NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[32 Pa.B. 3320] Section 5(d) of the Regulatory Review Act (71 P. S. § 745.5(d)) provides that the designated standing Committees may issue comments within 20 days of the close of the public comment period, and the Independent Regulatory Review Commission (Commission) may issue comments within 10 days of the close of the Committee comment period. The Commission comments are based upon the criteria contained in section 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)).
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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
______
IRRC Close of the Public Comments Reg. No. Agency/Title Comment Period Issued #106-7 Environmental Hearing Board 5/20/02 6/20/02 Practice and Procedure (32 Pa.B. 1980 (April 20, 2002)) #2-116 Department of Agriculture 5/20/02 6/20/02 Application of Soil and Groundwater Contaminated with Agricultural Chemicals to Agricultural Lands (32 Pa.B. 1965 (April 20, 2002)) #7B-3 Department of Conservation and 5/22/02 6/21/02 Natural Resources State Parks; General Provisions (32 Pa.B. 1611 (March 23, 2002))
Environmental Hearing Board Regulation No. 106-7
Practice and Procedure
June 20, 2002 We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Environmental Hearing Board (Board) must respond to these comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. General.--Clarity.
Sections 1021.71--1021.73 (relating to complaints filed by the Department; complaints filed by other persons; and transferred matters) include the phrase ''Service of the complaint or petition shall be by personal service or by any form of mail requiring a receipt . . . . '' The Board should clarify the phrase ''any form of mail,'' what qualifies as ''receipt'' and what types of delivery services, aside from the United States Postal Service, would be acceptable for delivery of service.
2. Section 1021.31. Signing.--Clarity.
Subsection (c)
This subsection states, ''The Board may impose an appropriate sanction for a bad faith violation of subsection (b).'' What sanctions does the Board consider ''appropriate''? For clarity, the Board should include a cross-reference or citation that outlines the Board's sanctions.
3. Section 1021.73. Transferred matters.--Clarity.
Subsection (b)
This subsection provides that a party who initiates a transferred action shall file a complaint ''Within the time period directed to do so by the Board.'' This phrase is vague. What are the minimum and maximum amounts of time the Board will allow a party to file a complaint?
4. Section 1021.94. Dispositive motions.--Clarity.
Service
Subsection (c) includes the requirements for dispositive motions, including signatories, format and service. However, there are no instructions as to how service should be made. For clarity, the Board should include a cross-reference to § 1021.34 (relating to certificate of service). If there are special requirements for service in this section similar to those contained in § 1021.72(b) or § 1021.73(c), the Board should include those requirements.
______
Department of Agriculture Regulation No. 2-116
Application of Soil and Groundwater Contaminated with Agricultural Chemicals to Agricultural Lands
June 20, 2002 We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Department of Agriculture (Department) must respond to these comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Legislative Comment.--Legislative Intent; Reasonableness.
Representatives Raymond Bunt and Peter Daley, Majority and Democratic Chairpersons of the House Agriculture and Rural Affairs Committee respectively, wrote to express concern with this regulation. Representative Bunt states that the regulation, as written, ''unduly complicates . . . a very straightforward and scientifically defensible solution to a potential environmental problem.'' He goes on to state that this complication was not envisioned when the legislation prompting this regulation was passed. Representative Daley asserts, '' . . . this regulation is far in excess of what the legislature intended in drafting the bill.'' He encourages the Department to change the regulation by simplifying the process.
We agree that this regulation, as drafted, establishes an overly complex manner of disposing of soil or groundwater contaminated with agricultural chemicals from the remediation of an agricultural chemical facility. Because of the additional burden this regulation imposes, we believe that this option will not be utilized, thus the beneficial use of the contaminated material will not be achieved. As written, the regulation would not accomplish the previously stated intent of the Legislature. The Department should address these concerns by creating a process that is less burdensome to those who may want to utilize the benefits of the regulation, but would not, due to its complexity.
2. General.--Reasonableness; Clarity.
As currently drafted, we believe that the Department could improve the reasonableness and clarity of this regulation by adding some clarifying language and changing the way it is organized. We offer the following suggestions:
* Commentators have noted that it is unclear which State agency has jurisdiction over decisions relating to the application of soil or groundwater contaminated with agricultural chemicals that are applied to agricultural lands. The final-form regulation should provide the applicant with a clear understanding of how this regulation will interact with the requirements of the regulations of the Department of Environmental Protection (DEP).
* The content of the regulation should be arranged in a streamlined, sequential manner that would mirror the requirements and duties of both the applicant and the Department. For example, a subchapter should be developed that consolidates the entire application process and outlines exactly what an applicant must do to meet all application requirements. We suggest organizing the regulation in the following manner:
* Subchapter A. General provisions.
* Subchapter B. Application requirements for permission to apply soil and groundwater contaminated with agricultural chemicals to agricultural land.
* Subchapter C. Application review procedures.
* Subchapter D. General operating requirements for land application of soil and groundwater contaminated with agricultural chemicals to agricultural land.
* Subchapter E. General requirements and exceptions for use and application of groundwater contaminated with agricultural chemicals as tank mix.
* Subchapter F. Closure.
Advanced Notice of Final Rulemaking
Commentators and our comments suggest major language and organization changes. To allow full consideration of amendments to this regulation, the Department should issue an advanced notice of final rulemaking. This would allow interested parties and the Department the opportunity to resolve as many concerns as possible prior to the submittal of the final-form regulation.
