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PROPOSED RULEMAKING

ENVIRONMENTAL
QUALITY BOARD

[ 25 PA. CODE CHS. 218 AND 240 ]

Radiological Health and Radon Certification Fees; Pennsylvania Radon Mitigation System Tag and Fee

[46 Pa.B. 3509]
[Saturday, July 2, 2016]

 The Environmental Quality Board (Board) proposes to amend Chapters 218 and 240 (relating to fees; and radon certification) to read as set forth in Annex A. The proposed amendments to Chapter 218 increase the annual fees for radioactive material licenses and increase the hourly rate professional fee associated with certain full cost recovery licenses. The proposed amendments to Chapter 240 increase the application fees for certification of radon services and add a new requirement and fee for a Pennsylvania Radon Mitigation System Tag for new mitigation systems installed.

 This proposed rulemaking was adopted by the Board at its meeting on April 19, 2016.

A. Effective Date

 This proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.

B. Contact Persons

 For further information, contact Joseph Melnic, Chief, Division of Radiation Control, P.O. Box 8469, Rachel Carson State Office Building, Harrisburg, PA 17105-8469, (717) 783-9730; or Keith Salador, Assistant Counsel, Bureau of Regulatory Counsel, P.O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 783-8075. Information regarding submitting comments on this proposed rulemaking appears in Section J of this preamble. Persons with a disability may use the Pennsylvania AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposed rulemaking is available electronically through the Department of Environmental Protection's (Department) web site at www.dep.pa.gov (select ''Public Participation,'' then ''eComment'').

C. Statutory Authority

 The proposed amendments to Chapter 218 are authorized under the sections 301, 302 and 401 of the Radiation Protection Act (35 P.S. §§ 7110.301, 7110.302 and 7110.401) and section 1920-A of The Administrative Code of 1929 (71 P.S. § 510-20).

 The proposed amendments to § 240.303 (relating to reporting of information) are authorized under sections 301, 302 and 401 of the Radiation Protection Act, section 1920-A of The Administrative Code of 1929 and the Radon Certification Act (63 P.S. §§ 2001—2014).

 Proposed § 240.309 (relating to Pennsylvania Radon Mitigation System Tag) and the proposed amendments to § 240.3 (relating to definitions) and Chapter 240, Appendix A (relating to radon certification fee schedule) are authorized under sections 12 and 13 of the Radon Certification Act (63 P.S. §§ 2012 and 2013), section 302 of the Radiation Protection Act and section 1920-A of The Administrative Code of 1929.

D. Background and Purpose

 The Radiation Protection Act (35 P.S. §§ 7110.101—7110.703) requires the Board to review the radiation protection fee structure every 3 years. On August 19, 2014, the Department presented its Three-Year Regulatory Fee and Program Cost Analysis Report (Report) to the Board. The Report indicated that, despite substantial increases in personnel and program costs, the Chapter 218 fees, which support the licensing and inspection of radioactive materials, and the Chapter 240 radon fees have not been revised since 2009. As a result, the Radiation Protection Fund is decreasing annually in operating reserves. Without a fee increase, the Department will be required to curtail spending for needed equipment, infrastructure upgrades, and training and hiring of qualified personnel. This rulemaking addresses these problems by proposing to increase the fees in Chapters 218 and 240 to meet Radiation Protection Act and Radon Certification Act requirements to adequately fund the licensing and inspection of radioactive materials and the certification of individuals who perform radon-related activities.

 In March 2008, then-Governor Rendell signed an agreement with the Chairperson of the United States Nuclear Regulatory Commission (NRC) for the Commonwealth to become an Agreement State. This allows the Commonwealth to oversee and regulate licensure of radioactive materials for entities in this Commonwealth. These duties are funded through the Chapter 218 license fees and include registration and inspection of X-ray facilities, licensing and inspection of accelerators, registration of radiation-producing machine service providers, and licensing and inspection of radioactive material users. As part of the agreement, the Commonwealth committed to implementing a radiation protection program comparable to NRC's program and ensured that Commonwealth regulations would be compatible with NRC regulations.

