RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
STATE CONSERVATION COMMISSION
[ 25 PA. CODE CH. 83 ]
Facility Odor Management
[38 Pa.B. 6459]
[Saturday, November 29, 2008]The State Conservation Commission (Commission) is adopting final-form regulations in Chapter 83, Subchapter G (relating to facility odor management) to govern odor management at certain facilities and agricultural operations. These final-form regulations are authorized by 3 Pa.C.S. §§ 501--522 (relating to nutrient management and odor management).
These final-form regulations were adopted at the Commission's meeting of July 29, 2008.
A. Effective Date
These regulations will go into effect February 27, 2009.
B. Contact Person
For further information, contact Karl G. Brown, Executive Secretary, State Conservation Commission, Suite 407, Agriculture Building, 2301 North Cameron Street, Harrisburg, PA 17110, (717) 787-8821. Persons with a disability may use the Pennsylvania AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-form regulation is available on the Commission's web site: www.agriculture.state.pa.us/agriculture/cwp/view.asp?a=3&q=127144.
C. Statutory Authority
These final-form regulations are promulgated under 3 Pa.C.S. § 504(1.1) (relating to powers and duties of Commission), which authorizes the Commission to promulgate regulations establishing practices, technologies, standards, strategies and other requirements for odor management plans (OMPs); section 4 of the Conservation District Law (3 P. S. § 852), which authorizes the Commission to promulgate rules and regulations as may be necessary to carry out its functions; and section 503(d) of the Conservation and Natural Resources Act (71 P. S. § 1340.503(d)), which amended the authority and responsibilities of the Commission, the Department of Environmental Protection (DEP) and the Department of Agriculture.
D. Background and Introduction
Act 38 was signed by Governor Rendell on July 6, 2005, and constituted an important part of his initiative to protect Agriculture, Communities and the Rural Environment (ACRE). As part of that initiative, the DEP and the Commission promulgated other regulations implementing Act 38 provisions addressing water quality issues in 2005 and 2006. At the same time, various funding, technical assistance and policy development programs aimed at supporting agriculture in this Commonwealth were started and expanded during that same time frame. Examples are the Commission's enhanced Plan Development Incentives Program (PDIP) to support phosphorus based nutrient management plan writing, grants for alternative manure utilization and technologies projects, expanded agricultural compliance and technical assistance and expanded regulatory oversight over the farm community.
These final-form regulations address the concerns of communities about odors generated at new and expanding agricultural operations. The final-form regulations require OPMs for manure storage facilities and animal housing facilities at the operations most likely to elicit public concerns from neighbors--concentrated animal operations (CAOs) and concentrated animal feeding operations (CAFOs).
CAOs and CAFOs fall under a very comprehensive set of water quality regulations which have recently been amended to address current environmental issues. CAOs shall meet various requirements under Chapter 83 (relating to State Conservation Commission), administered by the Commission and delegated county conservation districts. CAFOs shall follow permitting requirements under the National Pollutant Discharge Elimination System (NPDES) regulations administered by DEP under Chapter 92 (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance). Those regulations address water quality, not odor management.
These final-form regulations were developed in close coordination with several groups. First, the Nutrient Management Advisory Board (NMAB) was highly involved with the development of these final-form regulations. The NMAB represents a wide range of agricultural, academic, governmental, environmental and private interests. A special NMAB Committee was formed and met with the Commission staff more than 20 times from 2006 through 2008, providing strong direction and assistance to the Commission staff in developing these final-form regulations. The Committee and the Commission staff led discussions of the proposed rulemaking with the full NMAB on April 13, 2006, July 13, 2006, December 5, 2006, February 6, 2007, July 12, 2007, September 5, 2007, October 10, 2007, and April 24, 2008. The NMAB approved these final-form regulations on April 24, 2008, and passed them on to the Commission with their recommendation for the Commission's approval.
In addition to the extensive involvement of the NMAB, the Commission's staff has worked closely with a team of experts on odor management at the Pennsylvania State University (PSU). These experts have developed and refined an odor management planning process over the last several years. This process was the one the Legislature had in mind when it passed the odor management provisions of Act 38. Key elements of this process have been incorporated into the regulations and are described in some detail in this preamble.
The Commission staff also worked with a third group--an interagency team of agriculture experts from the Department of Agriculture, the United States Department of Agriculture Natural Resources Conservation Service (NRCS), county conservation districts, DEP, the PSU College of Agricultural Sciences and Penn State Extension.
The Commission's staff provided briefings on the regulations as they were being developed and finalized, to numerous groups representing local government, industry and the public. The Agriculture Air Quality Task Force also received briefings on the draft regulations during 2006.
Finally, the Commission held two public meetings and two public hearings to solicit comments on the proposed regulations. The two meetings were held on October 1, 2007, and October 4, 2007, in Dubois and Lancaster, respectively. The two hearings were held on October 8, 2007, and October 11, 2007, in Dubois and Lancaster, respectively.
This final-form rulemaking incorporates the input from all the parties described previously, in addition to the 12 commentators that provided formal comments on the proposed regulations during the 60-day comment period. These final-form regulations follow the format of the nutrient management regulations in Chapter 83, to facilitate comprehension by the regulated community and others familiar with those regulations.
Two key aspects of these regulations bear special mention. First, the regulations are limited in their scope to odors associated with new or expanding manure management and animal housing facilities at CAOs and CAFOs. These regulations do not otherwise apply to existing agricultural operations, and they do not address odor from land application of manure. These limitations reflect the odor management provisions in Act 38.
Second, the OMPs are not required to eliminate odors. Under Act 38, they only need to include reasonably available technology, practices, standards and strategies to manage odor impacts, considering both the practical and economic feasibility of installation and operation and the potential impacts from the facilities. This aspect of Act 38 reflects the impracticality of completely eliminating odors associated with agricultural operations, as well as the evolving nature of the science of odor management and of the regulation of odor management. The Legislature was obviously cognizant of the subjective nature of odors in rural areas and the difficulties in eliminating and regulating them. The Commission developed this rulemaking with that legislative dictate in mind.
E. Summary of Changes from the Proposed Rulemaking
General
Clarifying and stylistic changes to the proposed regulations are made throughout these revisions. Many changes are intended to address changes requested by the Independent Regulatory Review Commission (IRRC) to conform to the Regulatory Review Act (71 P. S. §§ 745.1--745.15). Some of these will be described as follows.
Numerous commentators expressed their support of the Commission's proposal. Commentators expressed that the process outlined in the regulations is a balanced and flexible approach of addressing odor management from animal production operations. The proposal was described by a majority of the commentators as being practical for the farm community to implement.
A majority of the commentators indicated their support of the Commission's position to assess an operation based on the characteristics of the area existing at the time of the plan development. Also they strongly supported the concept of not requiring plan amendments unless the farm is proposing a significant expansion or new construction activity that would be expected to increase the impacts from odors generated from the site. These commentators expressed that a person moving into an area next to an existing animal operation should consider the possible impacts from the farm as they are assessing the area, and not hold the farmer responsible to add additional odor BMPs to address new neighbors moving into the area, unless the farmer is making changes to the farm at the same time.