3. Forms prepared by the Department.--Clarity.
Four sections use a phrase similar to ''on forms prepared by the Department.'' The four sections are: §§ 130d.12(b), 130d.21(a), 130d.23(c) and 130d.51(a). However, the Department has not developed these forms. It is our understanding that these forms will dictate how this regulation is implemented. Before the final-form regulation is returned, those forms should be developed and the form names or numbers should be included in the regulation.
4. Labs approved by the Department.--Need; Clarity.
Under §§ 130d.13(d) and 130d.15(4), an applicant is required to use a lab approved by the Department and provide a record of the laboratory quality control procedures. We have three concerns.
First, how would an applicant know if a lab has been approved by the Department?
Second, since applicants must use laboratories approved by the Department, the requirement of submitting quality control procedures is not needed and should be deleted.
Third, Act 25 of 2002, the Environmental Laboratory Accreditation Act, was recently enacted. This law requires DEP to accredit all labs that wish to provide testing services to DEP or those that are regulated by DEP. Has the Department considered allowing testing to be performed by labs that are accredited by DEP?
5. Other approvals by the Department.--Clarity.
Sections 130d.16(c), 130d.62(7), 130d.63(a)(4) and (c), 130d.65(d) and 130d.68(8) refer to approvals of the Department and § 130d.66(a) refers to an authorization by the Department. The procedure for obtaining the approval or authorization of the Department is never specified. Are the approvals or authorizations part of the application process? If they are not, the final-form regulation should specify how an applicant would obtain the necessary approval or authorization and the criteria the Department will use to evaluate whether an approval or authorization is warranted.
Subchapter A. GENERAL PROVISIONS 6. Section 130d.1. Definitions.--Clarity.
Agricultural chemical
This definition cites 3 Pa.C.S. Chapter 67. However, 3 Pa.C.S. Chapter 67 was repealed. It appears that the appropriate citation would be 3 Pa.C.S. Chapter 68.
Agricultural chemical facility
This definition includes an address where one can obtain copies of cited material. This should be deleted from the definition and either moved to the body of the regulation or mentioned in the Preamble. In addition, it is our understanding that the United States Standard Industrial Classification (SIC) system has been replaced by the North American Industry Classification System (NAICS). While the Land Recycling and Environmental Remediation Standards Act specifically references the SIC, we believe it would be useful to the regulated community if the final-form regulation also included the more current NAICS number for affected businesses.
Agricultural land or farmland
The definition includes the term ''Land . . . that is capable of supporting . . . .'' The phrase ''capable of supporting'' is vague and could allow contaminated material to be applied to land not being used for farming. The final-form regulation should provide a more specific definition of where contaminated material can be applied.
Cleanup or remediation
The words ''in order'' should be inserted between ''environment'' and ''to'' to be consistent with the definition in the Act.
General use pesticides
This phrase is defined, but not used in the regulation. Therefore, it should be deleted.
HAL
The written definition of this term is ''Health Advisory Level.'' The Department should also define the phrase using the language from the definition in the Act.
Land application proposal
The phrase ''agricultural facility'' in this definition should be changed to ''agriculture chemical facility'' to be consistent with the defined term.
MCL
The written definition of this term is ''Maximum contaminant level.'' What is the maximum contaminant level? This should be included in the definition.
7. Section 130d.2. Scope.--Reasonableness; Need; Clarity.
We have two concerns. First, what is meant by the word ''contaminated''? Does the mere presence of substances other than agricultural chemicals constitute contamination? If the nonagricultural chemicals detected are at a level less than the residential standards of the Land Recycling and Environmental Remediation Standards Act, is the material considered contaminated? The final-form regulation should include a definition of ''contaminated.''
Second, subsection (c)(1)(i) and (ii) are not needed and should be deleted from the final-form regulation.
Subchapter B. DUTIES OF APPLICATORS 8. Section 130d.11. Scope.--Need.
This proposed Chapter already includes a ''Scope'' section at § 130d.2. If the Department believes the content of § 130d.11 is needed, it should be included in § 130d.2.
9. Section 130d.12. Reports.--Need; Clarity.
This section addresses filing requirements for the annual report and final report. We have five concerns. First, this section is out of sequence with the other requirements of the regulation. This section should be moved to a subchapter that follows the application requirements and the review process.
Second, this section does not specify when the reports must be submitted to the Department. The final-form regulation should include a time period for submitting the reports.
Third, subsection (a) requires a person who ''solicits or receives approval from the Department'' to file annual and final reports. However, these requirements would only apply to someone whose application was approved. Therefore, the phrase ''solicits or'' should be deleted.
Fourth, subsection (b)(3) should provide a citation to the appropriate section that deals with the daily and annual records that are required.
Fifth, the information required in subsection (b)(4)(i) and (ii) is also required in the initial application. This requirement is duplicative and should be deleted.
10. Section 130.d.13. Chemical analysis of waste.--Clarity.
This section addresses information that must be included in the land application proposal form. Therefore, it should be moved to that section.
Under subsection (e)(3), who decides that the material applied to the land at acceptable agronomic rates will not negatively affect productivity of the land or cause harm to the environment? How does one demonstrate this?
11. Section 130d.14. Waste analysis plan.--Protection of public health; Clarity.
Sections 130d.13 and 130d.14 address the analysis of waste at the remediation site. For clarity and to reduce repetition, the Department should combine these sections.
