RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
STATE CONSERVATION COMMISSION
[25 PA. CODE CH. 83]
Nutrient Management Regulations
[27 Pa.B. 3161] The State Conservation Commission (Commission) by this order adopts Chapter 83, Subchapter D (relating to nutrient management). These final regulations implement major provisions of the Nutrient Management Act (act) (3 P. S. §§ 1701--1719) by establishing criteria, nutrient management planning requirements, an implementation schedule and financial assistance for the application of nutrient management measures on certain agricultural operations which generate or utilize animal manure. The proposed regulations were published at 25 Pa.B. 6161 (December 30, 1995).
This order was adopted by the Commission at its meeting of March 13, 1997.
A. Effective Date
These regulations will go into effect on October 1, 1997.
B. Contact Person
For further information contact Karl Brown, Executive Secretary, State Conservation Commission, Room 209, Agriculture Building, 2301 North Cameron Street, Harrisburg, PA 17110, (717) 787-8821. Persons with a hearing disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). In support of the Commission, the Department of Environmental Protection (Department) has made this final rulemaking available electronically through the Department's website (http://www.dep.state.pa.us).
C. Statutory Authority
This final rulemaking is being made under the authority of section 4(1) of the act (3 P. S. § 1704(1)), which requires the Commission to promulgate regulations establishing minimum criteria for nutrient management plans and other requirements necessary to implement the act; 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 carryout its functions; and section 503(d) of the Conservation and Natural Resources Act (71 P. S. § 1340.503(d)) which modified the authority and responsibilities of the Commission, the Department and the Department of Agriculture.
D. Background and Summary
The act was enacted in May 1993, to improve farm efficiency and prevent the nonpoint source pollution of surface water and groundwater from agricultural nutrients. It requires the Commission, in conjunction with the Department of Agriculture, the Department, the Penn State Cooperative Extension, the Nutrient Management Advisory Board (Advisory Board) and county conservation districts, to develop a program for the proper utilization and management of nutrients. Nitrogen is identified in the act as the nutrient of primary concern. The Commission is also required to provide education, technical assistance and financial assistance to the agricultural community regarding proper nutrient management.
Section 503(d) of the Conservation and Natural Resources Act which was enacted July 1, 1995, modified the authority and responsibility of the Commission, the Department and the Department of Agriculture under the act. An office and staff were created within the Department of Agriculture to assist in the development, implementation and enforcement of Commission programs that solely affect production of agriculture, including the nutrient management program. The staff of both the Department and the Department of Agriculture provided critical support to the Commission and the Advisory Board in the development of these final regulations and other components of the nutrient management program.
The Commission developed these final regulations in conjunction with the Advisory Board as required by the act. The Advisory Board, which represents a wide range of agricultural, governmental, environmental and private interests, provided diligent assistance to the Commission for the last 3 1/2 years in an effort to develop workable and effective final regulations. It is estimated the Advisory Board volunteered in excess of 15,000 hours to this effort. The final regulations were also developed with the assistance of the major farm organizations, county conservation districts, the Penn State Cooperative Extension and the Natural Resources Conservation Service (NRCS).
These final regulations directly affect the concentrated animal operations (CAOs) that are required to plan under the act as well as other agricultural operations that voluntarily plan under the act or receive financial assistance under the act or the Chesapeake Bay Nonpoint Source Pollution Abatement Program. Only about 5%-10% of agricultural operations in this Commonwealth will meet the criteria for mandatory planning under the act. The Commission is working to obtain the voluntary participation of other agricultural operations in the nutrient management program. The final regulations were developed to streamline planning and other requirements, where possible, to encourage maximum voluntary participation by non-CAOs. The Commission believes that a strong voluntary program must operate simultaneously with the mandated regulatory program to assure proper nutrient management.
Nutrient management plans for CAOs are required to be developed by nutrient management specialists certified by the Department of Agriculture. Additionally, plans are to be submitted to the Commission or delegated county conservation districts for approval. Nutrient management planning responsibilities for CAOs and for other agricultural operations that develop voluntary plans or as a condition for receiving financial assistance under the act or the Chesapeake Bay Nonpoint Source Pollution Abatement Program are set forth in detail. Minimum standards for the construction, location, storage capacity and operation of animal manure storage facilities on agricultural operations that develop a plan under the act are included. Manure management procedures in emergency situations where there is an outbreak of contagious disease must be consistent with the existing quarantine requirements set by the Department of Agriculture. Agricultural operations may apply for financial assistance to implement nutrient management plans as well as incentives to develop nutrient management plans. CAOs shall receive priority funding. Commission responsibilities for administering and enforcing the act and regulations may be delegated to local county conservation districts.
