[27 Pa.B. 3161]
[Continued from previous Web Page] Manure storage criteria
Comment: Siting of new manure storage facilities should be prohibited in floodplains.
Response: The regulations require that for those storage facilities to be placed within the floodplain, the construction and location of these storages need to be consistent with local ordinances developed under the Flood Plain Management Act (32 P. S. §§ 679.101--679.601). The Pennsylvania Technical Guide, which is the base reference document to be used in providing the standards for the design, construction, location, operation, maintenance and removal from service of manure storage facilities, provides the necessary technical standards to assure that facilities built within the floodplain are designed properly for the location. Operators need flexibility in the placement of these facilities to assure these practices can fit into their current operation, and are practical to build and implement.
Comment: Many municipalities have no floodplain ordinances. What restrictions would be permissible on the location of retention pits, lagoons and transfer pipes which could be easily flooded? There is currently a required isolation distance of 100 feet from surface water, wells or sinkholes.
Response: In general, storage facilities, including lagoons, are to be set back from streams, lakes, wells, sinkholes, and the like 100 to 200 feet, depending on the slope of the area and the volume of the facility. Retention pits and transfer pipes are not required to follow the setback distances because in most cases the operator does not have an option of where to place these structures because they need to be placed in or beside the barn where the manure is generated. Most barns on older operations were placed near the stream or other water source. These manure transfer items are often needed to transfer the manure out of the setback areas. The design of these manure transfer items will need to take into account any possible flood concerns to prevent water pollution, as provided for in the Pennsylvania Technical Guide.
Comment: Section 83.311(a)(2) provides that where standards for a proposed storage facility are not contained in the Pennsylvania Technical Guide, the Commission or delegated conservation district will approve the design, operation and maintenance for the facility based on best available technology. However, the regulations do not define what is best available technology nor specify a timeframe within which the Commission will make a decision on the facility. The regulations need to be amended to define best available technology and adopt a 30 to 45 day maximum time limit to make a decision. Also, technical training will need to be provided to those involved in this approval process. Assistance from the NRCS may be needed to assist in making these decisions.
Response: The Commission has, in cooperation with the Advisory Board, reevaluated this provision of the proposed regulations and has deleted the provision allowing the approval of a facility that falls outside of the standards provided in the Pennsylvania Technical Guide. The Commission understands that the technical agencies currently assisting with the review of these types of facilities are not authorized to approve facilities outside of the Pennsylvania Technical Guide. Therefore, the Commission would have no technical support to rely on to approve these facilities. If a facility was proposed that falls outside of the standards in the Pennsylvania Technical Guide, the technical agencies which maintain the Pennsylvania Technical Guide will evaluate that design. After researching the specifications provided to the technical agencies, they will, if the design is sound, include the design into the Pennsylvania Technical Guide.
Comment: To be consistent with the wellhead protection program, the manure storage setback for public wells should be revised to read ''facilities may not be constructed within 100 feet of a public water source unless Federal or State laws or regulations specify a greater isolation distance.''
Response: The Commission agrees with this comment. To assure that these regulations are not in conflict with the Department's wellhead protection program, the suggested revision has been made to the regulations. The Commission has also provided language in the regulations to state that waivers will not be granted for the manure storage setbacks from public wells to assure program consistency.
Comment: For years the Pennsylvania Technical Guide has provided a base for the considerations of sound environmentally sensitive designs of storage facilities. The additional design criteria in subsection (a)(3) should be eliminated. The waiver places considerable liability upon the delegated districts. The rationale for the necessity of setbacks is currently incorporated and professionally evaluated utilizing the Pennsylvania Technical Guide, thus making the setback standards unnecessary.
Response: The Commission has worked with the Advisory Board to reevaluate the manure storage setbacks requirement at length in light of this comment. Section 4 of the act requires the Commission to develop standards for the construction, location, storage capacity and operation of manure storage facilities. The Pennsylvania Technical Guide does provide excellent base standards and specifications for location, design, construction, and the like, for facilities. However, the location standards in the Pennsylvania Technical Guide are very general in nature and are not specific enough to provide consistent guidance to the regulated community or to those responsible for the implementation of the act and regulations. The specific setbacks outlined in the regulations will allow for consistent implementation of the provisions of the act and regulations, and assure that proper distance around storages is maintained in order to allow for the correction of problem situations that may occur with the facility. Also, since these regulations are used as the base for local nutrient management ordinances throughout this Commonwealth, specific criteria were needed to assure consistent understanding of the requirements for manure storage facilities.
Comment: The act should provide greater flexibility to existing operations and hold new operations to higher standards, particularly with design and siting.
Response: The Commission agrees. The Commission has provided for this concept by allowing waivers from the manure storage setback requirements for existing operations, but not allowing for waivers for new operations. An additional step the Commission has taken in the final regulations is to provide for a greater setback requirement from property lines for new operations than that required for existing operations.
