INDEPENDENT REGULATORY REVIEW COMMISSION Notice of Comments Issued [40 Pa.B. 2615]
[Saturday, May 15, 2010]Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b).
The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Reg. No. Agency/Title Close of the Public Comment Period IRRC
Comments Issued57-271 Pennsylvania Public Utility Commission
Utilities; Service Outage Response and Restoration Practices
40 Pa.B. 1203
(March 6, 2010)4/5/10 5/5/10 7-453 Environmental Quality Board
Administration of the Land Recycling Program
40 Pa.B. 1297
(March 6, 2010)4/5/10 5/5/10 7-454 Environmental Quality Board
Administration of the Uniform Environmental Covenants Act
40 Pa.B. 1379
(March 6, 2010)4/5/10 5/5/10 ____ Pennsylvania Public Utility Commission
Regulation #57-271 (IRRC #2822)Utilities; Service Outage Response
and Restoration PracticesMay 5, 2010 We submit for your consideration the following comments on the proposed rulemaking published in the March 6, 2010 Pennsylvania Bulletin. Our comments are based on criteria in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Pennsylvania Public Utility Commission (Commission) to respond to all comments received from us or any other source.
1. Statutory authority.
The Commission has provided its statutory authority for this rulemaking as it relates to the electric and gas utility industries in Section 11 of the Regulatory Analysis Form (RAF). However, it has not provided its statutory authority for this rulemaking as it pertains to two other utility industries that will be affected: the telephone industry and the water/wastewater industry. When the Commission submits the final-form regulation, we ask that it provide an explanation of its statutory authority for the amendments it is proposing under this rulemaking.
2. Need for the regulation.
According to the Commission, this rulemaking establishes a more uniform approach for reporting standards among the gas, water/wastewater and electric industries in the event of utility service outages. It is the result of an investigation and a Commission staff report entitled Electric Distribution Company Service Outage Response and Restoration Practices Report. This investigation and report were prompted by 450,000 electric outages caused by Hurricane Ike in September of 2008.
Some commentators have noted that the regulation will require more detailed reporting of certain events. They are of the opinion that the additional information being reported will not lead to improved outage response and restoration of service.
In addition, commentators representing the gas industry are concerned that the report noted above pertains to outages experienced by the electric utility industry. They believe that applying the findings in a report specific to that industry is inappropriate because infrastructure and operational differences between gas service and electric service require different outage response and restoration practices. Given these views, we ask the Commission to explain the need for these additional reporting requirements, especially for the gas and water/wastewater utility industries.
3. Applicability to telephone industry.—Possible conflict with statutes; Need; Implementation procedures.
According to Section 16 of the RAF, electric utility, gas, and water/wastewater companies will be required to comply with the proposed rulemaking and telephone companies will be encouraged to comply with the proposed rulemaking. As noted by a commentator, proposed changes to Chapter 67, pertaining to service outages, would affect telephone companies. How will the Commission implement the proposed changes to Chapter 67? Will telephone companies be required to comply?
In addition, and as noted above, what is the need for imposing the additional requirements on the telephone industry? What problem is the Commission attempting to address?
Furthermore, commentators assert that Section 3015(f) of Act 183 of 2004 (66 Pa.C.S.A. § 3015(f)) imposes strict statutory limitations on the Commission's authority to require additional reporting requirements. We ask the Commission to further explain why the additional requirements being imposed on the telephone industry do not conflict with the cited statute above, and why the benefits of the additional requirements ''substantially outweigh the attendant expense and administrative time and effort required of the local exchange telecommunications company to provide it.'' (See 66 Pa.C.S.A § 3015(f)(1)(ii)).
Finally, the commentators have suggested that the Commission consider allowing the submittal of reports required by the Federal Communications Commission and the Department of Homeland Security in lieu of these regulatory changes. Has the Commission considered this alternative?
4. Time frames for providing reports to the Commission.—Reasonableness.
Commentators have raised concerns with various sections of the proposed rulemaking that require a utility to provide information or reports to the Commission within certain timeframes. We ask the Commission to consider the concerns of the commentators on each of the sections below and provide an explanation of why the Commission's proposed time frames are appropriate:
• §§ 57.11(d), 59.11(c) and 65.2(c)—a report shall be made by telephone within 24 hours of a reportable accident.
