RULES AND REGULATIONS
DEPARTMENT OF AGRICULTURE
[7 PA. CODE CH. 130d]
Application of Soil and Groundwater Contaminated with Agricultural Chemicals to Agricultural Lands
[34 Pa.B. 4575] The Department of Agriculture (Department), under the specific authority of section 904(d) of the Land Recycling and Environmental Remediation Standards Act (act) (35 P. S. § 6026.904(d)), adopts Chapter 130d (relating to application of soil and groundwater contaminated with agricultural chemicals to agricultural lands) to read as set forth in Annex A.
Authority
The Department has the power and authority to promulgate and adopt this final-form rulemaking. This authority is established under section 904(d) of the act. Section 904(d) of the act delineates the duties of the Department and directs the Department to '' . . . promulgate regulations providing for the option of safely reusing soil and groundwater contaminated with agricultural chemicals generated as a result of remediation activities at agricultural chemical facilities through the land application of these materials on agricultural lands.'' The final-form rulemaking is required to '' . . . provide for the appropriate application rates of such materials, either alone or in the combination with other agricultural chemicals, and prescribe appropriate operations controls and practices to protect the public health, safety and welfare and the environment at the site of land application.''
Need for the Final-Form Rulemaking
The act requires the Department to promulgate regulations providing for the option of safely reusing soil and groundwater contaminated with agricultural chemicals generated as a result of remediation activities at agricultural chemical facilities through the land application of these materials on agricultural lands. The Department takes very seriously its duty to protect the health and safety of the general public and to preserve the quality and productivity of agricultural lands in this Commonwealth. The final-form rulemaking is intended to address the safety of the application of soil and groundwater contaminated agricultural chemicals and to protect and assure the productivity and viability of the agricultural lands to which media is applied. The act and regulations provide for an alternative approach, other than incineration or landfill disposal, to dispose of soil and groundwater contaminated with agricultural chemicals taken from an agricultural chemical facility being remediated under the act.
In addition, the Department of Environmental Protection, under the Solid Waste Management Act (35 P. S. §§ 6018.101--6018.1003), has regulations in place concerning the land application of residual waste in 25 Pa. Code Chapter 291 (relating to land application of residual waste) including regulations specifically regarding application to agricultural land in 25 Pa. Code Chapter 291, Subchapter D (relating to additional requirements for the agricultural utilization of residual waste). ''Residual waste'' as defined by the Solid Waste Management Act includes agricultural waste. The act does not exempt the application of soil and groundwater contaminated with agricultural chemicals to agricultural lands from the regulations promulgated under the Solid Waste Management Act. Therefore, the Department has endeavored to assure the final-form rulemaking is consistent with the residual waste regulations pertaining to application of residual waste to agricultural land.
In the interest of carrying out its statutory duties and providing a safe alternative use for soil and groundwater contaminated with agricultural chemicals the Department has promulgated this final-form rulemaking. The final-form rulemaking is to establish safe standards, criteria and procedures for the application of the contaminated media to agricultural lands.
Comments
Notice of proposed rulemaking was published at 32 Pa.B. 1965 (April 20, 2002) and provided for a 30-day public comment period. The Department received numerous comments regarding the proposed rulemaking and made extensive revisions to the proposed rulemaking based on the comments. Therefore, the Department decided to distribute the revised rulemaking to all commentators for their review prior to submitting the revised rulemaking into the final-form rulemaking process. The Department received no additional comments.
Comments were received from the Independent Regulatory Review Commission (IRRC); the Honorable Raymond Bunt, Jr., Majority Chairperson, Agriculture and Rural Affairs Committee; the Honorable Peter J. Daley, Democratic Chairperson, Agriculture and Rural Affairs Committee; members and representatives of the regulated community, Syngenta Crop Protection, CropLife America and DuPont Crop Protection, who submitted their comments through the office of the Honorable Raymond Bunt, Jr.; and the Chesapeake Bay Foundation. The Department thanks all of those who commented on the final-form rulemaking. The comments were insightful and helped the Department to clarify, simplify and streamline the final-form rulemaking and develop a final-form rulemaking that meets the parameters of the act.
A comment and response document is available upon request from the contact person listed in this preamble.
Fiscal Impact
Commonwealth
The final-form rulemaking will impose substantial costs and have a fiscal impact upon the Commonwealth. The final-form rulemaking will add a new program and increase the regulatory workload of the Department. The final-form rulemaking will require additional manpower for proper, meticulous and timely review of complex land application proposals and for inspections during land application and follow-up inspections after the land application is complete. In addition, denials may lead to appeals and further regulatory costs for the Department.
Political Subdivisions
The final-form rulemaking will impose costs and have a fiscal impact upon political subdivisions to the extent they become involved in regulating, through imposition of additional regulatory requirements such as ordinances and public meetings, an activity--the application of soil and groundwater contaminated with agricultural chemicals from an agricultural chemical facility to agricultural land--which was not allowed prior to the enactment of the act and the acceptance of this final-form rulemaking. The final-form rulemaking however, do not require involvement of, or regulation by, political subdivisions.
