PROPOSED RULEMAKING
STATE CONSERVATION COMMISSION
[25 PA. CODE CH. 83]
Nutrient Management
[34 Pa.B. 4361] The State Conservation Commission (Commission) proposes to amend Subchapter D (relating to nutrient management). The proposed rulemaking amends the current regulations implementing provisions of the Nutrient Management Act (act) (3 P. S. §§ 1701--1719).
This proposed rulemaking was adopted at the Commission's meeting on September 9, 2003.
A. Effective Date
The proposed rulemaking will go into effect upon final-form publication in the Pennsylvania Bulletin.
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. Information regarding submitting comments on this proposed rulemaking appears in Section J. Persons with a disability may use the AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposed rulemaking is also available on the Commission's website:www.pascc. state.pa.us.
C. Statutory Authority
The proposed rulemaking is promulgated under the authority of section 4(1) and (3) of the act (3 P. S. § 1704(1) and (3)), which require the Commission to, 5 years after the effective date of the regulations, and periodically thereafter, promulgate regulations to make appropriate changes to the criteria used to define a concentrated animal operation (CAO), and to establish minimum criteria for nutrient management plans (NMP) and other requirements necessary to implement the act. The proposed rulemaking is promulgated under 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. The proposed rulemaking is also promulgated under 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 of Environmental Protection (DEP) and the Department of Agriculture (Department).
D. Background and Summary
The proposed rulemaking is the culmination of several years' work administering the act across this Commonwealth, advances in the sciences of agronomics and manure management, as well as legislative hearings voicing public concerns with livestock agriculture and changes in the industry. Currently, 840 operations are subject to the existing nutrient management regulations, and an additional 950 farms have voluntarily complied with the requirements.
The act was enacted in May 1993 to, in part, provide for the management of nutrients on certain agricultural operations to abate nonpoint source pollution. The act requires the Commission, in conjunction with the Department, the DEP, 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. The Commission staff has worked closely with these organizations in developing these proposed revisions.
Nitrogen is identified in section 4(1)(i) of the act as the nutrient of primary concern, but it allows for the Commission to address other nutrients under specific criteria established by the Commission. The rulemaking proposes to add another nutrient--phosphorus--to be considered within the development of an NMP. This proposed amendment, along with various provisions regarding the export of manure off of farms covered by these regulations, were two central issues with the current program identified to the Commission by the House Committee on Agriculture and Rural Affairs (House Committee) following public hearings in 2001.
The Commission is also required to provide education, technical assistance and financial assistance to the agricultural community regarding proper nutrient management. To date, the Commission has administered over $15.9 million in financial assistance to farmers subject to the requirements of these regulations.
The Commission developed the proposed rulemaking in conjunction with the Advisory Board as required by the act. The Advisory Board, which represents a wide range of agricultural, academia, governmental, environmental and private interests, provided extensive and diligent assistance to the Commission over the past 2 years in an effort to develop workable and effective proposed revisions to the regulations. The development of the proposed rulemaking was also done with continued assistance and guidance from county conservation districts, the Department, DEP, the United States Department of Agriculture (USDA) Natural Resources Conservation Service, the USDA Agricultural Research Service and the Penn State College of Agricultural Sciences.
The proposed rulemaking directly affects the CAOs that are required to plan under the act as well as agricultural operations that volunteer to meet the requirements under the act. In addition, the proposed rulemaking will affect operations that agree to import manure from CAOs or volunteers, and others involved in export, such as commercial haulers and brokers.
The Commission has worked hard and has been successful in obtaining voluntary participation of other agricultural operations in the nutrient management program. The Commission believes that a strong voluntary program must operate simultaneously with the mandated regulatory program to further protect water quality in this Commonwealth.
NMPs are required to be developed by nutrient management specialists certified by the Department. Additionally, NMPs are to be submitted to the Commission or delegated county conservation district for approval. Nutrient management planning responsibilities are set forth in detail in this proposed rulemaking. 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.
Agricultural operations may apply for financial assistance to develop and to implement NMPs. In accordance with the act, Commission responsibilities for administering the act and regulations can be delegated to county conservation districts and this is being done in a majority of the counties across this Commonwealth to ensure timely and effective implementation of the program.
E. Summary of Proposed Rulemaking
General
Clarifying and stylistic changes to the existing regulations are made throughout this proposed rulemaking. Many changes are intended to comply with the Pennsylvania Code & Bulletin Style Manual used by the Legislative Reference Bureau.
§ 83.201 (relating to definitions)
New definitions have been included for the terms ''conservation plan,'' ''Erosion and Sedimentation Control Plan,'' ''existing agricultural operation,'' ''in-field stacking,'' ''livestock,'' ''manure group,'' ''nutrient balance sheet,'' ''Phosphorus Index'' and ''VAO.'' The definition of ''CAO'' is revised to exclude operations having less than eight animal equivalent units (AEU) from the CAO category, regardless of animal density. The definition of ''surface water'' was revised to be consistent with the definition in similar regulations implemented by the Commonwealth.
Current definitions were revised to provide clarification based on implementation of the existing regulations over the past several years: ''crop management unit,'' ''farming resources,'' ''Manure Management Manual,'' ''perennial stream,'' ''plan-nutrient management plan'' and ''temporary manure stacking areas.'' Minor, nonsubstantive revisions have been made to other existing definitions.