Remediation activities performed under the Act require extensive testing and analysis of the contaminated material. The testing and analysis requirements are outlined in current DEP regulations. To avoid possible conflict or duplication of existing DEP regulations, §§ 130d.13 and 130d.14 should cross reference the testing requirements of the relevant DEP regulations and add any additional requirements that may be necessary.
Paragraph (3) requires a sampling method to contain at least one sample from each soil pile or quantity of groundwater. DEP has sampling requirements in place, under Act 2. Paragraph (3) should be deleted and a cross-reference should be added to the appropriate section of DEP's regulations.
12. Section 130d.15. Application site analysis.--Need; Clarity.
This section addresses information that must be included in the land application proposal form. Therefore, it should be moved to that section.
In addition, this section requires testing of soil in each field or plot on which material will be applied. What is considered a ''field'' or ''plot''? How many samples will be required? Will more samples be required for larger fields or plots? Are the fields or plots predetermined before the results of the chemical analysis are obtained? Can the dimensions of the fields or plots be altered to better accommodate the material that is to be applied?
Paragraphs (1) and (2) address the same topic and should be consolidated into one paragraph.
Paragraphs (3) and (5) repeat information contained in the opening paragraph of this section. The duplicative information should be deleted from the opening paragraph.
Paragraph (4) requires the submittal of the quality control procedures of a lab approved by the Department to both the Department and the landowner. Since the Department has approved the lab, this requirement is unnecessary and should be deleted.
13. Section 130d.16. Retained recordkeeping.--Need; Clarity.
Subsection (b) says ''shall be available for inspection or audit at reasonable times by the Department or its authorized agents'' (Emphasis added). What does the Department consider a ''reasonable time''?
Subsection (c) contains the phrase, ''5 years after the date on which the site closure plan and final report were submitted and approved by the Department.'' With this language, there would be two different dates that could be used to determine when the 5-year clock starts. For clarity, the Department should clarify when the 5-year period begins.
In addition, why does the Department require the retention of records for 5 years?
14. Section 130d.17. Public notice by applicant.--Clarity.
This section states that an applicant must comply with the public notice requirements established by the Pennsylvania Pesticide Control Act of 1973 (Pesticide Control Act) (3 P. S. §§ 111.21--111.61) and the regulations in Chapter 128. The final-form regulation should include more specific citations to the relevant sections of the Pesticide Control Act and Chapter 128 pertaining to public notification.
Subchapter C. GENERAL REQUIREMENTS FOR PERMISSION TO APPLY SOIL AND GROUNDWATER CONTAMINATED WITH AGRICULTURAL CHEMICALS TO AGRICULTURAL LAND 15. Section 130d.21. General requirements for land application proposal form.--Need; Clarity.
Subsection (b) contains the phrase ''and other data as may be required by the Department . . . .'' What other data might the Department require that isn't already set forth in the regulation? The final-form regulation should specify that any additional information needed by the Department will be requested in writing.
Subsection (c) is not needed because the requirements are in other sections.
The requirements of subsection (d) should be moved to §§ 130d.13 and 130d.14 (relating to chemical analysis of waste; and waste analysis plan) respectively.
The requirement of subsection (e) should be moved to § 130d.42 (relating to operating plan).
16. Section 130d.22. Insurance.--Clarity
This section states that an applicant must comply with the insurance requirements established by the Pesticide Control Act and the regulations in Chapter 128. The final-form regulation should include more specific citations to the relevant sections of the Pesticide Control Act and Chapter 128 pertaining to insurance.
17. Section 130d.23. Right of entry and agreement with landowner.--Clarity
Subsection (a) requires that a land application proposal shall contain a description of certain documents. The final-form regulation should allow the applicant to provide either a description or copies of those documents.
Subsections (a) and (b) require the same information to be included in the land application proposal. For clarity and to avoid repetition, these subsections should be consolidated into one subsection.
Subsection (b)(1) does not address a situation where the applicator and the landowner are the same person. However, § 130d.41(3) (relating to general requirements) states when the person responsible for the land application of the contaminated material is the landowner, an agreement is not required. This section should contain a similar provision.
Subsection (c) addresses an ''irrevocable written consent'' that allows the Commonwealth and its authorized agents to enter the proposed application site. We have two concerns. First, why must a landowner grant access to the land ''for up to 3 years after the final closure''?
Second, would the ''irrevocable written consent'' enable the Department to enter the proposed application site if the land was sold? If the land is sold, must the new owner be notified that agricultural chemicals from a remediation site were applied to the land?
18. Section 130d.25. Compliance information.--Clarity.
We have two concerns with this section.
First, what sort of documentation or information does the Department require to prove the land application will comply with all other Federal, State and local laws, rules and ordinances? The final-form regulation should require that the applicant attest or certify that they are in compliance with all applicable laws, rules and ordinances.
Second, what are the applicable Federal, State and local laws? If these can't be specified, this provision should be deleted.
Subchapter D. LAND PROPOSAL REVIEW PROCEDURES 19. Section 130d.31. Criteria for approval or denial.--Clarity.
There is a typographical error in subsection (a). The second sentence states, '' . . . seek to apply soil of groundwater . . . '' (Emphasis added). The word ''of'' should be changed to ''or.''
Subsection (c) seems to conflict with the second paragraph of the Preamble which states, ''The Department will not approve the land application of soil or groundwater contaminated with chemicals other than agricultural chemicals.'' The Department should use consistent language throughout the regulation and the Preamble. Also, who is the ''appropriate agency''? Is the Department referring to the DEP? Could there be any other agencies that would qualify as an ''appropriate agency''?
