees. One of the reasons for not accepting changes to a final-form regulation is that the final-form regulation is required to be mailed to all public commentators to provide notice of the impending regulatory requirements. If the regulation is changed, these individuals will not have notice of the change and will not have the opportunity to provide comment to either the Commission or the designated standing committees. Because the errors contained in the rulemaking will impact permitting requirements and waiver requirements, we believe the regulation can only be amended as permitted by the provisions in the Regulatory Review Act. Therefore, we recommend that the EQB amend the regulation to correct the following substantive errors.

   First, section 271.911(b)(3) contains the criteria for EQ sewage sludge sold or given away in bags or containers. The requirement is written as follows:

Sewage sludge sold or given away, or otherwise distributed, in a bag or other container for application to the land shall continuously meet the pollutant concentrations in § 271.914(b)(3), the Class A pathogen requirements in § 271.933(a), and one of the vector attraction reduction requirements in § 271.934(b)(1) through (b)(8) shall be non-liquid and non-recognizable as human waste.

There are two citation errors in this section. First, section 271.933(a) does not contain the Class A pathogen requirements, but actually is headed ''Vector Attraction Reduction.'' We believe the EQB intended to reference section 271.932(a). The other error is the citation for vector attraction reduction to section 271.934, which does not exist in this rulemaking. We believe the EQB intended the reference to read section 271.933(b)(1) through (b)(8).

   Second, section 271.913(i) is written as follows:

The person who prepares sewage sludge that is applied to agriculture land, forest, a public contact site, or a reclamation site shall provide the person who applies the sewage sludge written notification of the concentration of total nitrogen (as n on a dry weight basis) in the sewage sludge.

   It is not clear what n refers to (although we believe it was meant to be nitrogen) or if it was inadvertently included in the section.

   Third, section 271.916(c)(1) is written as follows:

One of the vector attraction reduction requirements in Section 271.934(b)(1) through (b)(10) shall be met when sewage sludge is applied to agriculture land, forest, a public contact site, or a reclamation site.

   Section 271.934 referenced in this section does not exist. As previously noted, we believe the EQB intended to reference section 271.933.

   Fourth, section 275.104 (Chemical analysis for sludge) is bracketed and retitled ''Reserved.'' This generally indicates the entire section is deleted or vacated and left blank for future use. However, the DEP has added some new language in portions of the section and multiple bracketing errors occur in attempts to remove existing language throughout the section. Therefore, it cannot be determined what language the EQB intended to delete and what language it intends to add. Although we note that the EQB's ordering paragraph states that this section will be deleted 120 days after publication, it is not clear what regulatory language will be applicable during those 120 days.

   Fifth, section 287.102(b)(7)(i) is written, in part, as follows:

The Department may waive or modify the requirements of Section 289.268 for storage impoundments included under Section as part of a captive facility on a case by case basis, based on such conditions as the size and location of the impoundment.

   There are two errors in this section. In the first line, the EQB intended to reference multiple sections (sections 289.261--289.268), but did not include the applicable sections. The second line appears to reference a section, but does not indicate the section number. In fact, the DEP staff have indicated that the word ''this'' should have appeared before the word ''section.''

   We have reviewed this regulation and find it not to be in the public interest. We support the EQB's efforts to provide a more reasonable approach to the beneficial use of residual and municipal waste. However, the regulation affords unbridled discretion to the DEP, contains incomplete training requirements for individuals applying sewage sludge, contains inconsistent standards for the submittal of the sewage sludge quality enhancement plan, allows for an improper right of entry, and contains numerous substantive errors. We believe all of these issues can and should be resolved by the EQB in an expeditious manner to ensure the successful implementation of the regulation.

Therefore, It Is Ordered That:

   1.  Regulation No. 7-282 from the Environmental Quality Board, as submitted to the Commission on October 15, 1996, 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. 7-282 under section 6(b) of the Regulatory Review Act (71 P. S. § 745.6(b)).

Commissioners Present:  John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman

Public meeting held
November 7, 1996

Department of Education--Grants for Public Library Construction; Doc. No. 6-251

Order

   On November 29, 1994, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Education (Department). This rulemaking would amend 22 Pa. Code Chapter 142. The authority for this regulation is found at section 8 of the Keystone Recreation, Park and Conservation Fund Act (Act 50) (32 P. S. § 2018). The proposed regulation was published in the December 10, 1994 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on October 11, 1996.

