ENVIRONMENTAL QUALITY BOARD [25 PA. CODE CH. 103] Financial Assistance [28 Pa.B. 18] The Environmental Quality Board (Board) by this order amends Chapter 103 (relating to financial assistance). The amendments include revisions to delete provisions related to the Federal Clean Water Act Title II construction grants program, retain the sewage project priority rating system used in the Federal Clean Water Act Title VI sewage construction loan program, delete text related to an obsolete design grant program and add language to allow use of a small amount of remaining Land and Water Conservation and Reclamation Act (act) (32 P. S. §§ 5101--5121) funds for a grant to one or more economically depressed communities.
The amendments were adopted by the Board at its meeting of October 21, 1997.
A. Effective Date
These amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information contact Peter T. Slack, Chief, Division of Municipal Financial Assistance, Bureau of Water Supply Management, P. O. Box 8466, 11th Floor, Rachel Carson State Office Building, Harrisburg, PA 17105-8466, (717) 787-3481, or Pamela E. Bishop, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, 9th Floor, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This rulemaking is available electronically through the Department of Environmental Protection's (Department) Web site (http://www.dep.state.pa.us).
C. Statutory Authority
The final rulemaking is being made under the authority of The Clean Streams Law (35 P. S. §§ 691.1--691.1001); and section 16(2) of the act (32 P. S. § 5116(2)) which authorize the Board to promulgate rules and regulations relating to the awarding of construction grants for sewage facilities to political subdivisions and municipal authorities. The final-form regulations are also adopted under the authority of section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).
D. Background and Summary
Over the past 2 years, the Department has been conducting an overall review of its existing regulations through its Regulatory Basics Initiative as outlined at 25 Pa.B. 3343 (August 19, 1995). This initiative was designed to clarify and update regulatory requirements along with the goal of adopting environmental regulations that are no more stringent than Federal rules unless there is a compelling need for more stringent rules. In 1996, Governor Ridge issued Executive Order 1996-1 which directed executive agencies to conduct a similar review of existing regulations. This final rulemaking is one of a number of rulemakings resulting from these initiatives.
The revisions to Chapter 103, Subchapter A (relating to clean water state revolving fund project priority list ratings) delete provisions related to the Federal Clean Water Act Title II sewage treatment construction grants program. Almost all projects that received a Title II grant award for the construction of sewage treatment or conveyance facilities are nearing construction completion, and the last one will be under construction soon. These regulations are no longer needed to administer the Title II grant program. The sewage construction project priority rating system is being retained as it will continue in use for establishing project priority ratings for projects in the Clean Water Act Title VI loan program. The Federal Title VI loan program replaced the Title II grant program and is jointly administered by the Department and the Pennsylvania Infrastructure Investment Authority (PENNVEST).
The revisions to Chapter 103, Subchapter D (relating to State grants for construction of sewage facilities) delete provisions related to a State design grant program and a supplemental construction grant program. The design grant program provided funds to communities that had completed plans and specifications for a sewage treatment facility, but did not receive a Federal grant for construction of the facility. The supplemental grant program awarded a 5% grant to economically depressed communities that had received a 75% Federal construction grant. Eligible communities were identified and design and supplemental construction grants have been awarded and paid. A small amount of money remains available, and the Department proposes to award grants to one or more economically depressed communities to assist with the cost of construction of needed sewage treatment facilities. The source of these funds is the bond issue moneys made available and intended as aid to political subdivisions for the construction of sewage facilities. The $155,000 available cannot be awarded under the existing regulations, and these revised regulations will allow award of these funds as grants to one or more economically depressed communities.
E. Summary of Comments and Responses on the Proposed Rulemaking
The only comments received were from the Independent Regulatory Review Commission (IRRC). Comments received on the revisions to Subchapter A suggested a change to the definition for the ''Water Pollution Control Revolving Fund.'' Subsequent to publishing the proposed Subchapter A revisions for public comment, the name of the fund was changed to the ''Clean Water State Revolving Fund.'' IRRC comment suggested the regulations should be changed to clarify that PENNVEST administers the ''fund.'' Both PENNVEST and this Department share administration of the Title VI program. Also, the definitions section was revised to make the definitions of ''project priority list'' and ''intended use plan'' consistent with the definitions used in the PENNVEST program regulations in § 965.1.
Although no comments were received on this portion of the proposed amendments, upon further consideration, the language has been amended in the final-form regulations in § 103.5(c) (relating to preparation of project lists) to clarify the relationship of the project priority rating factors to the PENNVEST project evaluation procedure.