A commentator expressed the need for the Commission to meet with representatives from the Pennsylvania State Association of Township Supervisors (PSATS) and builders organizations to discuss the problems created when residential development is encouraged to take place in close proximity to farming areas. The Commission agrees with this comment and will make the effort to actively reach out to these entities to help them understand how their efforts, in combination with these new requirements, can help minimize conflicts with agricultural operations in their area.
A commentator expressed that the public should be given access to the processes involved in developing and maintaining an OMP. The program as developed under these regulations will provide the public with access to proposed plans, and an opportunity to provide comments, during the approval process. The plans will be approved by the Commission, or the local county conservation district. Those approvals will be made at public meetings, and access to the final plan will be allowed prior to the meetings. This is the same process followed for Nutrient Management Plans under Act 38.
§ 83.701 (relating to definitions)
Impact: Two commentators expressed some concern relating to the definition of the term ''impact'' as used in the regulations. The proposed definition excluded the assessment of property values and health effects when assessing the potential impact of an operation on the neighboring landowners. These two commentators questioned why those issues were not included in this definition. One additional commentator expressed support for the Commission's definition of ''impact'' and supported the lack of any requirement to consider these issues.
The statute requires OMPs that ''manage the impact of odors,'' but does not define the word ''impact.'' The Commission has developed a use of that term that is consistent with the statute, based on consideration of the language in the statute, and the nature of the science of odor management at agricultural operations in this Commonwealth at the time Act 38 was passed by the Legislature.
There is no clear indication in the statute that odor impacts must include mental and physical health affects, or changes in property values. The statutory references to health and safety in unrelated sections listed by one commentator were provisions contained in the statute when it was the Nutrient Management Act, which addressed solely water quality impacts from nutrient pollution. Those impacts were well known at the time the Nutrient Management Act was passed. The situation was very different for odors in 2005 when the Legislature added these new provisions to the Nutrient Management Act and created Act 38.
When Act 38 became law in 2005, there was an existing OMP offered by the PSU College of Agriculture. The program was well-known to the Legislature--indeed, the factors and criteria used in 3 Pa.C.S. § 504(1.1) are very similar to the ones used by the PSU voluntary OMP. Therefore, the Commission believes that the Legislature intended that the odor management requirements under Act 38 would follow the then-existing PSU program.
The PSU voluntary OMP management program was developed over several years using data from hundreds of personal interviews by PSU researchers, who studied the main indicator of ''odor impacts''--conflicts between farms and their neighbors. The conflicts were essentially objections raised or asserted by neighbors to the odors from new and expanded operations after they became operational. The PSU researchers were able to identify the various factors that caused these conflicts, including those that were later contained in 3 Pa.C.S. § 504(1.1)(i). Notably, this scientific research did not address mental and physical health effects, or changes in property values.
The PSU research also included evaluation of measures which can be taken to minimize these conflicts, as the location and positioning of new farm buildings and other structures. Again, the measures were directed at minimizing the causes for conflicts, not for addressing any health or property value effects.
Therefore, the Commission believes that the final-form rulemaking stays true to the intent of the Legislature when Act 38 was passed. If the Legislature desires to expand the scope of the odor management program in the future to encompass these other issues, the Commission will revise these regulations accordingly.
Expansion: This term was suggested to be defined in the regulation to provide consistent implementation of the regulation. The Commission agreed with the comment and included a definition of this term in the final-form rulemaking.
Construction: This term was suggested to be included in the definition section of the regulations to further program consistency. The Commission agreed with this comment and included this definition.
§§ 83.711 and 83.721 (relating to applicant eligibility.)
Plan development: Commentators suggested that the Commission allow for plan development funding for any existing animal operation, including expanding operations. The Commission agreed with this comment and therefore the final-form rulemaking has been revised to allow the Commission to support plan development for all operations in existence as of February 27, 2009. Plan development is key to addressing odor management issues from farming operations and the Commission believes that it is important to support efforts to develop these plans on all farms in the State.
§ 83.731 (relating to conservation districts)
Heading: A commentator expressed the confusion that could exist with the heading of this section. The heading implied that the Commission may delegate to various local agencies, where the statute only permits delegation to properly qualified conservation districts. The Commission agreed with the comment and revised the heading to more accurately reflect that only conservation districts will be considered by the Commission for delegation of authority under this new regulation.
§ 83.741 (relating to general)
Types of Operations: The Commission discovered that it failed to include one of the circumstances by which a farm could change its animal density and therefore become a CAO and possibly a CAFO. The final-form regulation was revised to include the situation when a farm operation may lose acreage and therefore fall under the CAO and possibly CAFO designation.
§ 83.742 (relating to identification of construction activities)
(Editor's Note: The proposed addition of § 83.742 was withdrawn by the Commission.)
Section 83.742 of the proposed regulations was deleted in the final-form rulemaking, since it is incorporated into the definition of construction and construction activities.
Expanding a manure storage when improving storage integrity: The regulations stated that when improving the integrity of an existing storage, if the operator does not expand the facility by more than 15% then the activity would not be considered construction for the purposes of planning under the act. A commentator indicated that the Commission should define from what point in time that 15% expansion is to be measured from. The Commission has revised this wording (which now resides in the definition section under ''construction'') to say that that the percentage increase will be measured from the current manure storage volume as verified by the approved Nutrient Management Plan.
Replacing a destroyed animal facility: A commentator expressed support of the Commission's direction to allow replacement of a destroyed animal housing facility with one of similar size. The Commission further clarified this wording which now resides in the definition section under ''construction'' by stating that if the replacement building has a similar animal capacity as the one that was destroyed, this activity would not be considered construction for the purposes of planning under the act.
§ 83.751 (relating to content of plans)
Conformance with local ordinances: A commentator expressed that the Commission should add wording to this section of the regulations to state that OMPs need to be consistent with any local land use ordinance. The Commission believes that the incorporation of this comment could allow for a local ordinance to impair the Commission's ability to approve an OMP, even if that ordinance was in conflict with the regulations. This is contrary to the intent of 3 Pa.C.S. § 519 (relating to preeemption of local ordinances), as well as Chapter 3 of Act 38, which establish and protect the preemption of the State-Wide Odor Management Program over certain local laws and regulations.
§ 83.761 (relating to identification of agricultural operations and regulated facilities)
Surrounding land use: Comments were provided which indicated that the readers were confused about the scope of the assessment required by the Commission relating to the ''surrounding land use.'' In the final-form regulations, § 83.761(a)(2)(iii) and (b)(3) have been removed as they were redundant and therefore creating confusion. Section 83.771(b)(1) and (2) have been revised to clarify the criteria needed to conduct an evaluation.
The ''surrounding land use'' criterion is given meaning in § 83.771(b)(1)(ii), where the types of uses to be considered are listed. Beyond these basic criteria, further details are described in the Commission's Odor Management Guidance, where Surrounding Land Use Factors are described for completing an Odor Site Index. The Guidance is not a requirement, but is available to persons preparing OMPs.