§ 83.202 (relating to scope)
Language is added to clarify the relationship between the criteria in these regulations, Chapter 92 (relating to National pollutant discharge elimination system permitting, monitoring and compliance) for ''concentrated animal feeding operations'' (CAFOs) and operations required by the DEP to develop a plan to address a Clean Streams Law violation. The volunteer portion of this section of the regulations was streamlined through the definition of a voluntary agricultural operation (VAO). Language is revised to allow the Commission to better oversee manure storage facilities used on operations falling under the act.
§ 83.204 (relating to applicability of requirements)
Language added to clarify the relationship between the criteria in the CAO portion of the regulations, Chapter 92 for the DEP CAFO program and operations required by the DEP to develop a plan to address a Clean Streams Law violation. The volunteer portion of this section was streamlined through the definition of a VAO.
§ 83.211 (relating to applicant eligibility)
This section is revised to change the eligibility date for operations to the effective date of the proposed rulemaking. Language is added to grant eligibility to operations that do not produce manure but utilize manure on their operation. Language is added to deny funding to CAOs that are in violation of the act. Language is added to allow the Commission to provide funding to an operator revising an existing approved NMP to meet the standards of the proposed rulemaking.
§ 83.213 (relating to application procedure)
The provision to allow funding only to CAOs for a certain time frame is eliminated in the proposed rulemaking. A revised prioritization scheme is proposed to give priority to operations newly classified as CAOs under the proposed rulemaking, and to also provide priority to those operations with approved NMPs that need to revise those plans to bring them into compliance with the proposed rulemaking.
§ 83.214 (relating to eligible costs)
Language is added to provide funding for an amendment to an approved plan to bring it up to the standards of the proposed rulemaking, as well as initial plan development. Language is added to provide funding for soil and manure analysis.
§ 83.215 (relating to funding limitations)
Language is added to allow for a one-time reimbursement for a plan amendment to an already approved plan to bring that plan up to the standards of the proposed rulemaking.
§ 83.221 (relating to applicant eligibility)
Language is added to express that new operations are not eligible for funding under this program to install their NMP. Language is revised to state that the owner of the operation will be responsible for repayment (if that is necessary) unless the operator is specifically identified in the agreement to hold responsibility. Language is added to deny financial assistance funding to CAOs that are in violation of the provisions of the act, as well as denying funding to existing operations expanding to become a CAO after the effective date of the proposed rulemaking.
§ 83.222 (relating to condition for receipt of financial assistance)
Language is revised to change the eligibility date for operations applying for financial assistance to coincide with the effective date of the proposed rulemaking.
§ 83.224 (relating to project evaluation and prioritization criteria)
This section is amended to eliminate the priority evaluation of CAOs in receiving financial assistance for a given timeframe. The prioritization scheme was revised to give priority to those existing operations with already approved NMPs that need to take additional measures to address the new requirements imposed by the proposed rulemaking. Also, priority is given to operations newly defined as CAOs under this proposed rulemaking. Lastly, revised language is provided to change the date at which priority is given for CAOs coming into existence due to loss of rented acres.
§ 83.225 (relating to application procedure)
Language is revised to require the submission of the entire NMP along with an application for financial assistance, instead of just the plan summary. Language is revised to allow the Commission 60 days to take action on an application for financial assistance.
§ 83.226 (relating to eligible costs for the implementation of an approved plan)
Language is added to allow the use of alternative manure technology practices and equipment.
§ 83.229 (relating to grants)
Language is revised to accommodate operations that will be combining financial assistance from a variety of other public financial assistance programs.
§ 83.231 (relating to funding limitations)
Language is added to express more directly what circumstances the Commission will consider as valid for approval of a letter of no prejudice.
§ 83.232 (relating to implementation and reporting)
Language is added to extend the start date for a project to 9 months and to clarify that the beginning of that 9-month time period is when the Commission sends out its notice of approval of the grant application. Language is added to allow for the Commission to withdraw financial assistance if a project is not finished by the completion date set forth in the signed grant agreement.
§ 83.261 (relating to General)
Language is added to explicitly express the new timeframes by which CAOs must meet the provisions of the act. Specifically, newly defined CAOs will have 2 years to submit an NMP, newly defined CAOs due to loss of land will have 6 months to submit a plan, newly defined CAOs due to expansion in animal numbers shall obtain an approved plan prior to the expansion and new CAOs shall obtain an approved plan prior to the beginning of operation. Language is added to require amendment of an already approved CAO plan within the 3-year review requirement, or within 1 year of the effective date, whichever is later. VAOs with approved plans are given the same plan amendment timeframes if they wish to continue their volunteer status. VAOs that received financial assistance prior to the proposed rulemaking are permitted to maintain their plan in accordance with the standards at the time that they received the financial assistance. Language is added to require the operator to submit the plan. Language is added to require the signature of the planner and to indicate that those signing the plan are responsible for the validity of the information in the plan.
§ 83.262 (relating to identification of CAOs)
Language is revised to improve the readability of the calculation described in the regulations. Table A--the standard animal weights to be used in the CAO calculation--is proposed to be deleted and is referenced through Agronomy Fact Sheet 54, published by Penn State. Language is added to establish a minimum threshold of eight AEUs for an operation to be considered a CAO.