Private Sector
The final-form rulemaking only affects private sector persons who choose to land apply soil and groundwater taken from an agricultural chemical facility being remediated under the act and contaminated with agricultural chemicals to agricultural land. For members of the private sector that elect to follow this approach, the final-form rulemaking will impose substantial costs primarily related to the testing requirements for soil and groundwater contaminated with agricultural chemicals prior to their application to agricultural land. However, these costs are no more prohibitive than the cost of other means of disposal of that contaminated media, such as landfill disposal or incineration, both of which have less potential to harm the environment or productive agricultural land.
General Public
The final-form rulemaking will impose no additional costs and have no fiscal impact on the general public.
Paperwork Requirements
The final-form rulemaking will result in an appreciable increase in paperwork. The Department will be required to review complex land application proposals and records generated as a result of the land application of soil and groundwater contaminated with agricultural chemicals. The Department has been required to generate a land application proposal setting forth a general outline for the applicant.
Contact Person
Further information is available by contacting the Department of Agriculture, Bureau of Plant Industry, 2301 North Cameron Street, Harrisburg, PA 17110-9408, Attn: Vance Wagner, (717) 787-4843.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 10, 2002, the Department submitted a copy of the notice of proposed rulemaking, published at 32 Pa.B. 1965, to IRRC and the Chairpersons of the House Agricultural and Rural Affairs Committee and the Senate Agriculture and Rural Affairs Committee for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on June 23, 2004, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on June 24, 2004, and approved the final-form rulemaking.
Findings
The Department finds that:
(1) Public notice of intention to adopt the amendments adopted by this order has been 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 the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments received were considered.
(3) The modifications that were made to the final-form rulemaking in response to comments received do not enlarge the purpose of the proposed rulemaking published at 32 Pa.B. 1965.
(4) Prior to final submittal of the final-form rulemaking, a draft of the final-form rulemaking and comment and response document were sent to persons who commented during the proposed stage of rulemaking and were given 10 days to submit additional comments.
(5) The modifications that were made to the final-form rulemaking in response to additional comments received do not enlarge the purpose of the proposed rulemaking published at 32 Pa.B. 1965.
(6) The adoption of the final-form rulemaking in the manner provided in this order is necessary and appropriate for the administration of the authorizing statute.
Order
The Department, acting under authority of the authorizing statute, orders that:
(a) The regulations of the Department, 7 Pa. Code Chapter 130d, are amended by adding §§ 130d.1--130d.5, 130d.21--130d.30, 130d.31--130d.33, 130d.41--130d.48, 130d.51, 130d.52, 130d.61 and 130d.62 to read as set forth in Annex A
(b) The Secretary of the Department shall submit this order and Annex A to the Office of General Counsel and to the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Secretary of the Department shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
DENNIS C WOLFF,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 34 Pa.B. 3652 (July 10, 2004).)
Fiscal Note: 2-116. (1) General Fund; (2) Implementing Year 2003-04 is $0; (3) 1st Succeeding Year 2004-05 is $50,000; 2nd Succeeding Year 2005-06 is $53,000; 3rd Succeeding Year 2006-07 is $55,000; 4th Succeeding Year 2007-08 is $57,000; 5th Succeeding Year 2008-09 is $60,000; (4) 2002-03 Program--N/A; 2001-02 Program--N/A; 2000-01 Program--N/A; (7) General Government Operations--Department of Agriculture; (8) recommends adoption.
Annex A
TITLE 7. AGRICULTURE
PART V. BUREAU OF PLANT INDUSTRY
CHAPTER 130d. APPLICATION OF SOIL AND GROUNDWATER CONTAMINATED WITH AGRICULTURAL CHEMICALS TO AGRICULTURAL LANDS
Subch. A. GENERAL PROVISIONS B. LAND APPLICATION PROPOSAL REQUIREMENTS FOR PERMISSION TO APPLY SOIL AND GROUNDWATER CONTAMINATED WITH AGRICULTURAL CHEMICALS TO AGRICULTURAL LAND C. LAND APPLICATION PROPOSAL REVIEW PROCEDURES D. GENERAL OPERATING REQUIREMENTS FOR LAND APPLICATION OF SOIL AND GROUNDWATER CONTAMINATED WITH AGRICULTURAL CHEMICALS TO AGRICULTURAL LAND E. GENERAL REQUIREMENTS AND EXCEPTIONS FOR USE AND APPLICATION OF GROUNDWATER CONTAMINATED WITH AGRICULTURAL CHEMICALS AS TANK MIX F. CLOSURE
Subchapter A. GENERAL PROVISIONS Sec.
130d.1. Definitions. 130d.2. Scope. 130d.3. Continuing authority. 130d.4. Retained recordkeeping. 130d.5. Public notice by applicant. § 130d.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act--The Land Recycling and Environmental Remediation Standards Act (35 P. S. §§ 6026.101--6026.908).
Active ingredient--
(i) In the case of a pesticide other than a plant regulator, defoliant or desiccant, an ingredient which will prevent, destroy, repel or mitigate any pest.
(ii) In the case of a plant regulator, an ingredient which, through physiological action, will accelerate or retard the rate of growth or rate of maturation or otherwise alter the behavior of ornamental or crop plants or the product thereof.
(iii) In the case of a defoliant, an ingredient which will cause the leaves or foliage to drop from a plant.
(iv) In the case of a desiccant, an ingredient which will artificially accelerate the drying of plant tissue.