Prevailing winds: A commentator questioned how the program was proposing to assess the direction of the prevailing winds during plan development. The prevailing winds text was removed from this section of the regulations but it remains in the Evaluation section of the regulations. The technical experts at PSU provided that, prevailing winds in this Commonwealth are commonly from the West-Northwest. Therefore for the purposes of this program, the Commission uses West to Northwest as the prevailing wind direction. The final-form rulemaking has been revised to explicitly indicate that West and Northwest will be presumed to be the prevailing wind direction under the Act 38 Facility Odor Management Program.
§ 83.762 (relating to operator commitment statement)
Documentation requirements: Section 83.762(3) has been revised to replace the word ''records'' with ''documentation'' and ''documentation of plan implementation activities,'' consistent with the revisions made in § 83.791.
§ 83.771 (relating to managing odors)
Accessibility of BMP information: Many commentators expressed a concern that some of the information relating to the Level 2 Odor BMPs would only be available if the person requesting that information could pay for the copy-right and duplication fees imposed on those documents. The regulations list three possible reference sources for Level 2 Odor BMPs. The Commission has restructured these lists to ensure that they are all open and available to the public through the Commission's free web site. For individuals that do not have access to the Internet, the Commission will provide these BMP lists upon request at no charge to the public.
Use of AEUs to determine evaluation distance: A commentator indicated that the Commission should specifically identify what criteria will be used for determining evaluation distance for odor management planning purposes. Subsection (b)(3) was not definitive enough for the reader to feel comfortable in understanding how the Commission would make this determination. The Commission agreed with this comment and the final-form regulation has been revised to state that AEUs ''shall'' be used for determining the evaluation distance used within the program.
Time period to implement: It was obvious through the various comments the Commission received on this topic that many readers were confused about the 3-year lifespan of an approved plan. In the final-form rulemaking, § 83.801(f) has been revised to remove the redundant language. In addition, § 83.771(d) has been revised to clarify that an evaluation must be redone (by means of a new plan) if construction activities on the regulated facility are not started within 3 years from the date of plan approval. This section of the regulations has also been revised to allow the Commission to extend the 3-year deadline, not to exceed an additional 2 years, for situations when due to circumstances beyond the reasonable control of the operation, including delays caused by permitting of the facility, the agricultural operation was not able to obtain the necessary permits and approvals in time to initiate construction activities within the 3-year time frame.
§ 83.781 (relating to identification of Odor BMPs)
Vague language: A commentator expressed the concern that language used within this section of the regulation was too vague to allow the regulated community to implement the standards, and to allow the Commission to enforce the program. The phrase ''feasible from a practical and economic perspective'' comes directly from Act 38. The Commission has provided operators the opportunity in these regulations to select from a significant number of possible BMPs to address odor sources on their operation. Operators can select those BMPs that they would consider practical and economically feasible for their operation. The final-form rulemaking eliminates the phrase ''normal maintenance activities used in the industry in this Commonwealth'' as this wording has been determined to not provide any additional clarity to the regulations. The regulation now states that the Level I BMPS are intended to mean management-oriented measures, whereas Level 2 BMPs are structurally-oriented and other nonmanagement based measures.
§ 83.783 (relating to operation and maintenance schedule)
Lifespan of the required BMPs: A commentator expressed the concern that the regulations do not state whether the OMP needs to be followed indefinitely or only until the BMPs are installed. The Commission agreed with this comment and added language into this paragraph to indicate that the plan will need to include the lifespan of the various BMPs required in the plan. The BMPs would then need to be maintained, in accordance with program standards, for the entire lifespan documented in the plan.
§§ 83.791 and 83.792 (relating to general recordkeeping requirements; and recordkeeping relating to Odor BMPs)
Practicality of the recordkeeping requirement: Several commentators expressed a concern about the scope and practicality of the recordkeeping expectations of the Commission. Commentators have expressed the variability of records that may be required based on the type of BMPs required. In the final-form rulemaking, § 83.791(b) has been deleted; the Commission is not requiring use of a Commission-generated form. The headings for §§ 83.791 and 83.792 have been changed to use the word ''documentation'' to better reflect that the Commission is not requiring a standard form and that the Commission will accept and require a wide range of formats for this documentation, depending on the BMP being installed.
Section 83.792 has been revised to require that the plan identify the types of documentation needed to demonstrate compliance with the plan. This documentation will be required for all BMPs installed under an approved Facility Odor Management Plan. An example of this documentation would include contractor invoices and as-built design sketches relating to the implementation of a Windbreak/Shelterbelt BMP.
Submission of records for public review: A commentator suggested the Commission should require in regulations that records required under this program be submitted to the conservation district or Commission so that they would be available for public review. The Commission has included language in § 83.792 indicating that the required documentation shall be maintained onsite. The Commission believes that compliance can be accomplished effectively through the maintenance of documents onsite at the operation. Annual inspections by program staff of the approved operations, as well as additional visits in response to any complaints from neighbors, will provide adequate opportunity for program staff to ensure that the operator is complying with the operation and maintenance provisions of the plan.
§ 83.801 (relating to initial plan review and approval)
Nutrient Management Advisory Board review: A commentator notified the Commission that the second 90-day review period allowed for in the proposed regulations was not authorized in the law. The Commission concurs that the second 90-day review period is not explicitly stated in the Act 38 for Odor Management and therefore the second 90-day review period has been removed from the final-form rulemaking.
The allowance in subsection (c) for the Commission or the farmer to obtain a formal recommendation on the plan proposal from a committee of the NMAB was also removed in the final-form regulations due to the 90-day review restriction. The Commission recognizes that to accommodate the initially proposed process of obtaining a recommendation from an outside Committee of the NMAB, the plan review activity would take longer than 90 days allowed for this action.
Lifespan of the approved plan: The wording relating to this issue was removed from subsection (f) because it was determined to be redundant since this issue is addressed in its entirety in § 83.771(d).
§ 83.802 (relating to plan implementation)
Documentation: Wording was changed in subsection (b) from ''records'' to ''plan implementation documentation'' to be consistent with the changes made in §§ 83.791 and 83.792.
§ 83.811 (relating to plan amendments)
Assessing farm expansion for amendment purposes: A commentator indicated that the proposed regulations did not provide enough clarity in subsection (b)(1) to explain how incremental changes in animal numbers would affect the amendment trigger. The Commission agrees with the commentator that the regulations need to indicate when the change in AEUs will be evaluated from. The final-form regulations incorporate this change in § 83.811(b)(1) as suggested by the commentator. Also in this paragraph it was suggested that the amendment trigger be revised to 10%, similar to the nutrient management plan amendment trigger. The Commission continues to believe that a 25% change is most relevant when dealing specifically with odor issues, not 10% as used for considering nutrient issues.
