STATE CONSERVATION COMMISSION
[25 PA. CODE CH. 83]
Facility Odor Management
[37 Pa.B. 4780]
[Saturday, September 1, 2007]
The State Conservation Commission (Commission) proposes to add Chapter 83, Subchapter G (relating to facility odor management) to govern odor management at certain facilities and agricultural operations. This proposed rulemaking is authorized by the act of July 6, 2005 (P. L. 112, No. 38) (Act 38) (3 Pa.C.S. §§ 501--522 (relating to nutrient management and odor management)).
This proposed rulemaking was adopted at the Commission's meeting of March 14, 2007.
A. Effective Date
This proposed rulemaking will go into effect 90 days after 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. 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 available on the Commission's website: www.agriculture.state.pa.us/scc.
C. Statutory Authority
This rulemaking is proposed under 3 Pa.C.S. § 504(1.1) (relating to powers and duties of commission), which authorizes the Commission to promulgate regulations establish practices, technologies, standards, strategies and other requirements for odor management plans (OMP); section 4 of the Conservation District Law (3 P. S. § 852), which authorizes the Commission to promulgate rules and regulations necessary to carry out its functions; and section 503(d) of the Conservation and Natural Resources Act (71 P. S. § 1340.503(d)), which amended the authority and responsibilities of the Commission, the Department of Environmental Protection (DEP) and the Department of Agriculture.
D. Background and Introduction
Act 38 was signed by Governor Rendell on July 6, 2005, and constituted an important part of his initiative to protect Agriculture, Communities and the Rural Environment (ACRE). As part of that initiative, the DEP and the Commission promulgated other regulations implementing Act 38 provisions addressing water quality issues in 2005 and 2006. At the same time, various funding, technical assistance and policy development programs aimed at supporting agriculture in this Commonwealth were started and expanded during that same time frame. Examples include the Commission's enhanced Plan Development Incentives Program (PDIP) to support phosphorus based nutrient management plan writing, grants for alternative manure utilization and technologies projects, expanded agricultural compliance technical assistance and expanded regulatory oversight over the farm community.
This proposed rulemaking addresses the concerns of communities about odors generated at new and expanding agricultural operations. The proposed rulemaking requires OMPs for manure storage facilities and animal housing facilities at the operations most likely to elicit public concerns from neighbors--concentrated animal operations (CAOs) and concentrated animal feeding operations (CAFOs).
CAOs and CAFOs fall under a very comprehensive set of water quality regulations which were recently amended to address current environmental issues. CAOs shall meet various requirements under Chapter 83, administered by the Commission and delegated county conservation districts. CAFOs shall follow permitting requirements under the National Pollutant Discharge Elimination System (NPDES) regulations administered by the DEP under Chapter 92 (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance). Those regulations address water quality, not odor management.
This proposed rulemaking was developed in close coordination with several groups. First, the Nutrient Management Advisory Board (NMAB) was highly involved with the development of this proposed rulemaking. The NMAB represents a wide range of agricultural, academic, governmental, environmental and private interests. A special NMAB committee was formed and met with Commission staff 11 times during 2006 and 2007, providing strong direction and assistance to Commission staff in developing this proposed rulemaking. The committee and Commission staff led discussions of the proposed rulemaking with the full NMAB on April 13, 2006, July 13, 2006, December 5, 2006, and February 6, 2007. The NMAB approved this proposed rulemaking and passed it on to the Commission with its recommendation for Commission approval.
In addition to the extensive involvement of the NMAB, Commission staff worked closely with a team of experts on odor management at the Pennsylvania State University (PSU). These experts developed and refined an odor management planning process over the last several years. This process was the one the Legislature had in mind when it passed the odor management provisions of Act 38. Key elements of this process have been incorporated into this proposed rulemaking and are described in some detail in this preamble.
The Commission staff also worked with a third group--an interagency team of agriculture experts from the Department of Agriculture, the United States Department of Agriculture Natural Resources Conservation Service (NRCS), county conservation districts, the DEP, the PSU College of Agricultural Sciences and the Penn State Extension.
Finally, Commission staff provided briefings on the proposed rulemaking as it was being developed to numerous groups representing local government, industry and the public. The Agriculture Air Quality Task Force also received briefings on the draft regulations during 2006.
This proposed rulemaking incorporates the initial concepts approved by the Commission at its July 26, 2006, meeting. In addition, the proposed rulemaking follows the format of the nutrient management regulations in Chapter 83, to facilitate comprehension by the regulated community and others familiar with those regulations.
Two key aspects of the proposed rulemaking bear special mention. First, the proposed rulemaking is limited in scope to odors associated with new or expanding manure management and animal housing facilities at CAOs and CAFOs. The proposed rulemaking does not otherwise apply to existing agricultural operations and they do not address odor from land application of manure. These limitations reflect the odor management provisions in Act 38.
Second, the OMPs are not required to eliminate odors. Under Act 38, they only need to include reasonably available technology, practices, standards and strategies to manage odor impacts, considering both the practical and economic feasibility of installation and operation and the potential impacts from the facilities. This aspect of Act 38 reflects the impracticality of completely eliminating odors associated with agricultural operations, as well as the evolving nature of the science of odor management and of the regulation of odor management. The Legislature was obviously cognizant of the subjective nature of odors in rural areas and the difficulties in eliminating and regulating them. The Commission developed this proposed rulemaking with that legislative dictate in mind.
E. Summary of the Proposed Rulemaking
The applicability of the regulations is clearly described in § 83.741 (relating to general), where the two statutory criteria that must be met are listed--types of operations and types of activities at those operations. The Commission has been careful to stay within the scope of Act 38 in the regulations, which requires OMPs address only newly constructed and expanded facilities at CAOs and CAFOs once the regulations go into effect. A transition provision is also included to address agricultural operations that initiate activities prior to the effective date of the final-form rulemaking.