• §§ 57.11(e), 59.11(d) and 65.2(d)—a written report shall be made within 5 days of a reportable accident.
• § 67.1(b)—written notification shall be filed within 5 working days after the total restoration of service.
5. Section 57.11. Accidents.—Need; Reasonableness; Implementation procedures; Clarity.
Subsection (b) Reportable accidents.
Subsection (b)(2) is being amended to state that an injury to a person ''sufficient that the injured person requires professional medical attention or hospitalization'' is a reportable accident. Commentators from the utility industry have expressed concern with this provision and a similar provision found in § 59.11(b)(2), pertaining to reportable accidents and gas service. We note that similar language is also found in § 65.2(b)(2), pertaining to reportable accidents and water service. They believe that this reporting requirement is too broad and would be overly burdensome. For example, would allergic reactions that require professional medical attention have to be reported? If so, what value could be derived from this information? In the Preamble to the final-form regulation, we ask the Commission to explain why the proposed language is needed and why the existing language is not sufficient.
Under Subsection (b)(4), the Commission is adding ''an occurrence of an unusual nature that is suspected or determined to be caused by sabotage, including attempts against cyber security measures . . . '' as a reportable accident. Similar language is found in § 59.11(b)(5) and § 65.2(b)(4). There are several concerns with this provision. First, what is the need for reporting ''suspected'' occurrences of sabotage or attempts against cyber security measures? Second, as suggested by commentators, has the Commission considered allowing existing reporting protocols and requirements already approved by the North American Electric Reliability Corporation and the Federal Energy Regulatory Commission?
''Substantial damage to another utility company's facility or property'' is being added as a reportable accident under Subsection (b)(5). Similar language is found in § 59.11(b)(6) and § 65.2(b)(5). In the Preamble to the proposed regulation, the Commission specifically notes that it is seeking comment on what should be meant by the term ''substantial.'' Commentators have provided feedback on this issue and have suggested the utility that was harmed be the party responsible for reporting the accident because they would have a better understanding of the extent of the damage. We agree that the final-form regulation should include a more precise standard relating to the term ''substantial.'' In addition, we ask why it is appropriate for the utility that causes the damage to report the accident and not the utility whose property was damaged.
Finally, commentators have raised the concern that the information being requested via this subsection is already available to the Commission through other reports that must be filed with the Pennsylvania Department of Labor and Industry under the Underground Utility Line Protection Law. (73 P. S. § 176 et. seq.). If the Commission already has access to this information, what is the need for including this requirement under Subsection (b)(5)?
Subsection (f) Internal investigative reports.
The Commission is proposing to add the following language to this subsection and also to § 59.11(e) and § 65.2(e):
The utility shall submit a copy of its final internal investigation report when it is completed for all reportable accidents under subsection (b)(1), (2) and (4). The final internal investigation report shall be treated in accordance with 66 Pa.C.S. § 1508 (relating to the reports of accidents). If the report is not expected to be completed within 1 year of the date of the occurrence of the reportable accident, the utility shall notify the Commission's Bureau of Fixed Utility Services, which may require quarterly status updates until completion of the report.
Commentators have noted that these reports are often prepared in anticipation of litigation or criminal proceedings. They are concerned that providing the written reports may violate certain attorney-client privileges and the Pennsylvania Rules of Professional Conduct. One commentator noted that the protections afforded under 66 Pa.C.S. § 1508 can only be extended to events and reports when a person was killed or injured. Therefore, the protections of § 1508 would not be applicable to cyber-security attacks. Given these concerns, we recommend that the Commission allow utilities to redact certain information or provide a mechanism that would allow utilities to request an exemption or waiver from this requirement.
6. Section 67.1. General Provisions.—Need; Fiscal impact; Implementation procedures.
Subsection (b) currently requires utilities that experience unscheduled service interruptions to provide written notification to the Commission. The existing regulation requires the notification to include 10 pieces of information. The revised regulation amends this subsection to require six additional pieces of information. Commentators have suggested that the existing reporting requirements are sufficient. What is the need for the additional information and how will it be used by the Commission?
Under Subsection (b)(1), utilities will be required to report the total number of outages that last five minutes or greater during an event. In addition, Subsection (b)(5)(i) will require utilities to list outage cases exceeding six or more hours by municipality or township. Commentators have stated that they are not equipped to capture this type of data. Will the Commission require a utility to provide this data if they do not have the technology to readily produce it? Has the Commission estimated the cost this requirement may impose on these utilities? The Commission should include the cost estimates in the RAF and Preamble that accompany the final-form regulation.