Agricultural operations that are fully and properly implementing an approved nutrient management plan are offered a limited liability protection as well as protection from fines and penalties for damages alleged to have been caused by the management or utilization of nutrients under the implementation of a plan (see section 13 of the act (3 P. S. § 1713)). In accordance with section 17 of the act (3 P. S. § 1717) (relating to preemption of local ordinances), local municipalities may not regulate nutrient management practices or manure storage facilities in a manner that is inconsistent with or more stringent than the requirements of the act and these regulations.
E. Summary of Changes
Section 83.201--Definitions
New definitions have been included for the terms ''critical runoff problem areas,'' ''mechanical incorporation of manure'' and ''spring.'' Definitions of the terms ''erosion,'' ''sediment,'' ''sedimentation'' and ''conservation plan'' have been deleted from the final rulemaking. The definition of ''farming resources'' has been revised to clarify what lands are part of an operation and, therefore, required to be in the plan. Minor changes have been made to other definitions.
Section 83.202--Scope
Language has been added to clarify that this subchapter also specifies minimum criteria and requirements for nutrient management plans on agricultural operations that receive financial assistance under the act or under the Chesapeake Bay Nonpoint Source Pollution Abatement Program. Language has also been added stating that this subchapter also specifies the criteria for the awarding of financial incentives for the development of nutrient management plans.
Section 83.204--Applicability of requirements
Changes have been made to clarify which sections of the regulations are applicable to CAOs and which are applicable to volunteers planning under the act. A phrase clarifying that these requirements also apply to those operations receiving financial assistance under the act or the Chesapeake Bay Nonpoint Source Pollution Abatement Program has also been added.
Section 83.205--Preemption of local ordinances
This new section outlines the preemption of local ordinances provisions set forth in section 17 of the act.
Section 83.206--Limitation of liability
This new section outlines the limitation of liability provisions found in section 13 of the act (3 P. S. § 1713).
Section 83.207--Compliance assistance and enforcement
This new section tracks the relevant portions of section 503(d) of the Conservation and Natural Resources Act, which modified the authorities and responsibilities of the Commission, the Department and the Department of Agriculture.
Sections 83.211--83.216--Plan development incentives program
These sections set forth the criteria for the awarding of financial incentives for the development of nutrient management plans. This funding is in addition to that set forth in the financial assistance provisions of the regulation which outline the criteria for the awarding of financial assistance for the implementation of nutrient management plans.
Section 83.223 (Formerly § 83.353)--Financial assistance eligibility criteria
Language has been added to clarify that only those best management practices (BMPs) listed in an approved plan or plan amendment will be eligible for financial assistance.
Section 83.224 (Formerly § 83.355)--Project evaluation and prioritization criteria
Language has been added outlining the prioritization criteria for applications for financial assistance. CAOs shall receive priority evaluation from October 1, 1997, to September 30, 1998. CAOs producing livestock on October 1, 1997, receive first priority.
Section 83.225 (Formerly § 83.354)--Application procedure
Language has been added clarifying that the Commission's actions on financial assistance applications may be appealed to the Environmental Hearing Board as set forth in section 15 of the act (3 P. S. § 1715).
Section 83.226 (Formerly § 83.356)--Eligible costs for the implementation of an approved plan
Language has been added to this section to clarify that the costs eligible for financial assistance are those necessary for the implementation of an approved plan.
Section 83.229 (Formerly § 83.359)--Grants
The funding limits for the maximum amount of a grant award have been deleted from the final regulations. Maximum grant limitations will be those established in policy by the Commission.
Section 83.231 (Formerly § 83.361)--Funding limitations
Maximum limits for total assistance provided under loans, grants and loan guarantees have been deleted in the final regulations. Total funding limits will be established in policy by the Commission.
Section 83.232 (Formerly § 83.362)--Implementation and reporting
Language has been added to subsection (d) requiring that a request for disbursal of approved financial assistance must include a statement certifying that a project or BMP was completed as planned. Language has been added to subsection (e) requiring that financial assistance recipients keep financial expenditures and plan implementation records.
Section 83.233 (Formerly § 83.363)--Delegation of financial assistance
Changes have been made which state that the Commission retains final approval authority for all applications for financial assistance. The Commission has the ability to delegate the authority to review and make recommendations on financial assistance applications to an agent. However, the final approval authority rests with the Commission.
Section 83.251 (Formerly § 83.381)--Compliance plans
Changes to this section clarify that those plans required on operations found to be in violation of The Clean Streams Law (35 P. S. §§ 691.1--691.1001) shall meet the same requirements for those plans on CAOs.