Section 83.741 also describes plan implementation requirements. First, plans must be fully implemented prior to commencing use of the regulated facility. Second, ''implementation'' includes taking all of the steps required in the plan, which in some cases will not immediately provide full odor management benefits (for example, shelter belts).
In addition, § 83.741 allows for voluntary plans by agricultural operations which are not otherwise subject to the odor management regulations. This provision is similar to the nutrient management regulations, promoting voluntary efforts by farmers and also providing certain legal protections to those farmers under Act 38.
Further, § 83.741 requires that OMPs be developed by certified odor management specialists. The Department of Agriculture is developing certification regulations under Act 38 concurrently with these regulations.
Finally, § 83.742 (relating to identification of construction activities) clarifies certain circumstances when questions may arise regarding ''construction'' activities.
The proposed rulemaking incorporates several definitions used in Subchapter D (relating to nutrient management). Several definitions are added in § 83.701 (relating to definitions) due to the new subject matter:
The proposed rulemaking is applicable to two types of facilities--manure storage and animal housing. ''Manure management facility'' is described in Subchapter D and repeated here. This requires defining ''animal housing facility,'' which is not defined in Subchapter D. The comprehensive definition of ''facility'' represents both manure storage and animal housing facilities throughout the regulations.
The definitions of ''impacts'' and ''offsite migration'' work together with §§ 83.771 and 83.781 (relating to managing odors; and identification of Odor BMPs), which describe the basic odor management approach in these regulations, as well as § 83.703 (relating to purpose). Act 38 requires that OMPs address odor impacts, but it did not define them, hence the definition here, consistent with other aspects of the odor management provisions of Act 38. The Commission clarifies Act 38 by using the phrase ''offsite migration,'' since odors remaining on the farm would obviously not have impacts requiring an OMP.
''Odor BMP--odor best management practice'' is a key term defined in a manner similar to that for nutrient best management practices (BMP). Odor BMPs are the measures which may be necessary for the agricultural operation to manage potential impacts identified from the facilities subject to the proposed rulemaking.
The definition of ''plan--OMP--odor management plan'' repeats the definition in Act 38 and adds clarifications similar to those for nutrient management plans in Subchapter D regarding volunteers and plan amendments.
''Odor management specialist'' is a key term defined in a manner similar to that for a nutrient management specialist.
''Odor Site Index'' is the preferred method of identifying potential impacts from odors, similar to the Phosphorus Index used in the nutrient management program. The Odor Site Index was developed and refined by odor experts at the PSU College of Agriculture Sciences. It will be reviewed and approved for use by the Commission in the odor management program under this proposed rulemaking.
This proposed rulemaking requires special consideration of public use facilities in identifying potential odor impacts, so a definition of ''public use facility'' is needed.
This proposed rulemaking breaks new ground in this Commonwealth and addresses a difficult area of regulation. The Commission wants to make it clear what these regulations will address and § 83.703 is intended to do that. First, Act 38 clearly requires the Commission to consider certain criteria when developing the odor management program--site specific factors, reasonably available technology, practices, standards and strategies, and the practical and economic feasibility of their installation and operation. These purposes are stated in § 83.703(1)(i)--(iii).
Section 83.703(1)(iv), (2) and (3) provides additional clarification, based on the current state of the science of agricultural odor management in this Commonwealth, and the language of Act 38. The nature of that science is that odor management should contain two basic elements, described in more detail in §§ 83.771 and 83.781. First, odor management requires identifying a potential for odor impacts, which is necessarily a largely subjective exercise. Impacts are essentially conflict-based: will these agricultural activities increase the likelihood of odor related conflicts between the farmer and his neighbors? Second, once potential impacts are identified, how can they be managed? In most cases, the potential cannot be completely eliminated without violating the practical and economic considerations previously described, but it can be managed. These are the concepts underlying § 83.703(1)(iv), (2) and (3), as well as §§ 83.771 and 83.781.
The core requirements are in §§ 83.771 and 83.781. They require the previously-described two-step process. First, an evaluation must be conducted under § 83.771(b). The evaluation must look at the factors specified in Act 38. Several other criteria are allowed to be used, such as the number of animal equivalent units (AEU). The proposed rulemaking then authorizes use of the Odor Site Index, which was developed by PSU odor management experts and approved by the Commission to perform this evaluation. Other evaluation methodologies are allowed, if approved by the Commission. This is the same approach used in the nutrient management regulations, when a Phosphorus Index approved by the Commission is allowed.
If the evaluation identifies a potential for odor impacts, then the second step must be taken--identification of odor BMPs needed to manage the odors, as described in § 83.781. This section envisions two levels of odor BMPs, depending on the significance of the potential for odor impacts identified in the evaluation step. The Commission will issue a guidance document listing odor BMPs consistent with this approach, and use of that guidance is authorized by this proposed rulemaking. The Commission expects to publish notice of the availability of this guidance document for public input, concurrently with the public comment period of the proposed rulemaking.
Sections 83.751, 83.761, 83.762 and 83.783 contain requirements for the contents of OMPs, along the lines of those in the nutrient management regulations. The information required under § 83.761 (relating to identification of agricultural operations and regulated facilities), for example, will be used in the evaluation step under § 83.711 (relating to applicant eligibility). To ensure program consistency throughout this Commonwealth, the plan must follow a standard format provided by the Commission.
Plan review and implementation
Sections 83.782, 83.801 and 83.802 (relating to implementation schedule; initial plan review and approval; and plan implementation) contain parallel provisions to those in Subchapter D regarding review and implementation of the plan. OMPs developed under this proposed rulemaking are not required to be amended once approved unless the operation makes a significant change as described in § 83.811 (relating to plan amendments). While the proposed rulemaking authorizes the Commission to delegate administration of the regulations to county conservation districts, the Commission has no immediate plans to do so.
