[36 Pa.B. 2636]
[Saturday, June 3, 2006]
[Continued from previous Web Page] § 83.293. Determination of nutrient application rates.
(a) Application rate. Application rates shall be developed to protect surface water and groundwater using BMPs as described in the plan. The manure application rate shall be the lesser of the following:
(1) A rate equal to or less than the balanced manure application rate based on nitrogen as determined under subsection (b).
(2) The rate as determined under subsection (c).
(b) Nitrogen. Land application of manure and other nutrient sources on cropland, hayland and pastures shall be managed to minimize the affects of nitrogen losses from fields. The rate may not exceed the amount of nitrogen necessary to achieve realistic expected crop yields or the amount of nitrogen the crop will utilize for an individual crop year.
(1) The balanced manure application rate based on nitrogen shall be determined by first subtracting the amount of available residual nitrogen and any applied nitrogen, such as nitrogen applied in starter fertilizer, from the amount of nitrogen necessary for realistic expected crop yields, and then dividing that amount by the available nitrogen content of the manure as determined under § 83.291 (relating to determination of available nutrients).
(2) The calculations and variables used for determining the balanced manure application rates based on nitrogen shall be recorded in the plan.
(c) Phosphorus. Land application of manure and other nutrient sources on cropland, hayland and pastures shall be managed to minimize the affects of phosphorus losses from fields. Methods for determining and managing the risk of phosphorus loss, and related water quality impacts, must comply with the following:
(1) Determine the risk of phosphorus loss and related water quality impacts based on relevant factors including the following:
(i) Soil phosphorus levels.
(ii) The method, rate and timing of phosphorus application.
(iii) Runoff and soil loss potential for the application area.
(iv) Distance to surface water.
(v) The type of phosphorus source being used.
(2) Based on the risks and impacts determined as described in paragraph (1), establish appropriate BMPs such as methods, rates and timing of application designed to minimize the affects of phosphorus losses from fields. These may be addressed by a range of options, including:
(i) Manure application is limited to nitrogen requirements of the crop, if the application of phosphorus to the soil is not expected to pose an immediate risk of impacts to surface water.
(ii) Phosphorus application is limited to the level of phosphorus removal from the soil by the crop, if the application of phosphorus to the soil would be expected to pose an immediate risk of impacts to a surface water unless the risk is managed by limiting the application based on phosphorus.
(iii) Phosphorus application is completely restricted, if the application of phosphorus to the soil would be expected to pose an immediate risk of impacts to a surface water which cannot be managed by limiting the nutrients based on phosphorus.
(3) For CAOs and VAOs existing on October 1, 2006, the Commission will allow a phase-in period until December 31, 2010, to fully meet the requirements of paragraph (2).
(i) The phase-in shall allow flexibility in controlling phosphorus loss, as long as the phosphorus application rates on any crop management unit where the phase-in is used do not exceed the levels of phosphorus removal from the soil by the crops.
(ii) The phase-in in this paragraph also applies to operations that import manure from NMP operations existing on October 1, 2006.
(4) The phase-in period in paragraph (3) does not apply to the following:
(i) An operation that commences after October 1, 2006.
(ii) An operation that becomes defined as a CAO, due to an increase in animal numbers, after October 1, 2006.
(iii) An operation that increases the total AEUs on the operation by 20% or more after October 1, 2006.
(iv) An operation that adds a new animal type after October 1, 2006.
(v) Fields where the nearest downgradient stream segment which receives runoff from the fields is classified as a special protection water under Chapter 93 (relating to water quality standards).
(5) The criteria and procedures in the current phosphorus application guidance issued by the Commission may be used to comply with paragraphs (1)--(4), including the use of a Phosphorus Index contained in the guidance.
(6) If the criteria and procedures in the phosphorus application guidance issued by the Commission are not followed, an alternative method of meeting paragraphs (1)--(4) will be approved by the Commission.
(7) For pastures which require complete restrictions on phosphorus application as determined under this section, § 83.294(j) (relating to nutrient application procedures) applies.
(d) General nutrient calculation. The plan must include calculations for each crop management unit indicating the difference between the amount of nitrogen, phosphorus and potassium necessary for realistic expected crop yields under § 83.292 (relating to determination of nutrients needed for crop production) and the nitrogen, phosphorus and potassium applied through all planned nutrient sources, including, but not limited to, manure, biosolids, starter fertilizer and other fertilizers and residual nitrogen. A nitrogen availability test may be used to determine supplemental nitrogen needs.
§ 83.294. Nutrient application procedures.
(a) General. Nutrients shall be applied to fields during times and conditions that will hold the nutrients in place for crop growth, and protect surface water and groundwater using BMPs as described in the plan.
(b) Timing. Intended target spreading periods for the application of manure shall be included in the plan.
(c) Equipment capabilities. Manure application rates and procedures must be consistent with the capabilities, including capacity and calibration range, of available application equipment.
(1) For existing operations using their own application equipment, the plan must include a statement indicating that the existing equipment has been calibrated to ensure implementation of the application rates described in the plan, and that the equipment has the capacity to meet those application rates. The supporting documentation for this statement shall be available at the operation for inspection by the county conservation district and the Commission.
(2) For proposed operations, or when it is not feasible to calibrate the equipment or verify its capacity at planning time, the operator shall perform this application equipment calibration and capability verification prior to the first application of manure. The statement described in paragraph (1) shall be included in any necessary amendments to the plan. The supporting documentation of this statement shall be available at the operation for inspection by the Commission and delegated county conservation district.
(3) If a commercial manure hauler is used, the hauler shall be responsible for ensuring that the equipment is capable of complying with the application rate contained in the plan.
(d) Irrigation systems. If manure will be applied using an irrigation system, the following applies:
(1) Application rates for irrigated liquid manure shall be based on the lesser of the following:
(i) The planned application rates in gallons per acre determined in accordance with § 83.293(a) (relating to determination of nutrient application rates).