20. Section 130d.32. Receipt of land application proposal and completeness review.--Clarity.
Subsection (c) states that an application is complete ''if it contains all the necessary information, approvals, maps and other documents required by this chapter.'' Similar to our concerns in our opening comment, the requirements in subsection (c) are found throughout this chapter. As currently drafted, an applicant would have a difficult time determining if all the forms, information, maps and other documents were included with the application. For clarity, these requirements should be listed in one place.
21. Section 130d.33. Review period.--Clarity.
Subsections (a) and (b) set forth a 60-day period for the Department to conduct its review of the land application proposal. However, subsection (c) states ''Failure by the Department to comply with the timetable established in this section will not be construed or understood to constitute grounds for an automatic approval of a land application proposal.'' What is the purpose of the 60-day period in subsections (a) and (b)?
Subsection (b) is entitled ''Incomplete land application proposal.'' For clarity, this subsection should be moved to § 130d.32 (relating to receipt of land application proposal and completeness review).
22. Section 130d.34. Review process.--Clarity.
Subsection (a)(2) states that if other chemicals are present in the material, the Department will review the application, but ''will not give final approval to the land application proposal.'' This conflicts with § 130d.31(c) which states ''Where the soil or groundwater sought to be applied contains chemicals other than agricultural chemicals, the Department may approve the land application proposal contingent upon the applicant obtaining the necessary approvals or permits (when applicable) to land apply those chemicals from the appropriate agency.'' The Department should use consistent language throughout the regulation.
We have three concerns with subsection (a)(3). First, the topics included in this subsection are different issues and should be in separate subsections.
Second, how will the Department notify the applicant of its decision? Will the Department issue an approval letter or order? Will DEP be issuing a permit or approval in conjunction with Departmental approval?
Third, if additional information is requested at this stage, does the applicant get 90 days to respond? Once the information is provided, does the Department get an additional 60 days to review the material?
Subsection (b) starts with ''The decision of the Department to approve or deny a land application proposal is final . . . .'' There is no mention of an appeal process for a denied application in this regulation. The appeal process should be set forth in the regulations or by a cross reference to the applicable appeal procedures.
Subchapter E. GENERAL REQUIREMENTS FOR LAND APPLICATION OF SOIL AND GROUNDWATER CONTAMINATED WITH AGRICULTURAL CHEMICALS 23. Section 130d.41. General.--Clarity.
This section describes general requirements that include compliance with other subchapters. Since this section does not provide any new information or requirements, it should be deleted.
24. Section 130d.42. Operating plan.--Need; Clarity.
The beginning of paragraph (3), which states, ''The general operating plan for the proposed operation, including'' is not needed, because the heading, under which it is located, already explains that. For clarity, it should be deleted.
Also, what is the meaning of the phrase ''proposed life of the operation''?
Paragraph (8) states, ''The use that will be made of the proposed application area and the crops that will be planted on each application plot for 3 years following the application.'' We have two concerns.
First, will the Department monitor this to ensure compliance? What is the penalty for noncompliance?
Second, are there any prohibitions from the land being sold to a developer or rezoned for residential use?
25. Section 130d.43. Maps and related information.--Clarity.
Subsection (b) contains the phrase ''other reliable data.'' What does the Department consider to be ''other reliable data''? This should be clearly set forth in the regulation.
Subchapter F. GENERAL REQUIREMENTS AND EXCEPTIONS FOR USE AND APPLICATION OF GROUNDWATER CONTAMINATED WITH AGRICULTURAL CHEMICALS AS TANK MIX 26. Section 130d.51. General requirements.--Clarity.
We have three concerns with this section. First, must an applicant ''seeking approval to utilize and apply groundwater contaminated with agricultural chemicals generated as a result of remediation activities at an agricultural facility as tank mix'' comply with all other requirements of this chapter? If not, what requirements must be met?
Second, how will the review process for this type of application work? Are the time frames and process the same as in Subchapter D?
Third, the word ''with'' should be inserted between the words ''contaminated'' and ''agricultural'' in subsection (b).
27. Section 130d.52. General exceptions.--Clarity.
This section allows the Department to waive certain requirements of this chapter. However, the procedure that must be followed by the applicant to obtain a waiver is not included. This should be set forth in the regulation.
Subchapter G. GENERAL OPERATING REQUIREMENTS FOR LAND APPLICATION OF SOIL AND GROUNDWATER CONTAMINATED WITH AGRICULTURAL CHEMICALS 28. Section 130d.61. General provisions.--Need.
This section sets forth the fact that the applicant must comply with '' . . . the act and this chapter . . . '' This provision is not needed and should be deleted.
29. Section 130d.62. Standards for land application of soil and groundwater contaminated with agricultural chemicals.--Need; Clarity.
The introduction to this section begins, ''Persons seeking to apply . . . . '' For a person to apply the material, they must obtain the approval of the Department. Therefore, the opening phrase of the introduction should be changed to, ''Persons approved to apply . . . .''
Paragraphs (4) and (9)--(11) contain criteria or provisions that will be used by the Department to determine whether a land application proposal will be approved or disapproved. Therefore, the requirements of these paragraphs should be moved to a section that addresses application requirements.
The requirements of paragraph (1) are repeated in paragraphs (2) and (3). Therefore, paragraphs (2) and (3) should be deleted.