Funding for plan development and implementation
Financial assistance for OMP development and implementation is authorized under certain circumstances through § 83.711 and § 83.721 (relating to applicant eligibility). This assistance is limited, given that this proposed rulemaking generally applies to new and expanding operations, which are not authorized for financial assistance through the Commission.
Records regarding the development and implementation of the plan shall be kept at the operation under §§ 83.791 and 83.792 (relating to general recordkeeping requirements; and recordkeeping relating to odor BMPs).
Amendments and transfers
Section 83.811 and § 83.812 (relating to plan transfers) contain parallel provisions to those in Subchapter D regarding amendments and transfers. Changes requiring amendments are listed, such as an increase equal to or greater than 25% in AEUs after plan approval.
F. Benefits, Costs and Paperwork
The main benefit of this proposed rulemaking is to establish a level of regulatory requirements regarding agricultural odor management that does not currently exist in rural communities in this Commonwealth. It is part of the balanced approach embodied in the Governor's ACRE initiative.
The Commission developed the proposed rulemaking in close coordination with various Federal, State and local agencies and institutions, including the NMAB, the PSU College of Agriculture, the Department of Agriculture, the DEP, the NRCS, various county conservation district and the Penn State Extension.
Farmers will benefit from this proposed rulemaking in several ways. First, implementation of an OMP approved by the Commission affords important legal protections under Act 38. Second, odor management is an important issue in rural areas of this Commonwealth and this proposed rulemaking will help to minimize conflicts between farmers and their neighbors, especially in areas where there is suburban encroachment into rural areas.
The cost of implementing this proposed rulemaking will mainly impact the regulated community and the Commonwealth. The Commonwealth costs are most readily seen in the financial assistance that the Commission is proposing to provide for plan development and plan implementation.
Note that CAO and CAFO farms that construct animal housing facilities or manure storage facilities are required to get an OMP.
Costs to the regulated community
Development of OMPs. Based on the Commission's experience with the nutrient management program costs, and the projected time to conduct a site assessment for the proposed OMP, the Commission anticipates that the average cost for an OMP will be $1,120 per OMP.
The Commission anticipates that 90 operations a year will develop OMPs under this proposed rulemaking. This will equate to a total annual planning cost to the farm community of $100,800, a significant portion of this will be offset through the Commission's plan development cost share program.
Implementation of OMPs. The proposed rulemaking provides for multiple levels of odor BMPs and anticipates that there will be no new cost to the regulated community until Level 2 Odor BMPs are required to be implemented and maintained. The cost for implementing Level 2 BMPs on a given farm are extremely variable. Based on the Commission's assessment of the various BMPs that may be installed, and the general costs for installing these BMPs, the Commission determined an average cost of installing Level 2 BMPs on a farm to be $15,000. Each plan uses site specific criteria and there will be large variability in the Level 2 odor BMPs implemented on regulated operations. Some farms needing Level 2 BMPs may only need to expend less than $500 to implement these BMPs where other farms needing Level 2 BMPs may need to be expend thousands of dollars.
The Commission anticipates that 17 operations a year will develop OMPs requiring Level 2 BMPs. This will equate to a total annual plan implementation cost to the farm community of $255,800. A portion of this will be offset through the Commission's plan development cost share program for certain eligible farms.
Costs to the Commonwealth
Development of OMPs. The proposed rulemaking provides for the Commonwealth, through the Commission, to provide funding for Financial Assistance for Plan Development to offset the cost of developing OMPs for farmers whose agricultural operations are in existence as of the effective date of this proposed rulemaking. This funding is similar to the Commission's PDIP that has provided cost share funding to farmers for the development of nutrient management plans since 1997. This new State cost share program, proposed to fund 75% of the cost of developing an OMP, is essential to ensure that farmers are not negatively impacted by these CAO and CAFO planning requirements. Applying the 75% State cost share program, the anticipated government cost per funded plan would be $840 ($1,120 total cost, $840 cost share, $280 farmer cost).
The Commission anticipates that 65 operations will be eligible annually for the Commission's PDIP. This will equate to a total annual plan development cost share amount from the Commonwealth of $54,600.
Implementation of OMPs. The proposed rulemaking authorizes funding to offset the implementation of odor BMPs on certain participating operations installing manure storage facilities. This new grant program is proposed to provide support at an 80% State cost share rate. At the anticipated average cost for implementing a Level 2 odor BMP of $15,000, the 80% cost share rate would equate to $12,000 in State cost share funds per operation receiving this assistance ($15,000 total cost, $12,000 cost share, $3,000 farmer cost).
The Commission anticipates that six operations will be eligible annually for the Commission's cost share program to support OMP implementation. This will equate to a total annual plan implementation cost share amount from the Commonwealth of $72,000.
Commission. The Commission will continue to spend approximately $60,000 per year for Commission staff wages and expenses.
Technical assistance. The Commission will continue to contract with PSU to provide technical and educational assistance in the development and implementation of odor management regulations as well as the Department of Agriculture's Odor Management Specialist Certification Program. This project is funded at $10,000 per year.
The proposed rulemaking was written to minimize paperwork but still maintain program integrity and tracking. Farmers are required to keep records on their farms, but are not required to submit those documents to the Commission.
G. Sunset Review
The Commission will evaluate the effectiveness of these regulations on an ongoing basis. Therefore, no sunset date is being established for the regulations.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), the Commission submitted a copy of these proposed regulations on August 22, 2007, to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Agriculture and Rural Affairs Committee and the Senate Agriculture and Rural Affairs Committee. In addition to submitting the proposed regulations, the Commission has provided IRRC and the Committees with a copy of a detailed regulatory analysis form. 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 must 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 by October 31, 2007. 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 by October 31, 2007. 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 regulations will be considered.