   The proposal addresses funding for libraries through a competitive grant program by adding a new chapter to 22 Pa. Code relating to public library grants authorized by Act 50. Grants will be financed through a $2.5 million portion of the bond referendum authorized by Act 50 as well as through 4% of the Realty Transfer Tax revenues and will be allocated for planning, acquisition, development and rehabilitation of public libraries. Grants will be awarded in accordance with policies in a long-range plan (Plan) to be developed in consultation with the Advisory Council on Library Development, municipial officials, and library representatives. The Plan will include a library facility needs assessment and an action plan.

   In the proposed rulemaking, the criteria for awards of grants and procedures were components of the Plan. We recommended that if funding were contingent on priorities, criteria for awards, or grant administration procedures of the requirements were binding on both the Department and grantee, those provisions of the Plan should be contained in the final-form regulation.

   The Department responded that it did not intend for the terms to describe binding norms. The Department responded by deleting the phrase ''funding priorities, criteria for the award of grants and procedures for administering grants'' from its final-form rulemaking.

   The Department adopted an additional recommendation from the Commission pertaining to publication of the Plan in the Pennsylvania Bulletin. We also recommended the Department request comments on the Plan. The Department did not adopt our recommendation to request comments, but explained that it believes more public participation can be gained through the Advisory Council, municipal officials and library representatives, as required by section 142.2(a) of the proposal.

   Under the regulation, municipalities that apply to the grant program will be required to provide at least 50% in matching funds which may come from Federal grants, donations or local tax revenues. The Department responded to a concern of Representative William E. Lloyd, Jr. that factors established to rank applications submitted by distressed municipalities would be equally valid for economically distressed municipalities and municipalities that are not distressed. To address Representative Lloyd's concern, the Department responded by including percentile measurements to define economic distress. The maximum of 50% program funding is allowed for municipalities that qualify as economically distressed. Municipalities that do not qualify as economically distressed will be funded at less than the 50% maximum.

   Concerns the Commission raised with definitions for ''sponsoring municipality,'' ''sponsoring school district,'' and ''public library'' in the proposed rulemaking were addressed by the Department in its final-form rulemaking. The definitions for ''sponsoring municipality'' and ''sponsoring school district'' were deleted. The Department's concern that public libraries which had historically received funding from school districts, rather than from any government entity included in the definition of ''municipality'' in Act 50 was addressed through an amendment to section 142.4 (Eligible grantees).

   Section 142.4(c) specifies that a municipality, alone or in cooperation with other municipalities, is eligible to apply for a grant for a public library. The public library must be funded by local tax revenues or monies raised by the levy of special taxes to establish, or maintain a public library which directly provides public library service, delegates responsibilities for public library service to a board of directors, or delegates responsibility for public library service to a nonprofit corporation.

   The definition of ''public library'' was amended in the final-form rulemaking to delete a requirement that a library receive State aid under Article III of the Library Code. The Commission agreed that the Department could establish receipt of State aid as a requirement, but we questioned establishing the condition within a definition. In the final-form rulemaking, the Department deleted the requirement that a library receive state aid from the definition of ''public library.'' Instead, receipt of State aid under Article III of the Library Code is included as an eligibility requirement in section 142.4(f).

   We have reviewed this regulation and find it to be in the public interest. At proposed rulemaking, the Free Library of Pennsylvania wrote in support of the proposal. Concerns raised in the letter from Representative Lloyd were addressed by the Department. By letters dated October 30, Senator James J. Rhoades, Chairperson of the State Education Committee, and Representatives Jess M. Stairs and Ronald R. Cowell, Chairpersons of the House Education Committee, advised the Commission that the committees had no objections to the final-form regulation. Concerns expressed in our Comments were addressed through the revisions discussed in this Order. Other concerns were addressed through further information and justification provided by the Department in its preamble.