 The proposed amendments to the Chapter 218 fees for radioactive material licenses are necessary to assure adequate funding is available for the Commonwealth to carry out its duties under the Agreement State program. There are approximately 850 licenses issued for radioactive material users that have associated annual fees. The professional hourly rate fee that supports required full cost recovery for unique services that cannot be standardized is an important component to the Chapter 218 fees. Examples of the professional hourly rate fee include the evaluation, inspection and licensing of high-energy accelerators and decommissioning activities at contaminated sites. If the Commonwealth were forced to cede its authority to regulate radioactive materials back to the NRC, the regulated community would experience higher costs per NRC's fee regulations.

 The Chapter 240 fees collected biennially are used by the Department to ensure that contractors and firms performing radon testing and remedial work are qualified to perform those services. The Chapter 240 fees are also used to perform outreach and to provide public service announcements to encourage homeowners to test for and mitigate radon contamination. Currently, the Chapter 240 fee revenue does not fully cover the Department's Radon Program costs. Without a fee increase, it will be difficult to provide effective quality assurance for the Statewide radon program, data reporting and quality of radon mitigation. There are about 720 certified radon service providers that are subject to the certification fees.

 The proposed amendments to the radiological health regulations in Chapters 215—240 (relating to radiological health) are reviewed by the Department's Radiation Protection Advisory Committee (RPAC). RPAC represents various stakeholders, including radioactive materials licensees and radon service providers, as well as the general public. The Department discussed the need for fee revisions to Chapters 218 and 240 with RPAC on June 12, 2014, and presented the draft proposed regulation to RPAC on October 16, 2014. At the October 16, 2014, meeting, RPAC endorsed moving forward with the proposed rulemaking.

E. Summary of Regulatory Requirements

 The following discussion describes the proposed amendments.

Chapter 218, Appendix A. Fees for radioactive material licenses

 The materials fees were initially based upon the NRC's fee schedule for Fiscal Year 2010 to cover the Department's costs of implementing the new Agreement State program as required under the Radiation Protection Act. The Board now needs to adjust those radioactive materials fees.

 With one exception, the Board is proposing to increase fees for radioactive material licenses by 50% based on the findings of the Report to assure adequate funding is available for the Commonwealth to carry out its duties under the Agreement State program. The exception is for license category 2A(2)(c)—Source Material—metal extraction, which is proposed to be reduced by 50%. There are not currently licensees in this Commonwealth in that Source Material category, and expected regulatory oversight required for this license activity is significantly less than anticipated at the time this fee was established.

 RPAC requested that the Department review and compare the workload associated with the broad scope licensees in the 7B category versus comparable license categories. The Department is conducting this review and the Board is asking for public comment on this license category.

 The professional hourly rate fee, identified by the asterisk in this proposed rulemaking, is proposed for increase from $150 per hour to $225 per hour, which is below the NRC's current Fiscal Year 2015 hourly rate of $268 per hour. This hourly rate is applicable to fee categories 4A (Waste Storage, Processing or Disposal), 5B (Well Logging Field Flood Tracer Studies) and 14 (Decontamination, Decommissioning, Reclamation or Site Restoration).

§ 240.3. Definitions

 The Board is proposing to add definitions for ''active radon mitigation system'' and ''passive radon mitigation system'' to support proposed § 240.309.

§ 240.303. Reporting of information

 The Board is proposing to add the serial number of the Pennsylvania Radon Mitigation System Tag affixed to each system to the reporting requirements in this section.

§ 240.309. Pennsylvania Radon Mitigation System Tag

 The Board is proposing a new Pennsylvania Radon Mitigation System Tag and associated fee based on the findings of the Report to ensure that Chapter 240 fee revenue covers the Department's Radon Program costs. Under the proposed rulemaking, a Pennsylvania Radon Mitigation System Tag will be required for each activation of an active or passive radon mitigation system in this Commonwealth. This proposed section details the operational requirements of implementing the new tag and associated fee.