____ Environmental Quality Board
Regulation #7-453 (IRRC #2823)Administration of the Land Recycling Program May 5, 2010 We submit for your consideration the following comments on the proposed rulemaking published in the March 6, 2010 Pennsylvania Bulletin. Our comments are based on criteria in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Environmental Quality Board (EQB) to respond to all comments received from us or any other source.
1. Section 250.11. Periodic review of MSCs.—Implementation procedures.
Under this new section, the EQB is proposing a plan to keep the medium-specific concentrations (MSCs) current by requiring reviews of the MSCs as new scientific information becomes available, but in no case more than 36 months after the effective date of the most recently promulgated MSCs. A commentator is concerned with how the Department of Environmental Protection (Department) will implement this provision and the effects it might have on remediation projects that are either in the planning stages or have already begun. For example, if an MSC value changes during a remediation project, what standard will be required? It would benefit the regulated community to include language in the final-form regulation that spells out how any changes to MSCs will be administered.
2. Sections 250.304. MSCs for groundwater and 250.305. MSCs for soil.—Statutory authority; Legislative intent; Implementation procedures; Clarity.
Under Subsection (c), the EQB is amending a reference to an EPA Office of Water Publication. As required by Section 1.6 of the Pennsylvania Code & Bulletin Style Manual, the year or edition of the document being incorporated by reference should be included in the final-form regulation.
In addition, the EQB is adding similar language under both sections that would require remediators using the statewide health standards (SHSs) of the Land Recycling and Environmental Remediation Standards Act (35 P. S. §§ 6026.101 et. seq.) (Act 2) to address vapor intrusion exposure pathways in one of two ways. Listed below is the language being added as Subsection (h) under both sections:
The methodology used by the Department for calculating the MSCs for groundwater/soil does not address the vapor intrusion exposure pathway. Therefore, to demonstrate attainment under the act for the vapor intrusion exposure pathway the remediator shall address the vapor intrusion exposure pathway in accordance with section 304(f)(4) of the act (35 P. S. § 6026.304(f)(4)) and Subchapter D (relating to site-specific standard), or in accordance with technical guidance published by the Department addressing vapor intrusion into buildings from groundwater and soil under the Statewide health standard.
We have three concerns with the new language. First, a commentator believes that the Department lacks statutory authority under Act 2 ''to require evaluation of the vapor intrusion pathway through the MSC formulas, or otherwise under the SHS.'' It is our understanding that the Department can require this type of evaluation when a remediator is using the site-specific standards under Act 2, but cannot require this type of evaluation when a remediator is using the SHSs of Act 2. We ask the EQB to explain what authority it has to require remediators using SHSs to demonstrate attainment as required by these sections.
Second, the reference to technical guidance published by the Department is vague. We recommend that the final-form regulation include a specific name and/or document number for the technical guidance referenced above and also the year or edition of the document.
Third, a commentator believes that it is inappropriate to incorporate technical guidance by reference because it would give the document the authority of a duly promulgated regulation without the benefit of formal notice and a public comment period. As suggested by the commentator, has the EQB considered including the full language of the guidance document in these regulations?
3. Appendix A, Table 1—Medium-Specific Concentrations (MSCs) for Organic Regulated Substances in Groundwater.—Statutory authority; Legislative intent.
Methyl Tertiary Butyl Ether (MTBE)
In existing regulation, the MSC for MTBE is 20 ug/l for groundwater used for drinking water. That numeric standard is not being amended under this proposed rulemaking. However, the EQB is deleting the designation of (h), lifetime health advisory level, from the table. According to the EQB, MTBE is no longer included in the EPA ''Drinking Water Standards and Health Advisories'' table and there is no published concentration number. Therefore, the designation is being deleted.
In its discussion of the treatment of this MSC in the Preamble to the rulemaking, the EQB included the following statement: ''The Department has decided that the previously considered revisions for MTBE included in the September 1, 2009 draft, which allowed for higher concentrations of MTBE based on health based calculations, would have resulted in unacceptable taste and odor impacts on groundwater used for drinking water.'' Public commentators are concerned with the EQB's decision to retain the existing numeric value for MTBE. As noted in the Preamble, the Department's Cleanup Standards Scientific Advisory Board (CSSAB) also has concerns, ''because they do not reflect specific health-based criteria from the Land Recycling Act.''