Section 83.261 (Formerly § 83.211)--General
Dates have been added reflecting the effective date of these regulations, that is October 1, 1997, and setting forth the deadlines by which CAOs are required to submit a nutrient management plan.
Section 83.262 (Formerly § 83.212)--Identification of CAOs
A sentence has been added to subsection (a)(1)(i) stating that for those animal types not appearing in the accompanying Table A, the average animal weight for the particular operation may be used. The restriction which required that land suitable for manure application, for the sole purpose of CAO calculation, be located within 10 miles of the point of manure generation has been deleted.
Section 83.272 (Formerly § 83.222)--Content of plans
Cross reference clarifications have been made to coincide with the splitting of the regulations to two main parts, the first applicable to CAOs, the second to volunteers. Also included is new language in subsection (d) which requires the BMPs listed in a plan to be consistent with other plans developed for the particular operation such as a conservation plan.
Section 83.281 (Formerly § 83.223)--Identification of agricultural operations and acreage
Language has been added requiring the operator's concurrence on the nutrient management plan. The nutrient management specialist preparing the plan is also required to indicate his nutrient management certification identification number. Information on the availability of NRCS soil survey maps, with soil identification legends, has also been added to the final regulations.
Section 83.282 (Formerly § 83.224)--Summary of plan
Changes have been made requiring a plan summary that contains a chart which lists the total amount of manure generated on the operation annually, the total amount of manure to be used on the operation annually and the total amount of manure to be exported from the operation annually.
Section 83.291 (Formerly § 83.231)--Determination of available nutrients
Several changes have been made to this section in the final rulemaking as summarized as follows:
1. Language has been changed in subsection (b)(1) to clarify that the plan must include the average number of animals of each type on a typical production day on the agricultural operation.
2. Subsection (b)(2) has been changed to require the storage capacity of any present manure storage facilities to be considered when developing the plan.
3. The requirement for manure sampling and chemical analysis contained in subsection (b)(3) has been deleted. Manure sampling is now recommended, but standard book values such as those contained in the Manure Management Manual or the Pennsylvania Agronomy Guide may be used. The nutrient content of the manure is required to be recorded in the plan. CAOs exporting manure are required to test manure.
4. A sentence has been added to subsection (c) clarifying that the amount of nitrogen available in the manure and the planned manure incorporation times are required to be included in the plan.
5. The soil testing requirements of subsection (e) have been clarified. Soil tests are required for the initial plan development, however, soil tests conducted within the previous 3 years are acceptable. Subsequent soil tests are required at least every 6 years. Soil tests are not required to be submitted with the plan but shall be kept on record at the operation.
Section 83.292 (Formerly § 83.232)--Determination of nutrients needed for crop production
This section has been significantly revised to provide more flexibility in determining expected crop yields.
Section 83.293 (Formerly § 83.233)--Determination of nutrient application rates
Language has been included to clarify that the planned manure application rates based on nitrogen are required to be included in the plan.
Section 83.294 (Formerly § 83.234)--Nutrient application procedures
Significant changes have been made to paragraph (5) which contains manure spreading restrictions. Manure spreading is prohibited within 100 feet of an open sinkhole and within 100 feet of an active private drinking water well unless the manure is mechanically incorporated within 24 hours. The proposed regulations contained a complete prohibition on manure spreading in these areas. Other changes include the clarification of spreading restrictions within concentrated water flow areas where vegetation is maintained versus where vegetation is not maintained. Additionally, other water sources such as springs, agricultural drainage systems and pipe outlet terraces have been included in the spreading prohibitions. Finally, other changes clarify that certain spreading restrictions only apply where surface water flow is toward the particular area.
Section 83.301 (Formerly § 83.201)--Excess manure utilization plans for CAOs
Language has been added to clarify that the estimated amount of excess manure to be exported from the operation shall be included in the plan.
Section 83.311 (Formerly § 83.251)--Manure management
Language has been added to clarify that the nutrient management specialist may seek the expertise of NRCS or conservation district personnel in reviewing the adequacy of manure management practices on a particular operation. The review is required to take into consideration the normal climatic conditions of the area. Further clarifications have been made to clarify that the nutrient management plan is not to include specific designs for BMPs to address any identified problem areas, but that the operator is responsible for obtaining the necessary BMP designs to implement those practices contained in the approved plan.