Chapter 240, Appendix A. Radon certification fee schedule

 The Board is proposing to increase radon certification fees based on the findings of the Report to assure that Chapter 240 fee revenue covers the Department's Radon Program costs. The proposed rulemaking requires a $50 fee for each Pennsylvania Radon Mitigation System Tag, and it requires that tags are purchased in multiples of five or more per transaction. Also included is a fee waiver provision for local government employees or school employees performing unit installations in a school or local government building if the installation is pursuant to his official duties and the employee is not compensated for this service except through the employee's salary.

F. Benefits, Costs and Compliance

Benefits

 The proposed Chapter 218 fees for radioactive material licenses are necessary to ensure that adequate funding is available for the Commonwealth to carry out its duties under the Agreement State program and the Radiation Protection Act. If the Commonwealth were forced to cede its authority to regulate radioactive materials back to the NRC, the regulated community would be subject to higher NRC fees. Radioactive material controls under the Agreement State program guard against the potential for unnecessary public radiation exposure from the use of radioactive material. With regard to Chapter 240, the Radon Program ensures that the public receives services from qualified individuals when dealing with radon, the largest controllable source of unnecessary radiation exposure in this Commonwealth. The proposed Chapter 240 fee increases further that responsibility and will allow the Department to maintain a comprehensive database of radon levels in this Commonwealth. Likewise, the proposed new Pennsylvania Radon Mitigation System Tag and associated fee helps assure the quality of radon services.

Compliance costs

 This proposed rulemaking calls for increases in fees of approximately 50% for existing licensees and certified radon service providers, with the exception of license category 2A(2)(c)—Source Material—metal extraction, which is proposed to be reduced by 50%. The proposed increases are in line with inflation and are not unexpected. Other than the increase in fees, there are not additional costs associated with the radioactive materials license categories under Chapter 218 for maintaining compliance with this proposed rulemaking. Also, there are provisions for reduced materials fees for small businesses.

 With respect to Chapter 240, there would be an additional charge of $50 for each radon mitigation performed as a result of the proposed requirement for a Pennsylvania Radon Mitigation System Tag. There are roughly 8,000 to 10,000 new radon mitigation system activations in this Commonwealth each year and approximately 132 mitigators who would be affected by the proposed $50 fee. A typical mitigation system costs between $500 and $2,000.

Compliance assistance plan

 The Department will notify the regulated community to expect higher fees by informing RPAC, issuing an Information Notice to relevant licensees and publication in the Pennsylvania Bulletin.

Paperwork requirements

 The proposed rulemaking does not require additional recordkeeping or reporting requirements as a result of the fee increases in Chapters 218 and 240. The proposed amendments to Chapter 240 would require the individual certified to mitigate radon to report to the Department the serial number of the proposed Pennsylvania Radon Mitigation System Tag affixed to a newly activated mitigation system. This would occur simultaneously with current reporting requirements under § 240.303.

G. Pollution Prevention

 The Pollution Prevention Act of 1990 (42 U.S.C.A. §§ 13101—13109) established a National policy that promotes pollution prevention as the preferred means for achieving state environmental protection goals. The Department encourages pollution prevention, which is the reduction or elimination of pollution at its source, through the substitution of environmentally friendly materials, more efficient use of raw materials and the incorporation of energy efficiency strategies. Pollution prevention practices can provide greater environmental protection with greater efficiency because they can result in significant cost savings to facilities that permanently achieve or move beyond compliance.

 The proposed rulemaking is designed to support the safe and effective use of licensed radioactive materials and promote proper radon testing and mitigation procedures to protect the health and safety of residents in this Commonwealth. Failure to increase fees may have a direct effect on the Department's ability to implement radiological pollution prevention.

