NOTICES

INDEPENDENT REGULATORY REVIEW COMMISSION

Notice of Comments Issued

[37 Pa.B. 6085]
[Saturday, November 10, 2007]

   Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b).

   The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.

Reg. No.	Agency/Title	Close of the Public Comment Period	IRCC Comments Issued
7-414	Environmental Quality Board Coal Mines 37 Pa.B. 4754 (September 1, 2007)	10/1/07	10/31/07
7-412	Environmental Quality Board Safe Drinking Water--General Update 37 Pa.B. 4762 (September 1, 2007)	10/1/07	10/31/07

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Environmental Quality Board
Regulation #7-414 (IRRC #2632)

Coal Mines

October 31, 2007

   We submit for your consideration the following comments on the proposed rulemaking published in the September 1, 2007 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.  Adoption by reference and enforcement of violations.

Protection of the public health, safety and welfare

   This rulemaking deletes 25 Pa. Code Chapter 209 and adds provisions to selectively adopt by reference portions of 30 CFR Parts 56 and 77. The United States Department of Labor, Mine Safety and Health Administration (MSHA) regulations in 30 CFR Parts 56 and 77 include about 700 sections. The EQB is adopting by reference about 130 of those sections. In the Preamble, the EQB states:

In proposing these amendments, the Department of Environmental Protection's (Department) goal is to provide the most improved safety at surface mines in this Commonwealth in the most cost effective and the least intrusive manner. The provisions of the MSHA regulations adopted by this proposed rulemaking are those that address the most significant risk to surface miners in this Commonwealth.

   Upon review of 30 CFR Parts 56 and 77, it is not clear how the EQB determined which portions of the CFR the Department of Environmental Protections (DEP) needs to enforce and which portions do not need DEP enforcement. As an example, 30 CFR Part 77, Subpart L Fire Protection includes 14 sections, of which the EQB is adopting 10 sections. Among the four sections not adopted are Sections 77.1100 Fire protection; training and organization and 77.1101 Escape and evacuation; plan. How did the EQB determine that DEP enforcement is not needed for requirements such as annual employee fire protection training and evacuation plans? The EQB should explain how it determined to adopt, and therefore enforce, selected sections, but chose not to adopt or enforce other sections throughout 30 CFR Parts 56 and 77.

Reasonableness

   Once this rulemaking becomes effective, the DEP can enforce the safety provisions adopted by reference. However, the Preamble also explains that:

Even though the Department is not adopting all of the MSHA health and safety standards, the Department's inspectors will assist the operators in ensuring compliance with the MSHA regulations. If a Pennsylvania inspector observes a violation of a MSHA safety regulation that the Commonwealth has not adopted, the Pennsylvania inspector will, as part of the Department's compliance assistance program, point out the condition and explain that it is a violation of a MSHA regulation and needs to be addressed.

   While we see merit in a compliance assistance program to improve safety, the details of a DEP inspector's actions as described in the Preamble are not clear for several reasons. The EQB should explain the following:

*  How is a DEP inspector qualified to determine how MSHA would interpret its federal regulations where the EQB left sole jurisdiction to MSHA?

*  What expectation does it place on an operator when a DEP inspector makes a determination that a violation under MSHA's sole jurisdiction ''needs to be addressed''?

*  What recourse does an operator have if the operator disagrees or a DEP inspector's interpretation differs from MSHA's interpretation?

2.  Section 209a.42. Accident reporting.--Need; Reasonableness.

   Essroc Cement Corporation (Essroc) commented that, as written, this section would require operators to notify the Department within 1 hour of many comparatively minor injuries. The commentator believes this section should be amended to limit reporting to serious incidents and occupational injuries. The EQB should explain the need for reporting every injury that requires ''medical treatment'' within 1 hour and what DEP would do with this information.

3.  Section 209a.43. Alternative standards.--Reasonableness.

   Subsections (a) and (b) allow alternative standards for past and future decisions by MSHA. However, this section does not address pending filings with MSHA and effectively prohibits alternative standards. At the time the regulation becomes effective, an operator, that previously submitted a petition and is awaiting a response from MSHA, could not comply with the requirement in Paragraph (b)(1) to provide a copy of the petition and supporting materials to DEP ''upon submission to MSHA.'' We recommend amending this section to allow operators with pending petitions to submit the appropriate information to DEP within a reasonable amount of time after the regulation becomes effective.