Section 83.321 (Formerly § 83.261)--Stormwater runoff control
This section has been significantly revised from the proposed regulation. The requirement for an erosion and sedimentation control plan meeting the requirements of Chapter 102 (relating to erosion control) to be included as part of a nutrient management plan under the act has been deleted. Nutrient management plans developed under the act are now required to include BMPs to address critical runoff problem areas in fields, crop lands and pastures. Critical runoff problem areas are defined in the definition section as those nonvegetated water flow areas and those areas where runoff containing nutrients that were applied after the growing season directly discharge into surface water or groundwater. These critical areas must be addressed on owned and rented land. Furthermore, language has been added to clarify that these regulations do not relieve operations from complying with the existing requirement for an erosion and sedimentation control plan contained in Department regulations in Chapter 102.
Section 83.331 (Formerly § 83.271)--Implementation schedule
Language has been added to clarify that the implementation schedule contained in a plan on a CAO is consistent with the implementation deadlines of § 83.362.
Section 83.341--General recordkeeping requirements
This new section of the recordkeeping portion of this regulation specifies that records that are required to be kept under the subchapter are not required to be submitted to the Commission or delegated conservation district, but are required to be retained by the agricultural operation for at least 3 years.
Section 83.342 (Formerly § 83.291)--Recordkeeping related to the application of nutrients
Amendments have been made to clarify that this provision of the regulation applies to recordkeeping for nutrient management plans developed for CAOs and that crop yield records may be estimates.
Section 83.343 (Formerly § 83.292)--Alternative manure utilization recordkeeping
Subsection (f) has added the requirement that operators of CAOs exporting manure determine the nutrient content of the manure using manure sampling and chemical analysis methods outlined in the Manure Management Manual or the Pennsylvania Agronomy Guide. Additional changes clarify which CAOs must submit manure export records.
Section 83.344 (Formerly § 83.293)--Exported manure information packets
In addition to minor clarifications, this section has been amended to require that a CAO exporting manure is required to provide information to the importer relating to the nutrient content of manure, applicable sections of the Manure Management Manual and an informational publication on proper nutrient management. Subsection (c) has also been amended to state that the exporter is required to provide the items listed only if the Commission or delegated conservation district makes available those documents.
Section 83.301--Recordkeeping for manure transfers from CAOs
Because of the restructuring of these final regulations into two main parts which specify the planning requirements for CAOs and volunteers respectively, this section has been deleted from the final regulations.
Section 83.302--Exporting manure informational packets for distribution by CAOs
Because of the restructuring of the final regulations, this section has also been deleted from the final regulations.
Section 83.351 (Formerly § 83.311)--Minimum standards for the design, construction, location, operation, maintenance and removal from service of manure storage facilities
This section which specifies the standards for manure storage facilities on CAOs have been significantly amended from the proposed regulations. These amendments are summarized as follows:
1. Language has been added to specify that these standards also include criteria for the removal from service of manure storage facilities constructed or expanded as part of a nutrient management plan.
2. Subsection (a)(2) which required Commission or district approval of a particular design that did not exist in the Pennsylvania Technical Guide has been deleted. All manure storage facilities must be designed consistent with the standards in the Pennsylvania Technical Guide.
3. The setback provisions related to the manure storage facilities have also been amended. Two separate subsections have been created that specify setback requirements for operations producing livestock or poultry on or before October 1, 1997, and those coming into existence after October 1, 1997, respectively. Setback requirements from active public drinking water supplies have been included. These setbacks apply unless other State or Federal laws require a greater isolation distance. The property line setback requirement has been increased for those CAOs coming into existence after October 1, 1997.
4. The waiver criteria of subsection (a)(2)(vi) have been amended to provide that the wavier provisions only apply to CAOs that were producing livestock on or before October 1, 1997, with the exception of the setbacks from public drinking water supplies. Additional language has also been added to specify that there shall be no waivers from the setback requirements of manure storage facilities regardless of when the operation came into existence for public water supplies. The waiver language has also been revised to state that where a waiver is requested from a private water well, the well must meet the construction criteria that the Commission, in consultation with the NRCS, deems necessary to protect water quality.
5. Contingency plans for manure storage facilities must be developed in accordance with the standards contained in the Pennsylvania Technical Guide. Language has also been added incorporating § 101.2(a) (relating to incidents causing or threatening pollution) by reference, which sets forth the existing notification requirements for the reporting of a leak or spill.
Section 83.361 (Formerly § 83.321)--Initial plan review and approval
The provision of subsection (a) which authorized a 45-day deemed approval for volunteer plans has been deleted from the final rulemaking. Additional amendments require the Commission or delegated conservation district to notify the operator of any missing or incomplete plan components within 10 days of receipt. Subsection (d) has been amended by deleting the term ''person'' and replacing it with the term ''operator.''
Section 83.362 (Formerly § 83.322)--Plan implementation
Subsection (d) was added to remind operators that the limited liability protection of § 83.206 is provided to those operations properly implementing an approved plan.