Electronic comments. Comments may be submitted electronically to the Commission at email@example.com. A subject heading of the proposal must be included in the transmission. Comments submitted electronically must also be received by the Commission by October 31, 2007.
J. Public Meetings and Hearings
The Commission will hold two public meetings to explain the proposed rulemaking and to respond to questions from the audience. The public information meetings will be held from 7 p.m. to 9 p.m. as follows:
Monday, October 1, 2007 Hampton Inn
1582 Bee Line Highway
Dubois, PA 15801
Thursday, October 4, 2007 Lancaster County Farm and Home Center
1383 Arcadia Road
Lancaster, PA 17601
The Commission will also hold two public hearings for the purpose of accepting comments on the proposed rulemaking. The hearings will be held at 7 p.m. as follows:
Monday, October 8, 2007 Hampton Inn
1582 Bee Line Highway
Dubois, PA 15801
Thursday, October 11, 2007 Lancaster County Farm and Home Center
1383 Arcadia Road
Lancaster, PA 17601
Persons wishing to present testimony at a public hearing are requested to contact Karl Dymond, State Conservation Commission, PDA Region 3 Office, Route 92 South, P. O. Box C, Tunkhannock, PA, 18657, (570) 836-2181 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 at the hearing. 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 Karl Dymond at (570) 836-2181 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.
KATHLEEN A. MCGINTY,
(Editor's Note: For a notice relating to this proposed rulemaking, see 37 Pa.B. 4854 (September 1, 2007).)
Fiscal Note: 7-418; (1) Nutrient Management and General Fund;
Nutrient Management Fund
Planning, Loans, Grants and
(2) Implementing Year 2006-07 is $ 0 $70,000 (3) 1st Succeeding Year 2007-08 is $127,000 $70,000 2nd Succeeding Year 2008-09 is $127,000 $70,000 3rd Succeeding Year 2009-10 is $127,000 $70,000 4th Succeeding Year 2010-11 is $127,000 $70,000 5th Succeeding Year 2011-12 is $119,000 $70,000 Nutrient Management Fund
Planning, Loans, Grants and
(4) 2005-06 Program--$1,600,000 $29,451,000 2004-05 Program--$3,016,000 $31,017,000 2003-03 Program--$4,852,000 $30,009,000 (7) Nutrient Management Fund and General Fund; recommends adoption. The distribution of funding for the grant programs will be provided to the extent funds are available.
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE I. LAND RESOURCES
CHAPTER 83. STATE CONSERVATION COMMISSION
Subchapter G. FACILITY ODOR MANAGEMENT
(Editor's Note: The following chapter is new. It has been printed in regular type to enhance readability.)
83.701. Definitions. 83.702. Scope. 83.703. Purpose. 83.704. Relation to Subchapter D (relating to nutrient management regulations). 83.705. Preemption of local ordinances. 83.706. Limitation of liability. 83.707. Compliance assistance and enforcement.
FINANCIAL ASSISTANCE FOR PLAN DEVELOPMENT
83.711. Applicant eligibility.
FINANCIAL ASSISTANCE FOR PLAN IMPLEMENTATION
83.721. Applicant eligibility.
DELEGATION TO LOCAL AGENCIES
83.731. Delegation to local agencies.
ODOR MANAGEMENT PLANS
83.741. General. 83.742. Identification of construction activities.
CONTENT REQUIREMENTS FOR ALL PLANS
83.751. Content of plans.
PLAN SUMMARY INFORMATION
83.761. Identification of agricultural operations and regulated facilities. 83.762. Operator commitment statement.
83.771. Managing odors.
83.781. Identification of Odor BMPs. 83.782. Implementation schedule. 83.783. Operation and maintenance schedule.
RECORDKEEPING AND INFORMATIONAL REQUIREMENTS
83.791. General recordkeeping requirements. 83.792. Recordkeeping relating to Odor BMPs.
PLAN REVIEW AND IMPLEMENTATION
83.801. Initial plan review and approval. 83.802. Plan implementation.
PLAN AMENDMENTS AND TRANSFERS
83.811. Plan amendments. 83.812. Plan transfers.
§ 83.701. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
AEU--Animal equivalent unit--One thousand pounds live weight of livestock or poultry animals, on an annualized basis, regardless of the actual number of individual animals comprising the unit.
Act--3 Pa.C.S. §§ 501--522 (relating to nutrient management and odor management).
Agricultural operations--The management and use of farming resources for the production of crops, livestock or poultry.
Animal housing facility--A roofed structure or facility, or any portion thereof, used for occupation by livestock or poultry.
CAFO--Concentrated animal feeding operation--An agricultural operation that meets the criteria established by the Department in regulations under the authority of The Clean Streams Law (35 P. S. §§ 691.1--691.1001), found in Chapter 92 (relating to National Pollutant Discharge Elimination System Permitting, Monitoring and Compliance).
CAO--Concentrated animal operation--Agricultural operations with eight or more animal equivalent units where the animal density exceeds two AEUs per acre on an annualized basis.
Commission--The State Conservation Commission established by the Conservation District Law (3 P. S. §§ 849--864).
Conservation district--A county conservation district established under the Conservation District Law.
Facility--Refers to the animal housing facility and manure management facility, or portion of a facility, which are required to be, or are voluntarily subject to this subchapter.
Farming resources--The animals, facilities and lands used for the production or raising of crops, livestock or poultry. The lands are limited to those located at the animal facility which are owned by the operator of the facility, and other owned, rented or leased lands under the management control of the operator of the facility that are used for the application, treatment or storage of manure generated at the facility.
Fund--The Nutrient Management Fund established under section 512 of the act (relating to nutrient management fund).
(i) Conflicts arising from the offsite migration of the odors from agricultural facilities.
