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PA Bulletin, Doc. No. 05-1945



[25 PA. CODE CHS. 91 AND 92]

Concentrated Animal Feeding Operations and Other Agricultural Operations

[35 Pa.B. 5796]

   The Environmental Quality Board (Board) by this order amends §§ 91.1, 91.35, 91.36, 92.1 and 92.5a. These amendments conform current Department of Environmental Protection (Department) regulations to the revised Federal regulations for concentrated animal feeding operations (CAFOs). The amendments also make some substantive and organizational changes to existing regulations regarding agricultural operations in this Commonwealth.

   These amendments were adopted by the Board at its meeting on June 21, 2005.

A.   Effective Date

   These amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.

B.  Contact Persons

   For further information, contact Cedric Karper, Chief, Division of Conservation Districts and Nutrient Management, Bureau of Watershed Management, Rachel Carson State Office Building, P. O. Box 8465, Harrisburg, PA 17105-8465, (717) 783-7577; or Douglas Brennan, Assistant Counsel, Bureau of Regulatory Counsel, Rachel Carson State Office Building, 400 Market Street, Harrisburg, PA 17101-2301, (717) 787-9373. Persons with a disability may use the AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-form rulemaking is available on the Department's website:

C.  Statutory Authority

   The final-form rulemaking is being made under the authority of sections 5(b)(1) and 402 of The Clean Streams Law (35 P. S. §§ 691.5(b)(1) and 691.402) and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).

D.  Background

   1.   Purpose.

   The primary purpose of these revisions to Chapter 92 (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance) is to allow the Commonwealth to maintain delegation of the National Pollutant Discharge Elimination System (NPDES) CAFO program, which was revised by the Federal government in 2003. The purpose of these revisions to Chapter 91 is to strengthen existing requirements for pollution control and prevention at agricultural operations which are not subject to the NPDES permit requirements of Chapter 92 relating to CAFOs. In particular, the proposed Chapter 91 (relating to general provisions) revisions clarified and strengthened the requirements related to agricultural discharges, including provisions for manure storage facilities and land application of manure. Those revisions included a provision which authorized the Department to establish ''appropriate vegetated buffers and setbacks . . . to protect and maintain water quality.'' The final Chapter 91 regulation also contains a setback requirement, although it has been revised to focus on the highest risk operations.

   The revisions are also intended to implement a regulatory program for livestock and poultry operations that reasonably controls the risk to the environment in a sustainable way, with due regard for the economic importance of the industry and other societal benefits, using the input from the public and important stakeholders and relying as much as possible on the existing successful CAFO program.

   The most recent (2002) Commonwealth report on the quality of surface waters listed agriculture as the second leading cause of impairment. Improper management of nutrients such as manure and fertilizers, as well as lack of stormwater runoff controls, are the primary contributing factors to these water quality problems around the Commonwealth. Livestock and poultry operations, including large-scale operations whose animals generate large amounts of manure, present risks of water pollution. In addition, many of the Commonwealth's agricultural operations are in the Chesapeake Bay watershed. This requires a special focus on best management practices to protect and restore that important resource, and to meet Pennsylvania's legal obligations under the Federal Clean Water Act.

   At the same time, agriculture is an important industry in this Commonwealth, providing livelihood for thousands of citizens and their families. In addition, agricultural lands provide significant aesthetic and environmental benefits to this Commonwealth. Finally, agriculture is an important part of the cultural fabric of this Commonwealth.

   2.  Federal CAFO Regulations.

   To address the environmental risks posed by large-scale livestock and poultry operations, the United States Environmental Protection Agency (EPA) promulgated a comprehensive set of revised regulations governing CAFOs in February 2003. These regulations greatly expanded existing Federal rules put in place over 20 years ago, to strengthen the existing regulatory program for CAFOs. The regulations revised 40 CFR Parts 122 and 412 (relating to EPA administered permit programs: the National Pollutant Discharge Elimination system; and concentrated animal feeding operations (CAFO) point source category).