H. Sunset Review

 These 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.

I. Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on June 16, 2016, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Environmental Resources and Energy Committees. A copy of this material is available to the public upon request.

 Under section 5(g) of the Regulatory Review Act, IRRC may convey comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria in section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b) which have not been met. The Regulatory Review Act specifies detailed procedures for review prior to final publication of the rulemaking by the Department, the General Assembly and the Governor.

J. Public Comments

 Interested persons are invited to submit written comments, suggestions, support or objections regarding the proposed rulemaking to the Board. Comments, suggestions, support or objections must be received by the Board by August 30, 2016. In addition to the submission of comments, interested persons may also submit a summary of their comments to the Board. The summary may not exceed one page in length and must also be received by the Board by August 30, 2016. The one-page summary will be distributed to the Board and available publicly prior to the meeting when the final-form rulemaking will be considered.

 Comments including the submission of a one-page summary of comments may be submitted to the Board online, by e-mail, by mail or express mail as follows.

 Comments may be submitted to the Board by accessing eComment at http://www.ahs.dep.pa.gov/eComment.

 Comments may be submitted to the Board by e-mail at RegComments@pa.gov. A subject heading of the proposed rulemaking and a return name and address must be included in each transmission.

 If an acknowledgement of comments submitted online or by e-mail is not received by the sender within 2 working days, the comments should be retransmitted to the Board to ensure receipt. Comments submitted by facsimile will not be accepted.

 Written comments should be mailed to the Environmental Quality Board, P.O. Box 8477, Harrisburg, PA 17105-8477. Express mail should be sent to the Environmental Quality Board, Rachel Carson State Office Building, 16th Floor, 400 Market Street, Harrisburg, PA 17101-2301.

PATRICK McDONNELL, 
Acting Chairperson

Fiscal Note: 7-498. No fiscal impact; (8) recommends adoption.


Annex A

TITLE 25. ENVIRONMENTAL PROTECTION

PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION

Subpart D. ENVIRONMENTAL HEALTH AND SAFETY

ARTICLE V. RADIOLOGICAL HEALTH

CHAPTER 218. FEES

APPENDIX A

Fees for Radioactive Material Licenses

Fee
Category5,6
Description Annual Fee
($)1,2,3,4,7
1C Special Nuclear Material Sealed Source Gauges (X-Ray Fluorescence) [2,100] 3,150
1D Special Nuclear Material—Other [5,800] 8,700
2A(2)(c) Source Material—metal extraction [90,200] 45,100
2A5 Removal of Radioactive Contaminants from Drinking Water [11,200] 16,800
2B Source Material as Shielding [750] 1,125
2C Source Material—Other (not 11e2) [13,400] 20,100
3A Manufacturing & Distribution Commercial Broad Scope—10 CFR 30, 33 [29,100] 43,650
3B Manufacturing, Refurbishing & Distribution Commercial Specific License—
10 CFR 30
[8,300] 12,450
3C Manufacturing & Distribution Pharmaceuticals—10 CFR 32.72—32.74 [11,900] 17,850
3D Pharmaceuticals—Distribution Only—10 CFR 32.7x [6,800] 10,200
3E Irradiator—Shielded Source [4,200] 6,300
3F Irradiator—Unshielded < 10kCi [7,800] 11,700
3G Irradiator—Unshielded >= 10kCi [31,200] 46,800
3I Distribution As Exempt—No Review of Device [10,700] 16,050
3J Distribution—SSD Devices to Part 31 GLs [2,500] 3,750
3K Distribution—No Review-Exempt Sealed Source [1,900] 2,850
3L Research & Development Broad Scope [15,100] 22,650
3M Research & Development [5,600] 8,400
3N Services other than Leak Testing, Waste Disposal or Calibration [8,500] 12,750
3O Radiography [14,100] 21,150
3P Other Byproduct Material [2,700] 4,050
3Q Generally licensed devices under § 217.143 (relating to certain measuring, gauging or controlling devices) [320] 480
3R1 Greater than the General License Limits in 10 CFR 31.12(a)(3), (4) or (5)
but not more than ten times those Limits
[2,100] 3,150
3R2 Greater than ten times the General License Limits in 10 CFR 31.12(a)(3),
(4) or (5)
[2,700] 4,050
3S Manufacturing & Distribution Pharmaceuticals—Accelerator Produced Only [11,800] 17,700
4A Waste Storage, Processing or Disposal Full Cost *
4B Waste Packaging or Repackaging [12,000] 18,000
4C Waste Receipt of Prepackaged for Disposal [9,200] 13,800
5A Well Logging & Non Field Flood Tracers [4,400] 6,600
5B Well Logging Field Flood Tracer Studies Full Cost *
6A Nuclear Laundry [28,800] 43,200
7A Human Use—Teletherapy [13,700] 20,550
7B Human Use—Broad Scope (except Teletherapy) [29,000] 36,250
7C Human Use—Specific License (except Teletherapy) [4,900] 7,350
8A Specifically licensed sources used in static eliminators, nonexempt smoke detectors, fixed gauges, dew pointers, calibration sources, civil defense uses
or in temporary (2 years or less) storage
[2,100] 3,150
14 Decontamination, Decommissioning, Reclamation or Site Restoration Full Cost *
16 Reciprocity (180 days/year) [1,500] 2,250
SB15 Small Business— Category 1 [2,300] 3,450
SB26 Small Business— Category 2 [500] 750