(ii) The combination of the following:
(A) The liquid application rate in inches per hour determined to be within infiltration capabilities of the soil.
(B) The liquid application depth in inches not to exceed the soil's water holding capacity within the root zone or any restricting feature at the time of application.
(2) The allowable liquid application rate and application depth shall be based on appropriate factors such as available water holding capacity of the soil, depth of the root zone, depth to a shallow impervious soil layer, soil infiltration rate, soil texture and drainage, vegetation and ground slope. Application BMPs that are consistent with the current versions of Penn State Fact Sheets F254 through F257, as applicable to the type of irrigation system planned to be used on the operation, and the NRAES-89 Liquid Manure Application System Design Manual, may be used to comply with this subsection. Other BMPs shall be approved by the Commission.
(3) The plan must include the computations for the application rate (in inches per hour) and application depth (in total inches) of the various application rates, and these applications may not exceed either the infiltration rate or the water holding capacity of the application sites, as listed in the plan.
(e) Manure application at rates greater than 9,000 gallons per acre. If liquid or semisolid manure is planned to be applied at rates greater than 9,000 gallons per acre at any one application time, the rates and amounts shall be limited based on the infiltration rate and water holding capacity of the application areas as described in subsection (d). In those instances, the plan must include the computations for the application rates in inches per hour, and in total inches, for the various application areas, and these applications may not be allowed to exceed either the infiltration rate or the water holding capacity of the application sites, as listed in the plan.
(f) Setbacks and buffers. Manure may not be mechanically applied in the following situations:
(1) Within 100 feet of the top of the bank of a perennial or intermittent stream with a defined bed and bank, a lake or a pond, unless a permanent vegetated buffer of at least 35 feet in width is used, to prevent manure runoff into the stream, lake or pond.
(2) Within 100 feet of an existing open sinkhole unless a permanent vegetated buffer of at least 35 feet in width is used.
(3) Within 100 feet of active private drinking water sources such as wells and springs.
(4) Within 100 feet of an active public drinking water source, unless other State or Federal laws or regulations require a greater isolation distance.
(5) On crop management units having less than 25% plant cover or crop residue at the time of manure application, unless:
(i) For fall applications, the crop management unit is planted to a cover crop in time to allow for appropriate growth to control runoff until the next growing season, or the manure is injected or mechanically incorporated within 5 days using minimal soil disturbance techniques consistent with no-till farming practices. The Pennsylvania Technical Guide contains practices which may be used to satisfy this requirement. Other practices shall be approved by the Commission. The practices must be consistent with those in the agricultural erosion and sediment control plan.
(ii) For applications in the spring or summer, the crop management unit is planted to a crop that growing season.
(iii) For winter applications, the crop management unit is addressed under subsection (g).
(g) Winter application. For winter application of manure, the following apply:
(1) The application procedures shall be described in the plan.
(2) The plan must list the following:
(i) The crop management units where winter application is planned or restricted.
(ii) The application procedures that will be utilized at those crop management units.
(iii) The field conditions that must exist for winter application.
(3) Setbacks listed in subsection (f) shall be implemented. In addition, during winter manure may not be mechanically applied in the following situations:
(i) Within 100 feet of an above-ground inlet to an agricultural drainage system, if surface flow is toward the aboveground inlet.
(ii) Within 100 feet of a wetland that is identified on the National Wetlands Inventory Maps, if the following are met:
(A) The wetland is within the 100-year floodplain of an Exceptional Value stream segment.
(B) Surface flow is toward the wetland.
(4) Fields where manure will be applied in winter must have at least 25% residue, or an established cover crop. The BMPs contained in the Pennsylvania Technical Guide may be used to satisfy this requirement. Other practices shall be approved by the Commission.
(h) In-field stacking. In-field stacking of dry manure as a part of manure application is permissible on an NMP operation, and any importing lands governed by § 83.301 (relating to excess manure utilization plans), if the following requirements are met:
(1) The manure shall be land applied on the crop management unit within 120 days of stacking, or prior to the beginning of the next growing season, whichever is sooner.
(2) The stacks shall be constructed using appropriate BMPS such as:
(i) Placement on appropriate soils.
(ii) Proper consideration of slopes where stacks will be placed.
(iii) Shaping that minimizes absorption of rainfall.
(iv) Proper consideration of the size of the stack.
(v) Use of setbacks
(vi) Rotation of stack locations.
(3) If stacking occurs for a longer period than that described in paragraph (1), the stacks shall either be covered to keep rainwater from entering the stacks, or a waste stacking and handling pad shall be used. The BMPs contained in the Pennsylvania Technical Guide may be used to meet this requirement. Other BMPs shall be approved by the Commission.
(4) Locations for in-field stacking of dry manure shall be shown on the farm maps and the nutrient balance sheet maps required by this subchapter.
(i) Commercial manure haulers. If a commercial manure hauler will be used for the application of the manure on the agricultural operation, the commercial manure hauler shall meet the requirements of Act 49.
(j) Pastures requiring phosphorus restrictions. If a pasture has been determined to require total restriction of phosphorus application under § 83.293(c) (relating to determination of nutrient application rates), the risk of phosphorus loss shall be addressed by the following BMPs in lieu of total restriction of phosphorus application:
(1) Grazing may not be conducted within 50 feet of a perennial or intermittent stream, a lake or a pond.
(2) A prescribed grazing system shall be used to maintain an established stand of forage on the pasture area.
(3) The stocking rate shall be limited to ensure that the level of phosphorus deposited by the animals does not exceed the level of phosphorus removal from the soil by vegetation in the pasture.
(4) BMPs contained in the Pennsylvania Technical Guide may be used to meet the requirements in paragraphs (1) and (2). Other BMPs shall be approved by the Commission.