   The Department already had in place NPDES permit regulations for CAFOs in § 92.5a (relating to CAFOs). These regulations were previously approved by the EPA as part of a delegation agreement to administer the Federal program in this Commonwealth. To maintain delegation of the Federal program, the Department must demonstrate that its regulations meet the new Federal requirements. In the case of the Commonwealth, the existing CAFO regulations, along with Chapter 83, Subchapter D (relating to nutrient management) promulgated by the State Conservation Commission (Commission), Chapters 91 and 102 (relating to erosion and sediment control), previously contained many of the new Federal requirements. These regulations have been in place for several years and have achieved wide acceptance in the agricultural community as well as various stakeholders such as Department regional offices, the Department of Agriculture, the Commission, the Nutrient Management Advisory Board and the county conservation districts.

   3.  Public Comment.

   These final regulations reflect public comments received after the proposed changes were published in August 2004. For instance, the preponderance of comments received on manure storage and appropriate setbacks and buffers in the proposed Chapter 91 revisions urged clear, simple and enforceable standards to apply to farm operations based upon science rather than regulatory categories or Department discretion. Similar discussions arose in response to the administration's Agriculture, Communities and Rural Environment initiative (ACRE), during the public comment period for the proposed regulations. ACRE is the result of Governor Rendell's directive to the Secretaries of Agriculture and Environmental Protection to develop a comprehensive, progressive plan to support farmers' rights under the act of June 10, 1982 (P. L. 454, No. 133), known as the Right-to-Farm Law (3 P. S. §§ 951--957) and to address the concerns over animal feeding operations that spawn ordinances restricting farming. The Governor directed the agencies to require minimum buffer areas where no manure can be applied for all CAFOs and CAOs, and that farms that import manure must meet the same buffer requirements as the farm that produces the manure. Therefore, these final regulations establish a minimum 100 foot setback or 35 foot vegetated buffer for all CAFOs, CAOs and importing farms, which correspond to minimum National criteria for nutrient reduction. In addition, these final regulations require water quality management permits for new or expanded manure storage facilities based upon volume and criteria related to potential for pollution.

   The CAFO Stakeholder Group (Group) that assisted the Department in developing the proposed rulemaking also assisted with these final regulations. The Department has also sought the advice of the Agricultural Advisory Board in developing these final regulations.

E.  Summary of Changes from the Proposed Rulemaking

   The regulatory scheme for agricultural operations contains several levels of requirements, which increase in stringency as the risk of impacts to water resources increases. The final rulemaking makes changes at several of those levels, and has been developed concurrently with regulation changes by the Commission under Chapter 83, Subchapter D (relating to nutrient management).

   1.  CAFOs.

   One main focus of this final rulemaking is CAFOs, the largest livestock and poultry operations in this Commonwealth. The basic requirement for CAFOs will continue to be to obtain a permit under the Department's program implementing the NPDES Program. The NPDES permit program has several fundamental requirements, some of which are new or which contain new elements to conform to the new Federal requirements. Underlying the NPDES requirements are several other levels of requirements:

   a.  Manure Management. First, agricultural operations in this Commonwealth, including CAFOs, must meet construction and operation requirements for manure storage, and for land application. These broad based regulations are currently described in §§ 91.35 and 91.36 (relating to wastewater impoundments; and pollution control and prevention at agricultural operations), which are administered by the Department. The final rule consolidates them into one section, § 91.36. CAFOs, which have large and higher risk manure storage facilities, have special permitting requirements above and beyond those of most other livestock and poultry operations, and this final rule preserves that extra protection. For swine, poultry and veal operations, these protections are increased, consistent with the revised Federal CAFO regulations.

   b.  Conservation Practices. Second, all agricultural operations that conduct plowing and tilling, including CAFOs, must develop and implement an erosion and sediment control plan to limit runoff, under Chapter 102 (relating to erosion and sediment control), also administered by the Department. These plans are important to the prevention of surface water pollution by phosphorus from manure and other nutrient sources applied to the land as fertilizer. The final rule specifies that the erosion and sediment control plans must be submitted with CAFO permit applications.

