PRINTER'S NO. 2075
No. 1646 Session of 2005
INTRODUCED BY HERSHEY, DALEY, BASTIAN, SOLOBAY, ALLEN,
ARMSTRONG, BARRAR, BEBKO-JONES, BENNINGHOFF, BLACKWELL, BOYD,
CALTAGIRONE, CAPPELLI, CAUSER, CAWLEY, CLYMER, COHEN,
CORRIGAN, DALLY, DeLUCA, DENLINGER, J. EVANS, FLEAGLE,
FORCIER, GEIST, GERGELY, GINGRICH, HALUSKA, HARRIS,
HICKERNELL, HUTCHINSON, JAMES, LaGROTTA, LEH, LESCOVITZ,
MANN, MARKOSEK, McGEEHAN, McGILL, R. MILLER, MUSTIO, MYERS,
OLIVER, PAYNE, PETRONE, PRESTON, PYLE, RAPP, REICHLEY,
RIEGER, SAINATO, SAYLOR, SEMMEL, STABACK, WANSACZ, WATERS,
WHEATLEY, WILLIAMS, WILT, WOJNAROSKI, YOUNGBLOOD AND ZUG,
JUNE 7, 2005
REFERRED TO COMMITTEE ON AGRICULTURE AND RURAL AFFAIRS,
JUNE 7, 2005
AN ACT
1 Amending Title 3 (Agriculture) of the Pennsylvania Consolidated
2 Statutes, establishing the Office of Ordinance Review and the
3 Agricultural Review Board; consolidating the Nutrient
4 Management Act; further providing for scope, for legislative
5 purpose, for definitions and for administration; providing
6 for manure application; further providing for nutrient
7 management and odor management certification; providing for
8 odor management plans; further providing for the Nutrient
9 Management Advisory Board, for financial assistance, for
10 unlawful conduct, for civil penalties and for local
11 preemption; providing for other statutes and for regulations;
12 and making a related repeal.
13 The General Assembly of the Commonwealth of Pennsylvania
14 hereby enacts as follows:
15 Section 1. Title 3 of the Pennsylvania Consolidated Statutes
16 is amended by adding chapters to read:
17 CHAPTER 3
18 AGRICULTURAL REVIEW BOARD
1 Subchapter
2 A. Preliminary Provisions
3 B. Ordinance Review
4 C. Miscellaneous Provisions
5 SUBCHAPTER A
6 PRELIMINARY PROVISIONS
7 Sec.
8 301. Definitions.
9 § 301. Definitions.
10 The following words and phrases when used in this chapter
11 shall have the meanings given to them in this section, unless
12 the context clearly indicates otherwise:
13 "Board." The Agricultural Review Board established in
14 section 312 (relating to board).
15 "Commission." The State Conservation Commission.
16 "Department." The Department of Agriculture of the
17 Commonwealth.
18 "Local government unit." A political subdivision or local
19 authority.
20 "Normal agricultural operation." As defined under section 2
21 of the act of June 10, 1982 (P.L.454, No.133), entitled "An act
22 protecting agricultural operations from nuisance suits and
23 ordinances under certain circumstances."
24 "Office." The Office of Ordinance Review established in
25 section 313 (relating to office).
26 "Secretary." The Secretary of Agriculture of the
27 Commonwealth.
28 SUBCHAPTER B
29 ORDINANCE REVIEW
30 Sec.
20050H1646B2075 - 2 -
1 311. Prohibition.
2 312. Board.
3 313. Office.
4 314. Review of ordinances.
5 315. Action by office.
6 316. Board hearing.
7 317. Enforcement.
8 318. Advisory opinions.
9 § 311. Prohibition.
10 (a) Ordinance restrictions.--A local government unit may not
11 adopt an ordinance which does any of the following:
12 (1) Prohibits or limits a normal agricultural operation
13 unless the local government unit:
14 (i) has express or implied authority under State law
15 to adopt the ordinance; and
16 (ii) is not prohibited or preempted under State law
17 from adopting the ordinance.
18 (2) Restricts or limits the ownership structure of a
19 normal agricultural operation.
20 (b) Existing ordinances.--This chapter shall apply to
21 enforcement of ordinances existing upon the effective date of
22 this section and to the enactment or enforcement of local
23 ordinances enacted on or after the effective date of this
24 section.
25 (c) Construction.--Nothing in this section shall limit the
26 powers conferred upon local government units under State law.
27 § 312. Board.
28 (a) Establishment.--There is established within the
29 department the Agricultural Review Board.