Agricultural chemical--A substance defined as a fertilizer, under 3 Pa.C.S. § 6702 (relating to definitions), or a substance defined as a plant amendment, plant-amending ingredient, soil amendment or soil-amending ingredient under 3 Pa.C.S. § 6902 (relating to definitions) or a substance regulated under the Pennsylvania Pesticide Control Act of 1973 (3 P. S. §§ 111.21--111.60).
Agricultural chemical facility--A facility where agricultural chemicals are held, stored, blended, formulated, sold or distributed. The term does not include facilities identified by the North American Industry Classification System (NAICS) in NAICS 325320 where agricultural chemicals are manufactured.
Agricultural land or farmland--Land in this Commonwealth that is currently being utilized for the commercial production of agricultural crops, livestock or livestock products, poultry products, milk or dairy products, fruit or other horticultural products.
Animal--All vertebrate and invertebrate species, including man and other mammals, birds, fish and shellfish.
Application site--The farmland area approved to receive an application of soil or groundwater contaminated with agricultural chemicals and delineated in the applicant's land application proposal containing and detailing the exact location of the farmland upon which the soil or groundwater contaminated with the agricultural chemicals is to be applied, including the property boundaries of the farmland and each field upon which the contaminated soil or groundwater will be applied.
Applicator--A certified applicator, private applicator, commercial applicator, public applicator or pesticide application technician.
(i) Certified applicator. An individual who is certified under section 16.1, 17 or 17.1 of the Pennsylvania Pesticide Control Act of 1973 (3 P. S. §§ 111.36a, 111.37 and 111.37a) as competent to use or supervise the use or application of any pesticide.
(ii) Private applicator. A certified applicator who uses or supervises the use of any pesticide which is classified for restricted use for purposes of producing any agricultural commodity on property owned or rented by him or his employer or, if applied without compensation other than trading of personal services between producers of agricultural commodities, on the property of another person.
(iii) Commercial applicator.
(A) A certified applicator (whether or not the applicator is a private applicator with respect to some uses) who uses or supervises the use of any pesticide on the property or premises of another, or on easements granted under State law.
(B) An applicator who uses or supervises the use of any restricted use pesticide on property owned or rented by him or his employer, when not for purposes of producing an agricultural product.
(C) The Secretary may by regulation deem certain types of applicators using any pesticide on their own property or that of their employer as commercial applicators.
(iv) Public applicator. A certified applicator who applies pesticides as an employee of the State or its instrumentalities or any local agency.
(v) Pesticide application technician. An individual employed by a commercial applicator or governmental agency who, having met the competency requirements of section 16.1 of the Pennsylvania Pesticide Control Act of 1973 is registered by the Secretary to apply pesticides under the direct supervision of a certified applicator.
Background--The concentration of a regulated substance determined by appropriate statistical methods that is present at the site, but is not related to the release of regulated substances at the site.
Cleanup or remediation--To clean up, mitigate, correct, abate, minimize, eliminate, control or prevent a release of a regulated substance into the environment in order to protect the present or future public health, safety, welfare or the environment, including preliminary actions to study or assess the release.
Contaminated media--Soil and groundwater contaminated with agricultural chemicals generated as a result of remediation activities at agricultural chemical facilities.
DEP--The Department of Environmental Protection of the Commonwealth.
Defoliant--Any substance or mixture of substances intended for causing the leaves or foliage to drop from a plant, with or without causing abscission.
Department--The Department of Agriculture of the Commonwealth.
Desiccant--Any substance or mixture of substances intended for artificially accelerating the drying of plant tissue.
Environment--Includes water, air, land and all plants and man and other animals living therein, and the interrelationships which exist among these.
Environmental protection acts--Includes:
(i) The Clean Streams Law (35 P. S. §§ 691.1--691.1001).
(ii) The Municipal Waste Planning, Recycling and Waste Reduction Act (53 P. S. §§ 4001.101--4001.1904).
(iii) The Hazardous Sites Cleanup Act (35 P. S. §§ 6020.101--6020.1305).
(iv) The Low-Level Radioactive Waste Disposal Act (35 P. S. §§ 7130.101--7130.906).
(v) The act of July 13, 1988 (35 P. S. §§ 6019.1--6019.6), known as the Infectious and Chemotherapeutic Waste Disposal Law.
(vi) The Air Pollution Control Act (35 P. S. §§ 4001--4015).
(vii) The Surface Mining Conservation and Reclamation Act (52 P. S. §§ 1396.1--1396.31).
(viii) The Noncoal Surface Mining Conservation and Reclamation Act (35 P. S. §§ 3301--3326).
(ix) The Dam Safety and Encroachments Act (32 P. S. §§ 693.1--693.27).
(x) The Solid Waste Management Act (35 P. S. §§ 6018.101--6018.1003).
(xi) The Nutrient Management Act (3 P. S. §§ 1701--1718).
(xii) Sections 6701--6725 of 3 Pa.C.S. (relating to Fertilizer Act).
(xiii) The Pennsylvania Pesticide Control Act of 1973 (3 P. S. §§ 111.21--111.61).
(xiv) The Federal Insecticide, Fungicide and Rodenticide Act of 1947 (7 U.S.C.A. §§ 136--136y).
