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PA Bulletin, Doc. No. 97-700

NOTICES

INDEPENDENT REGULATORY REVIEW COMMISSION

Actions Taken by The Commission

[27 Pa.B. 2213]

   The Independent Regulatory Review Commission met publicly at 11 a.m., Friday, April 18, 1997, and took the following actions:

Regulations Approved:

   Department of Community and Economic Development #4-63:  Site Development, Community Facilities, Site Recovery, Statistics & Information, Nursing Home Loan Agency, and Sunny Day

   Environmental Quality Board #7-321: Expedited Rulemaking for Mine Subsidence Control

Commissioners Present:  Robert J. Harbison, III, Vice-Chairperson; Alvin C. Bush; Arthur Coccodrilli

Public Meeting held
April 18, 1997

Environmental Quality Board--Expedited Rulemaking for Mine Subsidence Control; Doc. No. 7-321

Order

   On March 19, 1997, the Independent Regulatory Review Commission (Commission) received this regulation from the Environmental Quality Board (EQB). This rulemaking would amend 25 Pa. Code Chapter 89. The authority for this regulation is contained in section 7 of The Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) (52 P. S. § 1406.7). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.

   The rulemaking deletes requirements in Chapter 89 which are now obsolete as a result of the repeal of Sections 4, 6(a) and 15 by Act 54 of 1994, a statute which amended the BMSLCA. Section 4 provided absolute protection to specific structures in place on April 27, 1966, overlying or in the proximity of a mine. Section 6(a) required a mine operator to compensate owners of structures in place before April 27, 1966, if damage from mining occurred. Section 15 allowed surface owners to purchase support coal beneath their property.

   Consistent with the Act 54 repeal of Section 4 of the BMSLCA, the rulemaking deletes § 89.143(b)(1)(ii) which states that mine operators are required to prevent subsidence damage to dwellings, cemeteries, municipal public service operations or municipal utilities in place on April 27, 1966. Provisions in §§ 89.142 (maps) and 89.145 (surface owner protection) are deleted because section 15 of the BMSLCA, which gave surface owners an opportunity to purchase coal support beneath their properties, was repealed. The rulemaking also deletes §  89.144(c) (public notice) which provides that notices sent to property owners may include a statement as to an individual's right to acquire support under section 15 of the BMSLCA.

   Finally, § 89.146 (Payment of damages) will be deleted. This section contains provisions for settlement of claims filed under section 6(a) of the BMSLCA. However, we recommend that the EQB state in its preamble that provisions for payment of damages are now located in section 5.5 of Act 54 (52 P. S. § 1406.5e).

   The Citizens Advisory Council (CAC) submitted a copy of its position statement opposing the use of the final-omitted rulemaking process. It believes the final-omitted process eliminates the opportunity for public input on a regulation. It also believes that addressing some changes resulting from Act 54 without addressing other changes will result in increased confusion.

   Citizen organization groups including People United to Save Homes, Mountain Watershed Association, Concerned About Water Loss Due to Mining, and Protect our Water and Environmental Resources also submitted comments opposing the regulation. The Pennsylvania Coal Association submitted a letter urging approval of the regulation.

   Because the sections which will be deleted became obsolete by the repeal of the statutory provisions on which the regulations were based, the Department has not enforced the provisions since the statute went into effect August 1994. However, a decision of the Environmental Hearing Board (EHB) in November, 1996 (People United to Save Homes and Pennsylvania American Water Company v. Commonwealth of Pennsylvania, Department of Environmental Protection and Eighty-Four Mining Company, Permittee) caused confusion over the status or effectiveness of the subsidence damage prevention requirements which were repealed under Act 54.

   Although the provisions of Act 54 which repealed sections 4, 6(a) and 15 of the BMSLCA removed the statutory authority for the regulatory language contained in § 89.143(b)(1)(ii), the EHB reasoned that the provisions are presumed to be valid because the EQB did not amend Chapter 89 to conform with Act 54 in 1995. In essence, the EHB rejected the argument that §  89.143(b) is obsolete.

   We disagree. Act 54 specifically repealed sections 4, 6(a) and 15 of the BMSLCA. Therefore, the regulations must be amended to conform to existing statute.

   We have reviewed this regulation and find it to be in the public interest. Act 54 became effective August 21, 1994. Sections of Chapter 89 which are deleted by this rulemaking became obsolete at that time and their retention would be inconsistent with the repeals intended by the General Assembly in Act 54. Removal of obsolete provisions from Chapter 89 will clarify that the deleted sections are no longer supported by statute.

Therefore, It Is Ordered That:

   1.  Regulation No. 7-321 from the Environmental Quality Board, as submitted to the Commission on March 19, 1997, is approved; and

   2.  The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
____

Commissioners Present:  Robert J. Harbison, III, Vice Chairperson; Alvin C. Bush; Arthur Coccodrilli

Public Meeting held
April 18, 1997

Department of Community and Economic Development--Site Development, Community Facilities, Site Recovery, Statistics and Information, Nursing Home Loan Agency, and Sunny Day; Doc. No. 4-63

Order

   On March 26, 1997, the Independent Regulatory Review Commission (Commission) received this regulation from the Department of Community and Economic Development (Department). This rulemaking would rescind 13 Pa. Code Chapters 9, 11, 13, 41, 53 and 71. The authority for this regulation is The Administrative Code of 1929 and Executive Order 1996-1 Regulatory Review and Promulgation. Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.