Amendments due to a change in the ''operational management system:'' The Commission received extensive comments on this amendment trigger provided in subsection(b)(3) of the proposed regulation. Commentators were concerned of how this amendment trigger would be evaluated and interpreted by the Commission. The Commission agrees with these comments. This amendment trigger has been eliminated from the final-form rulemakings as it does not provide any additional clarity to the regulations that is not already addressed in § 83.811(b)(1) and (2).
Amendments to revise Odor BMPs: Numerous commentators expressed a concern that the proposed regulations did not facilitate operators changing their plans to implement innovative, more effective BMPs than those originally included in the approved OMP. The Commission agreed with these comments. Revised § 83.811(d) provides operators with an opportunity to propose a change to the Odor BMPs listed on their approved nutrient management plan through amending only the Odor BMP section of the plan and not requiring operators to amend the remainder of the plan including the Odor Site Index. But if the operator has triggered any of the significant operation changes as outlined in § 83.811(b), a full plan amendment, requiring the rewrite of the entire plan, will be required including rerunning the Odor Site Index for the operation.
§ 83.812 (relating to plan transfers)
Signatures for plan transfers: Subsection (a) was revised consistent with submitted comments to clarify that a new operator must sign off on the plan prior to the plan being considered as transferred to the new operator. This signature indicates that the new operator concurs with the information in the plan and agrees to carry out the plan.
F. Benefits, Costs and Paperwork
1. Benefits
The main benefit of these regulations is to establish a level of regulatory requirements regarding agricultural odor management that does not currently exist in this Commonwealth's rural communities. It is part of the balanced approach embodied in the Governor's ACRE initiative.
The Commission has developed the final-form regulations in close coordination with various Federal, State and local agencies and institutions. These include the NMAB and the Board's Odor Management Committee, the PSU College of Agriculture, PDA, DEP, the NRCS, various county conservation districts and Penn State Extension.
Farmers will benefit from this rulemaking in several ways. First, implementation of an OMP approved by the Commission affords important legal protections under Act 38. Second, odor management is an important issue in rural areas of this Commonwealth and this rulemaking will help to minimize conflicts between farmers and their neighbors, especially in areas where there is suburban encroachment into rural areas.
2. Costs
The cost of implementing these final-form regulations will mainly impact the regulated community and the Commonwealth. The Commonwealth costs are most readily seen in the financial assistance that the Commission is proposing to provide for plan development, and for plan implementation.
Note that CAO and CAFO farms that construct animal housing facilities or manure storage facilities are required to get an OMP.
Costs to the regulated community Development of OMPs: Based on the Commission's experience with the nutrient management program costs, and the projected time to conduct a site assessment for the proposed OMP, the Commission anticipates that the average cost for an OMP will be $1,120 per OMP.
The Commission anticipates that 90 operations will develop OMPs under these regulations annually. This will equate to a total annual planning cost to the farm community of $100,800, of which a portion of this will be offset through the Commission's plan development cost share program.
Implementation of OMPs: The final-form regulations which provide for multiple levels of Odor BMPs anticipate that there will be no new cost to the regulated community until Level 2 Odor BMPs are required to be implemented and maintained. The cost for implementing Level 2 BMPs on a given farm are extremely variable. Based on the Commission's assessment of the various BMPs that may be installed, and the general costs for installing these BMPs, the Commission has determined an average cost of installing Level 2 BMPs on a farm to be $15,000. Each plan will use site specific criteria, and that there will be large variability in the Level 2 Odor BMPs implemented on regulated operations. Some farms needing Level 2 BMPs may only need to expend less than $500 to implement these BMPs where other farms needing Level 2 BMPs may need to be expend thousands of dollars.
The Commission anticipates that 17 operations a year will develop OMPs requiring Level 2 BMPs. This will equate to a total annual plan implementation cost to thefarm community of $255,800. A portion of this will be offset through the Commission's plan implementation cost share program for certain eligible farms.
Retention of documentation and BMP standards: The Commission has revised the principal reference document to be used for identifying possible Level 2 BMPs. This Odor BMP Reference List will now be made available to the public at no cost, therefore eliminating any possible costs associated with researching the principal odor management BMPs available for use under the program.
The Commission has revised its recordkeeping section in the final-form regulations to allow for a wide variety of documentation to verify BMP implementation and maintenance compliance. This documentation is expected to be a part of normal farm operations and is not expected to impose any additional program compliance costs on the regulated community.
Costs to the Commonwealth Development of OMPs: The final-form rulemaking provides for the Commonwealth, through the Commission, to provide funding for financial assistance for plan development to offset the cost of developing OMPs for farmers whose agricultural operations are in existence as of February 27, 2009. This funding is similar to the Commission's PDIP that has provided cost share funding to farmers for the development of nutrient management plans since 1997. This new State cost share program, proposed to fund 75% of the cost of developing an OMP, is essential to ensure that farmers are not negatively impacted by these CAO and CAFO planning requirements. Applying the 75% State cost share rate currently proposed for this program, the anticipated government cost per funded plan would be $840 ($1,120 total cost, $840 cost share, $280 farmer cost).
The Commission anticipates that 65 operations will be eligible annually for the Commission's PDIP. This will equate to a total annual plan development cost share amount from the Commonwealth of $54,600.
Implementation of OMPs: The final-form regulations authorize funding to offset the implementation of odor BMPs on certain participating operations installing manure storage facilities. This new grant program is proposed to provide support at an 80% State cost share rate. At the anticipated average cost for implementing a Level 2 Odor BMP of $15,000, the 80% cost share rate would equate to $12,000 in State cost share funds per operation receiving this assistance ($15,000 total cost, $12,000 cost share, $3,000 farmer cost).
The Commission anticipates that six operations will be eligible (according to the eligibility limitations outlined in the final-form regulations) annually for the Commission's cost share program to support OMP implementation. This will equate to a total annual plan implementation cost share amount from the Commonwealth of $72,000.
Commission: The Commission will continue to spend approximately $60,000 per year for Commission staff wages and expenses.
Technical assistance: The Commission will continue to contract with PSU to provide technical and educational assistance in the development and implementation of these new odor management regulations as well as PDA's Odor Management Specialist Certification Program. This project is funded at $10,000 per year.
3. Paperwork Requirements
The final-form regulations have been written to minimize paperwork but still maintain program integrity and tracking. Farmers are required to keep records on their farm, but are not required to submit those documents to the Commission.
G. Sunset Review
The Commission will evaluate the effectiveness of these final-form regulations on an ongoing basis. Therefore, no sunset date is being established for the regulations.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 22, 2007, the Commission submitted a copy of the proposed regulations, published at 37 Pa.B. 4780 (September 1, 2007), to IRRC and to the Chairpersons of the House Agriculture and Rural Affairs Committee and the Senate Agriculture and Rural Affairs Committee (Committees). In addition to submitting the proposed regulations, the Commission provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form.
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 this final-form rulemaking, the Commission has considered all comments from IRRC, the Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on October 1, 2008, this 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 October 2, 2008, and approved the final-form rulemaking.
I. Findings
The Commission finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law, and all comments were considered.