Comment: Section 83.311(d) refers to a ''site specific contingency plan'' and notification of ''known downstream users.'' There needs to be clarification of what is meant by both of these terms in order that a farm operator will know what is expected, and it is not an arbitrary interpretation by field personnel in the event of a leak or spill.
Response: The Pennsylvania Technical Guide is the reference guide for understanding the scope of the contingency plan. The guide describes a contingency plan, which is part of an overall operation and maintenance plan, as a plan that outlines procedures used to address a leak or spill from a manure storage facility built under the act, and who would be called in those instances where the leak or spill will cause pollution to surface or groundwater. The notification language in this final regulation has been revised to incorporate the notification requirement in § 101.2(a) by reference.
Comment: Section 83.311(d) provides that in the case of a leak or spill from a manure storage facility, the operator is responsible for implementation of the ''site specific contingency plan developed for the facility.'' A question arises whether the site specific contingency plan is a component of the site specific design in subsection (c), or whether this is a requirement in the Pennsylvania Technical Guide. It is recommended that the Commission provide the authority for the requirement of a site specific plan and how it will be reviewed and approved. Also, what constitutes a ''health hazard'' needs to be defined.
Response: The regulations call for storages to be operated and maintained in accordance with the standards in the Pennsylvania Technical Guide. As a part of the Pennsylvania Technical Guide, the facility is to have an operation and maintenance plan which includes a contingency plan component. This contingency plan component will outline procedures to be followed in the case of a manure storage leak or spill. The contingency plan is a very important element of a manure storage system. This contingency plan will provide the operator with the needed information for addressing an emergency situation when immediate action is needed. A contingency plan is not required to be reviewed or approved as a provision of these regulations. The operation and maintenance plan, including the contingency plan component, is provided to and reviewed with the operator when the storage is ready to be used.
Comment: Are the manure storage standards in these regulations a duplication of existing regulations and not needed? The publication ''Manure Management For Environmental Protection'' document MM1 October, 1986 states ''. . . its supplements provide guidelines that comply with DER regulations concerning animal manures.'' Reading this, one would believe that there are existing regulations.
Response: Section 4 of the act specifically requires the Commission to develop standards for manure storage facilities. The existing guidelines provided in the Pennsylvania Technical Guide and the Manure Management Manual are very general in nature and not easily implemented in a consistent manner. The Commission has worked with the Advisory Board and numerous agencies and organizations to come to a consensus on effective manure storage standards that are able to be consistently implemented throughout this Commonwealth. The firm numbers established in these regulations will provide specific direction to the regulated community, those assisting with the implementation of the act, and to those developing local ordinances related to manure storages.
Comment: Currently many facilities are sitting full with manure or stormwater, or both, on farms to be sold. These are disasters waiting to happen, and prevention through closure regulation is preferred to clean up efforts and possible fines.
Response: The Commission agrees with this comment and has added a provision in the final regulations for the removal from service of facilities built under the act. The facilities are required to be removed from service in accordance with Pennsylvania Technical Guide standards.
Comment: It appears there are various regulations and guidelines that may be duplicative or inconsistent governing the location, design and operation of manure storage facilities. The Commission, in conjunction with the Department, needs to provide one set of clear standards and rules that will be required for all manure storage facilities in this rulemaking.
Response: Section 4 of the act specifically requires the Commission to develop standards for manure storage facilities. The Commission has attempted to bring together all the affected and involved parties to develop the one set of rules for manure storage standards contained in these regulations. The Commission has attempted to standardize these requirements to the greatest degree possible and believes that these standards are not in conflict with the requirements of other programs. Rather, the criteria listed in these regulations provide the needed detail to consistently implement the act. The Commission understands that these regulations will apply to those operations planning under the act, and more specifically related to manure storage criteria, only those operations constructing or expanding manure storage facilities required under the act. However, local municipalities may adopt standards which are consistent with and no more stringent than those provided in these regulations.
Plan review and approval
Comment: Under § 83.321, voluntary plans are given 45 days to be reviewed, and CAO plans are given 90 days to be reviewed. This creates a dual tracking system which may be burdensome and unnecessary. It also places voluntary plans ahead of plans required on CAOs in the review priority.
Response: The Commission agrees with the comment and has revised the final regulations to provide a 90-day review period for both CAOs and volunteers. The 45-day deemed approval for volunteers has been eliminated.
Comment: Section 83.321(e), which states that plans may be resubmitted if no action is taken in 90 days, is unclear. Is it the responsibility of the operator to submit a second copy of the original plan after the initial 90-day time period? After the initial 90-day period an operator is authorized to implement their plan, what happens if they initiate a plan which is subsequently not approved? Also, what is the legal difference of plans which are ''authorized to implement,'' ''deemed approved'' and ''approved.''