Section 83.371 (Formerly § 83.331)--Plan amendments
Amendments clarify criteria that trigger a required plan amendment. Specific clarifications require plan amendments when the figures used in the plan are inconsistent with those contained in the Manure Management Manual or Pennsylvania Agronomy Guide unless otherwise justified; when a different BMP other than that contained in the plan is proposed; and when, after the first 3 years of implementation, actual yields are less than 80% of the expected crop yields used in the plan.
Section 83.372 (Formerly § 83.332)--Amendments due to unforeseen circumstances
Language has been added to clarify that amendments under this section are not required to be reviewed and approved by the Commission prior to implementation, but are required to temporarily become part of the plan until normal operations are resumed. Amendments under this section must be submitted to the district within 30 days of implementation. Other amendments clarify examples of unforeseen circumstances that would cause a significant change in the management of nutrients.
Section 83.373 (Formerly § 83.333)--Plan transfers
Subsection (b) has been amended to allow for the submission of any necessary plan amendments before actual notice of the transfer is provided to the Commission or delegated conservation district.
Section 83.381 (Formerly § 83.341)--Manure management in emergency situations
Amendments have been added encouraging the harvesting of cover crops to facilitate excess nutrient removal incurred as a result of a manure quarantine, and clarifying that soil tests will be necessary for crop fields where the quarantine required that nutrients be applied in excess of the amount the crop can use.
Sections 83.391--83.491--Nutrient management for volunteer or financial assistance agricultural operations
These new sections specifically outline the planning requirements for volunteer operations and those operations receiving financial assistance under the act or the Chesapeake Bay Nonpoint Source Pollution Abatement Program. Instead of cross referencing the requirements for volunteers, the nutrient management planning requirements for these operations are set forth in detail. Requirements for volunteers and financial assistance plans differ from those in the following major areas:
1. Section 83.441--implementation schedule. Volunteers are not required to comply with the strict implementation time frames for CAOs.
2. Section 83.452--recordkeeping. Recordkeeping for nutrient application for volunteers has been streamlined.
3. Section 83.453--alternative manure utilization recordkeeping. Volunteers are not required to maintain manure export or alternative manure utilization records with the same detail as those required for CAOs.
4. Clarifications have been made to §§ 83.452, 83.461, 83.472 and 83.481 which state that these sections apply to agricultural operations receiving financial assistance under the act and those seeking the limited liability protection contained in § 83.206 and section 13 of the act.
F. Summary of Major Comments and Responses on Proposed Rulemaking
Requirements of volunteers
Comment: To encourage volunteer participation in the program, the development of a separate area of the regulations for volunteers is needed.
Response: The Commission agrees with the comment and has divided the subchapter into two main parts, the first outlining the requirements of CAOs, and the other outlining the requirements of volunteers. The Commission recognizes that this revision has increased the length of the subchapter, but believes that this revision was needed to better explain the requirements of the volunteer participants in a more user friendly format.
Preemption of local ordinances
Comment: The general provisions area of the regulations would be an appropriate area to add language regarding the preemption of local ordinances into the regulations. Section 17 of the act provides language that should be included in this area of the regulations to provide reference to this important provision of the act.
Response: The Commission agrees with the comment and has included this language from the act into the final regulations in § 83.205. This will assure that interested parties recognize the role the act and these regulations play in assuring consistent nutrient management efforts across this Commonwealth.
Financial assistance
Comment: Sections 83.351--83.363 outline procedures and conditions for financial assistance, but do not reflect that CAOs should receive priority over voluntary, non-CAOs in receiving financial assistance. If it is acceptable to ''single out'' certain operators for more stringent regulation, then it seems only fair that these same operations have priority in receiving any financial assistance available to help offset the cost of compliance.
Response: The Commission agrees with the comment and has revised the final regulations to state that CAOs receive the highest priority status for distribution of BMP implementation funding.
Comment: If the Commission believes it has the authority to delegate the administration of the financial assistance program, it is requested that it provide specific legal authorization for the delegation.
Response: Section 83.233 of the final regulations has been revised to state that the Commission will retain final approval authority for all applications for financial assistance for plan implementation.
Comment: Setting a limit on the amounts of funds available through a grant will not necessarily further the purpose of the act. Instead, the Commission should limit funds on a case by case basis to assist those farmers who cannot afford to put the necessary protections in place with their own funds. Expensive manure storage facilities should not be required by the regulations, except in rare situations. There should be some limiting language that would allow no more than 50% of the cost be provided to a farmer through grant or loan money. This would be consistent with § 83.356, to implement the plan, and within § 83.251(c)(1), which implies that the money for storage facilities may not be the most cost-effective option when compared to other BMPs.