ALTERNATIVE USES FOR EXCESS MANURE § 83.301. Excess manure utilization plans.
(a) General. If manure will be exported for use off the NMP operation at known agricultural operations for agricultural land application, the following applies:
(1) The plan must include signed agreements, on a form acceptable to the Commission, between the NMP operation and each importing operator agreeing to accept the manure from the exporting operation. If the importing operator will be applying manure on lands rented or leased to that importing operator, the agreement must state that the importing operator has the authority to apply manure on the leased or rented lands.
(2) The importing operator is responsible for the proper handling and application of the imported manure accepted from an exporter, in accordance with subsection (b).
(3) An NMP operation exporting manure shall also be responsible for the proper handling and application of the exported manure if the NMP operation, or an employee or contractor of the operation, applies manure at the importing operation.
(4) The plan must demonstrate how the exported manure will be properly managed. This must be done by use of either nutrient balance sheets or approved nutrient management plans, and signed agreements with importers, under this subchapter.
(b) Restrictions on land application of exported manure. The land application of manure exported from an NMP operation must address the risk and impacts of nitrogen and phosphorus loss to waters.
(1) Nitrogen shall be addressed under § 83.293(b) (relating to determination of nutrient application rates).
(2) Phosphorus shall be addressed by one of the following, as selected by the operator:
(i) The rate at which phosphorus is applied may not exceed the level of phosphorus removal from the soil by the planned crop as determined under § 83.293(c), and the manure may not be applied within 150 feet from the top of the bank of an intermittent or perennial stream, a lake or a pond.
(ii) For crop management units with documented soil test levels of phosphorus less than 200 PPM, manure may not be applied within 150 feet from the top of the bank of an intermittent or perennial stream, a lake or a pond.
(iii) Manure application shall be determined in accordance with § 83.293(c).
(iv) Manure application shall follow a nutrient management plan approved by the Commission or delegated conservation district under this subchapter.
(3) The setbacks in § 83.294 (relating to nutrient application procedures) apply to land application of manure exported from an NMP operation.
(c) Nutrient balance sheets. The method, rate and timing for any land application under subsection (b)(2)(i)--(iii) shall be described in a nutrient balance sheet. Nutrient balance sheets must include the following:
(1) A map which identifies the crop management units where the manure is planned to be applied, location for field stacking and applicable setbacks under § 83.294 and this section.
(2) Documentation of the selected method used to address nitrogen and phosphorus on the crop management units receiving the imported manure. Acceptable methods are those described in this section.
(3) If options in subsection (b)(2)(i)--(iii) are used, the calculations associated with determining the manure application rate appropriate to the selected nitrogen and phosphorus management option used.
(4) The date when the nutrient balance sheet was developed.
(5) The name and signature of the certified planner or broker that developed the nutrient balance sheet.
(d) Commercial manure haulers. If the NMP operation will utilize a commercial manure hauler for the hauling or application of the exported manure, only those haulers that hold a valid and current certification under Act 49 may be used. The plan must include a statement indicating that any commercial manure haulers used for implementation of the plan shall hold a valid and current certification under Act 49.
(e) Brokers. If manure will be exported for use off of the NMP operation through a manure broker, the following apply:
(1) The plan must include a signed agreement, on a form acceptable by the Commission, between the operation exporting the manure and each broker agreeing to accept manure from the exporting operation. Brokers are responsible for the proper handling and storage (where applicable) of the manure accepted from the NMP operation. Only brokers that meet the requirements of Act 49 shall be acceptable in the plan.
(2) If the manure accepted by a broker shall be land applied to agricultural operations for crop production, the broker shall be responsible for the following:
(i) Ensuring that nutrient balance sheets exist for the relevant crop management units on the importing operations, and that the importing operator is provided with nutrient balance sheets with respect to that manure.
(ii) Implementing manure application rates and applicable setbacks described in § 83.294, and any nutrient balance sheet and approved nutrient management plans, if the broker will be responsible for land application of the manure.
(iii) Retaining copies of all nutrient balance sheets.
(f) Other uses of manure away from the operation. If manure will be exported for use off of the NMP operation for use other than agricultural land application, the plan must include the following information:
(1) The name and general location of the importing agricultural operation.
(2) A brief description of the planned use for the imported manure.
(3) The amount of manure the operator plans to export to the importer annually.
(4) The planned season for the manure export.
(5) A signed agreement between the NMP operation and each importing operation agreeing to accept the manure for this use, on a form acceptable to the Commission.
(g) Other uses of manure on the operation. If manure is to be processed or utilized on the NMP operation in a manner other than for agricultural land application, the plan must briefly describe the planned use of the manure, including the amount planned to be processed or utilized annually.
(h) Use of open advertising systems. If manure is to be exported for use off of an NMP operation existing on October 1, 1997, by using an open advertising system and the importers cannot be identified at planning time, the following apply:
(1) The plan must describe the proposed marketing scheme, including the estimated amount of manure planned to be marketed annually using an open advertising system.
(2) An operator may only utilize this method of exporting manure if the operator meets the manure broker requirements for certification under Act 49.
(3) Where the marketed manure will be utilized for application to crop fields, the exporting operation shall ensure that nutrient balance sheets exist for the relevant crop management units on the importing operations, and the importing operator is provided with the nutrient balance sheets. These nutrient balance sheets shall be retained by the exporting operation, the importing operation and any commercial manure hauler involved in the exporting of the manure. Nutrient management plans implemented at the importing operations may be used instead of nutrient balance sheets.
(4) The setbacks in § 83.294 apply to land application of manure exported from an NMP operation under this paragraph.
(i) Exceptions. The plan is not required to provide the specific exported manure details as provided in subsections (a)--(h) if an importer receives less than the following amounts of manure from the NMP operation on an annual basis:
(1) 5 tons of solid poultry manure.