4.  209a.44. Access to records.--Reasonableness; Need.

   Essroc commented that this section is too general because it gives DEP access to all records prepared to comply with 30 CFR Parts 50, 56 and 77. Essroc believes DEP should only have access to the records prepared to comply with the Federal regulations adopted by reference.

   The EQB is not directly adopting 30 CFR Part 50, and is adopting a minority of the sections in 30 CFR Parts 56 and 77. The EQB should explain why it needs access to all information prepared to comply with 30 CFR Parts 50, 56 and 77 rather than just the provisions the EQB is adopting by reference in this regulation.

5.  Miscellaneous Clarity.

   For consistency with the rest of this regulation, Section 209a.10(b) should use the term ''Department,'' as it is defined in 25 Pa. Code § 1.1.

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Environmental Quality Board
Regulation #7-412 (IRRC #2633)

Safe Drinking Water--General Update

October 31, 2007

   We submit for your consideration the following comments on the proposed rulemaking published in the September 1, 2007 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.

1.  General.--Fiscal impact; Consistency with other regulations; Reasonableness; Implementation procedure; Clarity.

   On September 27, 2007, Richard A. Rogers, Chief, Drinking Water Branch, U. S. Environmental Protection Agency, Region III (EPA III), submitted written comments on this proposed regulation to the Board. The EPA III comments raised several issues related directly to our criteria. Its comments contained suggestions and recommendations designed to bring the Pennsylvania regulations into greater consistency with the federal rules. We share the same comments, suggestions and recommendations expressed by EPA III and incorporate them into the Commission's comments on this proposed regulation.

   The Pennsylvania State Association of Township Supervisors (PSATS) submitted written comments expressing concerns with the ''cumulative impact on the cost of complying with increasingly stringent regulations.'' It is especially concerned with the impact on small watersystems across the state, including more than 3,300 systems that each serves fewer than 500 people. While most of the regulations are federal mandates, these added costs bear an impact, particularly on smaller systems. In developing the final-form regulation, the Board and Department of Environmental Protection (DEP) should thoroughly examine the fiscal impact of the regulations on smaller water systems.

2.  Section 109.301. General monitoring requirements.--Reasonableness; Implementation procedure; Clarity.

   In addition to EPA III, another commentator noted a concern related to waivers in Subsection (5)(viii). Paragraph (C) in this subsection reads: ''A waiver is effective for one compliance period and may be renewed in each subsequent compliance period.'' The commentator suggests that the regulation should make it clear that the water supplier is responsible for submitting the renewal application. We agree. The final-form regulation should clarify the procedures and process for renewals of waivers.

3.  Section 109.701. Reporting and recordkeeping.--Fiscal impact; Reasonableness; Feasibility; Implementation procedure.

   This section contains new language which implements ''electronic reporting'' of data by public water systems to DEP by means of the internet. In its written comments, PSATS expressed concern with the cost and feasibility of this mandate for smaller systems in remote areas which may not have access to the internet. The proposed regulation contains a provision whereby water systems could assign the responsibility for submitting the required reports to an accredited laboratory. However, this would entail another new cost for these systems. The Board and DEP should consider other alternate methods for submitting this data such as allowing water systems to submit data electronically recorded on a disk to DEP. In some cases, this approach may be more cost effective to a system than hiring a laboratory to submit the reports. As stated in Issue No. 1 above, the Board and DEP should examine methods for reducing the fiscal impact of this proposed regulation on smaller systems. The Board should also consider amending the final-form regulation to increase reporting flexibility for the smaller systems.

4.  Section 109.1107. System management responsibilities.--Protection of public health and safety; Reasonableness; Need; Implementation procedures.

   This section contains a new requirement that water systems report the ''sample location'' with their reports on lead and copper tap monitoring results. A commentator for the Philadelphia Water Department (PWD) expressed concern with this provision. This new requirement could hinder the PWD's effort at customer recruitment and relationships with customers who volunteered to participate in the lead and copper sampling program with the assumption of privacy. PWD recommends that provisions be made to protect the privacy of sampling participants. The Board and DEP should address this concern in the final-form regulation.

ARTHUR COCCODRILLI,   
Chairperson

[Pa.B. Doc. No. 07-2075. Filed for public inspection November 9, 2007, 9:00 a.m.]

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