Response: This section of the regulation tracks the language of section 6(e) of the act (3 P. S. § 1706(e)). The Commission believes this provision of the act allows operators to implement a plan prior to approval if no action is taken in 90 days. This will assure minimal disruption of the farmer's operation. The operator implementing a plan that was not acted on within the first 90 days does not have an approved plan. The plan would need to be resubmitted by the operator to get that approval. However, the operator may implement the plan to avoid disruption of time sensitive farming operations. It would be the recommendation of the Commission to not implement major capital improvements listed in the plan until the plan is approved or deemed approved. The Commission believes that a formally approved plan and a deemed approved plan are equally authorized to be implemented.
Comment: Some consideration should be given regarding the status of an approved and implemented Chesapeake Bay Plan. If a CAO has a plan, can it be revised and resubmitted for approval as an Act 6 plan? If this is the case, considering these operations have already voluntarily undertaken many of the steps mandated by the regulations, consideration should be given to a revision which would allow these plans to ''grandfather,'' at least for their initial approval.
Response: The Commission believes strongly that consistency within the technical requirements of nutrient management plans approved under the act is very important, especially considering the limited liability protection afforded under the act. Existing Chesapeake Bay plans may only need very minor revisions to assure that these plans meet the same technical requirements as outlined in these regulations. Existing Chesapeake Bay plans will not need to be revised to meet these requirements if these operators do not want to participate in this program and if they are not CAOs. Only those new Chesapeake Bay Program participants, entering into agreements after the effective date of the regulations, will need to assure that they meet the requirements of these regulations.
Comment: Section 83.321(b) states the Commission or delegated conservation district shall approve, modify or disapprove the plan or plan amendments within 90 days of receipt. The clock should not start until a plan is determined to be administratively complete, therefore, it is recommended that the phrase ''after it has been determined to be administratively complete,'' be added to the regulations.
Response: The Commission agrees with this comment and has revised the regulations to provide for a 10-day time period for the reviewing agency to inform an operator that the plan submission is incomplete. Notification will be provided to the operator in those cases when an initial plan submission is incomplete and the 90-day review period will start again when the completed plan is received by the reviewing agency.
Comment: NMPs previously written by districts or consultants should be grandfathered if it is determined by the district that the plan meets all the requirements of the regulations.
Response: Plans have been developed for a variety of different reasons in the past, and plan content has varied based on the intended purpose of the plan. With this program the Commission, with the help of the Advisory Board, has outlined what it believes are the critical components of a complete nutrient management plan. All old plans that wish to be recognized under this act will need to be certified by a nutrient management specialist that they meet the criteria for a plan as outlined in these regulations. Credit will be given for those portions of these plans that comply with the act and these regulations.
Plan implementation
Comment: Under § 83.322(a), the CAO is given 3 years to implement the plan and an additional 2 years if (a)(2)...''a sum of $2 million or more has not been appropriated for the grants and loans.'' In the event that little or no funding is available, the extension of time is little consolation to the farmers that may not be able to afford such expenses. The implementation deadline should state ''until adequate funding is provided.''
Response: The conditions established for the extension of the time period for plan implementation are specifically set forth in section 6 of the act.
General program comments
Comment: What incentives are being offered to encourage volunteer participation? How are goals of improved efficiency and water quality to be met when key tools like flexibility and individual cost share incentives are taken away?
Response: The act provides for financial assistance and limited liability protection for participating operators. Also, the requirements for volunteer participation are less than those imposed on CAOs. The fact that the development of a plan on a volunteer operation can, in most instances, improve farm efficiency and profitability is an incentive in itself. Lastly, the Commission has attempted to develop a program that provides for maximum flexibility for the farmer, as well as provide financial assistance, as resources allow, to support participation in the program.
Comment: In regards to Executive Order 1996-1, Regulatory Review and Promulgation, the proposed regulations are in direct conflict with item 1(b) of the order. Item 1(b) states that ''costs of regulations shall not outweigh their benefits.''
There is no evidence to suggest that this will be the case and it is doubtful that the cost of compliance with the enforcement of these regulations to both the Commonwealth and the private sector will more than likely far outweigh any definable, quantifiable benefit.
Response: The act requires the Commission to develop regulations to implement the provisions of the act. The program is being developed to provide resources to the regulated community, as well as those volunteering to comply, to minimize the financial burden on the existing farm community. The program has been developed in such a way as to provide for maximum flexibility in the selection of BMPs to solve identified problem areas on the operation. For most problems, there may be solutions that can be selected that can be implemented for little or no cost to the operator or cost share agency. Water quality improvement efforts such as those required under this program should relieve State and local governments and private landowners from incurring costs associated with nitrogen pollution in drinking water.
Comment: In regards to Executive Order 1996-1, Regulatory Review and Promulgation, the proposed regulations are in direct conflict with item 1(g) of the order. Item 1(g) states that ''where viable nonregulatory alternatives exist, they shall be preferred over regulations.''