Paragraph (1) states that the ''Department may require a safety factor of one-half the label application rate.'' What factors will the Department consider when determining if half the label application rate would be appropriate?
Paragraph (6) requires the landowner to ''account for the amount of nutrients being applied to the land as set forth in the Pennsylvania Agronomy Guide.'' This requirement is not clear. Does the amount of nutrients refer to the material being land applied? Does it also include any additional nutrients that might be applied? Is the landowner required to submit this information to the Department?
In paragraph (8), what does the Department consider ''minor amounts''? This term is only used in this section and it should be defined here.
What is ''any applicable nutrient management plan,'' as mentioned in paragraph (9)? If there are nutrient management plans that one is to comply with, these should be cross-referenced in the regulation.
Paragraph (12) is very similar to § 130d.25 (relating to compliance information). The Department should delete § 130d.25.
Paragraph (13) repeats the requirements of § 130d.72 (relating to final reports). Therefore, this paragraph should be deleted.
30. Section 130d.63. Land application rates and procedures.--Clarity.
Under subsection (a)(7) and (8), the methodology used to determine application rates is confusing. The variables used in the formulas are not explained or defined. The final-form regulation should provide accurate formulas and a step-by-step process that would allow a person to accurately calculate an application rate.
Subsection (b) addresses application rate considerations and procedures that are to be included in the applicants operation plan. This information will be used by the Department to review all land application proposals. Therefore, the requirements of this subsection should be moved to a section that addresses application requirements.
Subsection (b)(2) and (6) both address the total amount of pesticides that may be present in material that is to be applied to agricultural land. The subsection should be consolidated.
Under subsection (b)(4), what does the Department consider ''valuable topsoil''? Also, how does one '' . . . assure that valuable topsoil will not be lost . . . ''? This should be set forth in the regulation.
31. Section 130d.64. Additional application requirements.--Clarity.
Will the Department monitor the landowner's farming operation to ensure that the ''crop rotation plan'' and the ''nutrient and pesticide management plan'' are being followed? If one deviates from the plans submitted, what is the penalty? This should be set forth in the regulation.
32. Section 130d.65. Limitations on land application of soil and groundwater contaminated with agricultural chemicals.--Need; Clarity.
Under paragraph (6), if an applicator wants to employ spray irrigation equipment or aerial equipment, do they have to apply in writing, as is required for the application of contaminated groundwater via a tank mix process in Subchapter F?
Paragraph (8) prohibits the grazing of livestock on application areas for 5 years. Commentators have noted that livestock are commonly grazed on land on which agricultural chemicals have been applied. What is the reason for this prohibition? Since paragraph (9) requires that the application areas can only be used in a manner consistent with the labeling requirements of the pesticides contained in the contaminated material, paragraph (8) should be deleted.
33. Section 130d.66. Prohibited applications.--Clarity.
The term ''water source'' in subsection (b)(2) should be defined in § 130d.1 (relating to definitions).
The term ''exceptional value wetland'' in subsection (b)(4) should be defined in § 130d.1.
34. Section 130d.68. Daily operational records.--Clarity.
In subsection (a), what does the Department consider ''generally accepted principles''? This phrase is also found in § 130d.69(a).
The term ''generator'' is used in subsection (b)(5). Who does the Department consider to be a ''generator''? Is it the person who initially contaminated the material, the current owner of the remediation site or the person who excavated the contaminated material? For clarity, this term should be defined in § 130d.1. This term is also found in § 130d.69(b)(4).
35. Section 130d.71. Site closure plan.--Clarity.
We have two concerns with subsection (a). First, the Department does not define the ''parties involved.'' Does this apply to the landowner, the generator, the applicator and the hauler of the waste? For clarity, this term should be defined in this section.
Second, this subsection and subsection (b)(4) require the parties to report the results of the land application activity. The results to be reported should be moved to § 130d.72 (relating to final reports).
Also, this section does not state when the site closure plan is to be submitted to the Department. How long do the parties have to complete all required testing? For clarity, this should be set forth in the regulation.
36. Section 130d.72. Final report.--Clarity.
This section does not state when the final report must be submitted. Also, who is responsible for submitting the final report? These provisions should be set forth in the regulation.
______
Department of Conservation and Natural Resources Regulation No. 7B-3
State Parks; General Provisions
June 21, 2002 We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Department of Conservation and Natural Resources (Department) must respond to these comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Section 11.201. Definitions.--Reasonableness; Clarity.
Commercial activity
Commentators contend that activities sponsored by charitable or nonprofit organizations are also defined as ''commercial activity'' if these organizations charge fees to cover their costs. The Department should consider adding a definition for activities sponsored by charitable or nonprofit organizations.
Pet
A pet is defined as ''A dog, cat or other domestic animal.'' It is unclear what other types of animals would qualify as domestic animals. For example, would the Department consider pet ferrets, birds and snakes as domestic animals? This definition should be amended to clearly state which animals are considered pets and must meet the requirements of § 11.212.
2. Section 11.203. State park waters.--Clarity; Consistency with statute.
This section identifies areas of water that are under the jurisdiction of the Department. If this jurisdiction is established via statute, this section may be unnecessary. What new rules or procedures does this section establish that apply to members of the public? The Department should cite the specific statutory citations that provide for the jurisdiction described in paragraph (1) and for the specific bodies of water in paragraphs (2) and (3).