   c.  Nutrient Management. Third, the approximately 840 CAOs (some of which are also CAFOs) regulated under Chapter 83 (relating to State Conservation Commission) based on their concentration of animals (as opposed to their absolute numbers of animals) must meet a series of requirements related to nutrient management. These requirements currently include testing of soils and manure for nitrogen and phosphorus, determination of agronomic needs of the crops based on nitrogen (as well as phosphorus, after a decision of the Environmental Hearing Board (EHB) in April 2004), land application of manure based on those tests and on crop needs, and stormwater runoff controls around the farmstead. These requirements, including the need to have a nutrient management plan (NMP) approved by the local county conservation district, are also imposed on CAFOs under the existing and final regulations. The NMPs are subject to appeal to the EHB.

   Chapter 83 is promulgated by the Commission and is administered primarily through county conservation districts. Extensive revisions to Chapter 83 were proposed in a rulemaking at the same time the Board proposed changes to these regulations. (Editor's Note: For the document relating to those proposed revisions see 34 Pa.B. 4361 (August 7, 2004).) The Chapter 83 final regulations are expected to be approved by the Commission later in 2006.

   The amendments to Chapter 83 include new, additional requirements for addressing the impacts on water quality from phosphorus (in addition to nitrogen) and more frequent soil and manure testing for nitrogen and phosphorus. They also are expected to significantly increase the regulation of the export of manure. These amendments are relevant to CAFOs because § 92.5a requires CAFOs to have an NMP under Chapter 83.

   Although it has been important to keep the Chapter 83 and the CAFO and other agricultural operations regulation updates on a coordinated schedule through development, they can now proceed independently to final. These final regulations can be fully implemented and satisfy Federal CAFO requirements independent of finalization of revisions to Chapter 83. This is important because of the Federal deadlines of April 2005 for states to update their CAFO program requirements and various dates in 2006 for CAFOs to implement the new requirements, under the Federal CAFO regulations. This is possible primarily because of an EHB decision in 2004 and subsequent Commission action that required immediate implementation of phosphorus-based nutrient management planning. Other significant Federal CAFO requirements are independently addressed in these final regulations and in the existing Chapter 83 requirements.

   d.  Federal CAFO Requirements. Finally, Chapter 92 contains the Department's NPDES regulations and § 92.5a governs CAFOs. Section 92.5a incorporates the other requirements already applicable to agricultural operations found in Chapters 83, 91 and 102, and adds special requirements for CAFOs within the Department's NPDES permit program. These final regulations make several changes to § 92.5a, as well as the related definitions in § 92.1 (relating to definitions), to conform to the new EPA CAFO regulations:

   *  A revised definition of ''CAFO'' expands the scope of these regulations to include all Federally defined large CAFOs as well as all operations with over 1,000 animal equivalent units (AEUs) and CAOs with greater than 300 AEUs.

   *  A new definition of ''livestock'' to include horses.

   *  Definitions of ''manure'' and ''agricultural process wastewater.''

   *  A timetable for poultry operations with dry manure to apply for NPDES CAFO permits.

   *  Setback requirements at CAFOs from surface waters for land application of manure.

   *  Recordkeeping and reporting requirements that are identified in the NPDES permit and also in the Department's implementation strategy to be published later in 2005.

   *  A PPC plan for chemicals.

   *  Implementation of management controls on the export of manure away from the CAFO.

   *  Compliance with 3 Pa.C.S. §§ 2301--2389 (relating to Domestic Animal Law) when handling animal mortality.

   *  Effluent limits and conditions for treated wastewater discharges from CAFOs.