There exist viable, nonregulatory alternatives currently available which are yielding very positive results. Some examples are: the response of private enterprise to situations where there is excess manure in creating services to move substantial quantities between Pennsylvania farmers and in many cases out of State; the fact that a high percentage of farmers, especially those that will be determined to be CAOs, have already implemented nutrient management plans; and the abundance of articles in the farm press about successful farm conservation practices.
Response: The act requires the Commission to develop regulations to implement the provisions of the act. The act requires a regulatory program to address CAOs, which are those operations with the highest probability of having difficulty in finding ways to distribute their manure nutrients. The CAOs, which represent about 5--10% of the total farms in this Commonwealth, are the only portion of the farm community that must comply with these regulations. The remainder of the farm community can volunteer to comply in order to get financial assistance or to get the limited liability protection provided for in the act. Throughout the development of this program, the Commission has attempted to maximize the use of the private sector in implementing this program and has attempted to maintain maximum flexibility for producers.
Comment: In regards to Executive Order 1996-1, Regulatory Review and Promulgation, the proposed regulations are in direct conflict with item 1(i) of the order. Item 1(i) requires that ''regulations shall not hamper Pennsylvania's ability to compete effectively with other states.'' No other state has regulations as potentially costly to producers as these. They will put Pennsylvania producers at a severe competitive disadvantage. The proposed regulations hamper the ability for farmers to compete within this Commonwealth.
Response: The act requires the Commission to develop regulations to implement the provisions of the act. Over 25% of the states in the country have already enacted similar programs to address agricultural nutrient pollution. Some state programs have more stringent requirements. Vermont's program, for example, prohibits the winter spreading of manure. The provisions of these regulations have been developed through the Advisory Board to develop a program that will be acceptable to this Commonwealth's farm community and other sectors of society. The Commonwealth's program has been set up to provide compliance assistance, both technically and financially, to those complying with the regulations to minimize any impact on the farm community. The provisions of the act and these regulations will provide for a more sustainable agriculture in this Commonwealth, thus providing for a more competitive industry now and in the future. The requirements of these regulations will assure that the farm community can prosper agronomically and economically, while maintaining good neighbor relations in an ever expanding suburban society.
G. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final regulations.
Benefits
The intended result of the regulations is to establish nutrient management planning requirements and criteria for the application of nutrient management measures on concentrated agricultural operations in order to prevent the pollution of surface water and groundwater and maximize the use of animal manure resources. The act requires the Commission, in consultation with the Department of Agriculture, the Department and the Advisory Board, to promulgate regulations for nutrient management plans and other requirements to implement the act. Operators of CAOs will be the main beneficiaries of these regulations. Manure has important nutrient value. Nutrient management planning will lead to more efficient use of the manure resource. Improvement of management can result in savings of time, fuel and hours of equipment use for farmers. Regulations will also result in more even distribution of manure across farmland. This will improve the natural resource base of agriculture for the future as well as increased productivity in the present.
Many of the benefits are difficult to quantify. Nutrient management is intended to maximize the potential fertilizer value of manure for crop production. Statewide, these potential values are significant. The 25 million tons of manure produced in this Commonwealth each year contain an estimated 148,000 tons of nitrogen valued at $460 per ton. It also contains 77,000 tons of phosphorus, worth $440 per ton. The total value of the nitrogen and phosphorus in the manure is $133.2 million.
In contrast, the nitrogen content of all the chemical fertilizer sold in this Commonwealth in 1989 was about 74,000 tons and the amount of phosphorus sold in chemical fertilizer was 55,000 tons. The greatest amount of fertilizer is sold in the southeast and southcentral portions of this Commonwealth, which are the regions producing the greatest amounts of manure.
On a typical dairy farm in this Commonwealth of 106 acres and 65 dairy cows with an existing manure storage facility, Penn State researchers have shown that the benefit of accounting for the value of the manure applied on farm as well as the nitrogen produced by legumes could increase profits by as much as $1,700 per year.
Citizens of this Commonwealth in general will also benefit. Implementation of these regulations will help contribute to the cleanup of the 694 miles of streams in this Commonwealth known to be degraded by agriculture and will reduce further pollution of surface and groundwaters. Downstream uses of water will be protected for recreational, industrial, municipal and agricultural use. Tourism is this Commonwealth's second largest industry, and many elements of tourism are dependent upon surface water quality. The cost of purification of surface and groundwater by the municipality should be reduced. Rural citizens will experience health benefits as a result of reduction of nitrates in the groundwater. Livestock will also experience health benefits from drinking unpolluted water.