(ii) The term does not include mental or physical health affects, or changes in property values.
(i) Animals raised, stabled, fed or maintained on an agricultural operation with the purpose of generating income or providing work, recreation or transportation.
(ii) Examples include: dairy cows, beef cattle, goats, sheep, swine and horses.
(iii) The term does not include aquatic species.
(i) Animal excrement, including poultry litter, which is produced at an agricultural operation.
(ii) The term includes materials such as bedding, washwater and other materials which are commingled with that excrement.
Manure management facility--
(i) A manure storage facility, including a permanent structure or facility, or a portion of a structure or facility, utilized for the primary purpose of containing manure.
(ii) The term includes liquid manure structures, manure storage ponds, component reception pits and transfer pipes, containment structures built under a confinement building, permanent stacking and composting facilities and manure treatment facilities.
(iii) The term does not include the animal confinement areas of poultry houses, horse stalls, free stall barns or bedded pack animal housing systems.
OMP--Odor management plan--Plan--
(i) A written site-specific plan identifying the Odor BMPs to be implemented to manage the impact of odors generated from animal housing and manure management facilities located or to be located on the site.
(ii) The term includes plans approved for VAOs and facilities not required to submit a plan under this subchapter.
(iii) The term includes plan amendments required under this subchapter, except when otherwise stated.
Odor BMP--Odor best management practice--A practice or combination of practices, technologies, standards and strategies to manage the potential for impacts from offsite migration of odors generated from animal housing facilities and manure management facilities that are subject to this subchapter.
Odor management specialist--A person satisfying the certification requirements of the Department of Agriculture's proposed Odor Management Certification Program which will appear in 7 Pa. Code Chapter 130f (relating to odor management certification) upon final rulemaking by the Department of Agriculture.
Odor Site Index--The field evaluation methodology developed specifically for this Commonwealth and approved by the Commission, which applies site-specific factors such as proximity to adjoining landowners, land use of the surrounding area, type of structures proposed, species of animals, local topography and direction of the prevailing winds, to determine the potential for impacts from the offsite migration of odors from agricultural operations.
Offsite migration--The airborne movement of odors past the property line of an agricultural operation.
Public use facility--Public schools, hospitals, public nursing homes/elder care facilities and apartment buildings with greater than four dwelling units.
VAO--Voluntary agricultural operation--
(i) Any operation that voluntarily agrees to meet the requirements of this subchapter even though it is not otherwise required under the act or this chapter to submit an odor management plan.
(ii) The term includes agricultural operations applying for financial assistance under the act.
§ 83.702. Scope.
This subchapter specifies the criteria and requirements for:
(1) Odor management planning required under the act for certain facilities at CAOs and CAFOs.
(2) Voluntary odor management plans developed for VAOs and facilities not required to submit a plan under this subchapter, that are submitted to the Commission or delegated conservation district for approval under the act.
(3) The construction, location and operation of animal housing facilities and animal manure management facilities, and the expansion of existing facilities, as part of a plan developed under the act.
(4) The awarding of financial assistance under the act for the development and implementation of odor management plans for existing agricultural operations.
§ 83.703. Purpose.
The purposes of this subchapter are as follows:
(1) To provide for the management of odors generated only from animal housing facilities and manure management facilities on certain CAOs and CAFOs, considering the following:
(i) Site-specific factors.
(ii) Reasonably available technology, practices, standards and strategies.
(iii) The practical and economic feasibility of installation and operation of the technology, practices, standards and strategies.
(iv) The potential impacts from the facilities that may lead to conflicts between the agricultural operation and neighbors, arising from the offsite migration of the odors.
(2) To apply scientific information on odor management that is current at the time of plan approval, using the factors in paragraph (1), and recognizing the limitations of that scientific information and the subjective nature of identifying and managing odor impacts from agriculture.
(3) Odor management plans are intended to address the potential for impacts from the offsite migration of odors associated with agricultural operations. The plans are not required to completely eliminate the potential for impacts from the offsite migration of odors associated with agricultural operations.
(4) To encourage the management of odors generated from any VAOs and facilities, not required to submit a plan under this subchapter, consistent with paragraphs (1)--(3).
§ 83.704. Relation to Subchapter D (relating to nutrient management regulations).
This subchapter may not be construed as modifying, rescinding or superseding applicable manure management requirements for water quality protection contained in Subchapter D (relating to nutrient management).
§ 83.705. Preemption of local ordinances.
(a) The act and this subchapter are of Statewide concern and occupy the whole field of regulation regarding odor management to the exclusion of all local regulations.
(b) No ordinance or regulation of a political subdivision or home rule municipality may regulate the management of odors generated from animal housing or manure management facilities regulated by this chapter if the municipal ordinance or regulation is in conflict with this chapter and the regulations or guidelines promulgated under it.
(c) Nothing in the act or this subchapter prevents a political subdivision or home rule municipality from adopting and enforcing ordinances or regulations which are consistent with and no more stringent than the requirements of the act and this subchapter.
(d) A penalty may not be assessed under any valid local ordinance or regulation for any violation for which a penalty has been assessed under the act or this subchapter.
§ 83.706. Limitation of liability.
If an operator for an agricultural operation is fully and properly implementing and maintaining an odor management plan approved by the Commission or a delegated county conservation district under the act and this subchapter, the implementation shall be given appropriate consideration as a mitigating factor in any civil action for penalties or damages alleged to have been caused by the odor impacts.
§ 83.707. Compliance assistance and enforcement.
(a) The Department of Agriculture will assist the Commission in developing programs to assist those engaged in production agriculture to comply with the act and this subchapter.
(b) The Department of Agriculture will act as an ombudsman to help resolve issues related to county conservation district implementation of the act and this subchapter for those conservation districts delegated odor management program responsibilities under § 83.731 (relating to delegation to local agencies).