Therefore, It Is Ordered That:

   1.  Regulation No. 6-251 from the Department of Education, as submitted to the Commission on October 11, 1996, is approved; and

   2.  The Commission will transmit a copy of this Order to the Legislative Reference Bureau.

Commissioners Present:  John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman

Public meeting held
November 7, 1996

Environmental Quality Board--Hazardous and Municipal Waste; Doc. No. 7-287

Order

   On October 25, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Quality Board (EQB). This rulemaking would amend 25 Pa. Code Chapters 260--266, 270, 273 and 283 governing management of the hazardous and municipal waste programs. The EQB is making these changes under sections 105, 401--403 and 501 of the Solid Waste Management Act (35 P. S. §§ 6018.105, 6018.401--403, and 6018.501), which provides the EQB with the authority to adopt rules and regulations concerning the storage, treatment, disposal and transportation of hazardous waste and other waste. The proposed regulation was published in the Pennsylvania Bulletin with a 60-day public comment period. A final-form regulation was submitted to the Commission on July 24, 1996. However, the EQB withdrew the July 24, 1996 submittal on August 21, 1996, in order to make further amendments. The final-form regulation was resubmitted to the Commission on October 15, 1996.

   The Federal government regulates hazardous waste under the Resource Conservation and Recovery Act (RCRA) of 1976, as well as regulations promulgated under the authority of RCRA. RCRA provides that states may adopt the Federal regulatory program for hazardous waste, in full or in part, but the State program must be at least as stringent as the Federal program. When a state fully adopts the Federal regulatory program, it results in the elimination of that dual Federal and State permitting requirements. Pennsylvania has not chosen to simply adopt the Federal regulatory program; in some instances, Pennsylvania's regulations are more stringent than the Federal government's. One of EQB's stated purposes for this regulation is to make Pennsylvania's program more consistent with the Federal regulations.

   The regulation will impact those businesses that generate, treat, dispose of and transport hazardous waste. The EQB did not quantify any costs other than their past expenditures for the program which ranged from $6.0 to $7.1 million for Fiscal Years 1992--94; they stated that these costs are not expected to increase as a result of this regulation. The EQB stated that private costs are not able to be quantified at this time. The EQB claims the benefits of this proposed regulation include the following: affected parties will only have to file biennial rather than quarterly reports concerning hazardous waste management activities; retention periods for reports and manifests will be reduced from 20 years to 3 years; transportation, storage or disposal facilities will be allowed to use a generic Module 1 report for multiple generators who use essentially the same process to generate essentially the same hazardous waste, transporters will be able to use larger, more efficient containers; and the increase of in-transit storage from 5 to 10 days will allow transporters greater flexibility to maximize their loads.

   The EQB received extensive public comment on the proposed regulation. The Commission submitted comprehensive comments to the EQB on the proposed rulemaking concentrating on areas of the regulation that were more stringent than Federal regulations, lacked clarity, or imposed unreasonable standards.

   The EQB originally proposed to implement a more stringent standard than Federal regulations for the determination of what is considered to be discarded chemical commercial products. Armstrong World Industries commented that the more stringent standard would result in an annual increased cost of $5 million for its operations because it would result in a significant amount of its waste being classified as hazardous. Our Comments expressed concern with the more stringent standard because the EQB did not explain how the more stringent standard provided for any increase in environmental protection. Upon review of the public comments, the EQB agreed the more stringent standard was unnecessary and amended the regulation to be consistent with the Federal regulation.

   The proposed regulation allowed a carbon regeneration facility to obtain a permit-by-rule instead of going through the full permitting process. At the time, the EQB believed that a permit-by-rule was warranted because it had been the DEP's experience that the environmental risks associated with a carbon regeneration unit are small enough to warrant allowing the facilities to obtain a permit-by-rule. The EQB received a significant number of comments, including comments from legislators and local townships, in opposition to this new provision. We also objected to allowing a carbon regeneration facility to obtain a permit-by-rule because it would establish a less stringent standard for permitting that provided for in the Federal regulation, which is strictly prohibited by Federal law. Additionally, the EQB did not document how a permit-by-rule for these facilities was an adequate and safe way to permit these facilities. Upon review of the public comments, the EQB deleted the permit-by-rule provision and will continue to require carbon regeneration facilities to go through the full permitting process.