(xv) The Resource Conservation and Recovery Act of 1976 (42 U.S.C.A. §§ 6901--6986).
(xvi) Sections 6901--6921 of 3 Pa.C.S. (relating to Soil and Plant Amendment Act).
(xvii) Other State or Federal statutes relating to environmental protection or the protection of public health.
Equipment--
(i) Any type of ground, water or aerial equipment or contrivance using motorized, mechanical or pressurized power and used to apply any agricultural chemical.
(ii) The term does not include any pressurized hand-sized household apparatus used to apply any agricultural chemical or any equipment or contrivance of which the person who is applying the agricultural chemical is the source of power or energy in pesticide application.
General use pesticides--A pesticide not classified as a restricted use pesticide.
Groundwater--Water below the land surface in a zone of saturation.
HAL--Health Advisory Levels published by the United States Environmental Protection Agency for particular substances.
Habitats of concern--A habitat defined as one of the following:
(i) Typical wetlands with identifiable function and value, except for exceptional value wetlands as defined in 25 Pa. Code § 105.17 (relating to wetlands).
(ii) Breeding areas for species of concern.
(iii) Migratory stopover areas for species of concern.
(iv) Wintering areas for species of concern.
(v) Habitat for State endangered plant and animal species.
(vi) Areas otherwise designated as critical or of concern by the Game Commission, the Fish and Boat Commission or the Department of Conservation and Natural Resources.
Incorporation--Plowing or injecting contaminated media to a depth of at least 6 inches and in a manner that ensures a uniform mixture of top soil and contaminated media.
Label--The written, printed or graphic matter on, or attached to the agricultural chemical or device or any of its containers or wrappers.
Labeling--Pertaining to agricultural chemicals, the term means all labels and other written, printed or graphic matter which includes one of the following:
(i) That which accompanies the pesticide, agricultural chemical or device at any time.
(ii) To which reference is made on the label or in literature accompanying the agricultural chemical, except to current official publications of the United States Environmental Protection Agency, the United States Departments of Agriculture and Interior, the Departments of Health and Human Services and Education, State experiment stations, State agricultural colleges and other similar Federal or State institutions or agencies authorized by law to conduct research in the field of agricultural chemicals.
Land application proposal--An application for permission to apply soil and groundwater contaminated with agricultural chemicals, generated as a result of remediation activities carried out at an agricultural chemical facility, to agricultural land.
MCL--Maximum contaminant level established for drinking water by DEP.
Person--An individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, authority, nonprofit corporation, interstate body or other legal entity which is recognized by law as the subject of rights and duties. The term includes the Federal Government, State Government, political subdivisions and Commonwealth instrumentalities.
Pesticide--A substance or mixture of substances intended for preventing, destroying, repelling or mitigating any pest, and any substance or mixture of substances intended for use as a plant regulator, defoliant or desiccant.
Plant regulator--
(i) A substance or mixture of substances intended, through physiological action, for accelerating or retarding the rate of growth or rate of maturation, or for otherwise altering the behavior of plants or the produce thereof, but does not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants and soil amendments.
(ii) The term does not include any of those nutrient mixtures or soil amendments, commonly known as vitamin-hormone horticultural products, intended for improvement, maintenance, survival, health and propagation of plants and not for pest destruction and are nontoxic and nonpoisonous in the undiluted packaged concentration.
Prime farmland--Those lands which are defined by the Secretary of the United States Department of Agriculture in 7 CFR 657 (relating to prime and unique farmlands), and which have been historically used for cropland.
Secretary--The Secretary of the Department.
Tank mix or spray mix--A mixture of one or more agricultural chemicals which is diluted with water prior to the time of application.
Treatment--The term shall have the same meaning as given to this term in section 103 of the Hazardous Sites Cleanup Act (35 P. S. § 6020.103).
Under the direct supervision of a certified commercial or public applicator--Unless otherwise prescribed by labeling, the term means application by a registered pesticide application technician acting under the instructions and control of a certified applicator who is available if needed, even though the certified applicator is not physically present at the time and place the pesticide is applied, or application by a crew of noncertified or nonregistered employees working under the instruction and control of a certified commercial or public applicator who is physically present at the job site.
Unreasonable adverse effects on the environment--Any unreasonable risk to man, animal or the environment, taking into account the economic, social and environmental costs and benefits for the use of any agricultural chemical.
§ 130d.2. Scope.
(a) The Department has the powers and the duties set forth under section 904(d) of the act (35 P. S. § 6026.904(d)).
(b) This chapter specifies general procedures and rules for persons who solicit and receive approval from the Department to apply soil or groundwater contaminated with agricultural chemicals, generated as a result of remediation activities at agricultural chemical facilities, to agricultural land.
(c) This chapter applies only to the application of soil or groundwater contaminated with agricultural chemicals, generated as a result of remediation activities, at agricultural chemical facilities and applied to agricultural lands. The Department has no power to issue final approval for the land application of soil or groundwater generated as the result of remediation activities as follows:
(1) That are contaminated with chemicals or substances other than agricultural chemicals.
(2) That were not undertaken at an agricultural chemical facility.
(3) Where the contaminated soil or groundwater will be applied to land other than agricultural land.