   *  Limits on field storage of CAFO manure and proper management of CAFO feed and supply storage areas.

   e.  Definition of a ''CAFO.'' This final rulemaking amends the definition of a ''CAFO'' to alter the way in which a discharge to surface waters from the operation would trigger the CAFO requirements. The existing regulations consider any agricultural operation, no matter how small, to be a CAFO if it has a discharge to surface waters. The final rulemaking replaces this broad CAFO designation authority with an emphasis on enforcing The Clean Streams Law requirements to address unauthorized discharges. This change is based on the focus of the CAFO regulations: large animal operations. For the most part, these regulations do not allow discharges. Smaller operations that have discharges are subject to other, more basic requirements and prohibitions under The Clean Streams Law. The Board believes that the CAFO program should keep its focus on permitting (and monitoring) larger operations. The final rulemaking adds new language highlighting The Clean Streams Law general prohibitions against unpermitted discharges to surface waters including medium and small operations with discharges that would otherwise lead to a CAFO permitting process under the Federal regulations.

   In addition, the Board added a category of operations that will be a CAFO--operations designated as large CAFOs by the EPA. The purpose of this provision is to satisfy the new Federal definition of a CAFO, which does not use the Pennsylvania approach of ''animal equivalent units.''

   f.  Comparison of Federal CAFO Regulations and the Pennsylvania CAFO Program.

   The following table summarizes the requirements in the Federal regulations and the associated Pennsylvania regulations that are used in this final rulemaking to meet those requirements.

Issue EPA--New Rule Department/Commission Regulations
Definitions §§ 122.23(b)(4), (6) and (7); and 412.4(b) § 92.1
NMP §§ 122.42(e)(1) and 412.4(c)(1) § 92.5a(f)(1) and Chapter 83
--Storage § 122.42(e)(1)(i) §§ 91.36(a), 92.5a(e)(1)(ii), (3) and (6) and § 92.5a(f)(4), (7)
--Dead animals §§ 122.42(e)(1)(ii) and 412.37(a)(4) § 92.5a(f)(3)
--Stormwater management § 122.42(e)(1)(iii) § 92.5a(f)(1) and Chapter 83
--Animal contact with waters of the United States § 122.42(e)(1)(iv) § 92.5a(f)(1) and Chapter 83
--Chemical handling § 122.42(e)(1)(v) § 92.5a(f)(1)
--Conservation practices § 122.42(e)(1)(vi) § 92.5a(f)(1) and Chapters 83 and 102
--Testing of manure and soil §§ 122.42(e)(1)(vii) and 412.4(c)(3) § 92.5a(f)(1) and Chapter 83
--Land application protocols §§ 122.42(e)(1)(viii) and 412(c)(2) § 92.5a(f)(1) and Chapter 83
--Recordkeeping for NMP §§ 122.42(e)(1)(ix) and (e)(2) and 412.37(b) and (c) § 92.5a(f)(5)
Manure transfer (export) § 122.42(e)(3) § 92.5a(e)(1) and (f)(1) and Chapter 83
Annual report § 122.42(e)(4) § 92.5a(f)(5)
Nitrogen and phosphorus § 412.4(c)(1) § 92.5a(f)(1) and Chapter 83 (Including 2004 EHB decision on P-Based planning)
Maintenance of land application equipment § 412.4(c)(4) § 92.5a(f)(1) and Chapter 83
Setback requirements § 412.4(c)(5) § 92.5a(e)(1)(i)
Discharge prohibition from production areas § 412 §§ 91.36(a)(1) and (5), 92.5a(f)(1) and (7)
Visual inspections of production area § 412.37(a)(1) and (3) § 92.5a(f)(1) and Chapter 83
Depth markers § 412.37(a)(2) §§ 91.36(a) and 92.5a(f)(4)

   2.  Other Agricultural Operations; Setbacks and Buffers.

   The Group that assisted the Department in the development and finalization of this final rulemaking identified smaller livestock and poultry operations as causing a substantial portion of pollution problems created by agriculture. To address this, the amendments to § 91.36(c) emphasize the responsibility of all agricultural operations to prevent the discharge of pollutants to waters of this Commonwealth under The Clean Streams Law. In addition, the amendments in § 91.36(a)(4) require permits for new or expanded liquid or semisolid manure storage at operations smaller than those currently required to obtain a permit, to minimize the risk of impacts to water resources. Section 91.36(a)(4) also establishes specific size, type and location criteria for permit requirements for new or expanded manure storage facilities.