   The EQB also proposed to allow municipal waste landfills and resource recovery facilities to accept hazardous waste from a conditionally exempt small generator. A conditionally exempt small generator is a generator of less than 100 kilograms of hazardous waste in a month. The EQB observed that because of the costs associated with the disposal of hazardous waste, some small generators were illegally dumping hazardous waste. Since municipal landfills are constructed in a similar manner as a hazardous waste landfill, the EQB believed it could discourage illegal dumping in environmentally sensitive areas by allowing small generators to safely dispose of their hazardous waste in a municipal landfill. However, the EQB received several letters, including a letter from Representative Camille George, strongly opposing any hazardous waste entering a municipal landfill. Additionally, the House of Representatives unanimously passed a bill that would prohibit hazardous waste from entering a municipal landfill. Because of the opposition and the bill passed by the House, the EQB deleted the provision which would have allowed hazardous waste to be accepted at a municipal landfill.

   The EQB proposed deletions in sections 264.193(a)(4) and 265.193(a)(4) which would modify the secondary containment compliance dates for tanks. In our Comments, we outlined several concerns with the proposed modification to the compliance date. In the comment and response document, the EQB stated that they changed the rulemaking to reflect the original language in the existing regulations. However, the language of the final-form regulation, as submitted on July 24, 1996, did not reflect those changes. The difference between the regulation as written and the DEP staff's intent was significant. The EQB corrected the error and the final-form regulation now reflects the original compliance dates as the EQB intended.

   We, along with other commentators, believed the term identical hazardous constituents was overly restrictive and could result in few facilities being eligible for the generic Module 1 application. Therefore, we recommended that the EQB delete this term from the rulemaking. In response to this comment, the EQB agreed that the term identical hazardous constituents was too limiting in its scope and that it should be deleted from the rulemaking. However, the term was not deleted from the regulation submitted on July 24, 1996. The EQB has corrected the error in the final-form regulation submitted October 15, 1996.

   Another concern we had with the original final-form rulemaking submitted July 24, 1996, concerned the provisions relating to the bonding and licensing requirements for transporters of hazardous waste. First, the regulation required a transporter to deposit a collateral bond with the DEP as part of the license application. The amount, duration, form, terms and conditions of the bond must conform to the requirements of section 263.32. In our Comments, we stated that the bonding requirements pertaining to hazardous waste transporters were preempted by the U. S. Department of Transportation (U. S. DOT) under to the Hazardous Materials Transportation Act (HMTA) and the Hazardous Materials Regulations (HMR). In addition, we observed that the Federal district court upheld the U. S. DOT's preemption determination. Although the EQB acknowledged the Federal court's decision, it continued to include the bonding requirements because the Court's decision was being appealed by the state of Massachusetts.

   After the EQB withdrew the original final-form regulation, the U. S. Court of Appeals ruled in favor of Massachusetts, thus allowing states to impose bonding requirements that are additional to Federal requirements. Although the decision of the U. S. Court of Appeals has been appealed by the U. S. DOT to the Supreme Court, the EQB now has the legal authority to require bonding for hazardous waste transporters. If the Supreme Court overturns the U. S. Court of Appeals, then the DEP will not be able to require transports to obtain a bond and the EQB will need to amend the regulation to reflect the decision.

   Finally, we also expressed concern that the original final-form rulemaking contained overly discretionary language for the licensure of transporters. Specifically, we recommend the following language from section 263.32 be deleted from the rulemaking:

(c)  A person or municipality desiring to obtain a license to transport hazardous waste within this Commonwealth shall:

*      *      *      *      *

(4)  Supply the Department with the additional information it may require.

*      *      *      *      *

(f)  The Department may at any time place terms and conditions upon a license granted or renewed under this chapter it deems necessary to protect the public health and safety and the environment. (emphasis added)

   In the resubmitted final-form regulation, the EQB has deleted Subsection (f). However, the regulation still allows the DEP to ask for additional information it may require as part of the transporter's application. Although we believe the language in the regulation should better define when the DEP may need to require additional information or what types of information, we do not believe this is a significant reason to disapprove the regulation.

