NOTICES
Notice of Comments Issued
[40 Pa.B. 2195]
[Saturday, April 24, 2010]Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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 Issued7-443 Environmental Quality Board
National Pollutant Discharge Elimination System (NPDES) Permitting, Monitoring and Compliance
40 Pa.B. 847
(February 13, 2010)
3/15/10 4/14/10 16A-4929 State Board of Medicine
Behavior Specialist
40 Pa.B. 884
(February 13, 2010)
3/15/10 4/14/10 7-451 Environmental Quality Board
Water Quality Standards Implementation
40 Pa.B. 876
(February 13, 2010)
3/15/10 4/14/10
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Environmental Quality Board
Regulation #7-443 (IRRC #2819)
National Pollutant Discharge Elimination System (NPDES) Permitting, Monitoring and Compliance
April 14, 2010 We submit for your consideration the following comments on the proposed rulemaking published in the February 13, 2010 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. Basis and support for the calculation of fee amounts.—Economic impact; Fiscal impact; Lesser standards for small sources; Reasonableness; Implementation procedures; Clarity.
Fee Amounts
This regulation increases existing fees and creates new fees. The fees are listed in Sections 92a.28 and 92a.62. The EQB provided an explanation of the fees in the Preamble which, in part, states:
The Commonwealth has long subsidized the costs of administering the NPDES program and the associated regulation of point source discharges of treated wastewater, but this is no longer financially feasible or environmentally appropriate. The proposed fee structure will cover only the Commonwealth's share of the cost of administering the NPDES permit program (about 40% of the total cost, with the other 60% covered by Federal grant). The proposed fees are still only a minor cost element compared to the cost of operating a sewage or industrial wastewater treatment facility. The artificially low fees that have been charged have been increasingly at odds with the Department's emphasis on Pollution Prevention and nondischarge alternatives. The proposed fee structure will better align the revenue stream with the true cost of point source discharges to surface waters, from both management and environmental standpoints. The sliding-scale fee structure assures that smaller facilities, which may be more financially constrained and also have a lower potential environmental impact, are assessed the lowest fees. The Department's proposal to provide for a permit-by-rule for discharges from SRSTPs [Single-Residence Sewage Treatment Plants], and the application of pesticides under §§ 92a.24 and 92a.25 relieves some permittees of any fee.The comments on the proposed regulation include the following:
• Some commentators questioned whether the fees are ''reasonable,'' citing the requirement for ''reasonable filing fees'' in 35 P. S. § 91.6.
• Based on the EQB's explanation, commentators raised issues with the number of employees required to run the program, the efficiency of the dollars expended and the accountability of the expenditures.
• The fees will impose costs on systems that are already experiencing cost increases for mandated system and treatment process improvements from programs such as the Chesapeake Bay Tributary Strategy and the United States Environmental Protection Agency.
• The fees will shift the cost burden of the programs from state government to local government.
Contrary to most comments on the proposed fees, one commentator states the proposed regulation ''would appropriately end the Commonwealth's subsidizing the costs of administering the NPDES program by placing those costs on the people and entities who hold NPDES permits and discharge wastewater pursuant to them.''
The Preamble provides general information on the activities the fees will cover. However, we agree with many commentators that the EQB has not provided enough detail regarding the calculation of the dollar amount of each fee. Consequently, we are unable to fully determine whether each fee is a fair representation of the activities it covers. We recommend that the EQB provide with the final-form regulation the fully detailed calculation of each fee to establish that the fees are reasonable.
Mining activity
Related to the fees for industrial waste, a commentator questions whether treated mine drainage could be classified as a ''mining activity'' rather than a discharge of industrial waste. The EQB should clarify fees relating to treated mine drainage.
Exclusion for agencies of the Commonwealth
The Pennsylvania Department of Transportation (PennDOT) requests explicit exclusion from the fee provisions for agencies of the Commonwealth. PennDOT cites other regulations that exclude them from paying fees. The EQB should explain why it did not exclude PennDOT from the fee provisions in the new Chapter 92a.
2. Description of amendments in the Preamble.—Reasonableness; Clarity.
Several commentators have noted that the Preamble does not describe all of the sections in the regulation. We agree that several descriptions are missing. For the final-form regulation's Preamble, the EQB should describe each section of the final-form regulation.
3. Section 92a.2. Definitions.—Reasonableness; Clarity.
Immediate
In our review of the regulation, we found the term ''immediate'' used only in Subsection 92a.41(b). Therefore, we recommend incorporating this time limitation into that section rather than defining ''immediate'' in Section 92a.2. In addition, the EQB should explain how the time limit is reasonable.