(2) 25 tons of solid nonpoultry manure.
(3) 10,000 gallons of liquid manure.
MANURE MANAGEMENT § 83.311. Manure management.
(a) Review existing practices. In the preparation of a plan, the nutrient management specialist shall perform a site visit to conduct a review of the adequacy of existing manure management practices to prevent surface water or groundwater pollution from storm events up to and including a 25-year, 24-hour storm intensity. The specialist may confer with NRCS, conservation district staff or others with expertise with nutrient runoff control. This review shall be documented in the plan by identification of those conditions and areas where there is a potential for stormwater commingled with manure to directly runoff into surface water as a result of a storm event up to and including a 25-year, 24-hour storm intensity, without sufficient filtration or other appropriate treatment or handling BMPs, such as vegetated buffers. Practices to be evaluated in this review include manure handling, manure collection, barnyard runoff control and manure storage practices. Examples of inadequate manure management practices include the following:
(1) Manure, contaminated water or nutrients leaving manure storage or animal concentration areas, and directly discharging into surface water or groundwater.
(2) The uncontrolled flow of storm water into, or across, manure storage facilities, emergency manure stacking areas or animal concentration areas.
(3) Manure storage facilities overflowing or maintained at levels above design full levels.
(4) Manure storage facilities that are sized for less than the projected manure accumulation based on the expected application periods used in the plan.
(5) Leaking or unstable manure storage facilities.
(6) Manure storage facilities which otherwise do not comply with § 91.36 (relating to pollution control and prevention at agricultural operations).
(b) Address inadequate practices. The plan must address any existing inadequate manure management practices as follows:
(1) As part of a plan certification under § 83.261(8)(relating to general), the nutrient management specialist shall ensure that the review required under subsection (a) was undertaken in the preparation of the plan.
(2) The plan must contain a listing of inadequate manure management practices and related conditions and problem areas, and the BMPs planned to correct them to protect surface water and groundwater.
(3) The BMPs shall be selected, designed, constructed and maintained to meet the requirements of this subchapter. When this subchapter does not specifically address an inadequate manure management practice, the BMPs contained in the Pennsylvania Technical Guide may be used to comply with this section. Other BMPs shall be approved by the Commission.
(4) The plan submitted for approval is not required to include BMP designs. During the implementation of the approved plan, the operator is responsible for obtaining the necessary BMP designs and associated operation and maintenance plans to implement the BMPs listed in the approved plan. The BMP designs and associated operation and maintenance plans shall be kept on record by the operator as a supplement to the plan.
(c) Animal concentration areas. The following applies to animal concentration areas:
(1) These areas shall be sized, located, implemented and managed using BMPs to eliminate the direct discharge of storm water runoff commingled with manure from these areas to surface water and groundwater.
(2) These areas must meet the following requirements which shall be addressed in the plan:
(i) Animal concentration areas shall be sized appropriately to minimize environmental impacts that may be associated with the areas.
(ii) These areas shall be located and managed to eliminate the direct discharge of storm water runoff commingled with manure from a storm event of up to and including a 25-year 24-hour storm intensity, except as allowed in paragraph (5).
(3) Accumulated manure on nonvegetated animal concentration areas shall be collected and land-applied to cropland, or exported from the operation, as described in the plan.
(4) These areas shall be designed, implemented and managed to minimize the amount of clean water entering the animal concentration area.
(5) Storm water runoff commingled with manure from these areas shall be either treated or stored through an appropriate vegetative or other suitable treatment or storage method, which meets the requirements of this subchapter. BMPs for vegetated buffers and other treatment or storage methods contained in the Pennsylvania Technical Guide may be used to satisfy this requirement. Other BMPs shall be approved by the Commission.
(6) Animal access to surface water in these areas shall be limited to properly installed stream crossings. BMPs contained in the Pennsylvania Technical Guide may be used to meet this requirement. Other BMPs shall be approved by the Commission.
(d) BMPs. The following BMPs, as appropriate, shall be used if necessary, and shall be described in the plan, to protect water quality by controlling storm water in the farmstead, including the manure storage and animal concentration areas:
(1) Manure storage facilities including permanent manure stacking areas. The construction of manure storage facilities is not required unless necessary to protect surface water and groundwater. Nutrient management plans that require the construction of a manure storage facility must describe the planned type, dimensions and capacity of the proposed facility, and the location of the proposed facility shall be identified on a plan map.
(2) Diversion of clean water from manure storage facilities and animal concentration areas, unless required for proper operation of the BMP.
(3) Treatment or storage of storm water commingled with manure in the manure storage or animal concentration areas.
(4) Emergency manure stacking areas must be located outside of concentrated water flow areas and areas where manure application is restricted or prohibited based on § 83.294 (f) and (g) (relating to nutrient application procedures).
(5) Other appropriate BMPs acceptable to the Commission, including those described in the Pennsylvania Technical Guide.
(e) When emergency manure stacking areas may be necessary for the implementation of the plan, the plan must identify those areas available for the storage of manure due to unforeseen circumstances such as adverse weather conditions. The stacks shall be managed using appropriate BMPs such as placement on appropriate soils, proper consideration of slopes where stacks will be placed and shaping that minimizes absorption of rainfall. The operator shall notify the county conservation district at least 24 hours in advance of the use of an emergency manure stacking area. Manure shall be removed from emergency stacking areas for utilization on cropland or other acceptable uses within 60 days, unless extended by the Commission or a delegated conservation district.
(f) Information contained in other sections of the plan may be used by the specialist when addressing this section.
(g) The siting, design and installation of manure storage facilities shall meet the requirements in § 83.351 (relating to minimum standards for the design, construction, location, operation, maintenance and removal from service of manure storage facilities). The BMPs contained in the Pennsylvania Technical Guide, as they relate to water quality protection, may be used to comply with this subsection. Other measures shall be approved by the Commission.