(3) These amendments do not enlarge the purpose of the proposal published in 37 Pa.B. 4780.
(4) This rulemaking is necessary and appropriate for administration and enforcement of the authorizing laws identified in section C of this order.
J. Order
The Commission, acting under the authorizing statutes, orders that:
(a) The regulations of the Commission, 25 Pa. Code Chapter 83 are amended, by adding §§ 83.701--83.707, 83.711, 83.721,83.731, 83.741, 83.751, 83.761, 83.762, 83.771, 83.781--83.783, 83.791, 83.792, 83.801, 83.802, 83.811 and 83.812 to read as set forth in Annex A.
(b) The Chairperson of the Commission shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.
(d) The Chairperson of the Commission shall submit this order and Annex A to IRRC and the Senate and House Committees as required by the Regulatory Review Act.
(e) The Chairperson of the Commission shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(f) This order shall take effect February 27, 2009.
JOHN HANGER,
Acting Chairperson(Editor's Note: The addition of § 83.742, included in the proposal at 38 Pa.B. 4780 has been withdrawn by the Commission.)
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 38 Pa.B. 5818 (October 18, 2008).)
Fiscal Note: 7-418. (1) Nutrient Management and General Funds:
Nutrient Mangement Fund General Fund Planning, Loans, Grants and General Government Technical Assistance Operations (2) Implementing Year 2007-08 is $10,000 $60,000 (3) 1st Succeeding Year 2008-09 is $30,000 $60,000 2nd Succeeding Year 2009-10 is $141,640 $60,000 3rd Succeeding Year 2010-11 is $141,640 $60,000 4th Succeeding Year 2011-12 is $131,140 $60,000 5th Succeeding Year 2012-13 is $118,540 $60,000 (4) 2006-07 Program-- $1,861,000 $29,642,000 2005-06 Program-- $1,600,000 $29,451,000 2004-05 Program-- $3,016,000 $31,017,000
(7) Nutrient Management Fund and General Fund; (8) recommends adoption. The distribution of funding for the grant programs will be provided to the extent funds are available.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE I. LAND RESOURCES
CHAPTER 83. STATE CONSERVATION COMMISSION
Subchapter G. FACILITY ODOR MANAGEMENT
GENERAL PROVISIONS Sec.
83.701. Definitions. 83.702. Scope. 83.703. Purpose. 83.704. Relation to Subchapter D (relating to nutrient management regulations). 83.705. Preemption of local ordinances. 83.706. Limitation of liability. 83.707. Compliance assistance and enforcement.
FINANCIAL ASSISTANCE FOR PLAN DEVELOPMENT 83.711.
Applicant eligibility.
FINANCIAL ASSISTANCE FOR PLAN IMPLEMENTATION 83.721.
Applicant eligibility.
DELEGATION TO CONSERVATION DISTRICTS 83.731.
Delegation to conservation districts.
ODOR MANAGEMENT PLANS 83.741.
General.
CONTENT REQUIREMENTS FOR ALL PLANS 83.751.
Content of plans.
PLAN SUMMARY INFORMATION 83.761.
Identification of agricultural operations and regulated facilities. 83.762. Operator commitment statement.
MANAGING ODORS 83.771.
Managing odors.
ODOR BMPs 83.781.
Identification of Odor BMPs. 83.782. Implementation schedule. 83.783. Operation and maintenance schedule.
DOCUMENTATION REQUIREMENTS 83.791.
General documentation requirements. 83.792. Documentation relating to plan implementation.
PLAN REVIEW AND IMPLEMENTATION 83.801.
Initial plan review and approval. 83.802. Plan implementation.
PLAN AMENDMENTS AND TRANSFERS 83.811.
Plan amendments. 83.812. Plan transfers.
GENERAL PROVISIONS § 83.701. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
AEU--Animal equivalent unit--One thousand pounds live weight of livestock or poultry animals, on an annualized basis, regardless of the actual number of individual animals comprising the unit.
Act--3 Pa.C.S. §§ 501--522 (relating to nutrient management and odor management).
Agricultural operations--The management and use of farming resources for the production of crops, livestock or poultry.
Animal housing facility--A roofed structure or facility, or any portion thereof, used for occupation by livestock or poultry.
CAFO--Concentrated animal feeding operation--An agricultural operation that meets the criteria established by the Department in regulations under the authority of The Clean Streams Law (35 P. S. §§ 691.1--691.1001), found in Chapter 92 (relating to National Pollutant Discharge Elimination System Permitting, Monitoring and Compliance).
CAO--Concentrated animal operation--Agricultural operations with eight or more animal equivalent units where the animal density exceeds two AEUs per acre on an annualized basis.
Commission--The State Conservation Commission established by the Conservation District Law (3 P. S. §§ 849--864).
Conservation district--A county conservation district established under the Conservation District Law.
Construction or construction activities--The act or process of systematically building, forming, assembling or otherwise putting together a facility or parts of a facility.
(i) The terms do not include any of the following, when used in relation to the following activities at animal housing facilities:
(A) Replacement of existing equipment at an existing animal housing facility.
(B) Replacement of an existing animal housing facility in existence as of February 27, 2009, that has been destroyed by fire, flooding, wind, or other acts of God, vandalism, or other similar circumstances beyond the operator's control, with a facility that is of similar animal capacity.
(ii) The terms do not include any of the following, when used in relation to the following activities at manure management facilities:
(A) Improving the integrity of an existing manure storage facility with no more than a 15% increase in manure storage volume as measured from the current storage volume documented in the approved nutrient management plan.
(B) Adding treatment technology, such as solids separation, anaerobic digestion, and composting, and their associated facilities, on agricultural operations in existence as of February 27, 2009, provided that the treatment technology is designed, built and operated consistent with the Commission's current ''Odor Management Guidance.''
Expand, expansion--Creation of additional space of an animal housing facility by increasing the size of an animal housing facility, or increasing the volume of a manure storage facility by increasing the size of the manure storage facility.
Facility--Refers to the animal housing facility and manure management facility, or portion of a facility, which are required to be, or are voluntarily subject to this subchapter.
Farming resources--The animals, facilities and lands used for the production or raising of crops, livestock or poultry. The lands are limited to those located at the animal facility which are owned by the operator of the facility, and other owned, rented or leased lands under the management control of the operator of the facility that are used for the application, treatment or storage of manure generated at the facility.
Fund--The Nutrient Management Fund established under section 512 of the act (relating to nutrient management fund).
Impacts--
(i) Conflicts arising from the offsite migration of the odors from agricultural facilities.
(ii) The term does not include mental or physical health affects, or changes in property values.
Livestock--
(i) Animals raised, stabled, fed or maintained on an agricultural operation with the purpose of generating income or providing work, recreation or transportation.
(ii) Examples include: dairy cows, beef cattle, goats, sheep, swine and horses.
(iii) The term does not include aquatic species.
Manure--
(i) Animal excrement, including poultry litter, which is produced at an agricultural operation.
(ii) The term includes materials such as bedding, washwater and other materials which are commingled with that excrement.