''Minor amendment'' and ''Major amendment''
A commentator believes the definition of ''minor amendment'' does not include everything that could be a minor amendment and requests some discretion in that determination. Another commentator questioned why a change of ownership or operational control is not included as a ''minor amendment.''
We believe the distinction sought by the commentators is important because there is a direct relationship established in the regulation between the definitions of ''minor amendment'' and ''major amendment.'' As a result, what is not included in the definition of ''minor amendment'' by default is a ''major amendment.'' The EQB should review the public comments and consider whether the list in the definition of ''minor amendment'' is inclusive of all actions the EQB will consider to be minor amendments. Consequently, the EQB should also consider whether amendments to the definition of ''major amendment'' are also needed.
New source
A commentator states that this definition should include the full definition in 40 CFR 122.2, by adding subsection (b) of the Federal definition. The EQB should explain why 40 CFR 122.2(b) was not included.
Schedule of compliance
This definition is identical in both existing Section 92.1 and proposed Section 92a.2. Therefore, the EQB has continued the use of its current definition. A commentator suggests that the definition should be amended to include the phrase ''in a permit'' to be consistent with the federal definition in 40 CFR 122.2. The EQB should explain why it did not include the phrase ''in a permit.''
Significant biological treatment
Based on our review of the regulation, we could only find the term ''significant biological treatment'' used in Subsection 92a.47(a). Therefore, we recommend incorporating this definition into that section rather than defining it in Section 92a.2.
In addition, commentators believe the definition is overly restrictive or implies the exclusion of other treatment approaches or methods. The EQB should explain why its definition of ''significant biological treatment'' is appropriate.
4. Section 92a.3. Incorporation of Federal regulations by reference.—Statutory authority; Need; Reasonableness; Clarity.
Future amendments and supplements thereto
Subsections (a) and (b) incorporate by reference the federal NPDES regulations, ''including all appendices, future amendments and supplements thereto. . . .'' While the Department of Environmental Protection (Department) may impose requirements already mandated by the federal government, the incorporation by reference of future, and consequently unknown, requirements may be an improper delegation of the agency's statutory authority. Further, new obligations may be imposed without members of the regulated community and other parties having the opportunity for public comment as provided for in the Commonwealth Documents Law and the Regulatory Review Act. Additionally, section 1.6 of the PA Code and Bulletin Style Manual provides:
A rule adopting a code, standard or regulation by reference does not include subsequent amendments, rescissions or editions. If an agency wishes to incorporate subsequent amendments, rescissions or editions, the agency must explicitly do so by amendment of its existing rules or by rescinding its existing rules and promulgating new rules. [Emphasis added.]Therefore, the Department should delete the phrase ''future amendments and supplements thereto'' in reference to incorporating the federal regulations.
''Applicable and not contrary'' and ''In the event of a conflict''
A commentator questions the clarity of Subsections (a) and (c) stating this language creates ambiguity over the fundamental question of which law or regulation applies. Consistent with our comment above regarding future amendments, the regulation should incorporate only existing, known federal provisions. Therefore, we question the need for language in Subsections (a) and (c) stating the incorporation by reference is to the extent that these provisions are ''applicable and not contrary to the law of the Commonwealth'' and ''In the event of a conflict between Federal and regulatory provisions of the Commonwealth, the provision expressly set out in this chapter shall be applied unless the Federal provision is more stringent.'' The EQB should explain the need for these phrases and how the reader of the regulation can reasonably determine their meaning.
5. Section 92a.5. Prohibitions.—Reasonableness, Economic impact.
Commentators note that existing Paragraph 92.73(8) states that
A permit will not be issued, modified, renewed or reissued under any of the following conditions: . . . (8) For a sanitary sewer overflow, except as provided for in the Federal regulations.In comparison, the new provision in Subsection 92a.5(b) does not include the phrase ''except as provided in federal regulations.'' Commentators believe this may exclude provisions such as 40 CFR 122.41(m)(4)(i)(A)—(C) which provide exceptions for a treatment system bypass. We recommend that the EQB explain why the phrase ''except as provided in federal regulations'' is no longer needed, particularly since it relates to federal regulations which would appear to be consistent with this rulemaking.
6. Section 92a.8. Confidentiality of information.—Possible conflict with statutes or existing regulations; Clarity.
Consistency with existing regulations
Subsection (a) incorporates 40 CFR 122.7(b) by reference, which states:
(b) Applicable to State programs, see Sec. 123.25. Claims of confidentiality for the following information will be denied:
(1) The name and address of any permit applicant or permittee;
(2) Permit applications, permits, and effluent data.
