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Environmental Quality Board Discusses How Regulation Are Withdrawn From Process

On Tuesday members of the Environmental Quality Board discussed the need for a procedure for withdrawing regulations from consideration after Board Chair and Department of Environmental Protection Secretary Michael Krancer unilaterally withdrew two regulations from the regulatory process and published a third for an additional round of comments without Board action.
            The Environmental Quality Board approved each of the other items on its agenda for the meeting, including the repeal of the Employer Trip Reduction and Portable Fuel Container Air Quality regulations,  repeal of Air Quality regulations related to St. Joe Resources and the withdrawal of the proposed Drinking Water Program fees regulation.
            The Environmental Quality Board is a 20-member independent board that adopts all of the Department of Environmental Protection's regulations and was created in 1971 with the original Department of Environmental Resources.
            The 20 members of the Board include eleven state agencies: Department of Environmental Protection (Chair), Agriculture, Health, Community and Economic Development, the Public Utility Commission, the Fish and Boat Commission, the Game Commission, Labor and Industry, the Governor's Office of Policy, the Historical and Museum Commission, Transportation; five members of the Citizens Advisory Council and four members of the Senate and House. 
            On the agenda for its March 20 meeting was the withdrawal of the board’s Proposed Safe Drinking Water Fee regulations that the board had approved (with one dissenting vote) as proposed rulemaking on November 16, 2010. 
            The proposed rulemaking included new and revised fees for community water systems, bottled, vended, retail and bulk water systems and public water systems.  The new fees were to be used to help pay for the Department of Environmental Protection’s cost of administering the program.
            On December 17, 2011 board Chair Michael Krancer suspended the rulemaking citing no compelling justification for an increase in fees that would most likely be passed on to the consumer. 
            Some board members questioned the way the proposed rulemaking was suspended given the fact the board did not take a formal action to suspend a rulemaking it had formally proposed and that the action was taken at the discretion of the Chairperson. 
            It was also noted that this withdrawal process had not been used before and would set a bad precedent.
            Secretary Krancer also withdrew a pending Air Quality fee package earlier this year which he told the House Appropriations Committee was not grounded in a business case.  He the package would be revised and re-proposed at a later date.  He also ordered the republication of a noncoal mining related permit fee package for additional public comment.  All these actions were taken without board approval.
            While acknowledging that there was a change in administration after the rulemaking was proposed, and a new governor and DEP secretary may have different priorities and philosophies, some  members felt the matter should have come back to the board for consideration.
            Given that this type of situation is not addressed in the Administrative Code (Act 175 of 1929) which establishes the Environmental Quality Board, a motion was made to have the board work with DEP staff on developing a draft policy and procedure for suspending regulations that the board could consider at its next meeting which is expected to be in April.  The motion was adopted.
            One of the reforms pending before the General Assembly now is Senate Bill 618 (Yudichak-D-Luzerne), Minority Chair of the Senate Environmental Resources and Energy Committee, which would give the Environmental Quality Board access to an independent counsel to provide procedural and other advice to board members rather than depending on DEP attorneys.


3/26/2012

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