(c) The Commission will be responsible for taking enforcement actions under the act and this subchapter. In the exercise of its enforcement authority, the Commission will be assisted by the staff of the Departments of Agriculture and Environmental Protection.
FINANCIAL ASSISTANCE FOR PLAN DEVELOPMENT
§ 83.711. Applicant eligibility.
(a) An existing agricultural operation subject to this subchapter under § 83.741(b) (relating to general), as of ______ (Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.), may apply for funding for the development of an odor management plan.
(b) Only existing agricultural operations erecting or constructing of new or expanded animal housing facilities, or the construction of new or expanded manure management facilities, as of ______ (Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.), are eligible to receive funding under this program.
FINANCIAL ASSISTANCE FOR PLAN IMPLEMENTATION
§ 83.721. Applicant eligibility.
An owner of an agricultural operation existing as of ______ (Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.), may apply for financial assistance for the implementation of odor management plans developed under the act only when the Commission requires construction of a manure management facility as part of the nutrient management program requirements, as determined under Subchapter D (relating to nutrient management). The owner shall have legal and financial responsibility for the agricultural operation during the term of the financial assistance provided by the Commission.
DELEGATION TO LOCAL AGENCIES
§ 83.731. Delegation to local agencies.
(a) The Commission may by written agreement delegate to a conservation district one or more of its administrative or enforcement authorities under the act.
(b) The delegation of administrative or enforcement authority may be made to a conservation district when the district demonstrates it has or will have an adequate program and sufficient resources to accept and implement the delegation.
(c) To the extent delegated by the agreement, the delegations may include the authority to enforce the act and this subchapter and to exercise other powers and duties otherwise vested in the Commission to implement the act.
(d) A delegation agreement will:
(1) Specify the powers and duties to be performed by the delegated district.
(2) Provide for the commitment of sufficient trained staff and resources to perform the powers and duties to be delegated.
(3) Require the delegated conservation district to maintain records of activities performed under the delegation
ODOR MANAGEMENT PLANS
§ 83.741. General.
(a) Odor management plans submitted under this subchapter must meet the requirements in §§ 83.741, 83.742, 83.751, 83.761, 83.762, 83.771 and 83.781--83.783.
(b) Applicability. Agricultural operations that meet the criteria of paragraphs (1) and (2) shall develop and implement an odor management plan:
(1) Types of operations. Operations that meet one of the following:
(i) CAOs and CAFOs existing as of ______ (Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.).
(ii) Agricultural operations existing on ______ (Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.) which, because of an increase, resulting from expansion or construction, in the number of animals maintained at the operation, will become regulated as either a CAO or CAFO.
(iii) New agricultural operations after ______ (Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.) which will be regulated as either a CAO or CAFO.
(2) Types of activities. Operations that meet one of the following:
(i) Erecting or constructing a new animal housing facility or a new manure management facility after ______ (Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.).
(ii) Erecting or constructing an expansion of an animal housing facility or a manure management facility after ______ (Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.).
(c) Transition. Agricultural operations that initiate facility construction prior to ______ (Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.), are not required to develop and implement an odor management plan.
(d) Scope of plan.
(1) The odor management plan for activities under subsection (b)(2)(i) are only required to be developed and implemented with respect to the new facility.
(2) The odor management plan for activities under subsection (b)(2)(ii) are only required to be developed and implemented with respect to the newly erected or newly constructed portion of the facility.
(e) Schedule to obtain plan approval. Operations required to have an odor management plan under this subchapter shall obtain approval of their odor management plan prior to the commencement of construction of new or expanded facilities.
(f) Implementation of plans.
(1) Operations required to have an odor management plan under this subchapter shall fully implement the approved plan prior to commencing use of the new or expanded animal housing facility and manure management facility.
(2) A plan is considered fully implemented when the Odor BMPs in the plan are being implemented in compliance with the schedule of Odor BMPs.
(g) Voluntary plans. An agricultural operation which is not required to comply with this subchapter may voluntarily submit a plan any time after ______ (Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.).
(h) Qualifications. Plans shall be developed by odor management specialists certified in accordance with the Department of Agriculture's proposed odor management certification requirements which will appear in 7 Pa. Code Chapter 130f (relating to odor management certification) upon final rulemaking by the Department of Agriculture. The specialists shall certify that the plans are in accordance with the act and this subchapter.
(i) Signature requirements. Plans shall be signed by the operator of the agricultural operation indicating concurrence with the information in the plan and acceptance of responsibilities under the plan. The following signature requirements apply:
(i) For sole proprietorships, the proprietor.
(ii) For partnerships, a general partner.
(iii) For corporations, a vice president, president or authorized representative. The plan must contain an attachment executed by the secretary of the corporation which states that the person signing on behalf of the corporation is authorized to do so.
(j) Penalties. Operators and odor management specialists who sign plans may be subject to penalties for any false information contained in the plans.
§ 83.742. Identification of construction activities.
(a) Animal housing facilities. The following are not considered to be construction activities requiring the development of an odor management plan under this subchapter:
(1) Replacement of existing equipment at an existing animal housing facility.
(2) Replacement of an existing animal housing facility in existence as of ______ (Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.) that has been destroyed under circumstances beyond the operator's control.
(b) Manure management facilities. The following are not considered to be construction activities requiring the development of an odor management plan under this subchapter:
(1) Improving storage integrity with less than or equal to a 15% increase in storage volume.
(2) Adding treatment technology, such as solids separation and composting, and their associated facilities, to agricultural operations in existence as of ______ (Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.) provided that the treatment technology is designed, constructed and operated consistent with the Commission's current ''Odor Management Guidance.''
CONTENT REQUIREMENTS FOR ALL PLANS
§ 83.751. Content of plans.
(a) A plan must follow the standardized plan format provided by the Commission, unless otherwise approved by the Commission.