However, Subsection (b) of the proposed regulation implies a broader scope of confidentiality than Subsection (a) by stating:
The Department may protect any information, other than effluent data, contained in NPDES forms, or other records, reports or plans pertaining to the NPDES permit program as confidential upon a showing by any person that the information is not a public record for the purposes of section 607 of the State Act (35 P. S. § 691.607). . . .Subsections (a) and (b) appear to be inconsistent regarding what information can be considered confidential. For example, a request for confidentiality of a permit or permit application must be denied under Subsection (a), but it appears that under Subsection (b) it may be possible for the Department to grant confidentiality for that same information. The EQB should reconcile these subsections.
Consistency with statute
In addition to the above concern, a commentator believes Subsection (b) is inconsistent with the Clean Streams Law (35 P. S. § 691.607), which states that ''all papers, records and documents of the Department, and applications for permits pending before the Department shall be public records open to inspection,'' with an exception for the chemical and physical analysis of coal. The commentator points specifically to language in the second sentence of Subsection (b) which states ''. . . and those that are confidential commercial information or methods or processes entitled to protection as trade secrets under State or Federal law.'' The EQB should provide an explanation and clarification in the regulation regarding what State or Federal law, in addition to the Clean Streams Law, will be considered in regard to confidentiality of information.
7. Section 92a.12. Treatment requirements.—Economic impact.
PennDOT questions how the requirements of Subsection (d) will be applied. PennDOT explains that Subsection (d), by including Chapter 102, could retroactively require post construction controls on existing roadways. The EQB should explain how it will apply this provision and why it is reasonable to include Chapter 102 in Subsection (d).
8. Section 92a.21. Application for a permit.—Clarity.
Subsection (a) lists provisions of 40 CFR 122.21 that are incorporated by reference, but concludes with the phrase ''except as required by the Department.'' The phrase ''except as required by the Department'' is broad and infers the Department may unilaterally change the requirements of the federal regulation outside the regulatory review process. This would allow changes without notice and review by the public, regulated community, legislature or the Commission. We recommend deleting the phrase ''except as required by the Department.''
9. Sections 92a.24. Permit-by-rule for SRSTPs. And 92a.25 Permit-by-rule for application of pesticides.—Consistency with statute.
A commentator believes the permit-by-rule allowed in both of these sections violates the definition of ''permit'' in 40 CFR § 122.2. The EQB should explain how these sections are consistent with the federal definition of ''permit.''
10. Section 92a.26. New or increased discharges, or changes of waste streams.—Economic impact; Reasonableness.
Treatment standards
A commentator is concerned that the notification of facility expansion or process modifications required in Subsection (a) could trigger a Department determination that the discharge must meet tertiary treatment standards. We agree that the Department should be notified of a facility expansion or process modification. However, Subsection (a) is directed toward the process that occurs after the discharge changes.
The EQB should explain how it will review the notification after the increased discharge begins. If the notification can result in more stringent requirements, the EQB should explain how the owner of a facility can have a facility expansion or process modification reviewed for its implications prior to the investment so that the owner has the opportunity to explore alternatives.
Facility expansion or process modification
A commentator lists other factors that could result in increases of permitted pollutants, such as adding another shift at a manufacturing plant or changing the chemicals used in the process. Neither of these changes would meet the condition of a facility expansion or process modification. The EQB should review Subsection (a) to determine if other factors beyond facility expansions or modifications should be considered in determining whether the Department should be notified of increases of permitted pollutants.
60-day notice
Subsection (a) requires a 60-day notice. However, the regulation should specifically state what action starts the 60-day time period.
Department action
Subsection (a) requires Department approval in writing for increases of pollutants or new discharges. The regulation does not specify when the Department will respond which could delay needed changes to discharges or waste streams. The regulation should include a time period within which the Department will respond.
11. Section 92a.36. Cooling water intake structures.—Implementation procedure; Reasonableness; Feasibility.
Several commentators stated the Federal government is in the process of amending the Federal requirements relating to cooling water intake structures. They cite particular concerns with the implementation of Best Technology Available (BTA) requirements that are still under development. The commentators believe that until BTA is clearly defined in the new Federal rule, the EQB should not move forward with this section. In light of the public comments, the EQB should explain how the public was provided with the opportunity to provide effective comments and how this provision will be reasonably implemented.
12. Section 92a.38. Department action on NPDES permit applications.—Consistency with statute; Reasonableness; Economic impact.
