8/8/2019 Document 18005

1/8

R1LLJ, CHAIRMAND. BEDW1CK, VICE CHAIRMANDAVID F1NEMAN, ESQ.B. LUTKEW1TTE IIIF. MIZNER, ESQ.M KAUFMAN, EXECUTIVE DIRECTORA. LEWIS JOHNSON, CHIEF COUNSEL

PHONE: (717)783-FAX: (717)783-irrc@irrc.state.http://www.irrc.state.

I N D E P E N D E N T R E G U L A T O R Y R E V I E W C O M M I S S IO N333 MARKET STREET, 14TH FLOOR, HARRISBURG, PA 17101

May 5, 2010

Honorable John Hanger, ChairmanEnvironmental Quality BoardRachel Carson State Office Building400 Market Street, 16th FloorHarrisburg, PA 17101R e: Regulation #7-454 (IRRC #2824)Environmental Quality BoardAdministration of the Uniform Environmental Covenants ActDear Chairman Hanger:Enclosed are the Commission's comments for consideration when you prepare the final versionof this regulation. These comm ents are not a formal approval ordisapproval of the regulation.Ho we ver, they specify the regulatory review criteria that have not been m et.The comments will be available onour website at www.irrc.state.pa.us. If you would like todiscuss them, please contact me.

Kim KaufmanExecutive DirectorEnclosurecc: Honorable Mary Jo White, Majority Chairman, Senate Environmental Resources and EnergyCommitteeHonorable Raphael J. Musto, M inority Chairman, Senate Environmental Resources andEnergy CommitteeHonorable Camille George, Majority Chairman, House Environmental Resources and EnergyCommitteeHonorable Scott E. Hutchinson, Minority Chairman, House Environmental Resources andEnergy CommitteeRobe rt A. Mulle, Esq., Office of Attorney G eneralAndrew Clark, Esq., Office of General Counsel

8/8/2019 Document 18005

2/8

Comments of the Independent Regulatory Review Commission

IRRCe g u l a t o r y R e v i e w C o m m i s s i o n

Environmental Quality Board Regulation #7-454 (IRRC #2824)Administration of the Uniform Environmental Covenants Act

May 5, 2010We submit for your consideration the following co mmen t s on the proposedrulemaking published in the March 6, 2010 Pennsylvania Bulletin. Ourco mmen t s are based on criteria in Section 5.2 of the Regulatory Review Act(71 P.S. 74 5.5 b). Section 5.1(a) of the Regulatory Review Act (71 P.S. 745.5a(a)) directs the Environmental Quality Board (EQB) to respond to allcomments received from us or any other source.1 . E c o n o m i c I m p a c t .In the Preamble, the EQB states itdoes not anticipate increased costs exceptfor the $350 filing fee. In the Regulatory Analysis Form, the EQB estimates$105 ,000 of costs im posed on the regulated co m mu nity du e to the filing fee.The EQB states that the use of environmental covenants isestablished by theUniform Environmental Covenants Act (UECA), and therefore any costs areimposed by the UECA, not the prop osed regulation.Commentators disagree and ask that the EQB also include the costs ofdevelopment of environmental covenants, internal review of environmentalcovenants and the administrative and legal costs to demonstrate anenvironmental covenant on a property can be removed. Com m entators notedthe filing of draft environmental covenants and then later filing final versionswould also be costly. We as k the Board to quantify these costs, or in thealternative, to explain why these costs should no t be included in the economicimpact analysis of this regulation.2 . S e c t i o n 2 5 3 . 1 . Def in i t ions . - Clar i ty .Department an d EQBThe term "Department" is used throughout the regulation, including within thedefinition of "agency." Su bsec tion 253.2(e) u se s both the term s D epa rtm entan d agency. Additionally the term "EQB" is us ed inSubsection 253.7(c). Forclarity, we recom m end defining both of the te rm s "Departm ent" and "EQB" inthe regulation.

8/8/2019 Document 18005

3/8

Final Report an d Remedial Action Com pletion ReportCommentators requested an amendment to these definitions to recognize that acombination of cleanup standards may be used under the Land Recycling Act.We recommend adding this clarification or, alternatively, that the EQB providean explanation of why this amendment is not appropriate.Regulated substancesThis term is used in the definitions of "engineering controls" and "institutionalcontro ls." For clarity, we recom m end add ing a definition of "regulatedsubs tances . "3 . S ec t io n 2 5 3 . 2 . C o n te n t s an d fo rm o f en v i ro n m en ta l co v en a n t . -C o n s i s t en cy wi th s t a tu t e ; Need ; R easo n ab len es s ; C la r i t y .Detailed narrativeIn addition to the required information an environmental covenant mustinclude that is listed in Subsection (a), Paragraph (b)(6) permits optionalinformation to include:

A de tai led narrative description of the contam ination a nd remedy,including the contaminants of concern, the pathways of exposure,limits on exposure and the location and extent of thecontam ination. (Em phasis added.)Both the regulatory an d s tatuto ry provisions list the information to be includedin the na rrativ e. However, the regulatory provision differs from th e parallellanguage in 27 P.S. 6504(b)(6) by adding the word "detailed" to the narrative.We have two co nce rns . First, why is the word "detailed" neede d in addition tothe statuto ry language? Second, w hat guidance does the word "detailed"provide? The EQB should explain why the regulation varies from the s tatu te,how the requirement for a "detailed" narrative differs from the statutorylanguage and how the word "detailed" provides better direction than what isfound in the statute.Date of receiptParagraph (c)(5) states:

The date the Department receives the necessary copies of thesigned final covenant, and the information reasonably required bythe Department to make a determination concerning the approvalor disapproval of the covenant, shall be designated as the "date ofreceipt" under section 6504(c)(4) of the UECA (relating to contentsof environme ntal co venant).

8/8/2019 Document 18005

4/8

We note th at th is provision was adde d to the sta tutory provisions found in27 P.S. 6504(c).There are two conce rns. First , i t is not clear how to determine when thecriterion is met regarding "information reasonably required by the Departmentto m ake a determ ination." This criterion is also contained in Para grap h (4).We recommend that within a certain time period after the covenant is filed, theDepartment send written notice to the remediator indicating the start of the 90-day time period or tha t ad ditional inform ation is required for the filing to beconsidered complete.Second, commentators believe it is unnecessary and premature to require a"signed final covenant" at this point in the proce ss. The comm entators ass erttha t th e expe nse of providing a final covenan t would be wa sted if tha t covenantis requ ired to be cha nge d. They also point out th at if the draft coven ant isapproved, it could be signed afterward but prior to recording the environmentalcove nant. The EQB should explain why it is reas on able an d cost effective torequire a "signed final covenant" in Paragraph (c)(5).Appeals27 P.S . 6504(c)(5) wa s omitted from th e regu lation. It stat es , "[T]heDepartment 's decision to approve or not approve an environmental covenant isappealable to the board." The regulation sh ould include this provision. Inadditio n, a definition of "board" would be need ed in section 253 .1 .Need for S ubsection (d)Commentators believe Subsection (d) is repetitive of provisions alreadyco nta ine d in Su bs ec tio ns (a), (b) an d (c). Some do no t believe Sub sec tion (d) isneeded, while others believe it imposes mandatory requirements not found inthe UECA relating to Subsection (b). The EQB should explain why Subsection(d) is needed an d reason able.Model covenantSub sectio n (e) provides t ha t th e cov ena nt "will be in the form of the ModelCovenant posted on the Department 's web site or any other form acceptable tothe agency." Co m m entators believe tha t, based on their experience, the m odelwill be enforced as the defacto regulation outside the regulatory review process.For example, commentators state that the model covenant contains reportingobligations tha t they believe have been carried into actu al coven antsunnecessar i ly .While we believe examples can provide needed guidance toward regulatorycompliance, we agree that the example must be understood to be an exampleand 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

8/8/2019 Document 18005

5/8

other covenants will be accepted by the Department that meet therequ irem ents of the UECA and tha t the m odel covenan t is only one example ofhow to comply.4 . S e c t i o n 2 5 3 . 3 . No t ice o f en v i ro n m en ta l co v e n an t . - R easo n a b len es s ;Subsection (c)This subsection limits the opportunity to file waiver information to "no laterthan the date the draft environmental covenant is submitted to the agency."Co m m enta tors believe this m ay be too restrictive. They believe after a filingthere may be discussions with the agency that results in a change to thenotification list. The EQB sho uld explain why the waiver information is neededwhen the draft environmental covenant is submitted.5 . S ec t io n 2 5 3 . 4 . R eq u i r emen t s fo r an d wa iv e r o f en v i ro n men ta l

co v en an t s . - C o n s i s t en cy wi th s t a tu t e ; Need .Subsection (a)This subs ectio n is similar to 27 P.S. 651 7(a)(l), bu t not identical. Theregulat ion uses the phrase " . . .controls used to demonstra te or maintainatta inm en t of a remediation s tand ard. . . ." The regulation also stat es " .. .shall beim pl em en ted th ro ug h an environmental covenant ." (Emphases added.) I t isnot clear why these ph ras es were sub stitute d for the statu tory language. TheEQB should explain why these am end m ents to the s ta tutory language areneeded and what purpose they serve.Subsection (b)A comm entator observes that the requirem ents in th is subsect ion do notapp ear in the UECA and sugg ests deleting it. The com m entator exp lains tha tan environmental covenant would essentially be redundant of requirementsalready in other required agreem ents. The EQB should explain why Su bsection(b) is needed.Subsections (c) and (d)Commentators believe the Department will not have sufficient information tomake an informed decision on waiver requests at the times they are requiredunder subsections (c) and (d). They believe waivers need to be considered laterin the proc ess. The EQB sho uld explain why information on waivers is neededas specified in Subsections (c) and (d) and how the Department can properlyreview the waiver requests at that t ime.