(b) The operator shall be involved in the development of the plan.
(c) The Odor BMPs listed in the plan must be consistent with the management practices listed in other relevant plans, such as the nutrient management plan developed for the operation, unless otherwise approved by the Commission or delegated conservation district.
PLAN SUMMARY INFORMATION
§ 83.761. Identification of agricultural operations and regulated facilities.
(a) Agricultural operation identification sheet. The plan must include an agricultural operation identification sheet that contains the following information:
(1) The operator name, address and telephone number, and the address for the regulated facilities if that address is different from the operator's address.
(2) A description of the operation for both the existing and proposed facilities, clearly indicating the regulated facilities or portions thereof, or both, identifying how the odor will be addressed through the plan, including the following:
(i) Animal types and numbers included on the agricultural operation.
(ii) Types of structures proposed.
(iii) Land use of the surrounding area.
(3) The signatures and documentation as required by § 83.741 (relating to general).
(4) The counties and municipalities where land included in the plan is located.
(5) The name, odor management certification program identification number and signature of the odor management specialist that prepared the plan and the date of plan preparation.
(b) Maps. The plan must include a topographic map drawn to scale identifying the lands where the facilities that are addressed in the plan are located. The plan must clearly identify the following:
(1) The location and boundaries of the agricultural operation.
(2) The location of the neighboring homes, businesses, churches and public use facilities in the evaluation distances as determined by § 83.771(b)(3) (relating to managing odors).
(3) Land use of the surrounding area.
(4) Local topography.
(5) Direction of the prevailing winds.
(6) The location of proposed and existing animal housing and manure management facilities.
§ 83.762. Operator commitment statement.
The plan must include a statement, signed by the operator, committing to the following:
(1) Implementation of the Odor BMPs.
(2) Maintaining the Odor BMPs consistent with the operation and maintenance criteria contained in the plan.
(3) Keeping records, as described in the plan, and to allow access by the Commission or delegated conservation district to the records needed to determine compliance status.
(4) Allowing access to the agricultural operation by the Commission or delegated conservation district needed for status reviews and inspections for complaints.
(5) Providing operator's biosecurity protocols to the Commission or a delegated conservation district, if requested.
§ 83.771. Managing odors.
(a) General. Odor management plans must address the offsite migration of odors generated from facilities, as described in subsections (b) and (c). Odor management plans are intended to address the potential for impacts from the offsite migration of odors associated with agricultural operations. The plans are not required to completely eliminate the potential for impacts from the offsite migration of odors associated with agricultural operations.
(b) Evaluation. The plans must include an evaluation of the potential offsite migration of odors according to the following:
(1) The evaluation must address proximity to adjoining landowners, land use of the surrounding area, type of structures proposed, species of animals, local topography and direction of the prevailing winds.
(2) The evaluation need only consider the adjoining landowners and approved land use of the surrounding area, existing at the time of the submission of the plan.
(3) The number of AEUs on the agricultural operation may be used as the primary factor in determining the evaluation distance.
(4) The geographic center of a facility may be used when considering proximity to neighboring homes, businesses, churches and public use facilities.
(5) The criteria and procedures in the current ''Odor Management Guidance'' (Guidance) issued by the Commission, and in effect at the time of plan submission, may be used to comply with this paragraph, including the use of an Odor Site Index contained in the Guidance. If the criteria and procedures in the Guidance issued by the Commission are not followed, an alternative method must be approved by the Commission.
(c) Odor BMPs. Based on the evaluation in subsection (b), the plan must include Odor BMPs that are necessary, if any, to address the potential for offsite migration of odors to meet the purposes of this subchapter, and as described in § 83.781 (relating to identification of Odor BMPs).
(d) Time period to implement. If use of the new or expanded facility does not commence within 3 years of the date of plan approval, a new plan shall be submitted.
§ 83.781. Identification of Odor BMPs.
(a) General. A plan must identify all existing and planned Odor BMPs used to address the potential for impacts from the offsite migration of odors generated from the facilities covered by the plan.
(b) Odor BMPs. Odor BMPs are only required if they are necessary to address the potential for impacts from the offsite migration of odors, and installation and operation of the BMPs are feasible from a practical and economic perspective.
(c) Level of Odor BMPs.
(1) Based on the evaluation in § 83.771(b) (relating to managing odors), and the criteria in subsection (b), determine the Odor BMPs which need to be included in the plan, if any. If Odor BMPs are needed, the BMPs must meet one of the following levels:
(i) Level 1 Odor BMPs. Basic Odor BMPs that are applicable to the operation according to the species of animals and that manage odors by normal maintenance activities used in the industry in this Commonwealth.
(ii) Level 2 Odor BMPs. Specialized Odor BMPs that are applicable to the type of operation that are in addition to the Level 1 Odor BMPs, and that manage odors according to the purposes of this subchapter.
(2) The criteria and Odor BMPs contained in the current ''Odor Management Guidance'' issued by the Commission, and in effect at the time of plan submission, may be used to comply with this subsection. If the criteria and Odor BMPs contained in the current ''Odor Management Guidance'' issued by the Commission are not followed, an alternative method must be approved by the Commission.
(d) Description of Odor BMPs. The plan must list the Odor BMPs, their construction and implementation criteria, and their operation and maintenance requirements.
(e) Implementation of supplemental Odor BMPs. Supplemental Odor BMPs may be implemented in addition to the approved Odor BMPs in the plan, on a temporary or permanent basis, without approval by the Commission or a delegated conservation district.
(1) Plan updates to address operational changes of these supplemental Odor BMPs shall be:
(i) Retained at the operation.
(ii) Submitted to the Commission or delegated conservation district for inclusion in the approved odor management plan within 30 days after the end of the calendar year in which they are implemented.