(h) If alternative manure technology practices and equipment are planned to address nutrient management issues related to the operation, the rationale for and expected benefit of the planned alternative practices and equipment shall be described in the plan.
SITE SPECIFIC EMERGENCY RESPONSE PLANS § 83.312. Site specific emergency response plans.
(a) NMP operations shall develop and implement a written site-specific emergency response plan addressing actions to be taken in the event of a discharge, leak or spill of materials containing manure. A copy of the plan shall be kept onsite at the operation. The emergency response plan must contain information necessary to meet the notification requirements for reporting discharge, leak or spill events which would result in pollution or create a danger of pollution to surface water or groundwater contained in § 91.33 (relating to incidents causing or threatening pollution).
(b) In the case of a discharge, leak or spill of materials containing manure related to the operation, the operator shall implement the emergency response plan developed for the operation. The operator shall comply with all notification and reporting requirements.
(c) The nutrient management plan must contain a verification from a certified planner that an adequate written site-specific emergency response plan meeting the requirements of this section exists for the operation.
(d) The operator shall provide a copy of the emergency response plan to the local emergency management agency that would assist during a major discharge, leak or spill event.
(e) A BMP-specific contingency plan as required by § 83.351 (relating to the minimum standards for the design, construction, location, operation, maintenance and removal from service of manure storage facilities) shall be included as an addendum to the emergency response plan.
STORMWATER CONTROL § 83.321. Stormwater control.
(a) In the preparation of a nutrient management plan under this subchapter, the nutrient management specialist shall conduct a review of the adequacy of existing stormwater control practices on croplands, haylands and pastures included in the plan to prevent nutrient pollution of surface water and groundwater. The specialist may confer with NRCS, conservation district staff or others with expertise with nutrient runoff control. Based on this review, the plan must identify critical runoff problem areas.
(b) The nutrient management plan shall contain a list of specific stormwater control BMPs to address those critical runoff problem areas identified in the review required under subsection (a). This list of stormwater control BMPs may not be in conflict with other relevant plans developed for the operation, such as the agricultural erosion and sediment control plan, unless otherwise approved by the Commission or delegated conservation district.
(c) The plan submitted for approval is not required to include BMP designs. During the implementation of the approved plan, the operator is responsible for obtaining the necessary BMP designs and associated operation and maintenance plans to implement the BMPs listed in the approved plan, and these BMP designs and associated operation and maintenance plans shall be kept on record by the operator as a supplement to the nutrient management plan.
(d) BMPs listed in the plan to address critical runoff problem areas shall be selected, designed, installed, operated and maintained to prevent nutrient pollution of surface water and groundwater. The BMPs contained in the Pennsylvania Technical Guide may be used to meet this requirement. Other BMPs shall be approved by the Commission.
(e) For areas on land rented or leased by the operator that have been identified as critical runoff problem areas which will require the installation of BMPs requiring construction activities, the operator shall do one of the following:
(i) Implement the listed BMP.
(ii) Enter into an agreement with the landowner requiring the landowner to implement the BMP.
IMPLEMENTATION SCHEDULE § 83.331. Implementation schedule.
A plan must contain a schedule that identifies when the necessary capital improvements and management changes will be made, consistent with the time frames in § 83.362 (relating to plan implementation).
RECORDKEEPING AND INFORMATIONAL REQUIREMENTS § 83.341. General recordkeeping requirements.
(a) Unless otherwise specified, records required under this subchapter are not required to be submitted to the Commission or delegated conservation district, but shall be retained by the agricultural operation for at least 3 years.
(b) Records required under this subchapter shall be maintained on forms provided by the Commission, unless otherwise allowed by the Commission.
§ 83.342. Recordkeeping relating to application of nutrients.
(a) Plans must be supported by the information required in this section and §§ 83.343 and 83.344 (relating to alternative manure utilization recordkeeping; and exported manure information packets).
(b) The NMP operation shall keep the following accurate records of the land application of nutrients, crop yields and soil tests on the NMP operation:
(1) Records of soil testing results shall be maintained consistent with § 83.292(e) (relating to determination of nutrients needed for crop production). Soil testing is required once every 3 years for each crop management unit.
(2) Records of manure testing results and testing of other nutrient sources shall be maintained consistent with § 83.291 (relating to determination of available nutrients). Manure testing is required once every year for each manure group, except manure groups associated with less than five AEUs and manure groups representing grazing consistent with § 83.291(c)(3)(iv) and (vi).
(3) Land application of nutrients on NMP operations shall be documented on an annual basis by recording the following information for each source of nutrients:
(i) The locations and number of acres of nutrient application.
(ii) The dates of nutrient application.
(iii) The rate of nutrient application for each crop management unit.
(iv) The number of animals on pasture, the number of days on pasture and the average number of hours per day on pasture.
(4) Approximate annual crop yield levels for each crop management unit.
(5) Annual manure production figures for each manure group.
§ 83.343. Alternative manure utilization record-keeping.
(a) Recordkeeping for manure exports. The following recordkeeping requirements apply to manure exported off of the NMP operation:
(1) A manure export sheet shall be used for all manure transfers from the operation.
(2) The Commission or delegated conservation district will make copies of the manure export sheet forms available to the operation.
(3) Computer-generated forms other than the manure export sheet forms provided by the Commission may be used if they contain the same information as, and are reasonably similar in format to, the forms provided by the Commission.
(4) Recordkeeping related to the application of exported manure must comply with the following:
(i) The exporter is responsible for the completion of the manure export sheet, providing a copy to the importer and retaining a copy at the exporting operation.