   In addition, the Board has narrowed the focus of § 91.36(b)(2), which now establishes minimum setback and buffer requirements for (1) CAOs and farms which import manure from CAOs, as well as for (2) CAFOs and their manure import sites. The setbacks and buffers for CAOs and importers only apply to certain key types of waterbodies. The Board recognizes that the scope of this provision includes farms that are also regulated under the Nutrient Management Act (3 P. S. §§ 1701--1718) which was repealed by Act 38-2005 hereinafter referred to as Act 38. Therefore, the Board has included a special provision in its Order that terminates the part of this subsection applicable to CAOs and their importers, if the Commission promulgates regulations which impose, at a minimum, the same setback and buffer requirements on CAOs and their importers. This special provision is not applicable to CAFOs or their importers, and is not intended to affect the duty of all agricultural operations to comply with The Clean Streams Law and other provisions in Chapters 91 and 92.

   3.  Chapter 91.

   § 91.1.  Definitions of ''CAO'' and ''CAFO'' are added to explain key terms in the setback provision in § 91.36(b)(2). A definition of ''manure storage capacity'' is added to clarify the meaning of § 91.36(a)(4) regarding the volume of storage that will be used in determining if a permit is required. A definition of ''agricultural process wastewater'' is added to identify other wastewaters such as egg wash water and milkhouse wastewater that are part of normal farming operations and regulated under § 91.36. A definition of ''manure'' has been added for clarity. The proposed definition of ''setback'' has been deleted.

   § 91.36(a)(1).  The references to the Manure Management Manual and the Pennsylvania Technical Guide in this paragraph, and in § 91.36(a)(2) and (b)(1)(i), are revised to properly describe the purpose of the practices, standards and criteria that are contained in these guidance documents. They are intended to be used as tools for agricultural operations to meet the basic regulatory requirements, and avoid the need to obtain a permit or approval from the Department.

   § 91.36(a)(2), (3) and (4). The categories of manure storage facilities requiring permits is clarified. A new requirement for operators to maintain copies of engineer certifications has been added.

   § 91.36(a)(6)(i).  The freeboard requirements for manure storage facilities are simplified to be consistent with the Pennsylvania Technical Guide and to allow a minimum 6 inch freeboard for storage facilities not exposed to rainfall.

   § 91.36(a)(7).  The general statement that the Department may require any manure storage facility to obtain a permit has been deleted. This authority already exists for the types of situations where this would be applied.

   § 91.36(b)(2).  This subsection (b)(2) is revised from the general provision for requiring setbacks and buffers adequate to protect water quality at any agricultural operation, to target CAOs, CAFOs and CAFO/CAO manure import sites, for implementation of a 100 foot setback or 35 foot vegetated buffer. For CAOs and importers, the setbacks and buffers only apply to certain key types of waterbodies. The Board has included a special provision in its order that terminates the part of this subsection applicable to CAOs and their importers, if the Commission promulgates regulations which impose, at a minimum, the same setback and buffer requirements on CAOs and their importers. This special provision is not applicable to CAFOs or their importers, and is not intended to affect the duty of all agricultural operations to comply with The Clean Streams Law or other provisions of Chapters 91 and 92.

   § 91.36(c)(2).  This provision is added to clarify that operations that would otherwise be considered small and medium CAFOs under the Federal regulations will be addressed as enforcement cases under The Clean Streams Law.

   4.  Chapter 92.

   § 92.1.  The definition of ''CAFO'' is revised to eliminate the designation of any operation as a CAFO and to delete operations with ''authorized discharges.'' These changes help to simplify the definition and eliminate objectionable broad authority to designate operations as CAFOs. To address concerns over consistency with the Federal definition relative to small and medium sized operations, operations with illegal discharges will be addressed as Clean Streams Law enforcement cases.

   § 92.1.  The definition of ''setback'' is revised to specify the point from which setbacks are to be measured and examples of surface water conduits are added to be consistent with the Federal definition of ''setback.'' Definitions of ''agricultural process wastewater'' and ''manure'' are added to be consistent with the Federal definitions. A revised definition of ''CAOs'' is included to be consistent with the § 91.1 definitions.