   This rulemaking will delete six chapters of Title 13 which are obsolete. The authorizing statutes for the programs in these chapters, with the exception of Chapter 41, have expired or been repealed. The Bureau regulated by Chapter 41 no longer exists in any form within the Department.

   Act 61 of 1968, known as the Site Development Act, authorized the Department to make grants to eligible municipalities, municipal authorities, industrial development agencies, or State agencies for the construction, rehabilitation, alteration, expansion, or improvement of certain site development projects.

   The Site Development Act also authorized the Department to promulgate regulations to carry out the requirements of the Site Development Act. On July 11, 1996, however, the Infrastructure Development Act was enacted which repealed the Site Development Act in its entirety. Since the statutory authority for the grants authorized under the Site Development Act no longer exists, the Department is proposing to rescind Chapter 9.

   The Infrastructure Development Act created the Infrastructure Development Program which authorizes the Department to make grants and loans for specific infrastructure improvements. According to the Department, the Infrastructure Development Program incorporates into one program many Department programs that previously existed separately, including the Site Development Program. The Department expects to promulgate regulations in the future for this new program, but until regulations are promulgated, the Department will use the statute as the basis for implementation of the program.

   The Community Facilities Program was established and funded under the Race Horse Industry Reform Act. The guidelines for the program were established in Chapter 11 of the Department's regulations. The Program provided grants to boroughs, townships, municipal and county authorities for construction, rehabilitation, expansion or improvement of water facilities, sewage disposal facilities and road access. In 1983, the statutory provisions authorizing the Community Facilities Program were repealed. However, the General Assembly continued to fund the Program through an annual line-item appropriation in the Department's budget. According to the Department, it eliminated the Program as part of its effort to streamline and consolidate grant programs. Furthermore, the line-item appropriation was eliminated from the 1996-97 fiscal year budget, and no funds for this program are proposed in the 1997-98 fiscal year budget. Therefore, there is neither a statutory basis nor funding for the program. Consequently, the Department is proposing to repeal Chapter 11 relating to the Community Facilities Program.

   Act 18-A of 1972 provided emergency and disaster relief in connection with the tropical storm and flood damage that occurred in June 1972. Act 18-A provided funds to the Department for emergency flood relief expenditures. The requirements for relief applications were established in Chapter 13 of the Department's regulation. The sole purpose of the program was to provide disaster assistance to industrial areas damaged by the 1972 flood. Applications for relief had to be made by October 1, 1973. Since the program ceased operations more than 20 years ago, the Department is proposing to rescind Chapter 13.

   Act 108 of 1921, known as the Bureau of Statistics and Information Act, established a Bureau of Statistics within the Department whose function was to collect, compile, and publish statistics and data and information relating to labor, coal mining, oil and gas production, manufacturing industries, commercial operations, public service companies, municipalities, maritime interests, and other businesses in the Commonwealth. According to the Department, the Bureau of Statistics was eliminated in 1986, and the functions of the former Bureau of Statistics are not performed by any other bureau within the Department. Therefore, the Department is proposing to rescind Chapter 41 relating to Statistics and Information.

   Act 207 of 1974, known as the Nursing Home Loan Agency Law, created the Nursing Home Loan Agency to provide financial assistance to nursing homes to make safety improvements to bring them into compliance with State and Federal standards. Act 10 of 1997, however, repealed most of Act 207, including the sections which created the Nursing Home Loan Agency and authorized loans to nursing homes. Consequently, the Department is proposing to rescind Chapter 53 relating to this program.

   Act 32 of 1985, known as the Sunny Day Fund Act, established the Sunny Day Fund (Fund). The moneys in the Fund were available to the Governor and the Department for the purpose of attracting industrial, manufacturing or research and development companies to the Commonwealth. The Department published the eligibility requirements for receiving money from the Fund in Chapter 71. Act 67 of 1996, known as the Job Enhancement Act, repealed the Sunny Day Fund Act in its entirety. Therefore, the Department is proposing to rescind Chapter 71.

   Act 108 of 1921, as amended by Act 188 of 1968, established the Bureau of Statistics in the former Department of Commerce and directed the Secretary to collect statistical information on numerous business and industries and publish those statistics annually. In the regulation's Preamble, the Department notes that in 1986, it eliminated the Bureau of Statistics, and no other office within the Department has been performing the tasks assigned under Act 108.

   Although the General Assembly has not repealed Act 108, we believe it is clearly obsolete. Today, many agencies collect the statistical data outlined in Act 108. For example, the Department of Labor and Industry's (L&I) Bureau of Research and Statistics collects data on employment levels, wages, and business and industry types in Pennsylvania. L&I makes this information available to other State agencies, including the Department. The Pennsylvania Public Utility Commission's Bureau of Conservation, Economics and Energy Planning collects and publishes statistical information on the utility industry. Therefore, the data collection requirements under Act 108 are more appropriately being satisfied by agencies with immediate access to the specific information.

   We have reviewed this regulation and concluded that it is in the public interest to rescind regulations which are obsolete and no longer enforceable. However, we encourage the Department to work with the General Assembly to repeal Act 108.

Therefore, It Is Ordered That:

   1.  Regulation No. 4-63 from the Department of Community and Economic Development, as submitted to the Commission on March 26, 1997, is approved; and

   2.  The Commission will transmit a copy of this Order to the Legislative Reference Bureau.

JOHN R. MCGINLEY, Jr.,   
Chairperson

[Pa.B. Doc. No. 97-700. Filed for public inspection May 2, 1997, 9:00 a.m.]



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