Manure management facility--
(i) A manure storage facility, including a permanent structure or facility, or a portion of a structure or facility, utilized for the primary purpose of containing manure.
(ii) The term includes liquid manure structures, manure storage ponds, component reception pits and transfer pipes, containment structures built under a confinement building, permanent stacking and composting facilities and manure treatment facilities.
(iii) The term does not include the animal confinement areas of poultry houses, horse stalls, free stall barns or bedded pack animal housing systems.
OMP--Odor management plan--Plan--
(i) A written site-specific plan identifying the Odor BMPs to be implemented to manage the impact of odors generated from animal housing and manure management facilities located or to be located on the site.
(ii) The term includes plans approved for VAOs and facilities not required to submit a plan under this subchapter.
(iii) The term includes plan amendments required under this subchapter, except when otherwise stated.
Odor BMP--Odor best management practice--A practice or combination of practices, technologies, standards and strategies to manage the potential for odor impacts from animal housing facilities and manure management facilities that are subject to this subchapter.
Odor management specialist--A person satisfying the certification requirements of the Department of Agriculture's proposed Odor Management Certification Program in 7 Pa. Code Chapter 130f (relating to odor management certification).
Odor Site Index--The field evaluation methodology developed specifically for this Commonwealth and approved by the Commission, which applies site-specific factors such as proximity to adjoining landowners, land use of the surrounding area, type of structures proposed, species of animals, local topography and direction of the prevailing winds, to determine the potential for odor impacts.
Offsite migration--The airborne movement of odors past the property line of an agricultural operation.
Public use facility--Public schools, hospitals, public nursing homes/elder care facilities and apartment buildings with greater than four dwelling units.
VAO--Voluntary agricultural operation--
(i) Any operation that voluntarily agrees to meet the requirements of this subchapter even though it is not otherwise required under the act or this chapter to submit an odor management plan.
(ii) The term includes agricultural operations applying for financial assistance under the act.
§ 83.702. Scope.
This subchapter specifies the criteria and requirements for:
(1) Odor management planning required under the act for certain facilities at CAOs and CAFOs.
(2) Voluntary OMPs developed for VAOs and facilities not required to submit a plan under this subchapter, that are submitted to the Commission or delegated conservation district for approval under the act.
(3) The construction, location and operation of animal housing facilities and animal manure management facilities, and the expansion of existing facilities, as part of a plan developed under the act.
(4) The awarding of financial assistance under the act for the development and implementation of OMPs for existing agricultural operations.
§ 83.703. Purpose.
The purposes of this subchapter are as follows:
(1) To provide for the management of odors generated only from animal housing facilities and manure management facilities on certain CAOs and CAFOs, considering the following:
(i) Site-specific factors.
(ii) Reasonably available technology, practices, standards and strategies.
(iii) The practical and economic feasibility of installation and operation of the technology, practices, standards and strategies.
(iv) The potential impacts from the facilities that may lead to conflicts between the agricultural operation and neighbors, arising from the offsite migration of the odors.
(2) To apply scientific information on odor management that is current at the time of plan approval, using the factors in paragraph (1), and recognizing the limitations of that scientific information and the subjective nature of identifying and managing odor impacts from agriculture.
(3) OMPs are intended to address the potential for odor impacts. The plans are not required to completely eliminate the potential for odor impacts.
(4) To encourage the management of odors generated from any VAOs and facilities, not required to submit a plan under this subchapter, consistent with paragraphs (1)--(3).
§ 83.704. Relation to Subchapter D (relating to nutrient management regulations).
This subchapter may not be construed as modifying, rescinding or superseding applicable manure management requirements for water quality protection contained in Subchapter D (relating to nutrient management).
§ 83.705. Preemption of local ordinances.
(a) The act and this subchapter are of Statewide concern and occupy the whole field of regulation regarding odor management to the exclusion of all local regulations.
(b) No ordinance or regulation of a political subdivision or home rule municipality may regulate the management of odors generated from animal housing or manure management facilities regulated by this chapter if the municipal ordinance or regulation is in conflict with this chapter and the regulations or guidelines promulgated under it.
(c) Nothing in the act or this subchapter prevents a political subdivision or home rule municipality from adopting and enforcing ordinances or regulations which are consistent with and no more stringent than the requirements of the act and this subchapter.
(d) A penalty may not be assessed under any valid local ordinance or regulation for any violation for which a penalty has been assessed under the act or this subchapter.
§ 83.706. Limitation of liability.
If an operator for an agricultural operation is fully and properly implementing and maintaining an OMP approved by the Commission or a delegated county conservation district under the act and this subchapter, the implementation shall be given appropriate consideration as a mitigating factor in any civil action for penalties or damages alleged to have been caused by the odor impacts.
§ 83.707. Compliance assistance and enforcement.
(a) The Department of Agriculture will assist the Commission in developing programs to assist those engaged in production agriculture to comply with the act and this subchapter.
(b) The Department of Agriculture will act as an ombudsman to help resolve issues related to county conservation district implementation of the act and this subchapter for those conservation districts delegated odor management program responsibilities under § 83.731 (relating to delegation to conservation districts).
(c) The Commission will be responsible for taking enforcement actions under the act and this subchapter. In the exercise of its enforcement authority, the Commission will be assisted by the staff of the Departments of Agriculture and Environmental Protection.
FINANCIAL ASSISTANCE FOR PLAN
DEVELOPMENT§ 83.711. Applicant eligibility.
Agricultural operations existing as of February 27, 2009, which are subject to this subchapter under § 83.741(b) (relating to general) or § 83.741(g), are eligible to receive funding under this program.
FINANCIAL ASSISTANCE FOR PLAN
IMPLEMENTATION§ 83.721. Applicant eligibility.
An owner of an agricultural operation existing as of February 27, 2009, may apply for financial assistance for the implementation of OMPs developed under the act only when the Commission requires construction of a manure management facility as part of the nutrient management program requirements, as determined under Subchapter D (relating to nutrient management). The owner shall have legal and financial responsibility for the agricultural operation during the term of the financial assistance provided by the Commission.
DELEGATION TO CONSERVATION DISTRICTS § 83.731. Delegation to conservation districts.
(a) The Commission may by written agreement delegate to a conservation district one or more of its administrative or enforcement authorities under the act.
(b) The delegation of administrative or enforcement authority may be made to a conservation district when the district demonstrates it has or will have an adequate program and sufficient resources to accept and implement the delegation.
(c) To the extent delegated by the agreement, the delegations may include the authority to enforce the act and this subchapter and to exercise other powers and duties otherwise vested in the Commission to implement the act.
(d) A delegation agreement will:
(1) Specify the powers and duties to be performed by the delegated district.
(2) Provide for the commitment of sufficient trained staff and resources to perform the powers and duties to be delegated.
(3) Require the delegated conservation district to maintain records of activities performed under the delegation.
ODOR MANAGEMENT PLANS § 83.741. General.
(a) OMPs submitted under this subchapter must meet the requirements in this section and §§ 83.751, 83.761, 83.762, 83.771 and 83.781--83.783.