*  *  *  *  *

 * Full cost recovery consists of a professional fee, to cover the activities and support of Department personnel, and any other additional incidental charges incurred, such as related contracted services or laboratory costs. The professional fee component (Hourly Rate) is [$150] $225 per hour. Other costs are recovered at 100% of actual cost. Invoices shall be issued by the Department at regular intervals but at least quarterly when net costs are incurred.

CHAPTER 240. RADON CERTIFICATION

Subchapter A. GENERAL PROVISIONS

§ 240.3. Definitions.

 The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

Act—The Radon Certification Act (63 P.S. §§ 2001—2014).

Active radon mitigation system—A radon mitigation system with an electric vent fan.

Acts—The Radon Certification Act and the Radiation Protection Act (35 P.S. §§ 7110.101—7110.703).

Firm—A person, other than an individual.

Laboratory analysis—The act of determining radon concentrations in air, water, soil or passive radon testing devices.

Mitigate—To repair or alter a building or building design for the purpose in whole or in part of reducing the concentration of radon in the indoor atmosphere.

Passive radon mitigation system—A radon mitigation system without an electric vent fan.

Person—An individual, corporation, partnership, association, trust, estate, public or private institution, group, agency or political subdivision of this Commonwealth, another state or political subdivision or agency thereof, and a legal successor, representative, agency or agency of the entities listed in this definition.

*  *  *  *  *

Subchapter D. OPERATION REQUIREMENTS

§ 240.303. Reporting of information.

 (a) Within 45 days after testing, mitigation or other radon-related service is provided, the person providing the service shall submit to the Department in a format approved by the Department the results of testing, including screening measurements, follow-up measurements, premitigation measurements, postmitigation measurements and the method used to mitigate against radon contamination. If no testing, mitigation or radon-related service has been provided during this 45-day period, that person shall inform the Department of same in writing. Anyone required to provide this 45-day reporting who does not report within 90 days of the completion of the activity will be subject to the Late 45-Day Reporting Fee as set forth in Appendix A (relating to radon certification fee schedule). At a minimum, these results will be retained for 2 years. The information must include:

*  *  *  *  *

 (6) The type and price of mitigation system installed.

(7) The serial number of the Pennsylvania Radon Mitigation System Tag installed on the system.