Applicable
Paragraph (a)(2) requires an application to be consistent with ''other applicable statutes and regulations administered by the Commonwealth,'' and ''if applicable, river basin commission requirements created by interstate compact.'' There are two concerns with these phrases.
First, the scope of these provisions cannot be determined. Who determines what is ''applicable''? The phrases quoted above do not provide the reader with the information needed to comply with the regulation. We recommend either deleting these phrases or amending them to provide specific compliance requirements.
Second, because the scope of the above quoted phrases cannot be determined, we recommend that the EQB explain its authority to enforce ''other applicable statutes and regulations administered by the Commonwealth.'' Also, the EQB should explain its authority over ''river basin commission requirements created by interstate compact.''
Renewal of permits
Subsection (b) provides for the review of permit applications and the Department's consideration of local and county plans and zoning ordinances. A commentator questions how the review of a permit renewal will be conducted in relation to Subsection (b). We agree that while these reviews may be appropriate for a new facility, there is a legitimate question as to how this would apply to existing facilities applying for renewal of a permit. The EQB should amend this provision to explain how a permit renewal will be reviewed.
13. Section 92a.41. Conditions applicable to all permits.—Feasibility; Reasonableness; Need; Economic impact; Implementation procedures.
Proposed Subsection (c) states:
The discharger may not discharge floating materials, oil, grease, scum, sheen and substances that produce color, taste, odors, turbidity or settle to form deposits.P. H. Glatfelter Company (Glatfelter) commented that it has invested tens of millions of dollars over decades to comply with the requirements related to color in its NPDES permit under existing regulations. Glatfelter's numerical limit for color and a timeline for compliance were established as a result of litigation in both the Environmental Hearing Board and Federal district court. Glatfelter believes the proposed regulation ''institutes an outright ban that is not technically achievable by many facilities in Pennsylvania . . .'' and observes the limitation is ''frankly unnecessary considering that many waters of the Commonwealth have considerable natural color.'' Glatfelter suggests that Subsection (c) begin with the phrase ''[E]xcept as may be set forth explicitly in this permit'' to allow for a variance for all of the parameters specified in proposed Subsection (c).
In addition to Glatfelter, several other commentators took issue with the EQB's explanation and support for the amendment from existing regulation explained in the Preamble. Some commentators request that the EQB maintain existing language which allows ''amounts sufficient to be inimical to the water uses'' found in existing Section 92.51.
We believe the commentators have outlined a significant change from existing regulation of water quality. While we agree that the phrase ''inimical to the water uses'' is vague and should be made clearer, we question the effect and basis for the proposed language which imposes a ban on all of these parameters in discharges. Based on the comments and the Preamble, it does not appear that the proposed language was developed to address specific violations or damage occurring to the environment. To the contrary, via NPDES permit, the Department has for many years allowed Glatfelter to meet a different standard than what is proposed in Subsection (c) for color. Therefore, we request a detailed explanation of why Subsection (c), as proposed, is reasonable, feasible and necessary. In addition, we request an explanation of the direct and indirect costs imposed on permit holders to meet Subsection (c) and how many permits would be either invalidated or would not be renewable under Subsection (c).
14. Section 92a.47. Sewage permit.—Need; Reasonableness; Economic impact.
In the Preamble, the EQB states the following relating to compliance costs:
The proposed rulemaking addresses wastewater treatment facilities, including industrial wastewater treatment facilities, POTWs, and other facilities that treat sanitary wastewater. The treatment requirements of the NPDES regulation affect operational costs to some extent, but the proposed rulemaking does not include any new broad-based treatment requirements that would apply to most facilities. The compliance costs of the proposed rulemaking for most facilities is limited to the revised application and annual fees.To the contrary, commentators believe Section 92a.47 imposes many changes to existing requirements that will pose major economic challenges for sewage treatment systems across the State. Commentators concerns include:
• Subsection (a) does not include key variance provisions from 40 CFR 133 that allow for modification of effluent limits.
• There is no indication the EQB has conducted a detailed legal, technical and economic analysis of these changes.
• Environmental Hearing Board decisions do not provide justification for eliminating variances.
• No rationale has been provided for changing effluent standards in Paragraphs (a)(4) and (5). In addition, these provisions are now more stringent and less flexible than current requirements. The existing provision that triggers a violation when ''more than 10% of the samples tested'' exceed a limit should be included.
• Why was Paragraph (a)(8) added for Total Residual Chlorine?