§ 83.272 (relating to content of plans)
Language is added to strengthen the link between the criteria in these regulations, the DEP CAFO program and operations required by the DEP to develop a plan to address a Clean Streams Law violation. Language is deleted to better indicate which requirements apply to CAOs and which apply to others. The volunteer portion of this section was streamlined through the definition of a VAO. Language is revised: to require a plan to contain the various plan sections as described in the regulations, as appropriate; to strengthen the necessity of the farmer's involvement in the development of the plan; and to require approval by the Commission or delegated conservation district for NMP BMPs that are inconsistent with other plans such as a conservation plan.
§ 83.281 (relating to Identification of agricultural operations and acreage)
This section is separated into four areas: agricultural operation identification sheet; maps and aerial photographs; Phosphorus index; and agreements with importers and brokers. Language is added requiring a brief farm description in the plan and outlining criteria to be included in the farm description. Language is added to subsection (a)(3) to ensure that the proper entity signs the plan when a corporation or partnership are the operators of the farm. Language is added: to clarify what acreage is to be included in the plan; to require the signature of the specialist responsible for the development of the plan; to require a scaled topographic map to be included in the plan; require any proposed or existing BMPs, any temporary manure stacking and any in-field manure stacking areas to be located on the farm map; and to require an appendix to the plan which is to include the information used to develop the Phosphorus Index values for the fields in the agricultural operation. Language has also been added to require an appendix to the plan containing relevant signed exporting agreements and associated nutrient balance sheets and maps.
§ 83.282 (relating to summary of plan)
Language is revised clarifying required information to be included in the nutrient application portion in the plan summary section of the plan.
§ 83.291 (relating to determination of available nutrients)
Language is revised in subsection (a) to clarify that all the various nutrient sources generated or planned to be used on a CAO must be addressed through the plan. Language is revised to require that the plan include the nutrient content of each manure group generated on the operation as per a chemical analysis of the manure. When it is not possible to test the manure prior to plan development, the proposed rulemaking allows for the use of book values to determine nutrient content of the manure (from the Pennsylvania Agronomy Guide) or the use of manure analysis figures from a similar facility, and the proposed rulemaking requires the manure to be tested within 1 year of implementing the plan. Language is added: to require manure tests to be taken annually for each manure group; to detail what constituents are to be tested when analyzing manure; to indicate that the Commission will specify manure testing procedures to be used; and to require actual manure production records to be used in the development of the plan, and if they are not available, a calculation is permitted to be used. The information used for calculating the manure generated figure must be included in the plan. The soil testing language is moved from this section to § 83.292 (relating to determination of nutrients needed for crop production).
§ 83.292
The soil testing language is moved from § 83.291 to subsection (c). Language is revised: to require soil testing every 3 years for maintenance of the plan; to require soil test results for phosphorus in be included in the plan as part of the Phosphorus Index analysis; and to document in the plan the amount of phosphorus necessary (based on the soil tests) to meet expected crop yields. The lime requirement language is deleted. Language is added to change the reference handbook that is to be used to generate nutrient recommendations for the plan when the soil test figures require adjustment.
§ 83.293 (relating to determination of nutrient application rates (Nutrient application for CAO plans)
A new provision is added to incorporate field specific phosphorus considerations in NMPs through the use of an onsite analysis of the farm's fields. This analysis is used to determine which fields are likely to affect water quality through the loss of phosphorus. This analysis, which has been developed through a joint effort between the Penn State and the USDA Agricultural Research Service, also documents control measures to be taken to address fields having a likelihood of phosphorus loss.
Language is also added to require the following elements to be included in the plan: a Phosphorus Index analysis as part of the development of nutrient application rates for lands included in the agricultural operation; the information used in calculating the balanced rate for manure applications; and documentation of the difference between the amount of phosphorus necessary to meet crop needs and the amount of phosphorus applied to each crop management unit. Language regarding making up a nitrogen deficit with supplemental nitrogen applications is removed because it is already addressed in the previous sentence in the section.
§ 83.294 (relating to nutrient application procedures)
Language is added to require relevant plans to include manure spreader calibration information. For operators not able to meet this plan documentation, an operator will be required to do the necessary calibration prior to application and record this information in any plan amendments. Language is added to require an analysis of the water holding capacity of the soil when determining application rates for irrigated manure, and to provide the proper reference for calculating appropriate application rates for irrigated manure. Language is added to require the manure irrigation application rate calculations to be included in the plan for instances where liquid manure will be applied at rates exceeding 9,000 gallons per acre, regardless of the application method. Language is revised for the manure application setback from an active private drinking water well to require a 100-foot radius setback, regardless of conditions or management.
Language has also been added: to require a manure application setback from inactive open drinking water wells; to restrict the application of manure on lands having less than 25% cover unless additional BMPs approved by the Commission, such as cover crops, are implemented; to provide further detail of what is required in the plan when winter application is planned; to provide specific requirements for situations where manure is planned to be stacked in crop fields; and to establish commercial manure applicator requirements including testing, training, recordkeeping and compliance history qualifications (described in § 83.301 (relating to excess manure utilization plans for CAOs)).
§ 83.301
Amendments to this section provide more detailed oversight of manure exported from CAOs. This was a significant issue in hearings conducted by the House Committee. Based on Commission records of 839 approved CAO plans, 28.3% of the manure generated on CAO farms is exported.
Revised language regarding when manure is exported to known landowners includes a description of responsibilities between exporters, importers, brokers and others, and a requirement for signed agreements with importers indicating who is responsible for the application of exported manure. Language is also added to require nutrient balance sheets (including maps) or NMPs for importing sites. In addition, provisions were added to set forth eligibility criteria for any commercial haulers or applicators used for exported manure, such as testing, training, recordkeeping and compliance history.