   § 92.5a(d).  A new provision was added to ensure that all operations that are required to obtain permits have a permit application deadline which applies to them.

   § 92.5a(e)(1)(ii).  A limit of 14 days for stockpiling CAFO manure on CAFO operations without cover or protection is added. The EPA has stipulated this limit, and persons representing the category of CAFO operations that are impacted have indicated that this is manageable. Given the current ''CAFO'' definition, this is an appropriate requirement for management of dry manure from these operations. There are no expectations to extend this requirement to other operations. Manure stockpiling for other high-risk operations will be regulated through the Nutrient Management Act regulations and any discharge of pollutants from any manure stockpiles is subject to enforcement under The Clean Streams Law.

   § 92.5a(e)(5) and (f)(6).  With the change in the CAFO definition to eliminate confusion by deleting the reference to operations with an ''authorized discharge,'' language was added to this subsection to address the same issue--to allow CAFO permit applicants to include design plans and specifications for manure treatment systems with a treated wastewater discharge. This is to encourage innovative technologies, including energy generation projects, by consolidating water quality permitting requirements. In these cases, the permit will include effluent limits and conditions determined in the same way as they are for other NPDES discharge permits as required by § 92.2a.

   § 92.5a(e)(6) and (f)(7).  For consistency with Federal requirements, a provision was added to account for runoff from CAFO feed and supply storage areas in CAFO permit applications. This runoff can be a source of pollution. Applicants may address this runoff as part of the nutrient management plan or as separate plans and practices submitted with the application.

F.  Summary of Comments and Responses on the Proposed Rulemaking

   Written comments were received from 191 commentators during the public comment period between August 7, 2004, and November 5, 2004. Oral testimony was also received at two public hearings conducted in Mechanicsburg, PA and DuBois, PA in October 2004.

   Comments concerned the following general topics: the definition of a CAFO, setback and buffer requirements for land application of manure (both for CAFOs and for all other agricultural operations), manure storage facilities, economics, enforcement/accountability, CAFO permit review considerations and CAFO permit conditions. In general, as one would expect, environmental commentators advocated stricter, more expansive regulatory requirements, while farming interests wanted to limit the requirements. The comment/response document provides detailed responses to these comments, explaining the Department's position.

   1.  Definition of a ''CAFO''

   Based on the comments received, the definition of ''CAFO'' has been revised to delete language regarding: (1) the general authority for the Department to designate operations as CAFOs in certain circumstances; and (2) operations with treated discharge authorized by the Department. These provisions created unnecessary confusion and concern.

   In addition, the EPA and others commented on the absence of ''medium'' and ''small'' CAFOs as described in the Federal CAFO definition, which requires that a discharge be present at the operation. In response to these comments additional language was included in § 91.36(c) to clarify the Department's intent to address these situations as violations with enforcement actions under The Clean Streams Law. CAFOs with authorized discharges--treated wastewater discharges--are now addressed in the provisions for CAFO permit applications and permit conditions.

   2.  Setbacks and Buffer Requirements for Land Application of Manure

   General provisions for all agricultural operations were proposed for manure application setbacks and vegetated buffers adequate to protect water quality. Again, a wide range of comments resulted from this provision. The Federal standard, 100 foot setback or 35 foot buffer for CAFO operations, remains in the final regulation, and a parallel provision was added to § 91.36(b) for consistency. For CAOs, and for CAO and CAFO manure import sites, § 91.36(b) now contains a focused Statewide setback/buffer requirement to prevent pollution from land application of manure, using the same distances as for CAFOs. The Board has included a special provision in its order that terminates the part of this subsection applicable to CAOs and their importers, if the Commission promulgates regulations which impose, at a minimum, the same setback and buffer requirements on CAOs and their importers. This special provision is not applicable to CAFOs or their importers, and is not intended to affect the duty of all agricultural operations to comply with The Clean Streams Law or other provisions of Chapters 91 and 92. Consistent with the NPDES program, the CAFO setbacks and buffers apply to all surface waters as defined in Chapter 92, whereas the setbacks for the other operations only apply to certain key types of waterbodies.