3. General--Use of direct, positive statements.--Reasonableness; Clarity.
The format of certain sections of the proposed regulation is confusing because the sections are written in the negative as lists of prohibitions. This negative format becomes even more complicated when an allowed activity is stipulated as an exception to the prohibition. Chapter 8 of the Pennsylvania Code & Bulletin Style Manual (Manual) recommends ''directness'' and the use of ''positive ideas'' rather than ''exceptions'' in drafting regulations. The Department should review these recommendations in the Manual as it develops the final-form regulation. The following sections are examples.
Section 11.207. Traffic and parking.
Section 11.207(a)(1) states, ''Operation of a motor vehicle, as defined by the Vehicle Code, as follows is prohibited: On a State park road at a speed in excess of the posted limit or, where no speed limit is posted in excess of 25 miles per hour.'' Alternatively, it could be direct, stand alone and read: ''The maximum speed limit on a State park road is 25 miles per hour unless a different speed limit is posted.''
Similarly, subsection (b)(3) states, ''The following activities are prohibited: . . . Parking a bus in an area that is posted as being closed for buses.'' This could mean that every area in the park not intended for bus parking would need to be posted. As an alternative, the provision could be direct, stand alone and read: ''Buses shall be parked only in posted bus parking areas or other areas designated by the State park.''
Section 11.210. Fires.
This section states, ''The following activities are prohibited without the written permission of the Department: (1) Starting or maintaining a fire except in a fireplace, grill, stove or other facility designated by the Department for campfires. (2) Leaving a fire unattended. (3) Disposing hot charcoal except in a facility designated by the Department for charcoal disposal.'' We have two concerns.
First, this section is confusing because the allowed activity is stated as an exception to the prohibition and the accompanying requirements are indirectly stated.
Second, the phrase ''without written permission of the Department'' is duplicative of the Department's discretion stated in paragraphs (1) and (3). The phrase is also misleading because it implies the possibility the Department would grant written permission to leave a fire unattended.
This section would be clearer if it is written directly and in the positive. For example, it could state, ''Fires are only permitted in fireplaces, grills, stoves or other facility designated by the Department. Fires must be attended at all times. Hot charcoal must be disposed in facilities designated by the Department for charcoal disposal.''
Section 11.211. Natural resources.
This section is confusing because subsection (1) is a prohibition that contains exceptions to the prohibition. The exceptions in paragraph (1)(i) and (ii) could stand alone as positive statements.
4. Written permission of the Department.--Protection of public health and safety; Effect on natural resources; Reasonableness; Implementation procedure; Clarity.
A number of provisions in this regulation include phrases such as ''permission of the Department'' or ''approved by the Department.'' However, there is no indication of how one may obtain this permission or approval. The regulation should inform the reader on how to apply for ''approval'' or indicate where this information is available. In certain cases, a reference to information on the Department's website may be sufficient. The following sections are examples.
Section 11.209. Miscellaneous activities.
Subsection (a) is a list of activities, including commercial activities, that are prohibited without written permission of the Department. There is no indication of how this permission is obtained.
Section 11.211. Natural resources.
This section states that certain activities impacting natural resources are prohibited without written permission of the Department. There are two concerns.
First, it is unclear when and if written permission is required for activities listed in paragraph (1)(i) and (ii). This issue is similar to the format concern discussed in Issue #3.
Second, commentators expressed concerns with this provision. Is it the Department's intent to allow removal of timber, plants, clay, sand or other natural resources from State parks? If so, what is the process for individuals or businesses to apply for permission? Is the public given notice and an opportunity to comment? What factors does the Department consider in determining whether to grant permission such as the extent of the project and its impact on recreational and natural resources?
Section 11.213. Organized events; public assemblies; distribution of printed matter.
This section prohibits organized events or exhibitions in State parks ''without written permission of the Department.'' To obtain this written permission, subsection (b) requires that an application be submitted on ''a form prescribed by the Department.'' The regulation should include information on how to obtain the application form.
Section 11.217. Swimming.
This section is a list of prohibitions. Subsection (3) prohibits the ''use of underwater breathing apparatus or a snorkel'' but adds the following caveat:
However, with permission of the Department, the equipment may be used by an emergency or rescue unit conducting a rescue operation or training or by a diver certified by an organization approved by the Department. (Emphasis added)There are two concerns. First, the regulation provides no information on how these organizations may obtain or apply for permission of the Department. Second, does the Department maintain a list of approved organizations that certify divers? If so, how can one obtain a copy?
Section 11.218. Camping; overnight facilities.
This section states that camping or using a cabin or other overnight facility in a State park is prohibited without a valid permit. The regulation does not indicate how to obtain a valid permit.
Section 11.224. Prices.
Subsection (b) indicates that the Department may reduce or waive prices. There is no instruction on how to apply for a waiver or where applicants should submit a request for a waiver. The regulation should inform the reader of the process for obtaining a waiver or reduction.
5. Section 11.207. Traffic and parking.--Reasonableness; Clarity.
Subsection (a) Traffic.
This subsection references a ''motor vehicle as defined in the Vehicle Code.'' It should include the specific reference to this definition in section 102 of the Vehicle Code (75 Pa.C.S. § 102). As an alternative, the definition of a ''motor vehicle'' could be added to § 11.201 with a specific reference.
Subsection (a)(4) is vague. How will the Department interpret the phrase a ''reasonable person of normal sensitivities''? This question also applies to § 11.209(b)(3).
