INDEPENDENT REGULATORY REVIEW COMMISSION Actions Taken by the Commission [26 Pa.B. 4293] The Independent Regulatory Review Commission met publicly at 11 a.m., Thursday, August 8, 1996, and took the following actions:
Regulation Disapproved:
Environmental Quality Board # 7-289: Sewage Facilities--Planning, Permitting and Disposal Facilities (would amend 25 Pa. Code Chapters 71--73)
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
August 8, 1996Environmental Quality Board--Sewage Facilities--Planning, Permitting and Disposal Facilities; Doc. No. 7-289
Order On July 20, 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 71--73. The authority for this regulation is contained in sections 7.2 and 9 of the Pennsylvania Sewage Facilities Act (35 P. S. §§ 750.1--750.20). The proposed regulation was published in the August 5, 1995 edition of the Pennsylvania Bulletin with a 60-day public comment period. The final-form regulation was submitted to the Commission on July 16, 1996.
The EQB is proposing to establish technical and bonding criteria for the installation of onlot sewage disposal systems in areas where soil mottling is present. The proposed amendments are based on amendments to the Pennsylvania Sewage Facilities Act (act) which were enacted in 1989 (P. L. 124, No. 26) and 1994 (Act 149 (P. L. 1250, No. 149)) and recommendations to the EQB by the Bureau of Water Quality Management and the Sewage Advisory Committee.
Prior to the 1994 amendments to the Pennsylvania Sewage Facilities Act, the General Assembly also amended the act during its 1989 session in Act 26. Proposed regulations designed to implement the provisions of Act 26 of 1989 were adopted by the EQB on December 19, 1990, and were published in the Pennsylvania Bulletin on March 2, 1991. However, the proposed regulations intended to implement Act 26 of 1989 were withdrawn by the EQB on May 19, 1993, following the close of the public comment period.
Many of the proposed revisions are either word for word from Act 149 of 1994 or closely paraphrase it. Major provisions of the regulation include an exception from the requirement to obtain a permit for lots of 10 acres or more, permitting of onlot sewage systems in mottled soils and financial assurances for onlot sewage systems installed in mottled soils.
The final-form regulation was supported by the Sewage Advisory Council to the EQB. We received a letter from Representative Camille George, Democratic Chairperson of the House Environmental Resources and Energy Committee, in support of the EQB's lack of specificity on financial assurances and the need to provide the local agency with flexibility on this matter.
Our Comments expressed concern with the proposed regulation because it lacked any detail on the types of financial assurance and the procedures for forfeiture of the financial assurance. In addition, we were concerned with the verification of the siting requirements to be made by the local agency. These concerns remain with the final-form rulemaking.
The act requires that an individual who installs an onlot sewage system where soil mottling is present provide evidence of financial assurance to the local agency in an amount that equals the cost of replacement of the sewage system and the costs associated with cleaning up any contamination resulting from a malfunction. The act also sets a minimum amount for the financial assurance at either $20,000, or 15% of the appraised value of the land and dwelling. In our Comments, we recommended that the EQB amend the regulation to include the acceptable types of financial assurance in the rulemaking. We made this recommendation based upon section 7.2(b) of the act which provides:
The Environmental Quality Board shall promulgate rules and regulations that are to establish the specific types of financial assurance that are acceptable under this section, the procedures the local agencies are to follow in forfeiting the financial assurance, and the type of additional financial assurance required if the system approved under this section is replaced. (emphasis added)
The EQB did not accept our recommendation to include the specific types of financial assurance in the rulemaking for two reasons. First, the EQB claims that section 73.151(c) of the regulation meets the legislative intent of the act by providing, in part, that ''A local agency may accept such forms of financial assurance that establish, to the satisfaction of the local agency, its full and unconditional right to demand and receive any sum due it under Section 7.2 of the Act.'' However, the EQB did not sufficiently explain how this section meets the clear language of the act which requires the EQB to promulgate regulations establishing specific types of acceptable financial assurance.
Second, the EQB states that when it proposed a similar regulation in March 1991, it received numerous comments opposing the inclusion of the specific types of financial assurance in the regulation. However, when asked to provide documentation of these comments, the EQB was unable to do so.
We strongly disagree with the EQB's position. We continue to believe the EQB is required to include the specific types of financial assurance in the rulemaking. Section 73.151(c) of the regulation allows the local agency to determine what types of financial assurance will be acceptable. In contrast, the act clearly mandates that the EQB, not the local agencies, shall promulgate rules and regulations that establish the specific types of financial assurance. By not specifying the acceptable types of financial assurance in the regulation, the EQB has vested the local agency with the discretion to decide what types of financial assurance will be acceptable. This discretion will give the local agency the power to reject common types of financial assurance, such as bonds or letters of credit, because it does not want the landowner to build the onlot system. Therefore, we believe the EQB must specify the acceptable types of financial assurance in the rulemaking to meet the intent of the act and to allow current and future landowners certainty as to the types of financial assurance that will be acceptable. If the EQB desires to provide flexibility in the choice of the acceptable types of financial assurance, the EQB could add a provision allowing the Department of Environmental Protection to approve an alternative type of financial assurance based upon a request from a local agency or a landowner seeking to install an onlot sewage system.