• Why does a discharge under Subsection (b) require tertiary treatment? Why is the existing approach not adequate?
• Subsections (b) and (c) establish mandatory new technology-based tertiary treatment standards that exceed current Pennsylvania water quality standards.
• It appears that effluent trading will not be allowed. We find this comment to be significant in relation to the EQB's ongoing proposed regulation #7-451 (IRRC #2821) ''Water Quality Standards Implementation.''
• The proposed regulation imposes expensive and unnecessary treatment standards.
• These revisions could pose major technical and economic challenges along with major compliance and enforcement problems for many sewage treatment systems across the State.
• It is not clear what is meant by ''significant biological treatment'' therefore what is included and excluded.
The EQB should better explain the need to amend existing requirements. The EQB should include a full evaluation of the costs imposed by the amendments and explain why the costs imposed are justified.
In addition, the EQB should explain how this regulation is consistent with regulation #7-451 (IRRC #2821) ''Water Quality Standards Implementation,'' which addresses nutrient credit trading related to nutrient and sedimentation pollution in the Chesapeake Bay.
15. Section 92a.48. Industrial waste permit.—Need; Reasonableness; Economic impact.
Similar to the comment above on Section 92a.47, commentators believe the changes to Section 92a.48 are significantly more drastic than depicted by the EQB in the Preamble. Their concerns include:
• Discharge parameters, such as BOD5 and TSS, would require as much as a 97% reduction compared to existing regulation and permits.
• The EQB's generalization of industrial waste is not valid for all industrial point source categories.
• It is evident the EQB has not fully considered the economic impact of the proposed regulation, as required by 35 P. S. § 691.5(a)(5). There is no indication the EQB has conducted a detailed legal, technical and economic analysis of these changes.
• The EQB should re-evaluate the specific discharges causing violations rather than changing the standards for all industrial waste discharges.
• The TSS and BOD5 limits could cause some power plants to use more water.
The EQB should better explain the need to amend existing requirements. In addition, the EQB should provide a full evaluation of the costs imposed by the amendments and explain why the costs imposed are justified.
16. Section 92a.50. CAAP.—Clarity; Economic impact; Reasonableness.
Paragraph (d)(3) requires the use of ''the most sensitive analytic method available.'' It is not clear how to meet this standard. Furthermore, it could require the use of expensive or elaborate equipment that may not be available or even developed yet. The regulation should clearly state what reasonable methods are acceptable.
17. Section 92a.52. Variances.—Implementation procedure; Clarity; Reasonableness.
This provision states:
Any new or amended Federal regulation enacted after November 18, 2000, which creates a variance to existing NPDES permitting requirements is not incorporated by reference.The EQB should explain how this provision relates to and is consistent with Section 92a.3. The EQB should also explain the need for this section.
18. Section 92a.54. General permits.—Effect on this Commonwealth's resources.
Threatened or endangered species
The United States Department of the Interior commented that Subsection (a) should also prohibit discharges to waters that support Federal or State listed threatened or endangered species. The EQB should explain whether this protection is needed in addition to the other protections listed in Subsection (a).
Denial of coverage
Paragraph (e)(3) states:
The applicant has failed and continues to fail to comply or has shown a lack of ability or intention to comply with a regulation, permit, schedule of compliance or order issued by the Department.This provision is not clear. For example, if a person was cited for past violations, there would be a record of that event and an ability to appeal the result. However, this provision penalizes the person for ''lack of ability or intention to comply.'' How will this provision be enforced and how can an action taken under it be appealed? The EQB should explain the intent of this provision, its reasonableness and how it would be enforced.
19. Section 92a.82. Public notice of permit applications and draft permits.—Protection of the public health
A commentator noted that the regulation does not include the existing requirement in Section 92.61(a)(6) to identify the following:
The location of the nearest downstream potable water supply considered in establishing proposed effluent limitations under this title, or a finding that no potable water supply will be affected by the proposed discharge.Why is this provision no longer needed?
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State Board of Medicine
Regulation #16A-4929 (IRRC #2820)
Behavior Specialist
April 14, 2010 We submit for your consideration the following comments on the proposed rulemaking published in the February 13, 2010 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 State Board of Medicine (Board) to respond to all comments received from us or any other source.
1. Section 18.521. Purpose.—Protection of public health, safety and welfare; Reasonableness; Conflict with existing regulations.