30 (b) Membership.--The board shall consist of the following
20050H1646B2075 - 3 -
1 members:
2 (1) The Secretary or a designee, who shall serve as
3 Board chairman.
4 (2) The Secretary of Environmental Protection or a
5 designee.
6 (3) The Secretary of Community and Economic Development
7 or a designee.
8 (4) Two members appointed by the Governor with the
9 advice and consent of a majority of the members of the
10 Senate. One member shall be a dean or faculty member of a
11 college of agricultural sciences of a State-related
12 university who is knowledgeable in issues related to animal
13 agriculture.
14 (c) Terms.--
15 (1) A member under subsection (b)(1) through (3) shall
16 serve ex officio.
17 (2) Members under subsection (b)(4) shall serve two-year
18 terms. These members may be reappointed to successive terms
19 and shall serve until their successors are appointed and
20 qualified.
21 (d) Official action.--Official action must be by a majority
22 vote of the five members.
23 (e) Functions.--The board has the following powers and
24 duties:
25 (1) To administer this chapter.
26 (2) To conduct administrative hearings under section 316
27 (relating to board hearing). In all proceedings brought
28 pursuant to this chapter, the board shall have the power to
29 administer oaths, subpoena witnesses and compel the
30 production of documents in accordance with law.
20050H1646B2075 - 4 -
1 (3) To appoint such hearing examiners as the board deems
2 necessary to conduct the hearings required by this chapter.
3 (4) To review proposed administrative adjudications
4 prepared and recommended by hearing examiners.
5 (5) To issue a final administrative adjudication and
6 order in a hearing under section 316.
7 (6) To act as a resource of knowledge and expertise for
8 the department and provide general assistance as requested by
9 the secretary.
10 (f) Compensation.--Members of the board shall not receive
11 compensation for their services but shall be entitled to
12 reimbursement in accordance with Commonwealth regulations for
13 reasonable travel, lodging and other necessary expenses incurred
14 in the discharge of duties.
15 (g) Open proceedings.--Proceedings of the board shall be
16 conducted in accordance with the provisions of 65 Pa.C.S. Ch. 7
17 (relating to open meetings).
18 (h) Legal counsel.--The department shall provide the board
19 with legal assistance and representation. An attorney
20 representing the board may not advise or provide legal
21 assistance to the office.
22 Section 313. Office.
23 (a) Office established.--There is established within the
24 commission the Office of Ordinance Review. The office shall
25 perform the functions described in this chapter.
26 (b) Director and staff.--The chair of the commission shall
27 appoint the director of the office. The commission shall provide
28 technical, clerical and administrative staff and support
29 services for the office.
30 (c) Legal counsel.--The department shall provide the office
20050H1646B2075 - 5 -
1 with legal assistance and representation. An attorney
2 representing the office may not advise or provide legal
3 assistance to the board.
4 § 314. Review of ordinances.
5 (a) Application.--
6 (1) Any of the following may file with the office an
7 application seeking review of an ordinance purported to
8 violate section 311 (relating to prohibition):
9 (i) A local government unit.
10 (ii) A farm owner or operator, a landowner or
11 resident in the local government unit in which the
12 ordinance has been enacted.
13 (2) The application must be in writing and must include
14 the following information:
15 (i) The name and address of the applicant.
16 (ii) A copy of the ordinance.
17 (iii) Identification of specific concerns with
18 respect to which the review is sought.
19 (iv) Other information the office may require.
20 (3) The office shall begin accepting applications for
21 review 90 days following the effective date of this section.
22 (b) Notice.--Within 30 days of receiving an application, the
23 office shall do all of the following:
24 (1) Provide to the applicant, by regular mail, a written
25 notice of receipt of the application.
26 (2) Publish notice of receipt of the application in the
27 Pennsylvania Bulletin and in a newspaper of general
28 circulation within the appropriate local government unit.
29 (3) Provide, by certified mail, a copy of the
30 application to the local government unit in which the
20050H1646B2075 - 6 -
1 ordinance was enacted. This paragraph does not apply if the
2 applicant is the local government unit which enacted the
3 ordinance.
4 (c) Response to notice.--
5 (1) Any of the following may respond to the application:
6 (i) The local government unit which enacted the
7 ordinance.
8 (ii) Any farm owner or operator, landowner or
9 resident of the local government unit which enacted the
10 ordinance.
11 (2) The response must be made to the office in writing
12 and must address any issues the responder wishes the office
13 to consider that are relevant to the criteria established in
14 section 316(b) (relating to board hearing).
15 (3) The response must be received by the office within
16 30 days of publication under subsection (b)(2).
17 § 315. Action by office.