   We have reviewed this regulation and find it to be in the public interest. The regulation will make the Commonwealth's hazardous waste program more consistent with the Federal government's resulting in lower costs to businesses in the Commonwealth while still providing adequate protection to the environment.

Therefore, It Is Ordered That:

   1.  Regulation No. 7-287 from the Environmental Quality Board, as resubmitted to the Commission on October 15, 1996, is approved; and

   2.  The Commission will transmit a copy of this Order to the Legislative Reference Bureau.

Commissioners Present:  John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman

Public meeting held
November 7, 1996

Liquor Control Board--I. D. Cards/Sunday Sales/Advertising Displays; Doc. No. 54-48

Order

   On October 10, 1996, the Independent Regulatory Review Commission (Commission) received this regulation from the Liquor Control Board (Board). On October 18, 1996, the Board submitted an amendment to the regulation. This rulemaking would amend 40 Pa. Code Chapters 11 and 13. The authority for this regulation is section 495 of the Pennsylvania Liquor Code (Liquor Code) (47 P. S. § 4-495) and Act 49 of 1996 (Act 49). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.

   Existing sections 11.161--11.164 list the requirements for applying for an identification card from the Board. However, legislation was enacted in 1987 which amended the Liquor Code to delete the provisions which allowed the Board to issue identification cards. Therefore, the Board is proposing to delete sections 11.161--11.164 because they conflict with section 495 of the Liquor Code (47 P. S. § 495) which lists the items that may be accepted as an identification card. Age identification cards issued by the Board are not contained in the list of acceptable identification cards. By deleting these sections from the existing regulation, the Board will eliminate obsolete and misleading provisions in the regulation.

   The amendments to sections 11.171(b), 11.172(a)(4), 13.42 and 13.43 reflect revisions to the Liquor Code as a result of Act 49. Existing sections 11.171(b) and 11.172(a)(4) provide that licensees whose sales of food and nonalcoholic beverages equal 40% or more of the combined sales of both food and alcoholic beverages may apply for a Sunday sales permit. The proposed regulation changes the percentage requirement to 30%, consistent with the revisions to the Liquor Code made by Act 49.

   Existing section 13.42 provides that the maximum size of a sign used to advertise brand names in window or door displays may not exceed 300 square inches. The proposed amendments to the regulation increase the maximum size to 600 square inches. This change directly reflects the requirements of Act 49. The amendments to section 13.43 also revise the maximum cost of a single piece of advertising intended for interior display on licensed premises from $10 to $70. In addition, the maximum cost of point-of-sale advertising related to any one brand is increased from $20 to $140. These changes reflect the revisions to the Liquor Code resulting from Act 49.

   The Board submitted a revision to the final-form regulation on October 18, 1996. The revision eliminates section 13.42(b) which provides that only one show window or doorway sign advertising any one brand may be installed in one establishment. This revision is proposed because section 13.42(b) sets a standard which is more restrictive than that required by the Liquor Code.

   We have reviewed this regulation and find it to be in the public interest. No party opposes approval of this regulation. The rulemaking will bring the Board's regulations into compliance with the provisions of Act 49 and will eliminate obsolete regulations.

Therefore, It Is Ordered That:

   1.  Regulation No. 54-48 from the Pennsylvania Liquor Control Board, as submitted to the Commission on October 10, 1996, and amended on October 18, 1996, is approved; and

   2.  The Commission will transmit a copy of this Order to the Legislative Reference Bureau.

Commissioners Present:  John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman

Public meeting held
November 7, 1996

Department of Revenue--Pennsylvania Lottery 25th Anniversary TV Game Show; Doc. No. 15-378

Order

   On October 16, 1996, the Independent Regulatory Review Commission (Commission) received this regulation from the Department of Revenue (Revenue). This rulemaking would add 61 Pa. Code Chapter 869. The authority for this regulation is section 6 of the State Lottery Law (72 P. S. § 3761-6). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.

   This regulation establishes the rules and procedures for the State Lottery's first TV game show. The TV Game Show represents the culmination of a year long celebration of the State Lottery's 25th anniversary. The State Lottery TV Game Show will be held on March 7, 1997, on channels throughout Pennsylvania that usually carry the nightly State Lottery drawings.