Subsection 635.2(g)(1) of Act 62 of 2008 (Act) (40 P. S. § 764h(g)(1)) requires the Board to promulgate regulations ''providing for the licensure or certification of behavior specialists.'' Several commentators believe the public would be better served if the Board required ''licensure'' instead of ''certification.'' They contend that certifying behavior specialists to treat under the coverage of the Act without first requiring them to be licensed will create a regulatory conflict for health plans. These commentators feel that certification is a lesser standard than licensure and will cause issues with the contracting of behavior specialists by insurance companies. Why did the Board decide to require certification of behavior specialists instead of licensure of behavior specialists?
2. Section 18.522. Definitions.—Clarity.
All of the defined terms are direct quotations from the Act, and each one provides an exact citation to the same definition in the Act. If the Board intends to use the exact definitions from the Act, they should cite the sections and not repeat the definitions in the regulation. If the Board intends to clarify the statutory definitions consistent with the language and intent of the Act, then a citation to the Act is not required.
Subsection 635.2(f)(15) of the Act (40 P. S. § 764h(f)(15)) defines the term ''treatment plan.'' The proposed regulation does not, even though the term is used in the body of the regulation in Subsection 18.524(b). We recommend that this term be defined or cited as described above.
3. Section 18.523. Application for certification as behavior specialist.—Clarity.
Applicants under Subsection (a) will be required to submit ''all necessary supporting documents.'' This term is unclear. The list of the documentation that will be required should be included in the final-form regulation.
Under Subsection (b), after the Board receives an application, how long will it take to certify the application and notify the applicant of its findings? This time frame should be included in the final-form regulation.
Subsection (d) is a partial paraphrase of the requirements of Subsection 635.2(g)(3) of the Act (40 P. S. § 764h(g)(3)). It does not include a provision from the statute that defines the term ''convicted.'' Since this term is used in the regulation, we suggest that the provision be included in the final-form rulemaking.
4. Section 18.524. Criteria for certification as behavior specialist.—Consistency with statute; Clarity.
This section establishes the criteria for certification as a behavior specialist. We have two general concerns with this section. First, Subsection 635.2(g)(2) of the Act (40 P. S. § 764h(g)(2)) lists five criteria to be used when evaluating an applicant's qualifications for certification as a behavior specialist. This section of the regulation lists four of the five criteria. Why did the Board exclude the statutory criterion pertaining to good moral character?
Second, what documentation will the Board require to verify that all the requirements contained in this section have been met? The final-form regulation should specify the required documentation.
In Subsection (a), several commentators, including the House Professional Licensure Committee, asked for additional guidance on what major fields of study would be included in ''another related field.'' We suggest that the Board clarify what that means in the final-form regulation.
Subsection (b) and Subsection 635.2(g)(2)(iii) of the Act (40 P. S. § 764h(g)(2)(iii)) require at least ''. . . one year experience involving functional behavior assessments.'' A commentator suggests that the Board clarify that at least one year of experience must involve functional behavior assessments for persons under 21 because the statute only mandates coverage of services to persons under 21. The Board should consider clarifying the experience requirement as suggested by the commentator.
Subsection (c) and Subsection 635.2(g)(2)(iv) of the Act (40 P. S. § 764h(g)(2)(iv)) require 1,000 hours in direct clinical experience. How will this be verified? In addition, the House Professional Licensure Committee requests that the experience be ''direct'' experience and not obtained in ''. . . passive approaches, i.e. only watching videotapes. . . .'' What criteria will the Board use to determine if a person's experience is suitable? We suggest that the final-form rulemaking set forth what qualifies as ''direct clinical experience.''
Subsection (d) and Subsection 635.2(g)(2)(v) of the Act (40 P. S. § 764h(g)(2)(v)) reference ''relevant training programs.'' Neither the number of hours nor the qualifications of the people giving the training is specified. To assist the regulatory community with complying with this regulation, we suggest that the Board provide the standards it will use in making the determination that an applicant has ''completed relevant training programs'' in the final-form regulation.
5. Section 18.525. Renewal of certification as behavior specialist.—Protection of public health, safety and welfare; Clarity.
Several commentators, including the House Professional Licensure Committee, have recommended that the Board add continuing education requirements to the certification renewal process. How can the Board ensure that the public health, safety and welfare are adequately protected without a continuing education requirement?
Subsection (c) includes the phrase ''in a manner prescribed by the Board.'' To improve clarity, we suggest that the regulation specify the manner in which certification must be renewed.
6. Section 18.526. Inactive status of certification as behavior specialist.—Statutory Authority; Protection of public health, safety and welfare.