Compliance Costs
In the private sector today, the costs for developing a plan vary widely, ranging from $50-$1,000 or more. The costs depend mainly on the nature of the operation and how much existing information is available. A survey of the 10 crop management associations in this Commonwealth showed an average cost of about $5.50 per acre for the following services: collect and prepare soil samples; collect manure samples; collect and analyze field specific nutrient data; calculate farm manure production; and write the plan by calculating field specific nutrient application rates and overall farm nutrient balance. Using this cost, a nutrient application plan for a 150-acre farm with 30 fields would cost $825 (these results are based on 5-acre fields; farms with larger fields may have lower costs). Other sources cited costs from $150-$250 for a midsize farm if some sample results and maps are already available or more than $1,000 if considerable work needs to be done by the private consultant. For CAOs who export all of their manure, the costs of plan development would be minimal.
Consultant costs would also be subject to market forces driven by demand for and availability of certified specialists in different geographical regions. Farm operators can avoid consultant costs by becoming certified to write their own plans. Therefore, Statewide estimates of the total costs are not practical.
The cost of a manure storage structure averages $38,000 dollars per unit. The cost of in-field nutrient runoff control practices such as diversions and vegetative filter strips averages $4,750 per operation. These costs are based on information compiled from the Chesapeake Bay Nonpoint Source Pollution Abatement Program. These practices will not necessarily be required on all farms participating in the program.
The costs to local governments have, until now, been viewed as externalities of the costs of production of livestock products. These regulations require certain livestock producers to incorporate the costs of nutrient management into their operation. This will help prevent State and local government and private landowners from incurring the costs associated with nitrogen pollution in drinking water. In Lancaster County alone, about 100 (nearly 20%) of the public water suppliers apply treatment to remove excess nitrates from drinking water. Costs for communities to install nitrate removal facilities have ranged from $90,000 to nearly $1.3 million, not including costs to properly dispose of wastewater from the treatment process.
There will be increased program costs for the Commission to implement the program. In addition to providing support to county conservation districts implementing the program, the Commission has entered into an agreement with the Penn State Cooperative Extension to have them provide educational services, workshops, teleconferences, training workshops and computer software development that will be needed by the program. This educational program will cost approximately $125,000 per year over a period of 5 years.
The Commission intends to seek funding for nutrient management plan development and loans and grants for financial assistance for the implementation of nutrient management plans on existing operations. In the first year following the adoption of the regulations, the Commission will request a minimum of $2 million from the General Assembly. Additional funding could come from various sources, for example, general fund appropriations, loan funds from the State Revolving Fund and the $25 million authorized for loans for nutrient management under Act 130 of 1994, Agriculture-Linked Investment Program.
County conservation districts will have to hire some new nutrient management specialists. These costs to the districts would be reimbursed by the Nutrient Management Fund.
Compliance Plan
The act requires the Commission, in cooperation with the Department of Agriculture, the Advisory Board, the Penn State Cooperative Extension and the conservation districts, to provide educational and technical assistance to the farming community. The Department of Agriculture has assumed the lead in assisting the Commission in developing this program. Contracts have been signed with the Cooperative Extension of the Pennsylvania State University for training and workshops to provide the farming community and nutrient management specialists with the information and skills necessary to participate in the program.
Paperwork Requirements
Fertilization rates are based on plant nutrient needs. These needs are determined based on the specific crop planted and soil characteristics. A soil test will be part of the data required to write a plan and should be kept on record at the operation. Agricultural operations that develop plans under the act will be required to maintain records of how their manure is used. For manure transfers off a CAO, this will be done by using a form entitled ''A Manure Transfer Sheet,'' which will be provided by the Commission. Some CAOs will be required to report their manure transfers by submitting a copy of the Manure Transfer Sheet, or the optional Summary of Manure Transfers form, to the Commission or local conservation district.
The act offers limited liability protection from manure pollution events. This is one of the main incentives for compliance, especially for voluntary involvement with the program. Good recordkeeping will be important to farmers who want to take advantage of this provision. The educational component of the nutrient management program will include instruction on how to keep these records, both to meet the letter of the law and to maximize efficient use of the manure resource.
The regulations have been written so that paperwork will be reduced as much as possible. Aside from submitting a copy of the nutrient management plan to enroll in the program, a majority of the agriculture operators participating are not expected to have to file any additional paperwork. Efforts have been made to minimize the need for plan amendments, especially for volunteers. Those agricultural operations that do have to submit records of manure exports can use the annual summary of manure transfers, which will reduce the amount of paperwork submitted.
Required forms will be supplied by the Commission. However, recognizing that many plans will be developed using a computer, computer generated forms will be accepted.
H. Sunset Review
These regulations will be reviewed in accordance with the sunset review schedule published by the Commission to determine whether these regulations effectively fulfill the goals for which they were intended.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on December 18, 1995, the Commission submitted a copy of the notice of proposed rulemaking, published at 25 Pa. B. 6161 (December 30, 1995) to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the Senate and House Agriculture and Rural Affairs Committees for review and comment. In compliance with section 5(b.1) of the Regulatory Review Act, the Commission also provided IRRC and the Committees with copies of the comments received, as well as other documentation.
