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EQB Adopts Proposed Ch 109 – Fee Package Rulemaking with 30-day comment period

EQB Adopts Proposed Ch 109 – Fee Package Rulemaking with 30-day comment period

Special Thanks to Erik Ross, Milliron & Goodman Government Relations, LLC.


We wanted to let you know that the Environmental Quality Board (EQB) met today and adopted the proposed Rulemaking – Safe Drinking Water – General Update and Fees (25 Pa. Code Chapter 109) with a 30-day comment period.  DEP requested the 30-day comment period because they are pressed for time to address the concerns raised by the Environmental Protection Agency (EPA) regarding PA’s program performance.  However, Dana Aunkst, Deputy Secretary for Water Programs explained that by the time the proposed Rulemaking goes through the Attorney General’s Office and etc., it will not get published in the PA Bulletin until July – the 30-day comment period does not begin until publication in the Bulletin so the comment period will extend through August.


The Independent Regulatory Review Commission (IRRC) will review the proposed Rulemaking and deliver its comments within 30 days of the close of the public comment period.  In addition, the House & Senate Environmental Resources Committees may provide comments to IRRC and DEP at any time prior to final-form regulation delivery.


After IRRC, DEP reviews and responds to comments and makes changes where necessary prior to delivering a final-form regulation.  The same process is followed with a Final-form Rulemaking (i.e., EQB, public comment, IRRC…).


Dana Aunkst also mentioned that the best case scenario would be for DEP to come back to EQB with a Final-form Rulemaking in December.  He also indicated that it wouldn’t be until April 2018 (best case) before they could complete the rulemaking process.  Having said that, there were questions about what DEP will be doing in the interim to find temporary funding to get staff hired and trained.  Dana indicated that they would need 6 months of fees before they could hire more staff and start to train them.  Lisa Daniels added that they would arrange training sessions for new hires, but they would also need on the job training by shadowing a Sanitarian for a time period.


Again, please review the proposed Rulemaking and Preamble, which can be found below, to see what DEP changed, what they didn’t change and why? It is important that water systems file their own comments as well as the various water associations.  I’ll be sure to let you know when the Rulemaking is published in the PA Bulletin.  If you identify any particular area of concern that you wish to comment on, please share those concerns and comments with me.  I’d also appreciate it if you let me know what is no longer a concern as a result of DEP’s changes (ex. Emergency interconnections – see Preamble, Pg. 20-22) or if DEP didn’t go far enough.



A summary of the discussion this morning at EQB can be found below.  Please let me know if you have any questions.


Summary of Discussion at EQB Meeting


Richard Fox, Democratic Executive Director, House Environmental Resources Committee, asked about “auxiliary power” and the comment about PaWARN in the Preamble (Pg. 34).  Lisa Daniels explained what PaWARN is and what a good job they do, but said PaWARN’s resources would be quickly overwhelmed during any large scale event.


Jonathan Lutz, Republican Executive Director, House Environmental Resources Committee, indicated that Chairman Maher has questions and concerns with the proposed rulemaking.  He indicated that they are going to vote to support moving the rulemaking to the comment period, with the understanding that they will be working with DEP to improve the Rulemaking.  With respect to “entry points,” Jonathan asked if a reservoir, maintained as a backup emergency source, would need to be included in routine monitoring.  Lisa Daniels said that there is no ongoing mechanism to test the water quality so DEP is requiring that PWSs monitor on an annual basis.  This will also ensure that the PWS makes sure that things remain in good working order (valves working and etc.).  DEP is also seeking alternatives in comments, as long as it provides the same level of public health protection.


Jonathan also asked about the fees and pointed to the chart on page 40 of the Preamble where a system serving a population of 100,001 or more equals 837% of the cost of service.  He said that he finds it difficult to explain how we can move forward and meet the requirement in the PA SDWA that says “fees shall bear a reasonable relationship to the actual cost of providing a service.”  He wanted assurances that DEP is open to other options.  Lisa Daniels  said that they have a included a couple of options in the Preamble.  She explained that this has been the number one issue that they have struggled with – looking at the level of service – and indicated that the numbers on pages 40-42 of the Preamble are based on the minimum level of service (not accounting for problems or needed assistance).


Jonathan asked if DEP had considered using an assessment like the PUC does for public utilities, which is based on the cost of service.  Lisa Daniels said that they had not thought about that and opined that they probably don’t have the financial information that the PUC has.  However, she said, it doesn’t mean that they cannot consider such an approach.


Gladys Brown, Chair, PUC, indicated that the PUC assesses the utilities that they regulate.  She said that she understands the need for the fees and knows that it is a struggle to come up with a plan.


Richard Fox asked if the April 2018 time period was acceptable to EPA.  Lisa Daniels responded that EPA has recommended that DEP pursue a temporary funding source to begin the hiring process earlier.


Sam Robinson, Governor’s Office of Planning and Policy, indicated that they are looking at all options to create a solution and are willing to work with the General Assembly.


Secretary McDonnell added that they are managing their cash flow.  He also indicated that this fee package isn’t simply about the EPA trigger, we need an adequate program to protect the public health.


Don Welsh, Citizens Advisory Council, asked if there are sanctions, other than revoking primacy, that EPA could invoke.  Lisa Daniels responded that EPA can withhold 20% of its funding to DEP, which almost happened to Oklahoma.  She also reiterated that EPA doesn’t want to revoke PA’s primacy – they want to see PA get into compliance.






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