Revised language regarding when manure is exported through a broker includes a requirement for signed agreements with the brokers indicating that the broker is responsible for the proper handling and storage (if applicable) of the manure they accept. Language is also added to establish eligibility criteria for brokers similar to those for haulers and applicators, and to require the broker to develop nutrient balance sheets (or ensure there are approved NMPs) for the importing sites.
Revised language regarding when manure is exported for other than land application requires signed agreements with importers of the manure.
Revised language regarding when manure is exported using an open marketing system requires operators following this scenario to meet certain qualification requirements and to require them to complete nutrient balance sheets for importing sites unless the importing site has an approved NMP.
New language allows for an exception to these detailed exporting requirements if the importing site is to receive a minor amount of manure (as defined in the proposed rulemaking) from the CAO. Language is added to require a 150-foot manure application setback from surface waters on importing sites, unless an approved NMP on the importing site allows for manure to be applied in that area and to require all other manure application setbacks established in the regulations to be applied to importing sites.
§ 83.311 (relating to manure management)
Language is added: to clarify that manure management practices need to prevent pollution from storm events up to a 25-year, 24-hour storm; to clarify what conditions are to be addressed with the implementation of manure management BMPs; to require operators to address existing manure storage facilities that were constructed inconsistent with the DEP's manure storage facility regulations; to require the development of Operation and Maintenance Plans as part of the design for proposed BMPs; to estable animal concentration area (barnyards, feedlots, exercise areas, and the like) criteria to protect surface waters from polluted runoff; and to require the plan to include a description of any proposed manure storage facilities planned to be constructed on the operation including any alternative manure technology practices or equipment.
§ 83.312 (relating to site specific emergency response plans)
This section is added to require the development and implementation of a full-farm emergency response plan to address any possible accidental releases of manure to the environment. A copy of the emergency response plan is required to be kept onsite and is not required to be submitted with the NMP. The NMP is to include a verification from the planner that this emergency response plan is developed and available at the operation. This section establishes that manure storage contingency plans (as required under § 83.351 (relating to minimum standards for the design, construction, location, operation, maintenance and removal from service of manure storage facilities)) are required as an appendix to the emergency response plan.
§ 83.321 (relating to stormwater runoff control)
The word ''runoff'' is deleted from this section because the term ''stormwater'' is defined as runoff water. Language is added: to require the development of an Operation and Maintenance Plan as part of the design for proposed BMPs; and to require the NMP to include a verification that a current Erosion and Sedimentation Control Plan (or conservation plan) exists for the plowed and tilled croplands included in the NMP. This new requirement is closely tied to the addition of phosphorus as a consideration in nutrient management planning, due to the runoff transport mechanisms which play a major role in phosphorus losses to streams and which are addressed in conservation plans. Finally, the animal concentration area language is moved from this section to § 83.311.
§ 83.342 (relating to recordkeeping relating to application of nutrients)
Language is added to require soil testing every 3 years and manure testing annually for each manure group. Revised language requires dates of manure application, rather than months of application. Language is added to require records to be kept of the time animals are on pastures.
§ 83.343 (relating to alternative manure utilization recordkeeping)
The ''Manure Transfer Sheet'' is renamed the ''Manure Export Sheet.'' Language is added to clarify: who is to receive a copy of the Manure Export Sheet; what records are to be maintained when the exporter, or someone working for the exporter, applies the manure on importing sites; and what records brokers must maintain when they are involved in the export of the manure. Language regarding the submission of manure exporting records is deleted, recognizing that the new Commission policy requires program staff to review these records at the operation at least once every year. Subsection (f) is deleted because the amendments to § 83.291 require manure tests to be done of all manure generated on a CAO.
§ 83.344 (relating to exported manure information packets)
Language is added to provide a more defined paper trail with the commercial manure haulers and applicators. The fact sheet referenced in subsection (b)(1) is deleted because it is redundant with the inclusion of the nutrient balance sheet requirement in the proposed rulemaking.
§ 83.351
Language is added: to ensure that manure storage facilities built as part of an approved NMP are completed in compliance with § 91.36 (relating to pollution control and prevention at agricultural operations); to ensure that manure storage facilities built on CAOs after October 1, 1997, were completed in compliance with the criteria in the regulations at the time it was built; and to require the submission of an engineer's verification at least 2 weeks prior to the construction of a new storage facility or repair of an existing facility, to ensure that the design and location of the facility is in compliance with applicable program standards.
§ 83.361 (relating to initial plan review and approval)
The authority for the Commission or conservation district to ''modify'' a plan is deleted. Language is added: to require notification to the operator indicating the result of the 10-day completeness review; and to clarify when the 90-day plan review timeframe starts.
§ 83.362 (relating to plan implementation)
Language is added: to clarify that the plan needs to be implemented consistent with the approved implementation schedule in the plan; to clarify that approved nutrient application rates are to be carried out upon approval of the plan; and to clarify conditions under which plan implementation can be extended past the 3-year limit. Language is deleted regarding plan implementation extensions due to the lack of funding provided through the Commission, because the Commission provides several funding sources for plan implementation.