In preparing these final-form regulations, the Commission has considered the comments received from IRRC, the Committees and the public.
These final-form regulations were deemed approved by the House Agriculture and Rural Affairs Committee and the Senate Agriculture and Rural Affairs Committee on April 21, 1997. IRRC met on May 1, 1997, and approved the regulations in accordance with section 5(c) of the Regulatory Review Act.
J. Findings of the Commission
The Commission finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law, and all comments were considered.
(3) These regulations do not enlarge the purpose of the proposal published at 25 Pa. B. 6161.
(4) These regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.
K. Order of the Commission
The Commission, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 83, are amended by adding §§ 83.201--83.207, 83.211--83.216, 83.221--83.233, 83.241, 83.251, 83.261, 83.262, 83.271, 83.272, 83.281, 83.282, 83.291--83.294, 83.301, 83.311, 83.321, 83.331, 83.341--83.344, 83.351, 83.361, 83.362, 83.371--83.373, 83.381, 83.391, 83.392, 83.401--83.404, 83.411, 83.421, 83.431, 83.441, 83.451--83.453, 83.461, 83.471, 83.472, 83.481--83.483 and 83.491 to read as set forth in Annex A.
(b) The Chairperson of the Commission shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval and review as to legality and form, as required by law.
(c) The Chairperson shall submit this order and Annex A to IRRC and the Senate and House Agriculture and Rural Affairs Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Commission shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect October 1, 1997.
JAMES M. SEIF,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 27 Pa.B. 2490 (May 17, 1997).)
Fiscal Note: 7-291. (1) Nutrient Management Fund; (2) Implementing Year 1996-97 is $796,900; (3) 1st Succeeding Year 1997-98 is $1,022,000; 2nd Succeeding Year 1998-99 is $1,270,000; 3rd Succeeding Year 1999-00 is $1,038,000; 4th Succeeding Year 2000-01 is $1,095,000; 5th Succeeding Year 2001-02 is $1,144,000; (4) Fiscal Year 1995-96 $94,415; Fiscal Year 1994-95 $Not Applicable; New Program; Fiscal Year 1993-94 $Not Applicable; New Program; (7) State Conservation Commission; (8) recommends adoption. The increased costs to the Nutrient Management Fund have been included in the 1997-1998 Governor's Executive Budget Proposal and have also been carried forward for planning purposes. Additional funds for grants and loans may be appropriated by the General Assembly through the budget process.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE I. LAND RESOURCES
CHAPTER 83. STATE CONSERVATION COMMISSION
Subchapter D. NUTRIENT MANAGEMENT GENERAL PROVISIONS
Sec.
83.201. Definitions. 83.202. Scope. 83.203. Purpose. 83.204. Applicability of requirements. 83.205. Preemption of local ordinances. 83.206. Limitation of liability. 83.207. Compliance Assistance and enforcement. PLAN DEVELOPMENT INCENTIVES PROGRAM
83.211. Applicant eligibility. 83.212. Application procedure. 83.213. Application prioritization criteria. 83.214. Eligible costs. 83.215. Funding limitations. 83.216. Implementation and reporting. FINANCIAL ASSISTANCE
83.221. Applicant eligibility. 83.222. Condition for receipt of financial assistance. 83.223. Financial assistance eligibility criteria. 83.224. Project evaluation and prioritization criteria. 83.225. Application procedure. 83.226. Eligible costs for the implementation of an approved plan. 83.227. Loans. 83.228. Loan guarantees. 83.229. Grants. 83.230. Grants and loans. 83.231. Funding limitations. 83.232. Implementation and reporting. 83.233. Delegation of financial assistance. DELEGATION TO LOCAL AGENCIES
83.241. Delegation to local agencies. COMPLIANCE PLANS
83.251. Compliance plans. NUTRIENT MANAGEMENT PLANS
83.261. General. 83.262. Identification of CAOs. CONTENT REQUIREMENTS FOR ALL PLANS
83.271. Scope of plan. 83.272. Content of plans. PLAN SUMMARY INFORMATION FOR CAO PLANS
83.281. Identification of agricultural operations and acreage. 83.282. Summary of plan. NUTRIENT APPLICATION FOR CAO PLANS
83.291. Determination of available nutrients. 83.292. Determination of nutrients needed for crop production. 83.293. Determination of nutrient application rates. 83.294. Nutrient application procedures. ALTERNATIVE USES FOR EXCESS MANURE FOR CAO PLANS
83.301. Excess manure utilization plans for CAOs. MANURE MANAGEMENT FOR CAO PLANS
83.311. Manure management. STORMWATER RUNOFF CONTROL FOR CAO PLANS