The comments received on the revisions to Subchapter D suggest that the Board consider retaining the definitions, clarifying the provisions to state clearly that potential grant recipients must meet both of the eligibility criteria delineated in § 103.82 (relating to eligibility) and adding a sunset repealer provision at the end of these regulations. The definitions section of these regulations does not apply to the proposed changes to these regulations. The Board elected to forego adding a new definitions section given the limited amount of money available and that only one or several grants will be awarded at this time. A change was made to the final-form regulations to indicate that potential grant recipients must meet all criteria to be considered for a grant award. The suggestion for a sunset repealer action in the regulations is a good suggestion. However, there is a possibility the Department may receive funds for State grant awards in the future and these regulations may be used for grant awards for financially distressed communities at a later time.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final-form regulations.
Benefits
The final-form regulations are intended to clarify the relationship of Subchapter A to the Federal Title VI loan program, and Subchapter D will allow award of approximately $155,000 of act bond issue funds to one or more communities to assist with construction of sewage treatment facilities. There are no costs associated with the final revisions to Chapter 103, Subchapters A and D. The Department expects to identify at least one or more economically depressed communities that meet the eligibility criteria and award grants, as appropriate.
Compliance Costs
There are no existing or new compliance costs to be created by these revisions.
Compliance Assistance Plan
The Department plans to encourage recipients of any of the act bond issue funds to abate water pollution occurring within its political boundaries. Recipients will use the funds to comply with applicable environmental requirements.
Paperwork Requirements
There are no new forms to be created or revisions to existing forms or other paperwork requirements relating to these final-form regulations.
G. Sunset Review
These final-form regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on March 18, 1997, the Board submitted a copy of the proposed amendment to IRRC and the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In compliance with section 5(b.1) of the Regulatory Review Act, the Board also provided IRRC and the Committees with copies of the comments as well as other documentation.
In preparing these final-form regulations, the Board has considered the comments received from IRRC. These comments are addressed in the comment and response document and Section E of this Preamble. The Committees did not provide comments on the proposed rulemaking, nor were there any comments received from the public.
These final-form regulations were deemed approved by the House and Senate Environmental Resources and Energy Committee on November 25, 1997. IRRC met on December 11, 1997, and approved the final-form regulations in accordance with section 5(c) of the Regulatory Review Act.
I. Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) These final-form regulations do not enlarge the purpose of the proposal published at 27 Pa.B. 1553 (March 29, 1997).
(4) These final-form regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.
J. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 103, are amended by amending §§ 103.8, 103.11, 103.83 and 103.84 and by deleting §§ 103.2, 103.4, 103.13, 103.14, 103.71--103.76 to read as set forth at 27 Pa.B. 1553; and by amending §§ 103.1, 103.5, 103.6, 103.12 and 103.82 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Chairperson of the Board shall submit this order, 27 Pa.B. 1553 and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Chairperson shall submit this order, 27 Pa.B. 1553 and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees, as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
JAMES M. SEIF,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 27 Pa.B. 6878 (December 27, 1997).)
Fiscal Note: Fiscal Note 7-311 remains valid for the final adoption of the subject regulations.
Annex A TITLE 25. ENVIRONMENTAL PROTECTION PART I. DEPARTMENT OF
ENVIRONMENTAL PROTECTIONSubpart C. PROTECTION OF
NATURAL RESOURCESARTICLE II. WATER RESOURCES CHAPTER 103. FINANCIAL ASSISTANCE Subchapter A. CLEAN WATER STATE REVOLVING FUND PROJECTS PRIORITY LIST RATINGS CLEAN WATER STATE REVOLVING FUND § 103.1. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * CWSRF--Clean Water State Revolving Fund--A fund administered by the Pennsylvania Infrastructure Investment Authority (PENNVEST) that provides low-interest loan funds to borrowers for the construction of facilities.
* * * * * Facilities--Any device or system for the storage, treatment, recycling and reclamation of municipal sewage, domestic sewage or liquid industrial wastes or necessary to recycle or reuse water at the most economical cost over the useful life of the works. The term includes intercepting sewers, outfall sewers, sewage collection systems, individual systems, pumping, power and other equipment and their appurtenances; extensions, improvements, remodeling, additions and alterations thereof; elements essential to provide a reliable recycled supply such as standby treatment units and clear well facilities; and any works, including site acquisition of the land that will be an integral part of the treatment process or is used for ultimate disposal of residues resulting from the treatment, including land for composting sludge and temporary storage of the compost and land used for the storage of treated wastewater in land treatment systems before land application; or another method or system for preventing, abating, reducing, storing, treating, separating or disposing of municipal waste or industrial waste, including waste in combined stormwater and sanitary sewer systems.