Subsection (a)(5) is unclear and also needs a cross-reference to the Vehicle Code. It states, ''Operation of a motor vehicle, as defined in the Vehicle Code, as follows is prohibited: . . . Not in obedience to traffic-control devices.'' In addition to our concern with the negative format previously mentioned in Issue #3, this subsection should reference the definition of ''official traffic-control devices'' at 75 Pa.C.S. § 102.
Subsection (b) Parking.
Paragraph (1) uses the terms ''a person with a disability'' or ''severely disabled veteran.'' Paragraph (1)(i) and (ii) should be combined into one paragraph or subsection. The new subsection need only refer to a valid plate or placard issued in accordance with sections 1338 and 1342(a) and (b) of the Vehicle Code.
Paragraph (1)(i) and (ii) contain the phrase ''or a substantially equivalent issuance from another state.'' We have two concerns with this phrase. First, how would a person with an out-of-State plate know whether it is ''substantially equivalent'' to a Pennsylvania plate? Since other jurisdictions issue plates and placards, any valid plate or placard from another jurisdiction should be allowed. Our second concern is that the regulation should be expanded beyond ''another state'' to include jurisdictions such as Canadian provinces and the District of Columbia.
Paragraph (1)(iii) is confusing because it refers to a ''placard . . . indicating issuance of authorization to operate the vehicle on State park land'' with no reference to parking or people with disabilities. The paragraph does not include the word ''disability.'' It is our understanding that it is referring to a placard that is part of the Department's policy for fostering greater access to State parks for persons with disabilities. People with disabilities who use a motor vehicle for personal mobility may obtain a placard from the Department to use their vehicle on pathways where other motor vehicles are prohibited. There are two concerns.
First, the Department should consider formalizing this policy by adding a new subsection to § 11.207 (relating to traffic and parking) indicating that persons with disabilities who use this type of personal vehicle may apply to the Bureau of State Parks for this placard.
Second, subsection (b)(1)(iii) should be amended to explain that paragraph (1)(iii) is limited to people with disabilities that use a motor vehicle for personal mobility.
Subsection (e) Parking tickets.
Paragraphs (2) and (3) include citations to 234 Pa. Code. These should cite the specific rule(s) in 234 Pa. Code that apply.
Subsection (f) Violations of parking provisions of the Vehicle Code.
This subsection specifies that the fine for a parking ticket is $15 and references sections 3351--3354 of the Vehicle Code. However, the minimum fine for parking in spaces reserved for a person with a disability is $50 and fines may be greater under section 3354(f) and (g) of the Vehicle Code (75 Pa.C.S. §§ 3354(f) and (g)). The regulation should directly specify or reference the fines for violations of parking provisions of the Vehicle Code.
Location of violations subsections
Violations provisions are located separately in subsections (d) and (f). These violations provisions should be combined into one subsection that lists all violation provisions.
6. Section 11.208. Schedule; closure.--Reasonableness.
In the Preamble, the Department states:
New § 11.208 adds hunting, trapping and snowmobiling as activities that are permitted 24 hours a day. This provision reflects current Bureau policy.There has been public comment questioning why these activities are allowed 24 hours per day when other activities are restricted to daylight hours. The Department should provide further explanation for why each of these activities should be allowed 24 hours per day. Does snowmobiling 24 hours per day have an impact on wildlife or overnight park visitors? Are snowmobiles limited to certain areas or designated trails? In addition, should this section include camping or use of overnight facilities as a 24-hour activity and reference § 11.218? Finally, what is the intent of subsection (h)? What types of activities may be prohibited? What notice will be provided to the public?
7. Section 11.210. Fires.--Clarity.
A State park may need to restrict fires in dry periods or drought to prevent forest fires. We recognize the general provisions to prohibit activities in § 11.208(h). We suggest that this section include notice that fires may be further restricted by a State park due to drought or dry forest conditions.
8. Section 11.212. Pets.--Reasonableness; Clarity.
Proposed subsection (d) states, ''A pet is not permitted in an overnight area unless the area is designated by the Department for pets.'' It appears that this is the same policy expressed in existing § 11.11(b). However, several commentators expressed concern that the Department is banning pets. The Department should explain whether the proposed regulation is a change in policy and what restrictions apply to pets in overnight areas. Additionally, if there is no change in policy, the Department should consider amending the language to state pets are permitted in overnight areas subject to restrictions.
Subsection (f) exempts hunting dogs from subsection (b)(1)--(5). Subsection (b)(3) does not allow a dog to ''behave in a manner that may reasonably be expected to disturb or intimidate another person.'' Subsection (b)(4) does not allow a pet to ''behave in a manner that may cause damage to property.'' Why are hunting dogs exempt from subsection (b)(3) and (4)?
9. Section 11.213. Organized events; public assemblies; distribution of printed matter.--Reasonableness; Clarity.
Subsection (a)(1) and (2) do not specify the minimum size of an event or group to which the restrictions in this section apply. For example, would a group of a dozen scouts be required to obtain permission 24 hours ahead as required by subsection (b)? There are two concerns.
First, subsection (a) should clearly state what specific activities require a permit. It should also specify the minimum number of people that constitute a group or event covered by this section.
Second, subsection (c) states that the Department ''will grant or deny a permit without unreasonable delay.'' What is ''unreasonable delay''?
10. Section 11.215. Weapons and hunting.--Consistency with other statutes; Public safety; Reasonableness; Clarity.
Several subsections refer generally to the Game and Wildlife Code. The regulation should specifically reference the pertinent sections of the Game and Wildlife Code that apply.