   By buying five Wild Card Lotto tickets at one time from January 1 through January 31, 1997, a player will receive a TV Game Show entry coupon. The player needs to return a properly completed entry form to the State Lottery to enter the first drawing to be a contestant on the TV Game Show. Entry forms must be received by the State Lottery by February 10, 1997.

   Entry forms will be entered into a preliminary drawing to select a pool of 279 entries from which the studio contestants will be selected. Next, the State Lottery will randomly select 25 studio contestants from the pool of 279 entries. Each of the 25 studio contestants selected to participate in the TV Game Show will receive a prize of $2,500 and one night's hotel accommodations during the taping of the TV Game Show. Two of the 25 studio contestants will be selected at the taping of the TV Game Show to be game contestants for additional prizes. Additional prizes may also be awarded to one or more remaining studio contestants. The TV Game Show will consist of at least two main games. Each main game will be played by a single contestant who is selected randomly from the 25 studio contestants. The two main games listed in the regulation are ''Grand Prix'' and ''Vortex.''

   Revenue claims that the regulation will have no significant adverse fiscal impact on the Commonwealth and that the game described by the regulation will produce an undetermined net revenue by stimulating additional sales of Wild Card Lotto tickets.

   We have reviewed this regulation and find it to be in the public interest. According to Revenue, several states are currently operating lottery TV game shows. These states include California, Florida, Illinois, Indiana, Massachusetts, Michigan, Missouri, Ohio, Oregon and Wisconsin. This regulation establishes a TV Game Show that is similar to those operated by other states. This regulation is part of an advertising campaign to commemorate the 25th anniversary of the State Lottery. It will generate additional interest in Pennsylvania lottery games and may increase ticket sales and revenue for the State Lottery.

Therefore, It Is Ordered That:

   1.  Regulation No. 15-378 from the Department of Revenue, as submitted to the Commission on October 16, 1996, is approved; and

   2.  The Commission will transmit a copy of this Order to the Legislative Reference Bureau.

Commissioners Present:  John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman

Public meeting held
November 7, 1996

Department of Community and Economic Development--Neighborhood Assistance Program; Doc. No. 4-60

Order

   On October 18, 1996, the Independent Regulatory Review Commission (Commission) received this regulation from the Department of Community and Economic Development (Department). This rulemaking would amend 16 Pa. Code §§ 15.41b and 15.49a to establish special program priorities for the fiscal year 1996--97. The authority for this regulation is found in Article XIX-A of the Tax Reform Code of 1971, also known as the Neighborhood Assistance Act (act) (72 P. S. §§ 8901-A--8906-A). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.

   Each fiscal year the Department will be responsible for promulgating regulations formerly promulgated by the Department of Community Affairs for the Neighborhood Assistance Act Programs. The act established two programs: the Neighborhood Assistance Tax Credit Program and the Enterprize Zone Tax Credit Program. Each of these programs contains two tax incentive programs which provide tax credits to business firms that contribute to neighborhood organizations or that invest in community economic development. Section 8905-A of the act mandates the promulgation of regulations each fiscal year, with the approval of the Governor, establishing special priorities for Neighborhood Assistance Act Programs.

   The Department has omitted Notice of Proposed Rulemaking under section 204 of the Commonwealth Documents Law. It has done so because this rulemaking, as similar rulemakings have done in previous years, continues the same special program priorities for the 1996-97 fiscal year that were in effect last year. The only changes being made in this regulation are the amendment of references to the ''1995-96'' fiscal year to the ''1996-97'' fiscal year.

   We have reviewed this regulation and find it to be in the public interest. Adoption of the regulation will allow the Department to meet the statutory mandate to establish special program priorities for the Neighborhood Assistance Act Programs for the fiscal year 1996-97.

Therefore, It Is Ordered That:

   1.  Regulation No. 4-60 from the Department of Community and Economic Development, as submitted to the Commission on October 18, 1996, is approved; and

   2.  The Commission will transmit a copy of this Order to the Legislative Reference Bureau.

JOHN R. MCGINLEY, Jr.,   
Chairperson

[Pa.B. Doc. No. 96-1979. Filed for public inspection November 22, 1996, 9:00 a.m.]

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