Our second concern is with the lack of clarity concerning the local agency's responsibility to verify siting requirements. The act requires an individual who meets the permit exemption requirements to locate the septic tank and absorption area ''at least 200 feet from the perimeter of a property line, nonutility right of way, one hundred-year floodplain, or any river, stream, creek, impoundment, well, watercourse, storm sewer, lake, dammed water, pond, spring, ditch, wetland, water supply or any other body of surface water, and ten feet from a utility right of way.'' (35 P. S. § 750.7(a.1)(1)). Although these isolation distances were included in section 72.22(g)(1) of the regulation, the regulation did not require the local agency to verify the isolation distances as required by the act. In our Comments, we recommended that the EQB amend the regulation to clearly indicate that it is the local agency's responsibility to check for the presence of the items listed above.
The Pennsylvania Association of Sewage Enforcement Officers (PASEO) provided comments on the proposed rulemaking recommending the regulation be amended to provide that the landowner document compliance with the 200 feet siting requirements. The PASEO commented that the local agency should only verify that the disposal system is not located within the isolation distances from any bodies of water and rights of way documented by the landowner. The EQB adopted half of the PASEO's recommendation and amended the regulation to provide that the property owner must document siting requirements as part of the application. We believe requiring property owners to document siting requirements is reasonable, however, the EQB did not modify the regulation to clearly require on-site verification of the property owner's documentation by the local agency. We continue to believe the regulation is deficient because the regulation does not require on-site verification by the local agency.
We believe the act requires the local agency to make this determination as part of its responsibility to verify the siting requirements contained in the act. Specifically, section 7(a.1)(2) of the act provides the following:
Before a person who meets the requirements for a permit-exempt system installs the system, such person shall notify the local agency of the installation. The local agency may charge a fee, not to exceed twenty-five dollars ($25), to verify the system is located in accordance with the siting requirements of subsection (a.1)(1).
The DEP staff stated at our August 8, 1996, public meeting that they believe the fee and the verification are optional on the part of the local agency. We agree the fee is optional, however, we believe section 7(a.1)(2) of the act requires verification by the local agency. Furthermore, section 8(b)(10) of the act provides the local agency with the power and duty:
To make such inspections of and verify measurements made by applicants on public or private properties which are determined by the local agency's authorized representative to have natural or manmade features from which specific isolation distances are required prior to the approval of onlot sewage disposal system usage in subdivisions or individual lots. The local agency's authorized representative shall have the right to enter upon lands for these purposes. (emphasis added)
We believe the act requires the local agency to verify that the onlot system is located in accordance with the specific siting requirements contained in section 72.22(g)(1) of the rulemaking. If the local agency was simply going to rely on the landowner to identify any bodies of water within the 200 feet limit, there would be nothing for the local agency to independently check. As previously mentioned, the EQB partially adopted the recommendation of the PASEO by amending the regulation to provide that the landowner shall provide documentation relating to the siting requirement of the regulation and we have no objection to this amendment. However, we believe the EQB must amend the regulation to clarify the local agency's responsibility to verify siting requirements including checking for the presence of any items contained in section 72.22(g)(1) of the rulemaking.
Our third concern is the lack of detail concerning the procedures to be followed with the forfeiture of the financial assurance. Section 7.2(b) of the act provides that the EQB must include the procedures the local agency is to use when the financial assurance is forfeited. Specifically, section 7.2(b) provides:
The Environmental Quality Board shall promulgate rules and regulations that are to establish the specific types of financial assurance that are acceptable under this section, the procedures the local agencies are to follow in forfeiting the financial assurance, and the type of additional financial assurance required if the system approved under this section is replaced. (emphasis added)
The regulation is not clear on the important procedures involving financial assurance. Specifically, the only reference in the regulation to the use of financial assurance is in section 73.151(c) which provides:
A local agency may, in its discretion, authorize a property owner to use the financial assurance for the sole purpose of repair or replacement of the onlot system, for remedial measures to clean up contaminated groundwater and to replace any contaminated water supplies.
In our Comments, we expressed concern with the discretionary phrase ''A local agency may, in its discretion . . . .'' We questioned when the local agency would not require the property owner to use the financial assurance when a problem arises with the disposal system. We believe the regulation needs to clearly indicate the steps the local agency must take when it determines that the financial assurance is forfeited. The EQB did not make any revisions in response to our concerns because it wants to give the local agency flexibility in the forfeiture of the financial assurance.
We continue to believe the act requires the EQB to provide guidance on the procedures to be used when the financial assurance is forfeited. Therefore, we recommended the EQB amend the regulation to establish the procedures to be followed when the financial assurance is forfeited, what portion of the financial assurance will be used, how the local agency is to use the forfeited funds, and what types of additional financial assurance are required if the onlot system is replaced.
Finally, we believe that section 73.151(d) lacks the necessary clarity to describe the EQB's intent. Specifically, since the local agency will be responsible for declaring forfeiture, section 73.151(d) should clearly indicate this intent. Therefore, we recommend that the first portion of section be amended to read as follows, ''The local agency will declare forfeiture when it determines that one or more of the following apply . . . .''
For the reasons set forth above, we find the regulation not to be in the public interest. The act mandates that the EQB promulgate rules and regulations providing guidance on the types of acceptable financial assurance and the procedures to follow when the financial assurance is forfeited. In addition, we believe the act requires the local agency to conduct on-site verification of isolation distances. Therefore, as discussed, we believe the EQB must amend the regulation accordingly to address these concerns.
Therefore, It Is Ordered That:
1. Regulation No. 7-289 from the Environmental Quality Board, as submitted to the Commission on July 16, 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. 7-289 under section 6(b) of the Regulatory Review Act (71 P. S. § 745.6(b)).
JOHN R. MCGINLEY, Jr.,
Chairperson[Pa.B. Doc. No. 96-1451. Filed for public inspection August 30, 1996, 9:00 a.m.]