§ 83.371 (relating to plan amendments)
Language is revised to require a plan amendment when exporting arrangements change unless it is for the loss of an importer who will not affect the CAO's ability to manage the manure generated on the operation. Language is added to require an amendment: when new organic nutrient sources will be used on the operation; if additional lands are bought or leased for the operation; and if a change in the manure management system is expected to result in a significant change in the manure nutrient content. Language is added to address nonsignificant changes on the operation that require the plan to be updated to reflect current conditions, but do not require a formal plan amendment.
§ 83.381 (relating to manure management in emergency situations)
Language is added to subsection (g) requiring soil tests to be taken annually for 3 consecutive years if manure has been over applied to an area in response to an emergency situation.
§ 83.391 (relating to identification of agricultural operations and acreage)
This section is separated into four areas: agricultural operation identification sheet; maps and aerial photographs; Phosphorus Index; and agreements with importers and brokers. Language is added to subsection (a)(3) to ensure that the proper entity signs the plan when a corporation or partnership are the operators of the farm. Language is added: to require a brief farm description in the plan and outlining criteria to be included in the farm description; to clarify what acreage is to be included in the plan; to require the signature of the specialist responsible for the development of the plan; to require a scaled topographic map to be included in the plan; to require any proposed or existing BMPs, any temporary manure stacking and any in-field manure stacking areas to be located on the farm map; to require an appendix to the plan which is to include the information used to develop the Phosphorus Index values for the fields in the agricultural operation; and to require an appendix to the plan containing relevant signed exporting agreements and associated nutrient balance sheets and maps.
§ 83.392 (relating to summary of plan)
Language is revised clarifying required information to be included in the nutrient application portion in the plan summary section of the plan.
§ 83.401 (relating to determination of available nutrients)
Language is revised in subsection (a) to clarify that all the various nutrient sources generated or planned to be used on a VAO must be addressed through the plan. Language is revised to require that the plan include the nutrient content of each manure group generated on the operation as per a chemical analysis of the manure. When it is not possible to test the manure prior to plan development, the proposed rulemaking allows for the use of book values to determine nutrient content of the manure (from the Pennsylvania Agronomy Guide) or the use of manure analysis figures from a similar facility, and the proposed rulemaking requires the manure to be tested within 1 year of implementing the plan. Language is added: to require manure tests to be taken annually for each manure group, detail what constituents are to be tested when analyzing manure, and to indicate that the Commission will specify manure testing procedures to be used; and to require actual manure production records to be used in the development of the plan, and if they are not available, a calculation is permitted to be used. The information used for calculating the manure generated figure must be included in the plan. The soil testing language from this section is moved to § 83.402 (relating to determination of nutrients needed for crop production).
§ 83.402
The soil testing language is moved from § 83.401 to subsection (c). Language is revised: to require soil testing every 3 years for maintenance of the plan; to require soil test results for phosphorus in be included in the plan as part of the Phosphorus Index analysis; and to document in the plan the amount of phosphorus necessary (based on the soil tests) to meet expected crop yields. The lime requirement language is deleted in the proposed rulemaking. Language is added to change the reference handbook that is to be used to generate nutrient recommendations for the plan when the soil test figures require adjustment.
§ 83.403 (relating to determination of nutrient application rates)
A new provision is added to incorporate field specific phosphorus considerations in NMPs through the use of an onsite analysis of the farm's fields. This analysis is used to determine which fields are likely to affect water quality through the loss of phosphorus. This analysis, which has been developed through a joint effort between Penn State and the USDA Agricultural Research Service, also documents control measures to be taken to address those fields having a likelihood of phosphorus loss.
Language is added to require the following elements to be included in the plan: a Phosphorus Index analysis as part of the development of nutrient application rates for lands included in the agricultural operation; the information used in calculating the balanced rate for manure applications; and documentation of the difference between the amount of phosphorus necessary to meet crop needs and the amount of phosphorus applied to each crop management unit. Language regarding making up a nitrogen deficit with supplemental nitrogen applications is removed because it is already addressed in the previous sentence of the section.
§ 83.404 (relating to nutrient application procedures)
Language is added to require relevant plans to include manure spreader calibration information. For those not able to meet this plan documentation, the operator will be required to do the necessary calibration prior to application and record this information in any plan amendments. Language is added to require an analysis of the water holding capacity of the soil when determining application rates for irrigated manure, and to provide the proper reference for calculating appropriate application rates for irrigated manure.
Language has also been added to require the manure irrigation application rate calculations to be included in the plan for instances where liquid manure will be applied at rates exceeding 9,000 gallons per acre, regardless of the application method. Language is revised for the manure application setback from an active private drinking water well to require a 100-foot radius setback, regardless of conditions or management. Language is added: to require a manure application setback from inactive open drinking water wells; to restrict the application of manure on lands having less than 25% cover unless additional BMPs approved by the Commission, such as cover crops, are implemented; to provide further detail of what is required in the plan when winter application is planned; to provide specific requirements for situations where manure is planned to be stacked in crop fields; and to establish commercial manure applicator requirements including testing, training, recordkeeping and compliance history qualifications.
§ 83.411 (relating to alternative manure utilization plans)
This section is completely rewritten to provide more detailed oversight of manure exported from operations having approved NMPs. This was a significant issue in hearings conducted by the House Committee. Based on Commission records of 949 approved VAO plans, only 3.3% of the manure generated on VAO farms is exported.