Response: To provide for maximum flexibility in future program needs, the financial limits for loans and grants have been deleted from the final regulations and will be set by Commission policy. This will avoid the need to change the regulations when significant changes in the cost of implementing BMPs or the farm economy occur. The regulations specifically state that manure storages are not required for all plans developed under the act. The evaluation of BMPs will require consideration of all alternative methods to protect surface water and groundwater including least cost alternatives. The operator is to be involved in selecting BMPs which will best be incorporated into the operation.
Identification of CAOs
Comment: The individual farmer should be the one who determines whether it is reasonable to apply manure to a field 5, 10 or 15 miles away rather than have a governmental entity set an arbitrary standard. It is recommended eliminating § 83.262 from the final-form rulemaking.
Response: The Commission, in conjunction with the Advisory Board, has discussed this issue at length and has revised § 83.262. The 10-mile limit has been eliminated because some farmers currently transport manure as part of their normal operation more than 10 miles for application, and this will probably become more common in the future. This change will allow operators to include land any distance from the animal facility for purposes of CAOs calculations, as long as the land is to be used for the application of manure generated on the agricultural operation. This will eliminate the need for a mileage restriction.
Determination of available nutrients
Comment: Current wording in § 83.231 is unclear to what the farmer is required to do. Are they required to soil test, and if so, how often.
Response: The Commission has reworded this section to state that soil tests are required at least every 6 years.
Comment: There should be no requirement that manure be tested as indicated in § 83.231(b)(3). Available data indicates that manure sampling and testing results may vary to a degree that they are of no more value than standard book values. In some cases, this may be a valuable farm management tool. It should be an individual farm operator decision, not mandated by regulation.
Response: The Commission agrees that manure testing, when done improperly, or under circumstances that are not representative for the system, can give results that may not be representative of the manure to be applied. The Commission also understands the burden that proper manure testing may place on some producers and has, therefore, revised the final regulations to allow for the use of book values or manure tests. The Commission still recognizes the importance of proper manure testing and still encourages its proper use for the development of the plan. The Commission did retain the requirement for manure testing for those CAOs exporting manure to provide nutrient information to importers. This manure test information will then be documented on the manure transfer sheet provided to the importer.
Determination of nutrients needed for crop production
Comment: Most producers do not have the crop yield records required, and using the soil productivity information would limit the farmers' ability to fertilize their land. Let the farmer select a yield goal, if it is too high let the reviewer and the farmer determine what an acceptable goal would be.
Response: The Commission, along with the Advisory Board, has discussed this issue at length and has revised this section of the final regulations to state that initial yield goals need to be realistic for the given soil types in the given location. This change has been made with the understanding that not all farms have yield data available for their acreage, and book values may be outdated for some soil types. For future plan updates and amendments, expected yields need to be based on yield records, which will allow some flexibility for the farmer to plan for optimistic yields that are realistic. The Commission is attempting to give some flexibility to the farmer in determining these expected yields, with the understanding that the plan reviewer will be evaluating the plan to assure yield goals are not unrealistic. Where the reviewer sees that the yield goals are higher than shown to be realistic for the area, the farmer will need to provide documentation to support the use of the higher yield goals.
Nutrient application procedures
Comment: Section 83.294(1)(iv)--(vi) each include the wording ''during times when soil is frozen, snow covered or saturated,'' should be removed from each. These areas should be protected regardless of the physical condition of the soils.
Response: The Commission recognizes that manure properly applied to meet crop needs, and at times when soil conditions are right for the nutrients to be absorbed into the soil, can be a very important and safe source of nutrients to meet crop needs, even in those areas adjacent to water bodies.
Comment: What is the basis for the application setbacks? Other State programs are inconsistent with the proposed regulations, such as residual waste regulations for sewage sludge which require on agricultural land a 300 feet isolation distance from drinking water sources and 1,000 feet upstream from surface water intakes. The Manure Management Manual is also in conflict with these setback provisions. The Commission needs to review all of the current regulations and laws governing the protection of water quality to determine if these new limitations are either consistent, more stringent or new standards. The Commission will need to justify the standards if they are either new or more stringent. If these standards cannot be justified, they should be deleted and replaced with a more reasonable standard that will achieve the necessary protection.
Response: Other State programs such as those related to sewage sludge are still in effect and would continue to address applications of these products. The Manure Management Manual provided the basic guidelines for the development of these manure application setbacks outlined in these regulations. These regulations provide further refinement of the application setbacks provided for in the current version of the Manure Management Manual. This refinement is needed to assure that the agricultural community thoroughly understands its requirements and the agencies involved with the program can consistently oversee program implementation. The Manure Management Manual is proposed to be revised consistent with the standards set in these regulations.