(d) The applicant is responsible for obtaining any additional permits or approvals necessary for management of waste that contains agricultural chemicals and other chemicals or substances. The applicant shall submit an affidavit attesting to the fact that either no contaminants other than the agricultural chemicals tested for and set forth in its application are present in the soil or groundwater it seeks to apply to the agricultural land or if other contaminants exist, an affidavit stating what those contaminants are and attesting to the fact the applicant has received all permits or approvals necessary for the application of those contaminants to agricultural land. If the permits or approvals are obtained prior to submission of the land application proposal, the permits or approvals, or both, shall be attached to the land application proposal.
§ 130d.3. Continuing authority.
(a) Nothing in this chapter may be construed to amend, modify, repeal or otherwise alter any provision of any act cited and the regulations pertaining thereto, relating to civil and criminal penalties or enforcement actions and remedies available to the Department or in any way to amend, modify, repeal or alter the authority of the Department to take appropriate civil and criminal action under those statutes.
(b) Nothing in this chapter may be construed to place any duty, responsibility or liability on the Department for contaminants in soil or groundwater other than agricultural chemicals that were tested for and approved by the Department. The applicant is soley responsible for all duties and liability related to all contaminants other than the agricultural chemicals tested for, set forth in the applicant's land application proposal and approved by the Department.
§ 130d.4. Retained recordkeeping.
(a) General. An applicant receiving permission to apply soil or groundwater contaminated with agricultural chemicals to agricultural land, shall maintain records in accordance with recordkeeping provisions of section 35 of the Pennsylvania Pesticide Control Act of 1973 (3 P. S. §§ 111.55) and in accordance with the appropriate recordkeeping provisions of §§ 128.11, 128.24, 128.35, 128.53, 128.65 and 128.88. In addition, an approved applicant shall keep the following records:
(1) The daily operation records required by § 130d.46 (relating to daily operational records).
(2) The annual operation report required by § 130d.48 (relating to annual operational report).
(3) The final report required by § 130d.62 (relating to final report).
(4) The right of entry agreement required by § 130d.27(b) (relating to right of entry and agreement with landowner).
(b) Inspection and audit. All records and documents shall be available for inspection or audit at reasonable times (such as regular operating hours of the Department) by the Department or its authorized agents.
(c) Retention time period. All records, reports and documents shall be retained by the person responsible for the application of the soil and groundwater for 5 years after the date on which the site closure plan and final report were approved by the Department.
§ 130d.5. Public notice by applicant.
The applicant shall comply with the notice requirements established by section 25.1 of the Pennsylvania Pesticide Control Act of 1973 (3 P. S. §§ 111.45a) and §§ 128.81--128.89 (relating to prior notification) and § 128.112 (relating to notification of hypersensitive individuals).
Subchapter B. LAND APPLICATION PROPOSAL REQUIREMENTS FOR PERMISSION TO APPLY SOIL AND GROUNDWATER CONTAMINATED WITH AGRICULTURAL CHEMICALS TO AGRICULTURAL LAND Sec.
130d.21. General requirements for land application proposal form. 130d.22. Chemical analysis of waste and sampling techniques and protocol. 130d.23. Waste sampling plan. 130d.24. Operating plan. 130d.25. Maps and related information. 130d.26. Financial responsibility. 130d.27. Right of entry and agreement with landowner. 130d.28. Identification of interest. 130d.29. Compliance information. 130d.30. Environmental assessment. § 130d.21. General requirements for land application proposal form.
(a) Submittal. Land application proposals shall be submitted in writing, on forms provided by the Department. Persons submitting land application proposals shall submit them to the Department at the address which appears on the land application proposal form developed by the Department.
(b) Documentation. Each land application proposal shall include and have attached thereto, information, maps, plans, specifications, designs, analyses, test reports and other data as may be required by the Department to determine compliance with this chapter. The Department will notify the applicant in writing requesting any additional information.
(c) Affirmation of chemical analysis of waste and sampling techniques and protocol and the waste sampling plan. The chemical analysis of waste and sampling techniques and protocol and the waste sampling plan, required by §§ 130d.22 and 130d.23 (relating to chemical analysis of waste and sampling techniques and protocol; and waste sampling plan), shall be supported by an affidavit, signed by the applicant, affirming that all known and likely agricultural chemicals, nutrients and constituents at the remediation site were tested for and the tests were performed in accordance with this chapter and the applicant's land application proposal.
(d) Affirmation of compliance with all applicable laws, rules and ordinances. The applicant shall submit a signed affidavit, affirming it has received the proper permits and approvals and that the removal, storage, handling and application of the contaminated soil or groundwater is in compliance with applicable laws, regulations and ordinances.
(e) Affirmation of operation plan. The operating plan shall be signed by the applicant and the appropriate applicator verifying that the techniques, methods and rates of application set forth in the operating plan will be followed.
§ 130d.22. Chemical analysis of waste and sampling techniques and protocol.
(a) General criteria. A person who seeks to apply soil or groundwater, generated as a result of remediation activities at an agricultural chemical facility, to agricultural land shall perform a detailed analysis and testing of the soil or groundwater, or both, at the agricultural chemical facility site and the application site. A verified copy of the sampling techniques and results shall be submitted to the Department as part of the land application proposal.