Paragraphs (3) and (4) prohibit the use and possession of a firearm in a State park except for hunting or target shooting. However, section 6109 of the Pennsylvania Uniform Firearms Act of 1995 (18 Pa.C.S. § 6109) allows individuals to obtain a license to carry a firearm for purposes besides hunting or target shooting. The Department should consider including a reference to section 6109 of the Pennsylvania Uniform Firearms Act of 1995 in this section as an exception to the prohibition of using or possessing a firearm.
11. Section 11.216. General recreational activity; horses; snowmobiles; all-terrain vehicles; mountain bikes.--Clarity.
Greater clarity would be achieved by combining subsection (b)(1) and (4) rather than using the reference to paragraph (4) in paragraph (1).
Subsection (c) should specifically reference the pertinent section(s) of the Motor Vehicle Code.
12. Section 11.219. Boating.--Clarity.
Subsection (b) General.
Subsection (b)(1) and (3) do not need to be listed as separate provisions. They should be combined by adding the word impoundment to subsection (b)(1) and deleting subsection (b)(3).
In subsection (b)(4)(iv) and (v), what is the intent of using the word ''novelty-type'' for different kinds of watercraft. The term is vague. The regulation needs to clarify the types of watercraft covered by this term.
The description of an inflatable device in subsection (b)(4)(vi) differs from the one used for ''whitewater boating'' in § 11.220(a)(2)(ii). What is the reason for the difference?
Should a provision be added to prohibit annoying others by causing loud noises similar to § 11.207(a)(4)?
Subsection (c) Motorboats.
The language in subsection (c)(3) is unclear. The regulation does not define or explain the phrase ''personal watercraft, regardless of horsepower.'' A description of this type of watercraft can be found in the regulations of the Fish and Boat Commission (FBC) in 58 Pa. Code § 109.3(a). This subsection should cross-reference the description of ''personal watercraft'' in 58 Pa. Code § 109.3(a).
The FBC also lists safety requirements for personal watercraft in 58 Pa. Code § 109.3, including a requirement for a Boating Safety Education Certificate (58 Pa. Code § 109.3(h)). This proposed regulation should include or cross-reference the safety requirements at 58 Pa. Code § 109.3.
Subsection (e) Mooring, anchoring and storing.
In subsection (e)(1)(ii), the meaning of ''temporarily'' is vague. The Department should indicate the maximum time limit for mooring watercraft along the river wall during the day.
13. Section 11.220. Whitewater boating.--Public safety; Reasonableness; Clarity.
Subsection (a) General requirements.
Subsection (a)(2)(ii) uses the phrases ''tough durable construction,'' ''tough laminated material'' and ''commercial grade'' to describe the requirements for inflatable watercraft for whitewater boating at specific State parks. These are vague standards. The regulation should specifically describe the minimum standards for inflatable watercraft.
Subsection (c) Ohiopyle State Park.
In subsection (c)(1)(iii)(C), what is meant by ''watercraft must be other than commercially rented watercraft''? The intent and structure of this subsection are unclear.
Subsection (c)(1)(iv)(A) and (2)(iii)(B) waive watercraft requirements for ''state park-licensed concession watercraft.'' Assuming the watercraft requirements are for safety, why are ''state park-licensed concession watercraft'' exempt?
There are three concerns with subsection (c)(1)(iv)(B). First, the intent of ''other than commercially-rented watercraft'' is unclear. Second, the regulation should provide information on how watercraft operators or owners could obtain approval for high performance watercraft. Third, what are the size or performance standards that qualify as ''high performance'' and require Departmental approval?
There are two concerns with subsection (c)(3). First, the subsection is written broadly and it could apply to any waterfall in this State park. The subsection reads: ''Waterfall running is prohibited without written permission of the Department.'' Numerous commentators from this Commonwealth and other states expressed concerns with this subsection. It is our understanding that this prohibition applies only to one particular stretch of river before and just below the ''Ohiopyle Falls.'' The subsection should be amended to specifically identify the river segment for which waterfall running requires written permission.
Second, this provision should be amended to identify the process and procedures for obtaining written permission. Can representatives of a group obtain approval or written permission for group members or must each individual apply separately?
Subsection (d) Lehigh Gorge State Park.
Inflatable canoes and kayaks are exempted from the requirements of subsection (d)(2)--(4). What is the purpose of this exemption? What are the minimal standards for these types of watercraft?
14. Section 11.224. Prices.--Reasonableness; Consistency with statute; Clarity.
Subsection (a) Schedule of prices.
This subsection states: ''the Department will establish, by publication in the Pennsylvania Bulletin, a schedule of prices for activities, uses and privileges.'' There are two concerns.
First, the regulation should state that the schedule of prices will be posted on the Department's website and should include the website address.
Second, the final-form regulation should include a reference to section 314 of the Conservation and Natural Resources Act (71 P. S. § 1340.314) (act). This section of the act places limitations on the setting of fees by the Department including the limitation that charges and fees ''shall be used solely for the acquisition, maintenance, operation or administration of the State Park system . . . . ''
Subsection (c) Prices for goods and services.
Subsection (c) states: ''The Department will set reasonable prices for the sale of goods and services to the public.'' What is meant by the word ''reasonable''? What factors will the Department consider in determining what is ''reasonable''?
JOHN R. MCGINLEY, Jr.,
Chairperson
[Pa.B. Doc. No. 02-1188. Filed for public inspection July 5, 2002, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