(b) Applicability. Agricultural operations that meet the criteria of paragraphs (1) and (2) shall develop and implement an OMP:
(1) Types of operations. Operations that meet one of the following:
(i) CAOs and CAFOs existing as of February 27, 2009.
(ii) Agricultural operations existing on February 27, 2009, which, because of an increase, resulting from expansion in the number of animals maintained at the operation, will become regulated as either a CAO or CAFO.
(iii) Agricultural operations existing on February 27, 2009, which, because of a decrease in lands available for manure application, will become regulated as either a CAO or CAFO.
(iv) New agricultural operations after February 27, 2009, which will be regulated as either a CAO or CAFO.
(2) Types of activities. Operations that meet one of the following:
(i) Constructing a new animal housing facility or a new manure management facility after February 27, 2009.
(ii) Constructing an expansion of an animal housing facility or a manure management facility after February 27, 2009.
(c) Transition. Agricultural operations that initiate facility construction prior to February 27, 2009, are not required to develop and implement an OMP.
(d) Scope of plan.
(1) The OMP for activities under subsection (b)(2)(i) are only required to be developed and implemented with respect to the new facility.
(2) The OMP for activities under subsection (b)(2)(ii) are only required to be developed and implemented with respect to the newly constructed portion of the facility.
(e) Schedule to obtain plan approval. Operations required to have an OMP under this subchapter shall obtain approval of their OMP prior to the commencement of construction of new or expanded facilities.
(f) Implementation of plans.
(1) Operations required to have an OMP under this subchapter shall fully implement the approved plan prior to commencing use of the new or expanded animal housing facility and manure management facility.
(2) A plan is considered fully implemented when the Odor BMPs in the plan are being implemented in compliance with the schedule of Odor BMPs.
(g) Voluntary plans. An agricultural operation which is not required to comply with this subchapter may voluntarily submit a plan any time after February 27, 2009.
(h) Qualifications. Plans shall be developed by odor management specialists certified in accordance with the Department of Agriculture's odor management certification requirements in 7 Pa. Code Chapter 130f (relating to odor management certification). The specialists shall certify that the plans are in accordance with the act and this subchapter.
(i) Signature requirements. Plans shall be signed by the operator of the agricultural operation indicating concurrence with the information in the plan and acceptance of responsibilities under the plan. The following signature requirements apply:
(i) For sole proprietorships, the proprietor.
(ii) For partnerships, a general partner.
(iii) For corporations, a vice president, president or authorized representative. The plan must contain an attachment executed by the secretary of the corporation which states that the person signing on behalf of the corporation is authorized to do so.
(j) Penalties. Operators and odor management specialists who sign plans may be subject to penalties for any false information contained in the plans.
CONTENT REQUIREMENTS FOR ALL PLANS § 83.751. Content of plans.
(a) A plan must follow the standardized plan format provided by the Commission, unless otherwise approved by the Commission.
(b) The operator shall be involved in the development of the plan.
(c) The Odor BMPs listed in the plan must be consistent with the management practices listed in other relevant plans required by State regulations administered by the Commission or the Department, such as the nutrient management plan and Agriculture Erosion and Sedimentation Control plan developed for the operation, unless otherwise approved by the Commission or delegated conservation district.
PLAN SUMMARY INFORMATION § 83.761. Identification of agricultural operations and regulated facilities.
(a) Agricultural operation identification sheet. The plan must include an agricultural operation identification sheet that contains the following information:
(1) The operator name, address and telephone number, and the address for the regulated facilities if that address is different from the operator's address.
(2) A description of the operation for both the existing and proposed facilities, clearly indicating the regulated facilities or portions thereof, or both, identifying how the odor will be addressed through the plan, including the following:
(i) Animal types and numbers included on the agricultural operation.
(ii) Types of structures proposed.
(3) The signatures and documentation as required by § 83.741 (relating to general).
(4) The counties and municipalities where land included in the plan is located.
(5) The name, odor management certification program identification number and signature of the odor management specialist that prepared the plan and the date of plan preparation.
(b) Maps. The plan must include a topographic map drawn to scale identifying the lands where the facilities that are addressed in the plan are located. The map must clearly identify the following:
(1) The location and boundaries of the agricultural operation.
(2) The location of the neighboring homes, businesses, churches and public use facilities in the evaluation distances as determined by § 83.771(b)(1)(i) (relating to managing odors).
(3) Local topography.
(4) The location of proposed and existing animal housing and manure management facilities.
§ 83.762. Operator commitment statement.
The plan must include a statement, signed by the operator, committing to the following:
(1) Implementation of the Odor BMPs.
(2) Maintaining the Odor BMPs consistent with the operation and maintenance criteria contained in the plan.
(3) Keeping documentation of plan implementation activities, as described in the plan, and to allow access by the Commission or delegated conservation district to the documentation needed to determine compliance status.
(4) Allowing access to the agricultural operation by the Commission or delegated conservation district needed for status reviews and inspections for complaints.
(5) Providing operator's biosecurity protocols to the Commission or a delegated conservation district, if requested.
MANAGING ODORS § 83.771. Managing odors.
(a) General. OMPs must address the offsite migration of odors generated from facilities, as described in subsections (b) and (c). OMPs are intended to address the potential for odor impacts. The plans are not required to completely eliminate the potential for odor impacts.
(b) Evaluation. The plans must include an evaluation of the potential impacts according to the following:
(1) The evaluation must address proximity to neighboring landowners, land use of the surrounding area, type of structures proposed, species of animals, local topography and direction of the prevailing winds, according to the following:
(i) To establish the extent of the surrounding area to be included in this evaluation, an evaluation distance from the proposed facility shall be established. The number of AEUs on the agricultural operation shall be used as the primary factor in determining this evaluation distance.
(ii) The types of neighboring land owners and land uses that shall be assessed in this evaluation include homes, businesses, churches and public use facilities existing at the time of the submission of the plan.
(iii) The geographic center of a facility may be used as the starting point for the evaluation distance and for determining proximity to neighboring homes, businesses, churches and public use facilities.
(iv) Prevailing winds are presumed to be coming from the West and Northwest.
(2) The criteria and procedures in the current ''Odor Management Guidance'' (Guidance) issued by the Commission, and in effect at the time of plan submission, may be used to comply with this paragraph, including the use of an Odor Site Index contained in the Guidance. If the criteria and procedures in the Guidance issued by the Commission are not followed, an alternative method must be approved by the Commission.
(c) Odor BMPs. Based on the evaluation in subsection (b), the plan must include Odor BMPs that are necessary, if any, to address the potential for offsite migration of odors to meet the purposes of this subchapter, and as described in § 83.781 (relating to identification of Odor BMPs).
(d) Time period to implement. If construction activities of the new or expanded facility do not commence within 3 years of the date of plan approval, a new plan shall be submitted and approved prior to construction of the facility subject to this subchapter. The Commission may allow for extensions of the 3-year time frame, not to exceed an additional 2 years, when the agricultural operation was not able to obtain the necessary permits and approvals in time to initiate construction activities within the 3-year time frame due to circumstances beyond the reasonable control of the operation.