Aside from the debate on the underlying science of the MSC for MTBE, we have concerns with the process used by the EQB. First, as noted by a commentator, ''In the absence of an MCL or an HAL, the Department is statutorily required to calculate the MSC using valid scientific methods that are not more stringent than the health-based criteria set forth in Section 303 of the Land Recycling Act.'' We agree with the commentator and note that the deletion of the lifetime health advisory level designation would mandate that MSC for MTBE be calculated using valid scientific methods. 35 P. S. § 6026.303(c).
Second, what is the EQB's statutory authority for basing any MSC on unacceptable taste and odor impacts? How does the EQB's decision to retain the MSC for MTBE at 20 ug/l fit into the General Assembly's declaration of policy found in the Section 102 of the Act:
Cleanups should be based on the actual risk that contamination on the site may pose to the public health and the environment, taking into account its current and future use and the degree to which contamination can spread offsite and expose the public or the environment to risk, not on cleanup policies requiring every site in this Commonwealth to be returned to a pristine condition. (35 P. S. § 6026.102(6))
We believe this declaration of policy clearly establishes the intent of the General Assembly. We urge the EQB to listen to the advice of the CSSAB and align the MSC for MTBE with actual health risks, not taste or odor.
4. Appendix A, Table 2—Medium Specific Concentrations (MSCs) for Inorganic Regulated Substances in Groundwater.—Need.
Sulfate
A commentator has questioned the rationale for adding sulfate to this table. In the Preamble to the final-form rulemaking, the EQB should explain why this substance in being added to Appendix A, Table 2.
5. Miscellaneous clarity.
EQL
The definition of this term found under § 250.1 is being amended to read as follows:
Estimated quantitation limit. The lowest concentration that can be reliably achieved within specified limits of precision and accuracy during routine laboratory operating conditions. The EQL is generally 5 to 10 times the MDL (method detection limit). However, it may be nominally chosen within these guidelines to simplify data reporting. For many analytes the EQL analyte concentration is selected as the lowest non-zero standard in the calibration curve. Sample EQLs are highly matrix dependent. The EQLs in the EPA publication Test Methods for Evaluating Solid Waste, Physical/Chemical Methods [SW-846] are provided for guidance and may not always be achievable.
Regulations have the full force and effect of law and establish a binding norm that is applicable to all that fall under its jurisdiction. Therefore, regulations must be clear and unambiguous. The first sentence of this definition, ''The lowest concentration that can be reliably achieved within specified limits of precision and accuracy during routine laboratory operating conditions.'' accomplishes this goal. However, the remaining sentences lack the clarity needed to establish a binding norm. We recommend that they be deleted from the final-form regulation.
____ Environmental Quality Board
Regulation #7-454 (IRRC #2824)Administration of the Uniform Environmental Covenants Act May 5, 2010 We submit for your consideration the following comments on the proposed rulemaking published in the March 6, 2010 Pennsylvania Bulletin. Our comments are based on criteria in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Environmental Quality Board (EQB) to respond to all comments received from us or any other source.
1. Economic Impact.
In the Preamble, the EQB states it does not anticipate increased costs except for the $350 filing fee. In the Regulatory Analysis Form, the EQB estimates $105,000 of costs imposed on the regulated community due to the filing fee. The EQB states that the use of environmental covenants is established by the Uniform Environmental Covenants Act (UECA), and therefore any costs are imposed by the UECA, not the proposed regulation.
Commentators disagree and ask that the EQB also include the costs of development of environmental covenants, internal review of environmental covenants and the administrative and legal costs to demonstrate an environmental covenant on a property can be removed. Commentators noted the filing of draft environmental covenants and then later filing final versions would also be costly. We ask the Board to quantify these costs, or in the alternative, to explain why these costs should not be included in the economic impact analysis of this regulation.
2. Section 253.1. Definitions.—Clarity.
Department and EQB
The term ''Department'' is used throughout the regulation, including within the definition of ''agency.'' Subsection 253.2(e) uses both the terms Department and agency. Additionally the term ''EQB'' is used in Subsection 253.7(c). For clarity, we recommend defining both of the terms ''Department'' and ''EQB'' in the regulation.