Federal Act--The Federal Water Pollution Control Act (33 U.S.C.A. §§ 1251--1387).
* * * * * Intended use plan--A plan identifying the intended uses of the moneys in the Clean Water State Revolving Fund and describing how those uses support the goals of the fund.
* * * * * NPDES--The National system for the issuance of permits under section 402 of the Federal Act including, any State or interstate program which has been approved by the EPA, in whole or in part, under section 402 of the Federal Act (33 U.S.C.A. § 1342).
Project equivalent population--The initial population equivalent which would be served by a project implemented for the rated area at the time that the area is rated.
Project priority list--The list of identified public sewerage project needs in this Commonwealth established under this subchapter.
Sewage facilities plan--A plan developed under the Pennsylvania Sewage Facilities Act (35 P. S. §§ 750.1--750.20) for the provision of adequate sewage facilities, adopted by municipal officials and approved by the Department.
Small municipality--A municipality having a population of 3,500 or less based on the most recent United States Bureau of Census figures.
* * * * * § 103.5. Preparation of project lists.
(a) The project priority ratings developed under this subchapter are water quality based assessments of sewage treatment needs. This priority rating system is mandated by section 216 of the Federal Act (33 U.S.C.A. § 1296) and has been approved by the EPA for ranking projects for the CWSRF project priority list and intended use plan. To be funded under the CWSRF, a project first shall appear on a project priority list and then an intended use plan list.
(b) The Department prepares project priority lists and assists PENNVEST with preparation of intended use plan lists required by Title VI of the Federal Act (33 U.S.C.A. §§ 1381--1387). These lists are prepared in conformance with 40 CFR Part 35, Subpart K (relating to State Water Pollution Control Revolving Fund) and submitted in support of annual CWSRF capitalization grant applications to the EPA.
(c) Once the Commonwealth receives its capitalization grant award, applications for funding are evaluated under the Pennsylvania Infrastructure Investment Authority Act (35 P. S. §§ 751.1--751.20) and the regulations thereunder in Part VII (relating to Pennsylvania Infrastructure Investment Authority,) including the wastewater evaluation criteria in § 963.8 (relating to wastewater project evaluation criteria). The water pollution control rating factors described in § 103.8 (relating to water pollution control) will be used by the Department in evaluating for PENNVEST the public health and safety and environmental impact criteria in the PENNVEST project evaluation process.
§ 103.6. Priority rating factors.
(a) Priority among eligible projects for the purpose of creating the project priority list shall be established according to the accumulation of points for each of the following rating factors weighted as shown:
(1) Water Pollution Control--80%
(2) Stream Segment Priority--10%
(3) Population Affected--10%
(b) A project's total priority points shall be the sum of the points assigned in each of the individual rating factors.
§ 103.12. Other considerations.
(a) If two or more projects receive the same number of total rating points, the relative rank of the projects on the project priority list will be based on points awarded under the water pollution control factor, the higher rank being assigned to that project with the higher water pollution control points. If, after this test, the projects remain tied, the factors of stream segment priority and then population affected shall be used to break ties.
(b) In the case of a regional project when the Department determines each portion of the regional project is essential to the integrity of the project, the Department will rank all portions of the project together as a single project and assign the same number of rating points to all portions of the regional project on the project priority list.
(c) Based on the findings and conclusions of the sewage facilities plan, the Department will consider the need to rerate projects for the purpose of ranking projects on the project priority list if the findings and conclusions of the sewage facilities plan significantly alter the definition of wastewater treatment need or the scope of the project.
STATE GRANTS FOR CONSTRUCTION § 103.82. Eligibility.
Projects which meet both of the following criteria are eligible for construction grants:
(1) The eligible costs of the project based on construction bids or actual construction and associated costs exceed the amount of grant funds made available from other State and Federal grant sources.
(2) The municipality to be served by the proposed project suffers from unusual financial hardship and State grant funds are available for the project. In evaluating the extent of financial hardship, the Department will consider the ratio of the median family income in the municipality to be initially served by the project to the State median family income and the annual sewer rental to be charged.
[Pa.B. Doc. No. 98-10. Filed for public inspection January 2, 1998, 9:00 a.m.]