ODOR BMPs § 83.781. Identification of Odor BMPs.
(a) General. A plan must identify all existing and planned Odor BMPs used to address the potential for odor impacts from the facilities covered by the plan.
(b) Odor BMPs. Odor BMPs are only required if they are necessary to address the potential for impacts, and installation and operation of the BMPs are feasible from a practical and economic perspective. The Commission may require the agricultural operation to demonstrate why a particular Odor BMP is not feasible from a practical and economic perspective for the given operation.
(c) Level of Odor BMPs.
(1) Based on the evaluation in § 83.771(b) (relating to managing odors), and the criteria in subsection (b), determine the Odor BMPs which need to be included in the plan, if any. If Odor BMPs are needed, the BMPs must meet one of the following levels:
(i) Level 1 Odor BMPs. Basic management-oriented Odor BMPs that are applicable to the operation according to the species of animals, such as dust management, moisture control and facility sanitation, and that manage odors according to the purposes of this subchapter.
(ii) Level 2 Odor BMPs. Specialized nonmanagement oriented Odor BMPs that are applicable to the type of operation, such as windbreak shelterbelts, biofilters and manure storage covers, that are in addition to the Level 1 Odor BMPs, and that manage odors according to the purposes of this subchapter.
(2) The criteria and Odor BMPs contained in the current ''Odor Management Guidance'' issued by the Commission, and in effect at the time of plan submission, may be used to comply with this subsection. If the criteria and Odor BMPs contained in the current ''Odor Management Guidance'' issued by the Commission are not followed, an alternative method must be approved by the Commission.
(d) Description of Odor BMPs. The plan must list the Odor BMPs, their general construction and implementation criteria, and their operation and maintenance requirements.
(e) Implementation of supplemental Odor BMPs. Supplemental Odor BMPs may be implemented in addition to the approved Odor BMPs in the plan, on a temporary or permanent basis, without approval by the Commission or a delegated conservation district.
(1) Plan updates to address operational changes of these supplemental Odor BMPs shall be:
(i) Retained at the operation.
(ii) Submitted to the Commission or delegated conservation district for inclusion in the approved OMP within 30 days after the end of the calendar year in which they are implemented.
(2) Inspection reports, as provided for in § 83.802(b) (relating to plan implementation), may be used as documentation for plan updates.
§ 83.782. Implementation schedule.
(a) OMPs must contain a schedule that identifies all Odor BMPs with the corresponding time frames that each Odor BMP will be implemented.
(b) Odor BMPs that involve planting of vegetation such as a shelterbelt are considered fully implemented if the planting satisfies the criteria in the OMP.
(c) Prior to utilizing a new or expanded facility that is required to implement an OMP under this subchapter, the operation must receive written approval from the Commission, or a delegated conservation district, confirming implementation of the plan.
(1) The operation shall provide the Commission, or a delegated conservation district, with written notification provided by certified mail, of the intent to utilize the facility.
(2) If the Commission, or a delegated conservation district, fails to act within 10 business days of the notification to utilize the facility, it will be deemed approved.
§ 83.783. Operation and maintenance schedule.
OMPs must contain a schedule that identifies all operation and maintenance procedures, the time frames that the operation and maintenance procedures will be conducted and the lifespan for each Odor BMP listed in the plan.
DOCUMENTATION REQUIREMENTS § 83.791. General documentation requirements.
Unless otherwise specified in the plan, documentation required under this subchapter is 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 from the date they are prepared.
§ 83.792. Documentation relating to plan implementation.
Written documentation to demonstrate implementation of the OMP must be appropriate to the types of Odor BMPs required by the plan, including documentation of installation, operation and maintenance activities relating to the approved Odor BMPs consistent with the documentation requirements included in the approved plan, and shall be completed and maintained at the operation.
PLAN REVIEW AND IMPLEMENTATION § 83.801. Initial plan review and approval.
(a) Plans shall be submitted for initial review and approval to the Commission, or alternatively to delegated conservation districts, for agricultural operations located in counties delegated administrative authority under § 83.731 (relating to delegation to conservation districts). A person performing the plan review shall be certified in accordance with the Department of Agriculture's odor management certification requirements in 7 Pa. Code Chapter 130f (relating to odor 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. The Commission or a delegated conservation district may confer with experts in odor management, such as those at Pennsylvania State University, Natural Resources Conservation Service, and with others having knowledge of the local community in which the agricultural operation is located.
(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 and the plan 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 is disapproved, the operator submitting the plan 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.
§ 83.802. Plan implementation.
(a) The plan shall be fully implemented in accordance with the implementation schedule included as part of the approved plan.
(b) Periodic inspections and review of the agricultural operation, the plan and the plan implementation documentation will be conducted by the Commission or a delegated conservation district at least annually to determine the status of the operation's compliance and whether a plan amendment is required.
PLAN AMENDMENTS AND TRANSFERS § 83.811. Plan amendments.
(a) A plan amendment is required if the operation expects to make a significant change in any animal housing and manure management facilities subject to this subchapter, prior to those changes being implemented.
(b) Any of the following are presumed to be a significant change in the operation which will require a plan amendment:
(1) A net increase of equal to or greater than 25% in AEUs, as measured from the time of the initial plan approval.
(2) If calculations in the plan as originally submitted are in error, or if figures used in the plan are inconsistent with this subchapter, and adequate justification has not been given in writing for the inconsistency.
(c) Any operation which would be required to submit a plan amendment under subsection (b) may avoid that requirement if it can demonstrate that there will not be an increase in the potential for offsite migration of odors under § 83.771 (relating to managing odors).
(d) Any operation that is required to implement Odor BMPs under § 83.781 (relating to identification of Odor BMPs), may submit a plan amendment requesting to change the Odor BMPs that are to be implemented, without conducting a new evaluation of the potential offsite migration of odors as described in § 83.771(b), if the following applies:
(1) Supporting documentation is submitted, such as the implementation, operation and maintenance schedule, to demonstrate compliance with § 83.771(c).
(2) The operation is not making a significant change in the operation as described in subsection (b).
(3) The operator will continue to implement the original Odor BMPs until the Commission has approved the requested amendment.
(e) A plan amendment shall be developed and certified by an odor management specialist and be submitted to the Commission or delegated conservation district for approval under this subchapter.
§ 83.812. Plan transfers.
(a) An approved OMP may be transferred to a subsequent owner or operator of an agricultural operation by notification of the transfer to the Commission or a delegated conservation district, unless the transfer results in operational changes requiring a plan amendment under § 83.811 (relating to plan amendments). However, any new signatures required under § 83.741(i) (relating to general) must be obtained before a plan is transferred to any new operator.
(b) If the transfer of the approved plan results in operational changes requiring a plan amendment under § 83.811, 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).
[Pa.B. Doc. No. 08-2143. Filed for public inspection November 28, 2008, 9:00 a.m.]
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