(b) Analysis and testing of the soil or groundwater, or both, at the agricultural chemical facility site. The analysis and testing at the agricultural chemical facility site shall fully characterize the physical properties and chemical composition of each type of agricultural chemical that was held, stored, blended, formulated, sold, distributed, manufactured or generated by the agricultural chemical facility and shall be done in accordance with subsections (d) and (e)(1) and (2). The substances tested for shall be predicated on the manufacturing processes and business carried on at the agricultural chemical facility site being remediated and records obtained from that agricultural chemical facility or facilities on that site. The types of agricultural chemicals likely to be contained in the soil and groundwater shall be gleaned from information available regarding the agricultural chemical facility site at which the remediation activities are taking place including the following:
(1) Records, including sales records, memorandums, invoices and historical data, of the type of products manufactured, held, stored, formulated, sold, distributed, produced or used.
(2) Material safety data sheets or similar sources that may help characterize the types of agricultural chemicals and waste generated.
(3) Notices of past spills, violations or contamination if applicable.
(4) Information regarding any agricultural chemical byproduct or agricultural chemical produced during or as a result of the manufacturing processes, mixing, storage or distribution of materials.
(c) Analysis and testing of soil at the proposed application site. The analysis and testing at the proposed application site shall cover soil samples taken from the proposed application site and shall be done in accordance with subsections (d) and (e)(3). The soil samples taken from the proposed application site shall be tested for each agricultural chemical, nutrient or constituent found in the soil or groundwater, or both, at the agricultural chemical facility site that is proposed to be applied to the application site. In addition, the proposed application site analysis shall delineate the soil types found within the proposed application area. The testing and analysis of the soil at the proposed application site, at minimum, shall include:
(1) A chemical, nutrient and constituent analysis of each 15-acre field or plot upon which a soil pile or quantity of groundwater from the remediated agricultural chemical facility site is to be applied.
(2) Testing for all agricultural chemicals, the by-products or derivatives thereof, and each agricultural chemical, nutrient or constituent that was found to be present in the contaminated soil or groundwater, or both, at the agricultural chemical facility being remediated which are to be applied at the proposed application site.
(3) Documentation of the soil types found within the proposed application area.
(d) Approved laboratory. Soil or groundwater samples, or both, from each soil pile or quantity of groundwater taken from the agriculture chemical facility site being remediated and sought to be applied to agricultural land and soil samples taken from the application site shall be tested on a parts per million basis and shall be submitted for analysis to a laboratory compliant with the United States Environmental Protection Agency's (EPA) Good Laboratory Practices (GLP) Program. A list of EPA GLP compliant laboratories is available on the Department's website. A copy of the test results shall be submitted to the Department as part of the land application proposal and to the owner of the agricultural land on which the contaminated soil and groundwater is sought to be applied.
(e) Sampling techniques. Sampling techniques shall be consistent with the sampling procedures set forth in the Pennsylvania Agronomy Guide which are set forth herein.
(1) Soil pile samples from the agricultural chemical facility remediation site. Sampling of soil piles from an agricultural chemical facility remediation site shall consist of one representative sample from each soil pile proposed to be land applied. A representative sample shall consist of 15 core samples from each soil pile at the remediation site which is proposed to be land applied to an agricultural site. A soil pile shall contain no more than 36,000 cubic yards of soil, which represents the cubic yards of soil contained in 15 acres of land at a 6-inch depth and is consistent with the standards established in the Pennsylvania Agronomy Guide. Multiple soil piles require multiple samples. Samples shall be collected and recorded in the following manner:
(i) Fifteen core samples shall be collected from each soil pile proposed to be land applied.
(ii) Each core sample shall be collected from a depth of at least 4 to 6 inches.
(iii) The core samples taken from each soil pile shall be mixed in order to acquire a representative sample from that particular soil pile.
(iv) Roots, stones and other debris not representative of the substrate being sampled and proposed for land application shall be removed from the core samples.
(v) The mixed sample from each soil pile shall be placed in a clean unused container and marked in a manner delineating the particular soil pile from which the sample was taken. The sample container shall be compliant with the standards established by the approved laboratory to which the soil samples will be submitted for testing.
(vi) The applicant shall complete the required report form, set forth the agricultural chemicals to be tested for, in compliance with the requirements of this chapter, and submit the sample or samples to an approved laboratory.
(2) Water samples from the agricultural chemical facility remediation site. Where groundwater from an agricultural chemical facility remediation site is proposed to be applied to agricultural land, the applicant shall collect 1 pint of water from the remediation site for every 2,000 gallons of water sought to be land applied or utilized as tank mix. Samples shall be collected and recorded in the following manner:
(i) Samples shall be collected from random and mixed points and depths throughout the remediation site to assure a true and representative sampling of the water contaminated with agricultural chemicals at the remediation site.
(ii) Samples shall be collected in clean unused glass bottles and kept chilled during and prior to delivery to an approved laboratory.
(iii) Samples shall be marked in a manner delineating the particular site location and depth from which the sample was taken.
(iv) The applicant shall complete the required report form, set forth the agricultural chemicals to be tested for, in compliance with this chapter, and submit the sample or samples to an approved laboratory.