   3.  Manure Storage Facilities

   Similar comments were raised concerning general designation provisions for permit requirements for manure storage. Refinements to the Manure Management Manual under existing authority can be used to better define acceptable standards for manure and agricultural process wastewater storage in Special Protection and agriculture impaired watersheds. The specific requirement for manure storage permits--new and expanding, liquid and semisolid manure storage ponds between 1 million and 2.5 million gallons in special protection and agriculture impaired watershed and all new and expanding liquid and semisolid manure storage facilities over 2.5 million gallons--remains in these final regulations. Generally, comments were not critical of these requirements.

   The proposed CAFO regulations did not have a provision for field stockpiling of manure because these provisions are being included in the nutrient management regulation revisions. CAFOs are subject to those requirements. The EPA commented that the proposed revisions in the Nutrient Management regulations did not meet their limitations on field stacking. As a result a 14-day limit of stockpiling of CAFO manure on CAFO operations was added to the final CAFO regulations. Through the work group formed to assist with this regulation development and follow up discussions with those impacted by this addition it was determined that this would be an inconvenience but manageable. There is no expectation to expand this requirement to other operations. Other operations will fall under the requirements of the nutrient management regulations and Chapter 91. Any discharge of pollutants from any manure stockpile is subject to enforcement action under The Clean Streams Law.

   4.  Economics

   A number in the regulated community raised the concern of cost. In general, the final regulations reduce these concerns. The incremental costs of meeting new requirements under the revised regulations is minimal other than the cost of obtaining a permit in some cases since most practices and standards should have already been met under existing requirements.

   5.  Enforcement/Accountability

   Comments were provided on the level of enforcement of existing and new requirements. Noncompliance with existing requirements is a cause of agriculturally driven water quality impairment. Regulations alone will not solve this concern. Allocation and alignment of resources is important. A reorganization to give higher priority and focus to nonpoint sources, including agriculture, and additions to compliance resources for these programs are planned by the Department.

G.  Benefits, Costs and Compliance

   1.  Benefits

   Human health and the environment will benefit because agricultural operations, including CAFOs, will be required to effectively manage the manure and agricultural process wastewater that they produce. The largest and most concentrated operations are targeted under the CAFO program. The Department estimates that there will be a total of 350 CAFOs in this Commonwealth, as defined under this final-form rulemaking (there are approximately 160 now), mostly in the central parts of this Commonwealth. The population of the Susquehanna River Basin, in particular, will benefit from enhanced water quality and associated economic and recreational benefits. The final-form rulemaking will also complement the Commonwealth's efforts to meet its commitments to the Chesapeake Bay Program and will help to address agricultural nonpoint sources of pollution that are among the most significant sources of water quality impairment in this Commonwealth. It clarifies the regulation of agricultural process wastewater on agricultural operations. The CAFO permitting process will also help farmers critically assess the costs and benefits of developing CAFOs before they make substantial financial commitments.

   2.  Compliance Costs

   There will be compliance costs for some agricultural operations around this Commonwealth, especially existing poultry producers that will be newly regulated as CAFOs, new or expanded operations which become CAFOs, some agricultural operations with manure storage capacity greater than 1 million gallons, and operations with additional costs associated with setback/buffer requirements.

   The approximately 190 operations that are expected to be directly affected by the new CAFO regulations should not be surprised by the changes. The EPA began soliciting comments on the proposed Federal rule changes about 4 years ago. Fact sheets, reports and the Federal AFO/CAFO Strategy were widely circulated to both government and industry for review and comment. The large poultry and swine integrators have been expecting these changes. In addition, Department staff have met with the poultry and swine representatives during the development of the proposed rulemaking. The technical capacity in the private sector for preparing the permit applications exists, although the timeline established by the Department in § 92.5a(b)--(d) will dictate the burden placed on these resources.