Comment: In relation to the application setback from private wells, what do these limits mean with regard to any of the specified situations on adjacent property not under the control of the operator? Will he lose the availability of that land for manure application?
What if a plan is already approved and implemented and any of these conditions then occur on an adjacent property, will the farmer have to change his approved nutrient management plan?
Is it a property right issue when an adjacent landowner can impose limits on the use of an individual's property?
Response: The regulations have been revised to allow for the application of manure within the private well setback area if the manure is incorporated within 24 hours of application. With this revision, a farmer could continue to apply manure up to the property line even if a neighboring landowner installed a private well within 100 feet of the property line.
Manure export plan
Comment: Section 83.281 provides guidance for excess manure utilization plans for CAOs and raises two questions.
(a) Why do known manure importers, their available acreage, and the estimated amount that each could import all need to be recorded as part of the exporter's plan when the importer has no obligation under the law?
(b) Why is this paper trail required for manure exporters when no requirements exist for commercial fertilizer dealers who have no direct responsibility for how their products are used by their customers?
Recommendation: When manure leaves the farm where it was generated it should be considered to be nothing other than organic fertilizer and subject to no more stringent requirements or regulations than other organic fertilizers.
Response: Unless the importer is a CAO, the importer has no obligation under the act to report manure importing or application information. It was the concern of the Commission and the Advisory Board to assure that this program focused on the better distribution of manure nutrients throughout this Commonwealth, and did not discourage possible manure importers from agreeing to accept manure. The plan is required to demonstrate that the exporter has found a suitable site for the excess manure generated on the participating operation. The records maintained by the exporter indicate that the manure was able to be exported as planned. This information is especially important for the liability protection provisions of the program to assure that the plan is being properly implemented and that the excess manure generated on the operation is exported to an environmentally safe site.
Comment: Section 83.293(a) requires an agricultural operation to provide the importer with an ''appropriately'' completed Manure Transfer Sheet. What is considered appropriate?
The requirements of § 83.293(b) place an unnecessary burden on CAOs and volunteer operations, and it is requested that the Commission provide strong justification for placing the requirements for providing documents with the exporter. If justification cannot be provided, the deletion of subsection (b) from final-form rulemaking is recommended.
If the Commission provides justification for subsection (b), it is not clear how an exporting farmer would be encouraged to provide the materials. If the Commission believes this is a reasonable requirement, it should be stated as a requirement rather than a suggestion. If this subsection is retained in final-form rulemaking it should be revised as an enforceable requirement by making the following revisions: ''If the manure is to be land applied, the exporter is [encouraged] required to provide the following information to the importer.''
Response: The CAO exporting manure best knows the amount and nutrient value of the exported manure at the time of exporting. This information is of critical importance to the importer in calculating the field application rate for the imported manure. The exporter is the most appropriate source of this information because these records are maintained by the exporter. The final regulations require the CAO to document this information on the Manure Transfer Sheet which is given to the importer at the time of the manure transfer. The importer will then have important information concerning the amount and nutrient content of the manure.
Section 83.293(a)
The word ''appropriately'' has been deleted from the final regulations.
Section 83.293(b)
The Commission agrees that this is an administrative requirement that can be eliminated from the volunteer's requirements under the act and has done so. However, the Commission continues to believe that it is important for CAOs to provide this information to assure that the importer has the best information to make nutrient application decisions. Therefore, the Commission has revised the regulations to make this provision only applicable to CAOs.
Manure management
Comment: Section 83.201 deals with definitions, and it is important to note that ''stormwater management practices'' is defined along with others under ''BMP--best management practices.'' This definition was taken directly from the act and is the only reference to stormwater in the act. It should not, therefore, be used as the sole justification for the manure management section of the proposed regulations which mandate stormwater control practices for approved plans. This far-reaching interpretation of language in the act expands upon its intent, and will have a severe detrimental effect on both mandatory and voluntary compliance with its provisions, as well as provide for selective enforcement on those complying with Act 6.
Response: The Commission, along with the Advisory Board, has looked very closely into the issue of including the manure management requirements in a plan and the Commission believes it has the authority to do so. The Commission believes that the runoff from the barnyard and manure management areas of the operation are, in many instances, a major source of nutrient pollution. These areas are of critical importance when developing a plan to minimize nutrient pollution to surface water or groundwater. For this reason, the Commission believes that it is important to address this area in the plan. Also, the inclusion of the barnyard area in the plan will help assure, to the extent possible, that those operations following these regulations will also meet the Federal requirements for a Concentrated Animal Feeding Operation (CAFO), and will not need to do more to comply with this Federal program.