(3) Soil samples from the proposed application site. Sampling of soil from the proposed application site shall consist of one representative sample per every 15 acres of land upon which the soil contaminated with agricultural chemicals from the agricultural chemical facility is proposed to be land applied. Samples shall be collected and recorded in the following manner:
(i) A representative sample shall consist of 15 core samples collected from 15 different areas per 15-acre plot (one core sample taken from each acre on that plot) of land area proposed to receive soil or water, or both, contaminated with agricultural chemicals from an agricultural chemical facility being remediated under the act.
(ii) Core samples shall be collected from a depth of at least 4 to 6 inches.
(iii) The 15 core samples collected from each 15-acre plot shall be thoroughly mixed to get a representative sample from that 15-acre plot.
(iv) Roots, stones and other debris not representative of the field plot being sampled shall be removed from the core samples.
(v) The mixed sample from each 15-acre plot shall be placed in a clean, unused container and marked in a manner delineating the particular 15-acre plot from which the sample was taken. The sample container shall be compliant with the standards established by the approved laboratory to which the soil sample will be submitted for testing.
(vi) The applicant shall complete the required report form, set forth the agricultural chemicals to be tested for and submit the sample or samples to an approved laboratory.
§ 130d.23. Waste sampling plan.
The applicant shall develop a waste sampling plan. The waste sampling plan shall be attached to and made part of the land application proposal submitted to the Department. The waste sampling plan shall encompass the sampling techniques utilized for the soil or groundwater from the agricultural chemical facility site and the application site. The waste sampling plan shall cover each agricultural chemical, nutrient or constituent proposed to be applied to the agricultural land. The waste sampling plan shall take into account and be consistent with the chemical analysis and testing protocol required by § 130d.22 (relating to chemical analysis of waste and sampling techniques and protocol). At a minimum, the plan shall include:
(1) Quality assurance and quality control procedures. The plan shall ensure an accurate and representative sampling of the contaminated soil or groundwater, or both, the person seeks to apply to agricultural land and an accurate and representative sampling from each field or plot at the application site upon which the contaminated media will be placed. The plan shall set forth the following:
(i) The type of chemicals, nutrients and constituents for which each soil pile or quantity of groundwater was tested and analyzed and the rationale for the selection of those chemicals, nutrients and constituents.
(ii) The name and address of the approved laboratory that was used to test for the chemicals, nutrients and constituents.
(iii) The method utilized for labeling and managing the soil piles and quantities of groundwater to assure they are applied at the proper rates and to the proper areas once they reach the application site, since individual soil piles and quantities of groundwater may contain different types and concentrations of chemicals, nutrients and constituents.
(2) An evaluation of the ability of the agricultural chemicals and constituents contained in the soil or groundwater to be fully utilized by the crop to be grown on the application site and to leach into the environment.
(3) A narrative delineating the scientific evidence supporting the contention that the contaminated soil or groundwater can be land applied to agricultural land without negatively affecting the productivity of the agricultural land or causing harm to the environment or animal or human health.
§ 130d.24. Operating plan.
The land application proposal shall contain an operating plan setting forth general information and land application rates and procedures. Information in the operating plan will be considered by the Department when reviewing the land application proposal.
(1) General information. The operating plan shall contain the following general information:
(i) The address and a description of the remediation site from which the contaminated soil or groundwater to be applied to the agricultural land originated or was generated.
(ii) The address and a description of the agricultural site to which the contaminated soil or groundwater will be applied.
(iii) The proposed life of the operation from the time the first soil pile or quantity of groundwater arrives on the application site to final closure of the application site and the origin and chemical, nutrient and constituent make up of each soil pile or quantity of groundwater to be applied.
(iv) The proposed application rate per acre, which shall be consistent with standards established by this chapter, as well as, the Nutrient Management Act (3 P. S. §§ 1701--1718), 3 Pa.C.S. §§ 6701--6725 (relating to Fertilizer Act), 3 Pa.C.S. §§ 6901--6921 (relating to Soil and Plant Amendment Act), the Pennsylvania Pesticide Control Act of 1973 (3 P. S. §§ 111.21--111.61) and the Federal Insecticide, Fungicide and Rodenticide Act of 1947 (7 U.S.C.A. §§ 136--136y).
(v) The proposed methods, techniques and types of applications, which shall be consistent with standards established by this chapter as well as the Nutrient Management Act, the Fertilizer Act, the Soil and Plant Amendment Act, the Pennsylvania Pesticide Control Act of 1973 and the Federal Insecticide, Fungicide and Rodenticide Act of 1947.
(vi) The proposed dates of application.
(vii) The equipment to be used for site preparation, land application of the contaminated soil and groundwater and incorporation of the contaminated soil.
(viii) 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.
(ix) A plan to control drift or migration of the chemicals, nutrients and constituents in the soil and groundwater being applied.
(x) Information necessary to show compliance with this chapter, such as the contaminants and contamination levels in each soil pile or quantity of groundwater, the specific plot upon which each soil pile or quantity of groundwater will be placed and the techniques and application rates to be utilized.
(2) Application rate calculation. The Department will review the application rate proposal set forth by the applicant in the land application proposal. The Department will consider the following, which shall be addressed in the applicant's operation plan:
(i) The type and concentration of each agricultural chemical contained in each soil pile or quantity of groundwater reported by the applicant in the land application proposal submitted to the Department.