8/8/2019 Document 18005

6/8

6. Section 253.5. Submission of environmental covenants and relatedinformation. - Consistency with statute; Economic impact; Need;Reasonableness.Timing of submissionExtensive public comment was submitted relating to Subsections (a), (b) and(d). Commentators s ta ted:

The timeframes establishe d in Section 235.5 are unworkable, impracticaland not authorized by the UECA or any other s ta tute . The timing of the submit ta l requirements in these provisions is too earlyto be productive. It is p rema tu re and a waste of resources toprepare andnegotiate thet e rms of an environmental covenant before thefacts underlying the

environmental covenant are determined. An environm ental covena nt should be the last step in the remediationprocess . The time and cost of the work will have to be repeated because theenvironmental covenant will likely need to be revised based on theremedial outcome.

We areconcerned tha t resources m ay be wasted andquestion why draft andfinal environmental covenants arcneeded at the points specified inSubsections (a), (b) and (d). The EQB should explain how the process in theregulat ion represents an effective use of t ime and resources for all partiesinvolved. We will evalua te this resp on se, as well as the response to publicco mmen t on these sections as pa rt of our determ ination of wh ether the finalregulation is in thepublic interest.Names and current addressesSubsection (c) requires a list of the names and cur ren t addresses of personsinvolved with theenvironm ental covenant. That l ist m us t beprovided whenthe unsigned draft of the environmental covenant is submit ted. Acommentator believes Subsection (c) is b u rd en so me anddescribes it as auseless recordkeeping exercise because the list could be substantially changedby the t ime theenvironmental covenant is finalized. Another commentatorsuggests that the information required bySubsection (c) should not be requiredif that information is already contained in the environmental covenant. TheEQB should explain why the list required bySubsection (c) is needed inaddition to the information in the environmental covenant and also why the listis needed anduseful when the unsigned draft is submit ted.

8/8/2019 Document 18005

7/8

7. Section 253.6. Requirements for county recorder of deeds. - Statutoryauthority.Recorder of deedsThis section direc ts the actions of a recorder of deeds . Subsection (a) directsthat "the recorder of deeds shall provide" a copy of the recorded docu m ent.Subsec tion (b) states the "county recorder of deed s may n ot require paym ent ofthe Realty Transfer Tax... ." It is not clear in the regulation orPreamble whatauthority the EQB isus ing to regulate the actions of recorder of deeds. TheEQB should explain its s ta tutory authori ty toenforce Section 253.6.8 . S ec t io n 2 5 3 . 7 . F ee s . - C la r i ty ; E co n o mic imp ac t .Application of the feeA comm entato r is concerned tha t the application of the $35 0 fee is notsufficiently clear given the regulation's requirements for multiple submittals ofdraft and final environm ental covena nts. We agree. For example, theregulat ion does not address amendments the Department may require to anenvironm ental covenan t. The regulation s hould clearly state what filingsrequire payment of a fee.9 . S ec t io n 2 5 3 . 8 . S u b o rd in a t io n . - C o n s i s t en cy wi th s t a tu t e ; Need ;Clar i ty .Parallel provisions in 27P. S. 6503(d)A com m entator noted th at this section includes portions and excludes portionsof the parallel provision in 27P.S. 6503(d). We agree that, for example, thesecond sentence of 27 P.S. 6503(d)(3) isnot included inSubsection (c) of theregulation. Also 27P.S. 650 3(d)(l) isnot included in the regulation. Werecommend including all of the provisions from 27P.S. 6503(d) in theregulation . Alternatively, the EQB sho uld explain why only po rtion s areneeded.10 . S ec t io n 2 5 3 . 1 0 . C o n v e r s io n an d wa iv e r of c o n v e r s i o n . - C o n s i s t e n c ywi th s t a tu t e ; R easo n ab len es s ; C la r i t y .Activity and use limitationsSubsection (a) closely tracks the language of 27 P.S. 6517(b)(l) , but excludesthe statu tory p hra se "which establish es activity and u se limitations." The EQBshould explain why this statutory phrase was omitted in the regulation.

8/8/2019 Document 18005

8/8

M A Y - 0 5 - 2 0 1 0 W E D 0 8 : 3 1 A M F A X N O . P, 01

Facsimile Cover SheetPhone: (717)783-5417Fax#: (717)783-2664E-mail: iirc@irrc.state.pa.usWebsite: www.irrc.state.pa.us

INDEPENDENT REGULATORY REVIEW COMMISSION333 MARKET STREET, 14TH FLOOR, HAR RISBUR G, PA 17101

T o : Debra L. FailorAgency : Environmental Quality BoardPhone: 7-2814Fax: 705-4980Date; May 5,2010Pages: 8Com m en ts: W e are submitting the Independent Regulatory Review Commission'scomments on the Environmental Quality B oard's regulation #7-454 (IRRC #2824),Upon receipt, please sign below and return to me immediately at our fax number783-2664. We have sent the original through interdepartmental mail. You shouldexpect delivery in a few days. Thank y o u .

Accepted by:

S t l - d Z O O /LO O