 (b) Within 45 days after testing, mitigation or other radon-related service is provided, the person providing radon-related services shall report in writing to the owner or occupier of the building the results in picocuries per liter and when appropriate in working levels of radon measurements taken in the building. If a person provides the service through a certified intermediary, it is the responsibility of the intermediary to report the results.

*  *  *  *  *

 (Editor's Note: The following section is new and printed in regular type to enhance readability.)

§ 240.309. Pennsylvania Radon Mitigation System Tag.

 (a) Upon activation of a new active radon mitigation system in this Commonwealth or upon activation of a passive radon mitigation system in this Commonwealth, the person conducting radon mitigation shall place a Pennsylvania Radon Mitigation System Tag on the vent pipe next to the manometer. If there is not a visible vent pipe, the person conducting radon mitigation shall place the tag on the electric utility panel. The person conducting radon mitigation shall record the following information on the Pennsylvania Radon Mitigation System Tag:

 (1) The name, phone number and certification number of the individual who is certified to mitigate. If the radon mitigation is conducted by a firm, the name, phone number, the certification number of the individual who is certified to mitigate radon and the responsible charge of the firm's mitigation activities shall be recorded.

 (2) The date of the radon mitigation system activation.

 (b) Upon postmitigation testing of an active radon mitigation system, the person conducting the postmitigation radon testing shall record the end date of the postmitigation test on the Pennsylvania Radon Mitigation System Tag.

 (c) A Pennsylvania Radon Mitigation System Tag shall be purchased from the Department as set forth in Appendix A (relating to radon certification fee schedule).

 (1) Only an individual who is certified to mitigate radon may purchase a Pennsylvania Radon Mitigation System Tag from the Department.

 (2) A Pennsylvania Radon Mitigation System Tag may only be transferred with prior written approval from the Department.

 (d) The Department will assign each Pennsylvania Radon Mitigation System Tag a unique serial number.

APPENDIX A

Radon Certification Fee Schedule

Testing Individual [$350] $525 every 2 years
Testing Employee [$100] $150 every 2 years
Testing Firm [$700] $1,050 every 2 years
Mitigation Individual [$300] $450 every 2 years
Mitigation Firm [$700] $1,050 every 2 years
Laboratory Individual [$400] $600 every 2 years
Laboratory Firm [$750] $1,125 every 2 years
Primary Testing Device Listing [$100] $150 every 2 years (1)
Course Provider [$375] $565 every 2 years (2)
Late Application Renewal [$100] $150
Late 45-Day Reporting [$100] $150 (3)
Pennsylvania Radon Mitigation System Tag $50 per tag (4)

 The Department will review the adequacy of the fees established in this schedule at least once every 3 years and provide a written report to the EQB. The report must identify any disparity between the amount of program income generated by the fees and the costs to administer these programs, and must contain recommendations to increase fees to eliminate the disparity, including recommendations for regulatory amendments to increase program fees.

 (1) Primary radon testers shall submit the Primary Testing Device Fee as specified in the Radon Certification Fee Schedule for each device they read or analyze, or both.

 (2) A person approved by the Department to provide initial or continuing, or both, education courses shall submit the Course Provider Fee as specified in this appendix.

 (3) Anyone not submitting the required 45-day testing or mitigation, or both, reporting within 90 days of the completion of the testing or mitigation, or both, activity (or if no activities have been performed during this period of informing the Department of same in writing) will be subject to the Late 45-Day Reporting Fee as specified in this appendix.

(4) Pennsylvania Radon Mitigation System Tags shall be purchased in amounts of five or more per transaction. The Department will waive the fee for a local government employee or school employee who installs an active radon mitigation system in a school or local government building or activates a passive radon mitigation system in a school or local government building if the employee installs or activates the system pursuant to his official duties and the employee is not compensated for this service except through the employee's salary.

[Pa.B. Doc. No. 16-1129. Filed for public inspection July 1, 2016, 9:00 a.m.]



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