(ii) When the exporter, or person working under the direction of the exporter, such as an employee or a commercial manure hauler, applies the manure to the land, the exporter is responsible for maintaining records of the actual application dates, application areas (including the observation of any relevant setback restrictions), application methods, and application rates for the exported manure.
(iii) When the manure is exported through a broker, the exporting operation is not responsible for obtaining records of actual application information for importing operations, unless the exporting operator manages the application of the manure. If the broker is responsible for applying the manure, the broker shall retain records of the application of all manure (including date, areas, methods and rates applied) and shall provide a copy of these application records to the importing operation for its records.
(b) Recordkeeping for alternative manure utilization by means other than manure export. Operators shall keep annual records of the amount and use of manure utilized in any manner other than through manure transfers.
§ 83.344. Exported manure informational packets.
(a) If manure is exported from an NMP operation, the exporter will provide the importer and any relevant manure hauler or brokers with a completed manure export sheet.
(b) If the manure is to be land applied at an importing operation, the exporter is required, except as provided in subsection (c), to provide the following information to the importer, as supplied by the Commission or its delegated agent:
(1) The relevant sections of the Manure Management Manual.
(2) A concise educational publication describing the key concepts of nutrient management.
(3) Additional informational items as supplied by the Commission for this purpose.
(c) If a broker will be responsible for applying the manure at the operation, the broker shall meet the requirements of subsection (b).
(d) The Commission or its delegated agent will provide the materials in subsection (b) for distribution by the exporter. The exporter is only required to provide those items in subsection (b) that have been made available to the exporter by the Commission or its delegated agent.
(e) The exporter is responsible for providing the informational materials described in subsection (b) only if the importer or commercial manure hauler does not already have a current copy of the informational materials.
MINIMUM STANDARDS FOR MANURE STORAGE FACILITIES § 83.351. Minimum standards for the design, construction, location, operation, maintenance and removal from service of manure storage facilities.
(a) The minimum standards contained in this section apply to new manure storage facilities and the expansion of existing manure storage facilities, as part of a plan developed for an NMP operation.
(1) Manure storage facilities shall be designed, constructed, located, operated, maintained, and, if no longer used for the storage of manure, removed from service, in a manner that protects surface water and groundwater quality, and prevents the offsite migration of nutrients. Implementation of BMPs contained in the Pennsylvania Technical Guide may be used to satisfy this requirement, except if these standards conflict with this subchapter. Other BMPs shall be approved by the Commission.
(2) In addition to complying with paragraph (1), manure storage facilities shall be designed and located in accordance with the following criteria:
(i) Facilities shall comply with the applicable criteria in § 91.36 (relating to pollution control and prevention at agricultural operations).
(ii) Facilities shall comply with the applicable criteria in Chapter 105 (relating to dam safety and waterway management).
(iii) The location and construction of facilities to be placed within a floodplain shall be consistent with local ordinances developed under the Pennsylvania Flood Plain Management Act (32 P. S. §§ 679.101--679.601), which relates to the dangers and damage of floodwaters.
(iv) The sides of facilities located in a floodplain shall be protected from erosion and scouring from a 25 year flood event.
(v) For operations that were producing livestock or poultry on or before October 1, 1997, facilities, except reception pits and transfer pipes, may not be constructed:
(A) Within 100 feet of an intermittent or perennial stream, river, spring, lake, pond or reservoir.
(B) Within 100 feet of a wetland that is identified on the National Wetlands Inventory maps, if the following apply:
(I) The wetland is within the 100-year floodplain of an Exceptional Value stream segment.
(II) Surface flow is toward the wetland.
(C) Within 100 feet of a private water well, or open sinkhole.
(D) Within 100 feet of an active public drinking water well, unless other State or Federal laws or regulations require a greater isolation distance.
(E) Within 100 feet of an active public drinking water source surface intake, unless other State or Federal laws or regulations require a greater isolation distance.
(F) Within 100 feet of a property line, unless the landowners within the 100 feet distance from the facility otherwise agree and execute a waiver in a form acceptable to the Commission.
(G) Within 200 feet of an intermittent or perennial stream, river, spring, lake, pond or reservoir, or any water well, or wetland described in clause (B), if a facility (except permanent stacking and compost facilities) is located on slopes exceeding 8% or a facility has a capacity of 1.5 million gallons or greater.
(H) Within 200 feet of a property line, if a facility (except permanent stacking and compost facilities) is located on slopes exceeding 8% and if the slope is toward the property line, or a facility has a capacity of 1.5 million gallons or greater, unless the landowners within the 200 foot distance from the facility otherwise agree and execute a waiver in a form acceptable to the Commission.
(vi) For NMP operations that come into existence after October 1, 1997, facilities, except reception pits and transfer pipes, may not be constructed:
(A) Within 100 feet of an intermittent or perennial stream, river, spring, lake, pond or reservoir.
(B) Within 100 feet of a wetland that is identified on the National Wetlands Inventory maps, if the following apply:
(I) The wetland is within the 100-year floodplain of an Exceptional Value stream segment.
(II) Surface flow is toward the wetland.
(C) Within 100 feet of a private water well, or open sinkhole.
(D) Within 100 feet of an active public drinking water well, unless other State or Federal laws or regulations require a greater isolation distance.
(E) Within 100 feet of an active public drinking water source surface intake, unless other State or Federal laws or regulations require a greater isolation distance.
(F) Within 200 feet of a property line, unless the landowners within the 200 foot distance from the facility otherwise agree and execute a waiver in a form acceptable to the Commission.
(G) Within 200 feet of an intermittent or perennial stream, river, spring, lake, pond, reservoir or any water well, or wetland described in clause (B), if a facility (except permanent stacking and compost facilities) is located on slopes exceeding 8% or has a capacity of 1.5 million gallons or greater.