Stormwater runoff control
Comment: Even if it was the intent of the Legislature that some erosion and sedimentation and stormwater runoff controls be possible elements or BMPs in nutrient management plans, it is questionable whether or not it was their desire to go to the extent of mandating the degree suggested by the proposed regulations. The discussion concerning House Bill 100 within the Legislative Journal-House February 2 indicated that the House did not want to mandate a linkage between what they perceived to be nutrient management planning and what is clearly conservation planning. Furthermore, the inclusion of E & S Controls and Stormwater Runoff Controls in the proposed regulations for Act 6 presents an opportunity for selective enforcement of existing law on only certain farm operations. It is recommended that § 83.261 (a)(2)--(4) be deleted.
Response: The Commission, with the assistance of the Advisory Board, has looked into this issue very closely and has worked hard to develop a response to this comment. The Commission recognizes the need for proper stormwater management in fields to assure that manure placed in the field stays where it is applied. But, the Commission also recognizes that Chapter 102 currently requires measures to be taken to address erosion and sedimentation due to agricultural plowing and tilling. The Commission has addressed this comment by deleting the requirement for an erosion and sedimentation control plan (or conservation plan) to be submitted as part of the nutrient management plan under the act. The Commission still recognizes that there are critical areas in fields that need to be addressed to minimize nutrient contamination of surface water and groundwater and the Commission has retained these critical in-field runoff problem areas as areas needing to be addressed as part of the nutrient management plan. These critical in-field runoff problem areas are defined in the regulations as those nonvegetated gullies or ditches that directly discharge into water bodies, and those areas where manure is applied after the growing season, and due to land features, soil cover and the timing of planting the next crop, that will discharge nutrient runoff into surface water or groundwater. These regulations do not alter the existing Department requirement found in Chapter 102 which requires an erosion and sedimentation control plan for agricultural plowing and tilling.
Comment: It is of specific concern that the stormwater requirements will encompass all acreage used in a plan, including rented ground, which in turn raises the question of who is responsible, the owner or the operator?
Response: The Commission has eliminated the need for a full erosion and sedimentation control plan (conservation plan) to be implemented as part of these regulations, but the operator will still need to address critical runoff problem areas (as defined) on both owned and rented land in the operation. The Commission could not justify why a problem area would be critical on owned land, but not rented land. Therefore, the regulations require that these problem areas be addressed for both owned and rented land. An operator of an operation participating in the program will be responsible for addressing the critical runoff problem areas on the operation, including any rented land. For the implementation of BMPs which require construction activities on rented land, the regulations allow for the operator to enter into an agreement with the person owning the rented land to implement the BMP. The Pennsylvania Technical Guide provides many nonstructural BMPs that can be implemented at little or no cost to address the critical runoff problem areas on owned and rented land (that is, minimum tillage, no-till, strip cropping, residue management, contour farming, and the like).
Recordkeeping requirements
Comment: Recordkeeping must be kept simple. The Commission should create a simple form that can be distributed by extensions and districts. This will also help to convince farmers to voluntarily participate in the program.
Response: The Commission agrees with this comment. To encourage volunteer participation, the regulations have been divided into two main areas, one for CAOs and one for volunteers. Within the volunteer area, the recordkeeping section has been simplified by reducing the recordkeeping requirements for volunteers. As program implementation and education efforts are developed, simple recordkeeping forms will be provided by the Commission to assist participating operators with the recordkeeping requirements. It is also expected that crop consultants will also create these types of forms to assist their customers.
Comment: Section 83.292(a) provides that a Manure Transfer Sheet shall be used for all manure transfers from land under the control of agricultural operations falling under the act. For clarification purposes, it is recommended that the regulations be amended to provide that a Manure Transfer Sheet shall be used for all manure transfers from a CAO.
Response: The Commission agrees with the comment and has revised the final regulations to require Manure Transfer Sheets to be used only for manure transfers from CAOs.
Comment: In § 83.292, the Commission needs to clarify the categories of CAOs who must submit copies of Manure Transfer Sheets or Summaries of Manure Transfers to the agency.
Response: The Commission agrees. Language has been added clarifying that all CAOs, other than those exporting to known landowners, will need to submit records within 1 year of plan approval.
Comment: Section 83.301(b) provides that submittal of manure transfer records for subsequent years will be at the discretion of the agency which approved the plan. Criteria is needed to determine when Manure Transfer Sheets will be required to be submitted in subsequent years.
Response: The Commission has revised the final regulations to only require manure export record submission for CAOs within 1 year of plan approval. The final regulations do not authorize the reviewing agency to require record submission after the first year.
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