Subsection (d) would allow a certificate holder to retroactively reactivate an expired certification. Several commentators have concerns with reactivating a certification retroactively. They believe that it would allow a behavior specialist with a lapsed certification to seek insurance reimbursement for services provided while the certificate was lapsed. They also believe a person with a lapsed certificate should not be allowed to practice because there is no authority to sanction a non-certified Board specialist. The Preamble to the proposed rulemaking explains why the Board has taken this approach to the reactivation of certifications. What is the Board's statutory authority for this approach? How can the Board ensure that the health, safety and welfare of the public are adequately protected if the behavior specialists with lapsed certifications are allowed to practice?
7. Miscellaneous Clarity.
• Existing Subsection 16.11(c) has only 9 registrations listed and enumerated. However, the new category of Behavior Specialist is listed as (c)(12). For clarity, Behavior Specialists should be listed as (c)(10).
• The fees associated with certification of Behavior Specialists are found at proposed Subsection 16.13(k). Existing Subsections (a) through (h) pertain to fees for specific medical professionals, while Subsections (i) and (j) are general fees that apply to all medical professions listed in § 16.13. We suggest listing the fees at existing Subsection (i) and moving the text of Subsection (i) to (j) and Subsection (j) to the new (k).
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Environmental Quality Board
Regulation #7-451 (IRRC #2821)
Water Quality Standards Implementation
April 14, 2010 We submit for your consideration the following comments on the proposed rulemaking published in the February 13, 2010 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 96.8. Use of offsets and tradable credits from pollution reduction activities in the Chesapeake Bay watershed.—Fiscal impact; Effect on natural resources; Feasibility; Reasonableness; Implementation procedure; Clarity.
General
The proposed regulation is one new section with ten subsections and codifies a document entitled ''Final Trading of Nutrient and Sediment Reduction Credits—Policy and Guidelines'' (No. 392-0900-001), which was issued by the Department of Environmental Protection (DEP) in December 2006. Commentators identified several concerns throughout the proposed regulation. Many of the concerns are similar in that it appears the transition from a policy and guidance document to a regulation may be incomplete.
The Preamble states: ''The proposed rulemaking will provide clear and certain standards for nutrient credit trading in this Commonwealth. . . .'' Commentators disagree. They claim the regulation, like the existing policy document, does not contain clear and concise criteria. They contend that it creates ambiguity by allowing DEP to readjust best management practice efficiencies, thresholds, ratios, and other factors. Participation in this program is voluntary. It is also beneficial because it reduces pollution at lower costs. However, the rules governing the trading market must be consistent and predictable to encourage investment and participation. Therefore, the Board and DEP need to work with stakeholders to develop greater specificity in the criteria, procedures and standards in the final-form regulation.
Credits and offsets
Commentators have expressed concern with the Board's similar treatment of the term ''credit'' and ''offset'' throughout the proposed regulation. They assert that there are fundamental differences between the two, and the two terms should not be treated identically. For example, commentators noted that ''offsets'' are already incorporated into National Pollutant Discharge Elimination System (NPDES) permits and are not subject to certification, registration or verification as outlined in this proposed regulation. The Board needs to explain the differences and similarities between the two. In addition, the procedures for certification and verification or approval processes for credits and offsets need to be clearly delineated in the final-form regulation.
Timetables and notification
Provisions in the proposed regulation refer to eligibility determinations, credit certifications, verifications or other types of decisions to be made by DEP. What are the timetables for such actions? How will affected parties be notified? Will the DEP provide written notice? To increase predictability for buyers and sellers, the Board should address these questions in the final-form regulation.
Subsection (a) Definitions.
Baseline—
Commentators, including the Pennsylvania Farm Bureau, Pennsylvania Municipal Authorities Association (PMAA), and Nutrient Trading Subcommittee of DEP's Agricultural Advisory Board, expressed concerns with this definition. There appears to be confusion as to how the total maximum daily load (TMDL) will impact a ''baseline.'' In addition, it is unclear what is included in the term ''similar allocation'' which is used in Paragraph (ii) of this definition and in Subsection (d)(2)(ii). We recommend that DEP work with stakeholders to address these concerns. The Board should utilize greater detail in setting forth its intent in the final-form regulation.
Credit reserve
The need for the phrase ''and to provide liquidity in the market'' in this definition is unclear. Why would the Commonwealth want to manage ''liquidity'' in a market and how has DEP determined that the credit reserve will be properly sized to achieve that liquidity? The Board needs to provide an explanation or delete it from the final-form regulation.
Delivery ratio
This definition contains the phrase ''defined compliance point.'' However, it is not clear what this is referring to. For clarity, this phrase should be defined in the final-form regulation.