83.321. Stormwater runoff control. IMPLEMENTATION SCHEDULE FOR CAO PLANS
83.331. Implementation schedule. RECORDKEEPING AND INFORMATIONAL REQUIREMENTS FOR CAOs
83.341. General recordkeeping requirements. 83.342. Recordkeeping relating to application of nutrients. 83.343. Alternative manure utilization recordkeeping. 83.344. Exported manure informational packets. MINIMUM STANDARDS FOR MANURE STORAGE FACILITIES FOR CAOs
83.351. Minimum standards for the design, construction, location, operation, maintenance and removal from service of manure storage facilities. PLAN REVIEW AND IMPLEMENTATION FOR CAOs
83.361. Initial plan review and approval. 83.362. Plan implementation. PLAN AMENDMENTS AND TRANSFERS FOR CAOs
83.371. Plan amendments. 83.372. Amendments due to unforeseen circumstances. 83.373. Plan transfers. CONTAGIOUS DISEASE EMERGENCIES ON CAOs
83.381. Manure management in emergency situations. PLAN SUMMARY INFORMATION FOR VOLUNTEER OR FINANCIAL ASSISTANCE PLANS
83.391. Identification of agricultural operations and acreage. 83.392. Summary of plan. NUTRIENT APPLICATION FOR VOLUNTEER OR FINANCIAL ASSISTANCE PLANS
83.401. Determination of available nutrients. 83.402. Determination of nutrients needed for crop production. 83.403. Determination of nutrient application rates. 83.404. Nutrient application procedures. ALTERNATIVE USES FOR EXCESS MANURE FOR VOLUNTEER OR FINANCIAL ASSISTANCE PLANS
83.411. Alternative manure utilization plans. MANURE MANAGEMENT FOR VOLUNTEER OR FINANCIAL ASSISTANCE PLANS
83.421. Manure management. STORMWATER RUNOFF CONTROL FOR VOLUNTEER OR FINANCIAL ASSISTANCE PLANS
83.431. Stormwater runoff control. IMPLEMENTATION SCHEDULE FOR VOLUNTEER OR FINANCIAL ASSISTANCE PLANS
83.441. Implementation schedule. RECORDKEEPING AND INFORMATIONAL REQUIREMENTS FOR VOLUNTEERS
83.451. General recordkeeping requirements. 83.452. Recordkeeping relating to application of nutrients. 83.453. Alternative manure utilization recordkeeping. MINIMUM STANDARDS FOR MANURE STORAGE FACILITIES ON VOLUNTEER OR FINANCIAL ASSISTANCE OPERATIONS
83.461. Minimum standards for the design, construction, location, operation, maintenance and removal from service of manure storage facilities.
PLAN REVIEW AND IMPLEMENTATION FOR VOLUNTEERS OR FINANCIAL ASSISTANCE RECIPIENTS
83.471. Initial plan review and approval. 83.472. Plan implementation. PLAN AMENDMENTS AND TRANSFERS FOR VOLUNTEERS OR FINANCIAL ASSISTANCE RECIPIENTS
83.481. Plan amendments. 83.482. Amendments due to unforeseen circumstances. 83.483. Plan transfers. CONTAGIOUS DISEASE EMERGENCIES ON VOLUNTEER OR FINANCIAL ASSISTANCE OPERATIONS
83.491. Manure management in emergency situations.
GENERAL PROVISIONS § 83.201. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
AEU--Animal equivalent unit--One thousand pounds live weight of livestock or poultry animals, regardless of the actual number of individual animals comprising the unit.
AEU per acre--An animal equivalent unit per acre of cropland or acre of land suitable for application of animal manure.
Act--The Nutrient Management Act (3 P. S. §§ 1701--1718).
Agent--An entity delegated Commission powers and duties under the authority of section 4(3) of the Conservation District Law (3 P. S. § 852(3)), including a partnership, association, corporation, municipality, municipal authority, political subdivision of this Commonwealth and an agency, department, commission or authority of the Commonwealth.
Agricultural operations--The management and use of farming resources for the production of crops, livestock or poultry.
Animal concentration areas--Barnyards, feedlots, loafing areas, exercise lots, or other similar animal confinement areas that will not maintain a growing crop, or where deposited manure nutrients are in excess of crop needs. The term excludes areas managed as pastures or other cropland. The term excludes pasture access ways, if they do not cause direct flow of nutrients to surface water or groundwater.
BMP--Best management practice--A practice or combination of practices determined by the Commission to be effective and practicable (given technological, economic and institutional considerations) to manage nutrients to protect surface water and groundwater taking into account applicable nutrient requirements for crop utilization. The term includes, but is not limited to:
(i) Conservation tillage.
(ii) Crop rotation.
(iii) Soil testing.
(iv) Manure testing.
(v) Diversions.
(vi) Manure storage facilities.
(vii) Stormwater management practices.
(viii) Nutrient application.