(H) Within 300 feet of a property line, if a facility (except permanent stacking and compost facilities) is located on slopes exceeding 8%, and if the slope is toward the property line, or a facility has a capacity of 1.5 million gallons or greater, unless the landowners within the 300 foot distance from the facility otherwise agree and execute a waiver in a form acceptable to the Commission.
(vii) The Commission or a delegated conservation district may waive the distance restrictions in subparagraph (v)(A)--(C) and (G), if the following can be demonstrated to the satisfaction of the Commission or a delegated conservation district:
(A) The siting restrictions contained in subparagraph (v) would make the placement economically unreasonable or physically impractical.
(B) A site investigation has been conducted which demonstrates that the proposed system will protect water quality and protect against offsite migration of nutrients.
(C) The type, design and contingency plan developed for the facilities meet additional criteria the Commission or delegated conservation district, in consultation with the NRCS, may require to protect water quality, and protect against offsite migration of nutrients.
(D) In the case of a private water well, the well construction meets the criteria that the Commission, in consultation with the NRCS, deems necessary to protect water quality. There will be no waivers granted from the setback requirements for public water wells or sources.
(viii) Manure storage facilities constructed after October 1, 1997, on CAOs that were in existence prior to October 1, 1997, shall meet the applicable criteria established under this section.
(3) The designer of the manure storage facility described in the plan shall address the following:
(i) Verification of the minimum manure storage period and minimum manure storage volume documented in the current plan.
(ii) Determination of the type and dimensions of facilities considering the environmental and space limitations of the site, as well as the operator's preference.
(iii) An onsite investigation to evaluate the site suitability for a facility. The criteria contained in the Pennsylvania Technical Guide may be used to satisfy this requirement. Other criteria shall be approved by the Commission.
(b) The repair of an existing manure storage facility that is part of a plan developed for an NMP operation shall be done in a manner that protects surface water and groundwater quality, and prevents the offsite migration of nutrients. Applicable standards in the Pennsylvania Technical Guide may be used to meet this requirement. Other standards shall be approved by the Commission. The location standards do not apply to these facility repairs.
(c) The site specific design for the construction, expansion or major repair of a liquid or semisolid manure storage facility covered under the act shall be done or approved by an engineer registered in this Commonwealth. The engineer shall certify that the design protects surface water and groundwater quality, and prevents the offsite migration of nutrients. Compliance with the applicable design standards described in the Pennsylvania Technical Guide may be used to meet this requirement. Other standards shall be approved by the Commission.
(d) At least 2 weeks prior to installation of the facility or the repair, the registered engineer shall submit a verification (including a quality assurance inspection plan for construction) to the Commission or delegated conservation district documenting that the design, meeting the requirements of this subsection including applicable setbacks, has been completed. Following completion of the installation or repair, the responsible engineer and construction contractor shall certify to the Commission or delegated conservation district that construction of the manure storage facility was completed according to the design, construction and location standards.
(e) A written site specific contingency plan, addressing actions to be taken in the event of a manure leak or spill from a manure storage facility covered under the act to protect surface water and groundwater quality, and prevent the offsite migration of nutrients, shall be developed and kept onsite at the operation. The standards contained in the Pennsylvania Technical Guide may be used to meet this requirement. Other standards shall be approved by the Commission. In the case of a leak or spill of manure from a manure storage facility covered under the act, the operator is responsible for implementation of the site specific contingency plan developed for the operation. The contingency plan must contain information necessary to meet the notification requirements for reporting leak or spill events which would result in pollution or create a danger of pollution to surface water or groundwater contained in § 91.33 (relating to incidents causing or threatening pollution).
PLAN REVIEW AND IMPLEMENTATION § 83.361. Initial plan review and approval.
(a) Plans for NMP operations shall be submitted for initial review and approval to delegated conservation districts, or alternatively to the Commission for NMP operations located in counties not delegated administrative authority under § 83.241 (relating to delegation to local agencies). A person performing the plan review shall be certified in accordance with the Department of Agriculture's nutrient management specialist certification requirements in 7 Pa. Code §§ 130b.1--130b.51 (relating to nutrient management certification).
(b) The Commission or a delegated conservation district will, within 10 days from the date of receipt of the plan, provide notice to the operator indicating whether all of the required plan elements have been received.
(c) The Commission or a delegated conservation district will approve or disapprove the plan or plan amendment within 90 days of receipt of a complete plan or plan amendment.
(d) If the Commission or delegated conservation district does not act on the plan within the 90-day period, the agricultural operation that submitted the plan is authorized to implement the plan. The Commission or delegated conservation district will thereafter have another 90 days to complete review of the plan, beginning on the expiration of the initial 90-day review period. If the Commission or delegated conservation district fails to act within the second 90-day period, it will be deemed approved.
(e) The notice of determination to disapprove a plan will be provided in writing to the operator submitting the plan, and include an explanation specifically stating the reasons for disapproval. If a plan for a CAO is disapproved, the operator submitting the plan for the first time shall have 90 days after receipt of the notice of disapproval to resubmit a revised plan.
(f) Approvals will be granted only for those plans that satisfy the requirements of this subchapter, including verification by the delegated conservation district or the Department of Environmental Protection that the operation has a current agricultural erosion and sediment control plan. For CAOs and VAOs existing on October 1, 2006, this agricultural erosion and sediment control plan verification is not required until October 1, 2009.
§ 83.362. Plan implementation.
(a) An NMP operation shall fully implement the plan consistent with the implementation schedule included as part of the approved plan. Implementation schedules may not extend past 3 years of the date the plan is approved or deemed approved, or for which implementation is otherwise authorized under § 83.361(d) (relating to initial plan review and approval), unless the implementation schedule is extended upon approval of the Commission or delegated conservation district.
(b) Nutrient application rates shall be developed as described in § 83.293 (relating to determination of nutrient application rates) and shall be implemented upon approval of the plan. The operator shall review the approved plan at least annually to ensure that this condition is met.