DMR—Discharge monitoring report
According to existing definitions in Section 92.1, a DMR is the same as an NPDES reporting form. Why are two different terms used for the same form?
Edge of segment ratio
Commentators questioned the used of the term ''groundwater'' in this definition. It is unclear whether this ratio could provide accurate information about a pollutant moving through both surface runoff and groundwater flows. The Board should provide an explanation or improve the definition in the final-form regulation.
Tradable load
This definition ends with the phrase ''a level of reduction activities identified by the Department [DEP] as reasonably attainable.'' What criteria and process will be used by DEP in determining what is ''reasonably attainable''?
Subsection (c) Methodology.
Subsection (c)(6) includes the sentence ''The Department may also rely on other published or peer-reviewed scientific sources.'' How will the regulated community know what these sources are? Will DEP publish a list in the Pennsylvania Bulletin?
Subsection (d) Eligibility requirements for the Chesapeake Bay.
In order to generate credits and offsets, Subsection (d)(1) requires that generators ''demonstrate a reduction in pollutant loads beyond . . . any threshold established by the Department.'' How will the generators know what this threshold is? This threshold should be set forth in the final-form regulation.
In its comments, PMAA contends that the language in Subsection (d)(2)(ii), together with the definition of ''baseline,'' will unnecessarily limit the ability of point sources to generate credits while still meeting local TMDL reduction requirements. The Board should provide an explanation, or if necessary, modify this provision to promote additional pollution reduction.
Subsection (d)(3)(ii) allows DEP to establish other threshold requirements to protect the Chesapeake Bay. Will these other requirements be promulgated as regulations? If not, how will generators know what these requirements are? We note that requirements that are not contained in law or a promulgated regulation are not enforceable by the Board or DEP. Similar concerns apply to Subsections (d)(5) and (e)(3)(v).
What is the appeals process for someone under Subsection (d)(6)? It should be cross-referenced or set forth in the final-form regulation.
Subsection (e) Certification requirements for the Chesapeake Bay.
Subsection (e)(2)(i)(D) states the ''implementation of the pollutant reduction activity must be verified to the extent acceptable to the Department. . . .'' What is ''the extent acceptable'' to DEP? There is a reference to Paragraph (4) and the ''verification plan'' but it is unclear how the ''extent acceptable'' is identified. Also, Paragraph (2)(i)(D) appears to be unnecessary since verification is covered in Paragraph (4).
Subsection (e)(3)(vi) sets forth the level at which the sum of all credits may not exceed. It then contains the phrase ''. . . unless otherwise revised by the Department.'' Will this be done via regulation? If not, how will generators know what the new levels are? We note that requirements not contained in law or promulgated regulations cannot be enforced.
Subsection (f) Registration requirements for the Chesapeake Bay.
In Subsection (f)(2)(ii), what are ''basic contract elements''? This term should be defined. Is there a basic model contract or list of basic contract contents for which DEP will be establishing? If so, it should be set forth in the final-form regulation.
Subsection (g) Use of credits and offsets to meet NPDES permit requirements related to the Chesapeake Bay.
Paragraph (5) begins with this sentence: ''Permittees are responsible for enforcing the terms of their credit and offset contracts, when needed to ensure compliance with their permit.'' The expectations of this sentence are unclear. What enforcement tools will be available to permittees? In addition, PMAA expressed serious reservations about this paragraph and indicated that it may significantly reduce involvement in the trading program. The Board should explain its intent, and avoid language that will unnecessarily deter entry into the trading market.
Miscellaneous Clarity
Provisions in the proposed regulation include general references to other laws and regulations. Examples of these provisions include:
• Subsection (a), definition of ''baseline,'' Paragraph (i);
• Subsections (b)(5) and (6);
• Subsections (d)(4)(i) and (ii); and
• Subsections (h)(1) and (4).
Our concern with such general references is exemplified by Subparagraph (i) in the definition of ''baseline'' which includes this phrase '' . . . which must be implemented to meet current environmental laws and regulations related to the pollutant for which credits or offsets are generated.'' Subsection (a) also defines ''pollutant'' as ''nutrients and sediment,'' and ''nutrients'' are defined as ''nitrogen and phosphorus.'' Therefore, there should be specific citations to the laws and regulations related to three specific pollutants. All general references to other applicable laws and regulations should be replaced with specific citations in the final-form regulation.
ARTHUR COCCODRILLI,
Chairperson
[Pa.B. Doc. No. 10-744. Filed for public inspection April 23, 2010, 9:00 a.m.]
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