(ii) The excavated soil type indicated by the applicant in the land application proposal submitted to the Department.
(iii) The total volume of excavated soil or contaminated groundwater in each individual soil pile or quantity.
(iv) The proposed application site crop for the upcoming growing season and a projected 3 year crop rotation plan including the use of the land, type of crop to be grown and the use of the crops. The same crop may be planted year after year with the approval of the Department.
(v) The concentration, in parts per million, of the active ingredients in each soil pile or quantity of groundwater contaminated with agricultural chemicals.
(vi) The application rate for the selected site and crop based on the current labeling for each pesticide found. If fertilizers are being applied, the applicant shall follow the recommendations for fertilizer applications for specific crops listed in the latest edition of the Pennsylvania Agronomy Guide.
(vii) For agricultural chemicals other than fertilizers a conversion factor (37000) shall be used. The calculation considers the concentration of parts per million and the conversion of FT3 to YD3.
(3FT)3/YD3 ÷ 1,000,000 = 1/37037.037 The result of the calculation is the total acreage required for land application for each individual agricultural chemical. A safety factor included in this calculation considers the cumulative effect of all the pesticides detected in the soil pile or quantity of groundwater. The acres required for each individual contaminant found in each soil pile or quantity of groundwater contaminated with agricultural chemicals are summed. This value is the uniform soil application rate. Soil application rate (volume of excavated soil or contaminated groundwater ÷ total acres required) (yds3/acre).
(viii) The application credits that shall be taken and the additive loading effect of the soil or groundwater contaminated with agricultural chemicals. The rate will be calculated using the following formula:
(Land required for an individual contaminant ÷ total acres required) × product label rate = active ingredient application credit (lbs/acres)).(3) Application rate considerations and procedures. The following shall be addressed in the applicant's operation plan:
(i) Application rate. The application rate as compared to the label rates of the various compounds present in each soil pile or quantity of groundwater contaminated with agricultural chemicals shall adhere to and not exceed the labeling rate for each compound present.
(ii) Total loading. All pesticides detected in a single soil pile or quantity of groundwater contaminated with agricultural chemicals shall be considered when developing soil application rates. The cumulative effect of all the pesticides can be considered by summing the acreage needed for each individual pesticide to develop the total acreage required. Where more than one pesticide is present in a soil pile or quantity of groundwater the soil pile or groundwater shall be applied at the most restrictive labeling rate. Nutrients shall be considered separately from pesticides when developing soil application rates. In addition, the sum of pesticide active ingredient applied through any land application activities and other applications in the same season (or following season, in the case of fall or postharvest land applications) may not exceed labeling rate restrictions for any pesticide applied.
(iii) Incorporation. The soil and groundwater contaminated with agricultural chemicals shall be applied in a manner that assures an even distribution of agricultural chemicals within the soil pile or quantity of groundwater and ensures the application rate will be uniform across the application site. In addition, where incorporation is necessary, the incorporation techniques used for soil piles contaminated with agricultural chemicals shall achieve a mixture of top soil and contaminated media and shall ensure the contaminated media is incorporated to a depth of at least 6 inches. The contaminated media shall be incorporated into the soil at the application site within 24 hours of application.
(iv) Top soil considerations. The applicant shall set forth procedures (such as developing a soil and erosion prevention plan and an incorporation plan) to assure that topsoil will not be lost, stripped off the land or buried under the contaminated soil to be applied.
(v) Uniform application rate. The applicant shall set forth procedures to assure the application rate will be uniform across the field application area or as close to uniform as is possible given the current technology, machinery and application techniques available.
(vi) Multiple applications of nutrients. The total amount of nutrients applied through the land application plus other commercial fertilizers, manure and nutrient applications shall be set forth in the operation plan in the land application proposal. In addition, if the nutrients are being applied to an agricultural site that is required to have a nutrient management plan, under the Nutrient Management Act, the applicant shall attest that the application of the additional nutrients contained in the soil piles or groundwater to be applied conform with and do not violate the standards established in the applicant's nutrient management plan. If the application requires a revision to the nutrient management plan, the applicant shall attach a notification from the State Conservation Commission attesting to the fact the nutrient management plan has been revised to account for the additional nutrients and the revised plan has received final approval.
(4) Additional application requirements. The operating plan shall also include the following information:
(i) A projected 3-year crop rotation plan for each field or plot upon which soil or groundwater contaminated with agricultural chemicals is to be applied, including type of crop to be grown, planting sequence, crop planting technique to be used, crop and land management and use of crops grown.
(ii) A nutrient and pesticide management plan for the site, including:
(A) A description of the kind and amount of fertilizer, soil conditioner or pesticide that will be placed on the site in addition to the soil or groundwater contaminated with agricultural chemicals.
(B) The number and kind of animals on the farm or property and the total nutrient value of the manure produced by those animals, and the location (field or plot) where the manure is to be placed.
(C) An explanation and analysis of the effect on the soil and crops from the additional nutrients, soil conditioners or pesticides that would be supplied by the soil and groundwater contaminated with agricultural chemicals.
(D) The benefit to the soil, crops or farming operation that the soil and groundwater contaminated with agricultural chemicals would provide.
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