(c) At least every 3 years, the plan, records and the status of the operation's compliance, shall be reviewed by a nutrient management specialist to determine whether a plan amendment is required, according to the following:
(1) Unless otherwise required by § 83.371 (relating to plan amendments), if the approved plan continues to adequately represent the agricultural operation, including the manure nutrient content and soil test values in the plan, and if the book values used in the approved plan have not changed to the extent that it would affect the application rates used in the plan, no amendment is required. The specialist shall provide notice of this to the reviewing agency.
(2) The phosphorus application determination, including the procedures and criteria for addressing phosphorus contained in § 83.293(c) such as the Phosphorus Index, shall be reevaluated for each crop management unit once every 3 years after initial approval of the plan. A plan amendment is required if there is a change in manure application as a result of this reevaluation.
(3) A plan amendment shall be submitted to the reviewing agency in accordance with § 83.361(a), if the agricultural operation has changed from that described in the approved plan, as required by § 83.371 (relating to plan amendments).
(d) Limited liability protection, as described in § 83.206 (relating to limitation of liability), is afforded to those operators properly implementing an approved plan under this subchapter.
PLAN AMENDMENTS AND TRANSFERS § 83.371. Plan amendments.
(a) A plan amendment is required if the operator expects to make significant changes in the management of nutrients from those contained in the approved plan, prior to those changes being implemented. Those significant changes in the management of nutrients which would require a plan amendment are any one of the following:
(1) A net increase of greater than 10% occurs in AEUs per acre.
(2) A change in crop management that results in a reduction of greater than 20% in nitrogen necessary for realistic expected crop yields or the amount the crops will utilize for an individual crop year.
(3) A change in excess manure utilization arrangements as described in the approved plan.
(i) No amendment is required to address the loss of an importer if the loss does not impair the operator's ability to properly manage the manure generated on the operation.
(ii) No amendment is required to address the addition of a new importer if the operator submits the nutrient balance sheet and signed agreement required by this subchapter to the delegated conservation district overseeing the exporting farm, prior to transport. The district shall verify the adequacy of the documentation update the plan file with the new documentation and require formal approval of the new importer through a plan amendment when the plan is subject to the triennial review under § 83.362(c) (relating to plan implementation).
(4) If calculations in the plan as originally submitted are in error, or if figures used in the plan are inconsistent with the requirements of this subchapter, and adequate justification has not been given in writing for the inconsistency.
(5) If a BMP different than that called for in the approved plan, is proposed to address a manure management or stormwater management concern.
(6) If, after the first 3 years of implementing the plan, actual yields are less than 80% of the expected crop yields used in the development of the plan.
(7) If alternative organic nutrient sources will replace or augment nutrient sources described in the plan.
(8) If additional lands are brought into the operation through purchase, lease or renting.
(9) If there is a change in the manure management system that is expected to result in a different nutrient content that requires a change in manure application rates under § 83.293 (relating to determination of nutrient application rates).
(10) If a change in manure application is necessary based on the reevaluation of potential phosphorus loss as part of the triennial review under § 83.362(c) (relating to plan implementation), or a change in manure application is necessary due to the end of the phase-in period under § 83.293(c)(3).
(b) A plan amendment under subsection (a) shall be developed and certified by a nutrient management specialist and shall be submitted to the reviewing agency under subsection (a).
(c) Plan updates to address operational or computation changes other than those described in subsection (a) shall be developed and certified by a commercial or individual nutrient management specialist, retained at the operation and submitted to the district for inclusion in the approved nutrient management plan. A plan amendment shall be submitted under this section to obtain approval of these changes, when the plan is subject to the triennial review under § 83.362(c).
§ 83.373. Plan transfers.
(a) An approved nutrient management plan may be transferred to a subsequent owner or operator of an agricultural operation by notification of the transfer to the Commission or delegated conservation district, unless the transfer results in operational changes requiring a plan amendment under § 83.371 (relating to plan amendments).
(b) If the transfer of the approved plan results in operational changes requiring a plan amendment under § 83.371, the plan amendment shall be submitted for approval of the Commission or a delegated conservation district along with, or before, the notification required under subsection (a).
CONTAGIOUS DISEASE EMERGENCIES § 83.381. Manure management in emergency situations.
(a) If there is an outbreak of a contagious disease as regulated by the Department of Agriculture, manure management shall be consistent with requirements in the Department of Agriculture's order of quarantine issued under the Domestic Animal Act (3 P. S. §§ 311--354) and regulations thereunder.
(b) The Department of Agriculture will notify the Commission when a quarantine is imposed on an agricultural operation covered by the act. The Department of Agriculture will supply the Commission and delegated conservation district with a copy of the quarantine document.
(c) Unless otherwise directed by the quarantine, an amended plan shall be developed addressing the management of manure under the quarantine. This plan shall be certified by a nutrient management specialist prior to implementation and submitted to the reviewing agency within 30 days of implementation.
(d) If nutrients are applied in excess of crop need due to the quarantine restrictions placed on the manure, and the cropping sequence permits, cover crops shall be planted to the site to minimize the loss of these nutrients. The harvesting of these cover crops is encouraged to facilitate the removal of excess nutrients.
(e) The temporary storage of manure during the quarantine shall be done under § 83.311 (relating to manure management).
(f) The application of manure during the quarantine shall be done under § 83.294(f) (relating to nutrient application procedures).
(g) Standard soil tests will be required each year for crop management units where the implementation of the quarantine required that nutrients be applied in excess of the amount the crop can use, and shall continue for 3 successive years thereafter. In addition to the standard test, an appropriate test indicating the amount of nitrogen available for crop uptake will be required for 1 year beyond the cessation of excess manure application.
[Pa.B. Doc. No. 06-972. Filed for public inspection June 2, 2006, 9:00 a.m.]
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