Language is added regarding when manure is exported to known landowners, so that the plan includes a description of responsibilities between exporters, importers, brokers and others, and a requirement for signed agreements with importers indicating who is responsible for the application of exported manure. Language is also added to require nutrient balance sheets (including maps) or NMPs for importing sites. In addition, provisions were added to set forth eligibility criteria for any commercial haulers or applicators used for exported manure, such as testing, training, recordkeeping and compliance history.
Language is added regarding when manure is exported to a broker: to require signed agreements with the brokers; to indicate the broker is responsible for the proper handling and storage (if applicable) of manure that they accept; to establish eligibility criteria for brokers similar to those for haulers and applicators; and to require the broker to develop nutrient balance sheets (or ensure there are approved NMPs) for the importing sites.
Language is added regarding when manure is exported: to known landowners for other than land application to require signed agreements with importers of the manure; using an open marketing system to require operators following this scenario to meet certain qualification requirements, and to require them to complete nutrient balance sheets for importing sites unless the importing site has an approved NMP.
New language allows for an exception to these detailed exporting requirements if the importing site is to receive a minor amount of manure (as defined in the regulations) from the CAO. Language is added to require a 150-foot manure application setback from surface waters on importing sites, unless an approved NMP on the importing site allows for manure to be applied in that area, and to require all other manure application setbacks established in the regulations to be applied to importing sites.
§ 83.421 (relating to manure management)
Language is added: to clarify that manure management practices need to prevent pollution from storm events up to a 25-year, 24-hour storm; to clarify what conditions are to be addressed with the implementation of manure management BMPs; to require operators to address existing manure storage facilities that were constructed inconsistent with the DEP's manure storage facility regulations; to require the development of Operation and Maintenance Plans as part of the design for proposed BMPs; to establish animal concentration area (barnyards, feedlots, exercise areas, and the like) criteria to protect surface waters from polluted runoff; and to require the plan to include a description of any proposed manure storage facilities planned to be constructed on the operation including any alternative manure technology practices or equipment.
§ 83.422 (relating to site specific emergency response plans)
This section is added to require the development and implementation of a full-farm emergency response plan to address any possible accidental releases of manure to the environment. A copy of the emergency response plan is required to be kept onsite and is not required to be submitted with the NMP. The NMP is to include a verification from the planner that this emergency response plan is developed and available at the operation. This section establishes that manure storage contingency plans (as required under § 83.461 (relating to minimum standards for the design, construction, location, operation, maintenance and removal from service of manure storage facilities)) are required as an appendix to the emergency response plan.
§ 83.431 (relating to stormwater runoff control)
The word ''runoff'' is deleted from this section because the term ''stormwater'' is defined as runoff water. Language is added to require the development of an Operation and Maintenance Plan as part of the design for proposed BMPs. Language is added to require the NMP to include a verification that a current Erosion and Sedimentation Control Plan (or conservation plan) exists for the plowed and tilled croplands included in the NMP. This new requirement is closely tied to the addition of phosphorus as a consideration in nutrient management planning, due to the runoff transport mechanisms which play a major role in phosphorus losses to streams and which are addressed in conservation plans. Finally, the animal concentration area language is moved from this section to § 83.421.
§ 83.452 (relating to recordkeeping relating to application of nutrients)
Language is added to require soil testing every 3 years and manure testing annually for each manure group. Revised language requires dates of manure application, rather than months of application. Language is added to require records to be kept of the time animals are on pastures.
§ 83.453 (relating to alternative manure utilization recordkeeping)
This section is completely rewritten to allow for a more detailed tracking of manure exported from VAOs. The new language in the VAO section mirrors that used in the CAO section. The new language will require VAOs exporting manure to utilize Manure Export Sheets to document manure transfers and require VAOs to keep records of actual application methods, locations and rates where they, or their employee or contracted agent, apply the manure at the importing site. Language is added to indicate that when manure is exported to a broker, the broker is responsible for recordkeeping requirements.
§ 83.454 (relating to exported manure information packets)
This section is added for VAOs and it again mirrors the language used in the CAO section. This language is added to ensure that operators importing manure from VAOs have the information relevant to them for the proper handling and application of the manure they are importing.
§ 83.461
Language is added: to ensure that manure storage facilities built as part of an approved NMP are completed in compliance with § 91.36; to require the submission of an engineer's verification at least 2 weeks prior to the construction of a new storage facility or repair of an existing facility; and to ensure that the design and location of the facility is in compliance with applicable program standards.
§ 83.471 (relating to initial plan review and approval)
The authority for the Commission or conservation district to ''modify'' a plan is deleted. Language is added to require notification to the operator indicating the result of the 10-day completeness review.
§ 83.472 (relating to plan implementation)
Language is added to: clarify that approved nutrient application rates are to be carried out upon approval of the plan; and to clarify conditions under which plan implementation can be extended past the 3-year limit.
§ 83.481 (relating to plan amendments)
Language is added to require a plan amendment when exporting arrangements change unless it is for the loss of an importer who will not affect the VAOs ability to manage the manure generated onsite. Language is added to require an amendment: when new organic nutrient sources will be used on the operation; if additional lands are bought or leased for the operation; and if a change in the manure management system is expected to result in a significant change in the manure nutrient content. Language is added to address nonsignificant changes on the operation that require the plan to be updated to reflect current conditions, but do not require a formal plan amendment.
§ 83.491 (relating to manure management in emergency situations)
Language is added to subsection (g) requiring soil tests to be taken annually for 3 consecutive years if manure has been over applied to an area in response to an emergency situation.
