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PA Bulletin, Doc. No. 08-2213


Notice of Comments Issued

[38 Pa.B. 6668]
[Saturday, December 6, 2008]

   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 Act (71 P. S. §  645.5b).

   The Commission has issued comments on the following proposed regulation. 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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/TitleClose of the Public Comment PeriodIRRC Comments Issued
7-404 Environmental Quality    Board
Bluff Recession and    Setback
38 Pa.B. 4617
   (August 23, 2008)


Environmental Quality Board
Regulation #7-404 (IRRC #2717)

Bluff Recession and Setback

November 21, 2008

   We submit for your consideration the following comments on the proposed rulemaking published in the August 23, 2008 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.

Section 85.26. Designated municipalities and minimum bluff setback distances for identified categories of structures.--Statutory Authority; Reasonableness.

   The Bluff Recession and Setback Act (Act) defines a ''bluff recession hazard area'' as ''[a]n area or zone where the rate of progressive bluff recession creates a substantial threat to the safety or stability of nearby or future structures or utility facilities.'' (32 P. S. § 5203). The Act requires the EQB to ''identify and designate those areas and municipalities subject to bluff recession hazards'' (32 P. S. § 5204(c)) and to establish by regulation ''minimum bluff setback requirements for bluff recession hazard areas.'' (32 P. S. § 3206). We note that although municipalities may contain within their borders ''one or more areas subject to bluff recession hazards'' (32 P. S. § 5203), EQB's statutory mandate to promulgate regulations is limited to governing bluff recession hazard areas, not municipalities.

   Commentators assert that while some portions of the City of Erie shoreline meet the definition of ''bluff recession hazard area,'' others do not. They further argue that by designating the entire City of Erie as a bluff recession hazard area, rather than distinguishing specific bluff recession hazard areas within its boundaries, the EQB has exceeded the scope of its statutory authority. The final-form regulation should either identify the specific bluff recession hazard areas within the City of Erie's boundaries or further explain the EQB's statutory authority for designating the entire municipality as a bluff recession hazard area.


[Pa.B. Doc. No. 08-2213. Filed for public inspection December 5, 2008, 9:00 a.m.]

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