Final Report and Remedial Action Completion Report
Commentators requested an amendment to these definitions to recognize that a combination of cleanup standards may be used under the Land Recycling Act. We recommend adding this clarification or, alternatively, that the EQB provide an explanation of why this amendment is not appropriate.
Regulated substances
This term is used in the definitions of ''engineering controls'' and ''institutional controls.'' For clarity, we recommend adding a definition of ''regulated substances.''
3. Section 253.2. Contents and form of environmental covenant.—Consistency with statute; Need; Reasonableness; Clarity.
Detailed narrative
In addition to the required information an environmental covenant must include that is listed in Subsection (a), Paragraph (b)(6) permits optional information to include:
A detailed narrative description of the contamination and remedy, including the contaminants of concern, the pathways of exposure, limits on exposure and the location and extent of the contamination. (Emphasis added.)
Both the regulatory and statutory provisions list the information to be included in the narrative. However, the regulatory provision differs from the parallel language in 27 P. S. § 6504(b)(6) by adding the word ''detailed'' to the narrative. We have two concerns. First, why is the word ''detailed'' needed in addition to the statutory language? Second, what guidance does the word ''detailed'' provide? The EQB should explain why the regulation varies from the statute, how the requirement for a ''detailed'' narrative differs from the statutory language and how the word ''detailed'' provides better direction than what is found in the statute.
Date of receipt
Paragraph (c)(5) states:
The date the Department receives the necessary copies of the signed final covenant, and the information reasonably required by the Department to make a determination concerning the approval or disapproval of the covenant, shall be designated as the ''date of receipt'' under section 6504(c)(4) of the UECA (relating to contents of environmental covenant).
We note that this provision was added to the statutory provisions found in 27 P. S. § 6504(c).
There are two concerns. First, it is not clear how to determine when the criterion is met regarding ''information reasonably required by the Department to make a determination.'' This criterion is also contained in Paragraph (4). We recommend that within a certain time period after the covenant is filed, the Department send written notice to the remediator indicating the start of the 90-day time period or that additional information is required for the filing to be considered complete.
Second, commentators believe it is unnecessary and premature to require a ''signed final covenant'' at this point in the process. The commentators assert that the expense of providing a final covenant would be wasted if that covenant is required to be changed. They also point out that if the draft covenant is approved, it could be signed afterward but prior to recording the environmental covenant. The EQB should explain why it is reasonable and cost effective to require a ''signed final covenant'' in Paragraph (c)(5).
Appeals
27 P. S. § 6504(c)(5) was omitted from the regulation. It states, ''[T]he Department's decision to approve or not approve an environmental covenant is appealable to the board.'' The regulation should include this provision. In addition, a definition of ''board'' would be needed in section 253.1.
Need for Subsection (d)
Commentators believe Subsection (d) is repetitive of provisions already contained in Subsections (a), (b) and (c). Some do not believe Subsection (d) is needed, while others believe it imposes mandatory requirements not found in the UECA relating to Subsection (b). The EQB should explain why Subsection (d) is needed and reasonable.
Model covenant
Subsection (e) provides that the covenant ''will be in the form of the Model Covenant posted on the Department's web site or any other form acceptable to the agency.'' Commentators believe that, based on their experience, the model will be enforced as the de facto regulation outside the regulatory review process. For example, commentators state that the model covenant contains reporting obligations that they believe have been carried into actual covenants unnecessarily.
While we believe examples can provide needed guidance toward regulatory compliance, we agree that the example must be understood to be an example and should not be raised to the level of enforcement as if it were a regulation. Therefore, we recommend adding clarification to Subsection (e) that states other covenants will be accepted by the Department that meet the requirements of the UECA and that the model covenant is only one example of how to comply.
4. Section 253.3. Notice of environmental covenant.—Reasonableness; Need.
Subsection (c)
This subsection limits the opportunity to file waiver information to ''no later than the date the draft environmental covenant is submitted to the agency.'' Commentators believe this may be too restrictive. They believe after a filing there may be discussions with the agency that results in a change to the notification list. The EQB should explain why the waiver information is needed when the draft environmental covenant is submitted.
5. Section 253.4. Requirements for and waiver of environmental covenants.—Consistency with statute; Need.
Subsection (a)
This subsection is similar to 27 P. S. § 6517(a)(1), but not identical. The regulation uses the phrase '' . . . controls used to demonstrate or maintain attainment of a remediation standard . . . .'' The regulation also states '' . . . shall be implemented through an environmental covenant.'' (Emphases added.) It is not clear why these phrases were substituted for the statutory language. The EQB should explain why these amendments to the statutory language are needed and what purpose they serve.