F. Benefits, Costs and Paperwork
Benefits
The intended result of the proposed rulemaking is to strengthen the Commonwealth's current efforts to oversee CAO farms and farmers voluntarily complying with established nutrient management regulations to further protect this Commonwealth's water quality. The proposed rulemaking is necessary to address the Commission's expanded understanding of various program-related issues brought to the Commission's attention through the study of recent research efforts regarding water quality protection, and over 5 years of experience working with this innovative regulatory initiative.
The proposed rulemaking will provide for increased protection of water quality in this Commonwealth through an increased safeguard over phosphorus losses from agricultural operations and the application of manure on importing sites. These are the two major issues of concern that have been expressed to the Commission in the implementation of the current program.
The Commission, in cooperation and coordination with its program partners, has developed the proposed rulemaking after much deliberation and scientific study. The proposed rulemaking is scientifically based and developed to maximize water quality improvement while minimizing possible negative impact on the regulated community. The proposed rulemaking is key to ensuring that the Commonwealth has an effective program in addressing nutrient losses and allow the State program to meet the new Federal CAFO regulations recently imposed by the Environmental Protection Agency.
The Commonwealth has worked hard over the past 5 years to ensure that the nutrient management planning standards developed through the act can be used as the singular plan format to meet all nutrient management planning requirements, both Federal and State. The proposed rulemaking is necessary to ensure we can continue to support the act plan format as one format in this Commonwealth for all farmers required to plan. Farmers benefit from this coordination of effort and standards which the proposed rulemaking allows. Farmers also benefit from the many hours of work the Commission and the Advisory Board have invested in developing a program which can advance efforts in water quality protection, but do so in a way that is practical for the industry to meet.
All citizens in this Commonwealth will benefit from the increase environmental protection the proposed rulemaking will provide. All water resources in rural and urban communities will be protected for recreational, industrial, municipal, individual and agricultural use. Tourism is a major industry in this Commonwealth and many elements of tourism are dependent upon high quality water resources. The cost of purification of surface and groundwater by water users and suppliers should decrease as these increased water protection efforts are initiated.
Costs
The proposed rulemaking will result in a cost increase for the development of plans required under the act. These cost increases are not easily quantified at this point but are expected to be in the range of approximately 50% over the current cost to develop a plan. The average cost over the past 18 months for developing an NMP meeting the current regulations is $938. This increase will be especially true for those farms that have a significant number of farms importing manure from the planned farm. Farm operators can avoid consultant planning costs altogether by becoming individually certified to write their own NMPs.
The proposed rulemaking is not expected to increase the cost to install individual BMPs, but the revised plans may indicate an increase in the number of erosion control practices to be installed on some participating farms to address the phosphorus index portion of the plan. The increased costs are not expected to be significantly more than the costs the farmers would incur to implement their Erosion and Sedimentation Control Plan for the farm, as required in Chapter 102 (relating to erosion control). The increased costs of implementing the plan will not be required on all farms participating in the program and are most likely to be needed on farms that have not kept current with their erosion control efforts on the farm.
The proposed rulemaking may require some farmers to begin exporting manure, or increase manure exports under the proposed rulemaking as a result of the phosphorus indexing which may determine some lands as not suitable for manure applications because of a high likelihood of phosphorus applied to those areas reaching surface water. The impact of this requirement is difficult at best to quantify at this time because exporting the manure may result in increased operational costs for the producer, or the exporting of manure may not impose any increased costs on the producer due to their ability to market the manure. There are operations from which the exported manure serves as an additional revenue source for the farm due to its marketable qualities.
The proposed rulemaking calls for manure haulers, applicators and brokers to meet certain testing and training provisions of the regulations to handle manure from a farm with an approved NMP. This will require commercial entities to spend some time resources to go through an accreditation process approved by the Commission's to demonstrate their knowledge and ability to handle manure properly. Commercial manure handlers see the benefit of these credentials. Over 90 haulers and brokers Statewide have already gone through a similar process on a voluntary basis. Also, the proposed rulemaking calls for these individuals to keep records and even develop nutrient balance sheets in certain instances. These steps will serve as documentation for these manure handlers to demonstrate that they are properly handling manure, a key benefit to these haulers and brokers of meeting the objectives of this process.
The proposed rulemaking calls for the inclusion of all high-density livestock operations into this program, with the exception of those having less than eight AEUs on the operation. This program revision will bring some new operations into the program (mainly larger horse operations) and will eliminate some very small-scale operations currently falling under the CAO designation. The net result of this is expected to be an increase in the number of farms required to plan under the act. This is considered to be necessary to address all animal operations of a significant scale (those not falling into the hobby farm size of less than eight AEUs) which, due to their limited amount of land available to apply manure when compared to the amount of manure they generate, have a potential to cause a negative effect on the environmental quality of waters in this Commonwealth.
There will be increased program expenses necessary to carry out the proposed rulemaking. The delegated conservation districts will have an increased workload in the review of the expanded scope of the plans called for under the proposed rulemaking. Due to the proposed rulemaking, more farmers are expected to fall within the CAO designation and conservation districts will have more farms to oversee at the local level. Current funding level support to conservation districts is $1.78 million per year, funding needs for the conservation districts to administer the program under the proposed rulemaking is expected to be $2.5 million.