CAO--Concentrated animal operation--Agricultural operations where the animal density exceeds two AEUs per acre on an annualized basis.
Commission--The State Conservation Commission established by the Conservation District Law (3 P. S. §§ 849--864).
Concentrated water flow areas--Those natural or manmade areas where stormwater runoff is channeled and conveyed directly to a surface water body or groundwater. The term includes, but is not limited to, ditches, waterways, gullies and swales.
Conservation district--A county conservation district established under the Conservation District Law.
Cooperative Extension--The Penn State Cooperative Extension.
Critical runoff problem areas--Those nonvegetated concentrated water flow areas directly discharging into surface water bodies or groundwater, and those areas where runoff containing nutrients that were applied after the growing season discharge directly into surface water or groundwater. The term includes gullies and unprotected ditches.
Crop group--A crop field or group of crop fields that are planted to the same crop, managed as a unit, have similar levels of residual nutrients and will produce similar crop yields.
Farming resources--The animals, facilities and lands used for the production of crops, livestock or poultry. The lands are limited to those located at the animal production facility which are owned by the operator, and lands under agreement or under the management control of the operator that are an integral part of the production of crops, livestock or poultry and the associated management of nutrients generated by the animal production facility.
Fund--The Nutrient Management Fund established under section 10 of the act (3 P. S. § 1710).
Manure Management Manual--The guidance manual entitled ''Manure Management Manual for Environmental Protection'' and its supplements developed by an interagency workgroup and published by the Department. The manual describes approved manure management practices for which a permit or approval from the Department is not required as set forth in § 101.8 (relating to pollution control and prevention from agricultural operations).
Manure storage facility--A permanent structure or facility, or portion of a structure or facility, utilized for the primary purpose of containing manure. The storage facility of a waste management system is the tool that gives the manager control over the scheduling and timing of the spreading or export of manure. Examples include: liquid manure structures, manure storage ponds, component reception pits and transfer pipes, containment structures built under a confinement building, permanent stacking and composting facilities and manure treatment facilities. The term does not include the animal confinement areas of poultry houses, horse stalls, freestall barns or bedded pack animal housing systems.
Mechanical incorporation of manure--The combination of manure with the soil by means of farm tillage or manure injection equipment, including disks and twisted shank chisel plows, in order to minimize the potential of overland runoff of the manure.
NRCS--Natural Resources Conservation Service--The Natural Resources Conservation Service of the United States Department of Agriculture, formerly known as the Soil Conservation Service.
Nutrient--A substance or recognized plant nutrient, element or compound which is used or sold for its plant nutritive content or its claimed nutritive value. The term includes, but is not limited to, livestock and poultry manures, compost as fertilizer, commercially manufactured chemical fertilizers, sewage sludge or combinations thereof.
Nutrient management specialist--A person satisfying the requirements of the Department of Agriculture's Nutrient Management Certification Program in 7 Pa. Code §§ 130b.1--130b.51 (relating to nutrient management certification).
Pastures--Crop areas managed for forage production that are harvested by livestock or livestock and haying and where animal management practices assure that uncollected manure nutrients are limited to the amounts utilized by the crop.
Pennsylvania Agronomy Guide--The quick reference book published by the Cooperative Extension as a practical guide to grain and forage production, soil fertility management, pest management and erosion control, with special reference to Pennsylvania conditions.
Pennsylvania Technical Guide--A primary reference document published by the United States Department of Agriculture's NRCS, which is used by technically trained persons to plan and apply appropriate BMPs.
Perennial stream--A body of water that normally flows year-round in a defined channel or bed, and is capable, in the absence of pollution or other manmade stream disturbances, of supporting bottom dwelling aquatic animals.
Permanent manure stacking areas--Designated, improved storage areas that are used for the long term or recurring storage of solid manure.
Plan--nutrient management plan--A written site-specific plan which incorporates BMPs to manage the use of plant nutrients for crop production and water quality protection, consistent with the criteria in sections 4 and 6 of the act (3 P. S. §§ 1704 and 1706), and in §§ 83.271, 83.272 and 83.281--83.331 for CAOs or §§ 83.271, 83.272 and 83.391--83.441 for nonCAOs planning under the act.
Spring--A place where groundwater flows naturally from rock or soil onto the land surface or into a surface water body, for a total of 183 days or more per year.
Stormwater--Runoff from the surface of the land resulting from rain or snow or ice melt.
Surface water and groundwater--All rivers, streams, creeks, rivulets, impoundments, ditches, water courses, storm sewers, lakes, dammed water, ponds, springs and all other bodies or channels of conveyance of surface and underground water, or parts thereof, whether natural or artificial, within or on the boundaries of this Commonwealth.
Temporary manure stacking areas--Unimproved areas, preferably located in crop fields, that are planned to be used in unforeseen circumstances for the storage of solid manure to be used during the next growing season, or for other acceptable uses.
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