Subsection (b)
A commentator observes that the requirements in this subsection do not appear in the UECA and suggests deleting it. The commentator explains that an environmental covenant would essentially be redundant of requirements already in other required agreements. The EQB should explain why Subsection (b) is needed.
Subsections (c) and (d)
Commentators believe the Department will not have sufficient information to make an informed decision on waiver requests at the times they are required under subsections (c) and (d). They believe waivers need to be considered later in the process. The EQB should explain why information on waivers is needed as specified in Subsections (c) and (d) and how the Department can properly review the waiver requests at that time.
6. Section 253.5. Submission of environmental covenants and related information.—Consistency with statute; Economic impact; Need; Reasonableness.
Timing of submission
Extensive public comment was submitted relating to Subsections (a), (b) and (d). Commentators stated:
• The time frames established in Section 235.5 are unworkable, impractical and not authorized by the UECA or any other statute.
• The timing of the submittal requirements in these provisions is too early to be productive.
• It is premature and a waste of resources to prepare and negotiate the terms of an environmental covenant before the facts underlying the environmental covenant are determined.
• An environmental covenant should be the last step in the remediation process.
• The time and cost of the work will have to be repeated because the environmental covenant will likely need to be revised based on the remedial outcome.
We are concerned that resources may be wasted and question why draft and final environmental covenants are needed at the points specified in Subsections (a), (b) and (d). The EQB should explain how the process in the regulation represents an effective use of time and resources for all parties involved. We will evaluate this response, as well as the response to public comment on these sections as part of our determination of whether the final regulation is in the public interest.
Names and current addresses
Subsection (c) requires a list of the names and current addresses of persons involved with the environmental covenant. That list must be provided when the unsigned draft of the environmental covenant is submitted. A commentator believes Subsection (c) is burdensome and describes it as a useless recordkeeping exercise because the list could be substantially changed by the time the environmental covenant is finalized. Another commentator suggests that the information required by Subsection (c) should not be required if that information is already contained in the environmental covenant. The EQB should explain why the list required by Subsection (c) is needed in addition to the information in the environmental covenant and also why the list is needed and useful when the unsigned draft is submitted.
7. Section 253.6. Requirements for county recorder of deeds.—Statutory authority.
Recorder of deeds
This section directs the actions of a recorder of deeds. Subsection (a) directs that ''the recorder of deeds shall provide'' a copy of the recorded document. Subsection (b) states the ''county recorder of deeds may not require payment of the Realty Transfer Tax . . . .'' It is not clear in the regulation or Preamble what authority the EQB is using to regulate the actions of recorder of deeds. The EQB should explain its statutory authority to enforce Section 253.6.
8. Section 253.7. Fees.—Clarity; Economic impact.
Application of the fee
A commentator is concerned that the application of the $350 fee is not sufficiently clear given the regulation's requirements for multiple submittals of draft and final environmental covenants. We agree. For example, the regulation does not address amendments the Department may require to an environmental covenant. The regulation should clearly state what filings require payment of a fee.
9. Section 253.8. Subordination.—Consistency with statute; Need; Clarity.
Parallel provisions in 27 P. S. § 6503(d)
A commentator noted that this section includes portions and excludes portions of the parallel provision in 27 P. S. § 6503(d). We agree that, for example, the second sentence of 27 P. S. § 6503(d)(3) is not included in Subsection (c) of the regulation. Also 27 P. S. § 6503(d)(1) is not included in the regulation. We recommend including all of the provisions from 27 P. S. § 6503(d) in the regulation. Alternatively, the EQB should explain why only portions are needed.
10. Section 253.10. Conversion and waiver of conversion.—Consistency with statute; Reasonableness; Clarity.
Activity and use limitations
Subsection (a) closely tracks the language of 27 P. S. § 6517(b)(1), but excludes the statutory phrase ''which establishes activity and use limitations.'' The EQB should explain why this statutory phrase was omitted in the regulation.
ARTHUR COCCODRILLI,
Chairperson[Pa.B. Doc. No. 10-916. Filed for public inspection May 14, 2010, 9:00 a.m.]