The Commission is planning to offer increased financial assistance to farmers to help offset the expected increased planning costs. This will be done through the successful Plan Development Incentives Program as afforded through the proposed rulemaking. Also, the Commission is expecting to continue its Nutrient Management Plan Implementation Grants Program to assist farmers in installing BMPs needed to implement their approved plans. An expanded element of this assistance to farmers is likely to be the Commission's initiative to fund technological advances on farm sites, or combinations of farm sites, to assist farmers in installing practices to further process manure for those farmers challenged to find conventional application sites for their manure.
Overall, the Commission and the Advisory Board have been very deliberate in the development of additional program requirements in the proposed rulemaking to ensure that the additional steps afforded through the proposed rulemaking are necessary and reasonable for the agricultural community to afford and implement. The proposed rulemaking is a necessary step for the Commission to take to ensure water quality is protected. The proposed rulemaking is developed to ensure the maximum benefit with minimum expense to the regulated community and the public sector.
Paperwork Requirements
The proposed rulemaking minimizes paperwork to the maximum extent but still maintains program integrity and tracking. Farmers are required to keep records, BMP designs, emergency response plans and erosion and sedimentation control plans on their farm, but are not required to submit those documents for Commission or conservation district filing. The program relies on the conservation district onsite plan review visits and annual status reviews to confirm proper documentation and to ensure that proper application and export efforts are implemented on farms with approved plans. The revisions reduce the amount of paperwork required by the operator to be submitted for program files by eliminating the need for the CAOs to submit exporting records for the program files where they are exporting for non-land application uses. The program does recognize the importance of good record keeping for the protection of water quality and the implementation of the limited liability clause of the act. The program requires these necessary records but does not require them to be submitted for inclusion in the program files, but they are reviewed annually with the operator during the program's annual onsite status review.
G. Sunset Review
The Commission will evaluate the effectiveness of the proposed rulemaking, as it has done for the existing regulations, on an ongoing basis. Therefore, no sunset date is being established for the regulations.
H. Regulatory Review
Commission
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on July 28, 2004, the Commission submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee and the Senate Agriculture and Rural Affairs Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Commission, the General Assembly and the Governor of comments, recommendations or objections raised.
I. Public Comment
Written comments--Interested persons are invited to submit comments, suggestions or objections regarding the proposed rulemaking to the State Conservation Commission, Agriculture Building, Room 405, 2301 North Cameron Street, Harrisburg, PA 17110. Comments submitted by facsimile will not be accepted. Comments, suggestions or objections must be received by the Commission within 90 days of publication in the Pennsylvania Bulletin. Interested persons may also submit a summary of their comments to the Commission. The summary may not exceed one page in length and must also be received within 90 days following publication in the Pennsylvania Bulletin. The one-page summary will be provided to each member of the Commission in the agenda packet distributed prior to the meeting at which the final-form rulemaking will be considered.
Electronic Comments--Comments may be submitted electronically to the Commission at ag-sccstate.pa.us. A subject heading of the proposal must be included in each transmission. Comments submitted electronically must also be received by the Commission within 90 days following publication of the proposed rulemaking.
J. Public Meetings and Hearings
The Commission will hold two public informational meetings on this proposed rulemaking. The meetings will be held from 7 p.m. to 9 p.m. and will include time for questions from the audience.
The Commission will hold two public hearings for the purpose of accepting comments on this proposed rulemaking on October 13, 2004, at the Holiday Inn, 5401 Carlisle Pike Mechanicsburg, and on October 14, 2004, at the Ramada Inn, 191 United Road, Dubois. These hearings will begin at 6 p.m.
A complete announcement of the meetings and hearings will be published in the Pennsylvania Bulletin when arrangements are finalized.
Persons wishing to present testimony at a public hearing should contact Douglas Goodlander, State Conservation Commission, Agriculture Building, Room 405, 2301 North Cameron Street, Harrisburg, PA 17110, (717) 787-8821 at least 1 week in advance of the hearing to reserve a time to present testimony. Oral testimony is limited to 5 minutes for each witness. Witnesses are requested to submit three written copies of their oral testimony to the hearing chairperson. Organizations are limited to designating one witness to present testimony on their behalf at each hearing.
Persons with a disability who wish to attend a hearing or meeting and require an auxiliary aid, service or other accommodation to participate should contact Douglas Goodlander at (717) 787-8821 or through the Pennsylvania AT&T Relay Service at (800) 654-5984 (TDD users) or (800) 654-5988 (voice users) to discuss how the Commission may accommodate their needs.
DENNIS C WOLFF,
ChairpersonFiscal Note: 7-390. (1) Nutrient Management Fund;
Planning, Education, Loans, Research and Grants and Nutrient Technical Technical Management-- Assistance Assistance Administration (2) Implementing Year 2003-04 is $0 $0 $0 (3) 1st Succeeding Year 2004-05 is $400,000 $75,000 $60,000 2nd Succeeding Year 2005-06 is $800,000 $710,000 $120,000 3rd Succeeding Year 2006-07 is $800,000 $875,000 $120,000 4th Succeeding Year 2007-08 is $800,000 $945,000 $120,000 5th Succeeding Year 2008-09 is $800,000 $770,000 $120,000 (4) 2002-03 Program-- $1,245,000 $4,136,000 $248,000 2001-02 Program-- $1,265,000 $6,687,000 $197,000 2000-01 Program-- $1,190,000 $3,029,000 $0 (8) recommends adoption.
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