(2) Inspection reports, as provided for in § 83.802(b) (relating to plan implementation), may be used as documentation for plan updates.
§ 83.782. Implementation schedule.
(a) Odor management plans must contain a schedule that identifies all Odor BMPs with the corresponding time frames that each Odor BMP will be implemented.
(b) Odor BMPs that involve planting of vegetation such as a shelterbelt are considered fully implemented if the planting satisfies the criteria in the odor management plan.
(c) Prior to utilizing a new or expanded facility that is required to implement an odor management plan under this subchapter, the operation must receive written approval from the Commission, or a delegated conservation district, confirming implementation of the plan.
(1) The operation shall provide the Commission, or a delegated conservation district, with written notification provided by certified mail, of the intent to utilize the facility.
(2) If the Commission, or a delegated conservation district, fails to act within 10 business days on the notification to utilize the facility, it will be deemed approved.
§ 83.783. Operation and maintenance schedule.
Odor management plans must contain a schedule that identifies all operation and maintenance procedures, and the time frames that the operation and maintenance procedures will be conducted.
RECORDKEEPING AND INFORMATIONAL REQUIREMENTS
§ 83.791. General recordkeeping requirements.
(a) Unless otherwise specified in the plan, records required under this subchapter are not required to be submitted to the Commission or delegated conservation district, but shall be retained by the agricultural operation for at least 3 years.
(b) Records required under this subchapter and the plan shall be maintained on forms provided by the Commission, unless otherwise allowed by the Commission.
§ 83.792. Recordkeeping relating to Odor BMPs.
(a) Plans must be supported by the information required in this section and §§ 83.781--83.783 (relating to odor BMPs).
(b) The agricultural operation shall keep and maintain accurate records of the Odor BMPs consistent with implementation and operation and maintenance schedules under §§ 83.781--83.783 (relating to Odor BMPs).
PLAN REVIEW AND IMPLEMENTATION
§ 83.801. Initial plan review and approval.
(a) Plans shall be submitted for initial review and approval to the Commission, or alternatively to delegated conservation districts, for agricultural operations located in counties delegated administrative authority under § 83.731 (relating to delegation to local agencies). A person performing the plan review shall be certified in accordance with the Department of Agriculture's proposed odor management certification requirements which will appear in 7 Pa. Code Chapter 130f (relating to odor management certification) upon final rulemaking by the Department of Agriculture.
(b) The Commission or a delegated conservation district will, within 10 days from the date of receipt of the plan, provide notice to the operator indicating whether all of the required plan elements have been received.
(c) The Commission or a delegated conservation district will approve or disapprove the plan or plan amendment within 90 days of receipt of a complete plan or plan amendment. The Commission or a delegated conservation district may confer with experts in odor management, such as those at Pennsylvania State University, Natural Resources Conservation Service, and with others having knowledge of the local community of the agricultural operation that is being evaluated. Upon request by the Commission or the agricultural operation, the Commission or delegated conservation district, prior to the Commission acting on the plan, shall request a recommendation on the plan from a technical committee appointed by the Nutrient Management Advisory Board.
(d) If the Commission or delegated conservation district does not act on the plan within the 90-day period, the agricultural operation that submitted the plan is authorized to implement the plan. The Commission or delegated conservation district will thereafter have another 90 days to complete review of the plan, beginning on the expiration of the initial 90-day review period. If the Commission or delegated conservation district fails to act within the second 90-day period, it will be deemed approved.
(e) The notice of determination to disapprove a plan will be provided in writing to the operator submitting the plan, and include an explanation specifically stating the reasons for disapproval. If a plan is disapproved, the operator submitting the plan for the first time shall have 90 days after receipt of the notice of disapproval to resubmit a revised plan.
(f) Approvals will be granted only for those plans that satisfy the requirements of this subchapter, and will be valid for a maximum of 3 years or until construction begins, whichever is sooner.
§ 83.802. Plan implementation.
(a) The plan shall be fully implemented in accordance with the implementation schedule included as part of the approved plan.
(b) Periodic inspections and review of the agricultural operation, the plan and the records will be conducted by the Commission or a delegated conservation district at least annually to determine the status of the operation's compliance and whether a plan amendment is required.
PLAN AMENDMENTS AND TRANSFERS
§ 83.811. Plan amendments.
(a) A plan amendment is required if the operation expects to make a significant change in any animal housing and manure management facilities subject to this subchapter, prior to those changes being implemented.
(b) Any of the following are be presumed to be a significant change in the operation which will require a plan amendment:
(1) An increase of equal to or greater than 25% in AEUs after the plan is approved.
(2) If calculations in the plan as originally submitted are in error, or if figures used in the plan are inconsistent with this subchapter, and adequate justification has not been given in writing for the inconsistency.
(3) If there is a change in the operational management system that is expected to result in an increase in the potential for offsite migration of odors under § 83.771 (relating to managing odors).
(c) Any operation which would be required to submit a plan amendment under subsection (b) may avoid that requirement if it can demonstrate that there will not be an increase in the potential for offsite migration of odors under § 83.771.
(d) A plan amendment under subsection (a) shall be developed and certified by an odor management specialist and be submitted to the Commission or delegated conservation district for approval under this subchapter.
§ 83.812. Plan transfers.
(a) An approved odor management plan may be transferred to a subsequent owner or operator of an agricultural operation by notification of the transfer to the Commission or a delegated conservation district, unless the transfer results in operational changes requiring a plan amendment under § 83.811 (relating to plan amendments).
(b) If the transfer of the approved plan results in operational changes requiring a plan amendment under § 83.811, the plan amendment shall be submitted for approval of the Commission or a delegated conservation district along with, or before, the notification required under subsection (a).
[Pa.B. Doc. No. 07-1614. Filed for public inspection August 31, 2007, 9:00 a.m.]
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