   The Department does not have detailed information on the anticipated CAFO compliance costs in this Commonwealth. Using information from the EPA on the average costs of obtaining an NPDES CAFO permit, costs are estimated to be no more than the following:

   --Existing operation, general permit: $1,000 to $2,500.

   --Existing operation, individual permit: $1,500 to $3,500.

   --New or expanded operation: $10,000 to $15,000.

   In addition to the costs for obtaining a CAFO permit, smaller CAFOs and some agricultural operations will incur expenses to obtain permits for large manure storage facilities. The Department estimates those costs to be up to $1,500 to $3,500 per storage facility.

   3.  Compliance Assistance Plan

   To help these livestock and poultry operations meet the proposed rulemaking's requirements, Congress increased funding for land and water conservation programs in the 2002 Farm Bill by $20.9 billion Nationwide, bringing total funding for these programs to $51 billion over the next decade. The Environmental Quality Incentives Program (EQIP) was authorized at $200 million in 2002 and will ultimately go up to $1.3 billion in 2007; 60% of those funds must go to livestock operations. The Commonwealth's allocation is approximately $8 to $10 million annually. New technology is also being perfected to aid farmers in meeting the proposed rulemaking.

   Several financial assistance programs are available to livestock producers in this Commonwealth. Federal grants, such as EQIP and the Conservation Reserve Enhancement Program are available. State cost share and grant programs such as the Chesapeake Bay Program, Growing Greener and the Nutrient Management Program grants and low interest loans through Agrilink are also available.

   Additionally, compliance assistance efforts following the enactment of the new regulations will be in the form of education and outreach by the conservation districts, Penn State Extension and Department trainings and fact sheets.

   4.  Paperwork Requirements

   The final rulemaking will cause no additional paperwork (for example, reporting forms, recordkeeping, application forms, letters, public notices, and the like) for existing CAFOs in this Commonwealth.

   It should be noted that the Department has been actively endorsing electronic data reporting instead of conventional paper form reporting to water systems throughout this Commonwealth. If employed, electronic data reporting would greatly reduce a CAFO's current paperwork requirements.

H.  Pollution Prevention

   Management of agricultural manure under these regulations is based on the premise of recycling the nutrients for crop production. Properly managing and applying manure for crop growth prevents pollution and reduces the need for commercial fertilizers.

I.  Sunset Review

   The final rulemaking will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.

J.  Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on July 28, 2004, the Department submitted a copy of the notice of proposed rulemaking, published at 34 Pa.B. 4353, to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House and Senate Environmental Resources and Energy Committees for review and comment.

   Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing these final-form regulations, the Department has considered all comments from IRRC, the Committees and the public.

   Under section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2)), on August 24, 2005, these final-form regulations were deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on August 25, 2005 and approved the final-form regulations.

K.  Findings of the Board

   The Board finds that:

   (1)  Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.

   (2)  A public comment period was provided as required by law, and all comments were considered.

   (3)  These regulations do not enlarge the purpose of the proposal published at 34 Pa.B. 4353 (August 7, 2004).

   (4)  These regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this order.

L.  Order of the Board

   The Board, acting under the authorizing statutes, orders that:

   (a)  The regulations of the Department, 25 Pa. Code Chapters 91 and 92, are amended by amending §§ 91.1, 91.35, 91.36, 92.1 and 92.5a to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.

   (b)  Section 91.36(b)(2)(i) and (ii) shall remain in effect until the effective date of regulations promulgated by the Commission that establish requirements which provide, at a minimum, the same setback and buffer requirements for concentrated animal operations, and for agricultural operations that import manure from those operations, established in § 91.36(b)(2). The Department will publish notice in the Pennsylvania Bulletin if those regulations are promulgated. Nothing in this order is intended to affect the duty of any agricultural operation to comply with The Clean Streams Law or any other provision of Chapters 91 and 92.

   (c)  The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.

   (d)  The Chairperson of the Board shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.

   (e)  The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.

   (f)  This order shall take effect immediately upon publication.


   (Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 34 Pa.B. 5068 (September 10, 2005).)

   Fiscal Note:  Fiscal Note 7-391 remains valid for the final adoption of the subject regulations.

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