18 (a) Review.--Within 60 days of the deadline for receiving
19 responses under section 314(c)(3) (relating to review of
20 ordinances), the office shall complete a review of an
21 application received under section 314 to determine whether the
22 ordinance identified in the application violates the provisions
23 of section 311 (relating to prohibition). This review shall
24 include the subject ordinance, responses and any other relevant
25 supporting documentation submitted by an applicant or responder.
26 If the director of the office determines that a review cannot
27 reasonably be completed within 60 days, the period for review
28 may be extended for up to an additional 60 days, as the director
29 determines. However, delay in completing the review beyond the
30 additional period set by the director shall not affect the
20050H1646B2075 - 7 -
1 office's ability to issue an adjudication and order with respect
2 to the application.
3 (b) Adjudication and order.--When the office has concluded
4 the review described in subsection (a), it shall prepare an
5 adjudication and order with respect to the application. The
6 office shall consult with the Deputy Secretary for
7 Administration in the department, the Deputy Secretary for Water
8 Management at the Department of Environmental Protection and the
9 Executive Director of the Center for Local Government Services
10 in the Department of Community and Economic Development in the
11 preparation of an adjudication and order. Once issued, the
12 adjudication and order shall not be subject to review or
13 approval by either the commission or the Environmental Hearing
14 Board.
15 (c) Notice of adjudication and order.--
16 (1) The office shall serve the adjudication and order
17 described in subsection (b) upon the applicant and any person
18 who has filed a response under section 314(c).
19 (2) Service shall be by certified mail or personal
20 delivery. Notwithstanding this requirement, if a person does
21 not accept delivery of certified mail within 20 days of the
22 date it is mailed by the office to a mailing address provided
23 to the department by that person, the office may serve that
24 person by regular mail; and service shall be deemed to have
25 occurred ten days from the date the adjudication and order
26 are sent by regular mail.
27 (3) The office shall, along with the adjudication and
28 order, provide the recipient written notice:
29 (i) of the appeal rights described in subsection
30 (d); and
20050H1646B2075 - 8 -
1 (ii) that the adjudication and order shall become a
2 final adjudication and order if it is not so appealed.
3 (d) Appeal.--
4 (1) A person aggrieved by a decision of the office set
5 forth in an adjudication and order that wishes to appeal the
6 adjudication and order must do so by a written notice to the
7 office, requesting an administrative hearing before the
8 board. The notice must be received by the office within 20
9 days of service of the notice described in subsection (c).
10 The office shall forward a copy of the appeal notice to the
11 board.
12 (2) The written appeal notice must clearly identify the
13 person filing the appeal and the basis for the appeal.
14 § 316. Board hearing.
15 (a) Requirement.--Within 60 days of the receipt by the
16 office of an appeal notice under section 315(d) (relating to
17 action by office), the board shall convene an administrative
18 hearing on an application filed under section 314 (relating to
19 review of ordinances). If more than one appeal is filed, the
20 time period under this subsection shall commence upon receipt of
21 the last appeal. A hearing under this section shall be de novo.
22 (b) Scope.--At the hearing, the board shall review the
23 ordinance to determine whether it violates the provisions of
24 section 311 (relating to prohibition). The office shall
25 participate as a party at the hearing.
26 (c) Notice.--
27 (1) The board shall provide written notice of the date,
28 time and location of the hearing to:
29 (i) each person that filed an appeal notice under
30 section 315(d);
20050H1646B2075 - 9 -
1 (ii) the applicant;
2 (iii) each person that filed a response to the
3 application under section 314(c); and
4 (iv) the local government unit.
5 (2) The notice must be sent by regular mail and must be
6 mailed at least ten days before the date of the hearing.
7 (d) Adjudication.--Within 60 days of the hearing, the board
8 shall issue an adjudication and order. The board shall transmit
9 to the Pennsylvania Bulletin for publication notice that the
10 adjudication and order have been issued by the board and are
11 available from the board upon request.
12 (e) Administrative agency law.--This section is subject to 2
13 Pa.C.S. Ch. 5 Subch. A (relating to practice and procedure of
14 Commonwealth agencies) and Ch. 7 Subch A (relating to judicial
15 review of Commonwealth agency action).
16 (f) Right to appeal.--A person aggrieved by a decision of
17 the board may appeal the decision under 2 Pa.C.S. Ch. 7 Subch.
18 A. The department shall represent the board in an appeal. The
19 court may supplement the record if, upon motion from a party,
20 the court determines that the party was not able to develop an
21 adequate record before the board.
22 § 317. Enforcement.
23 (a) Cease and desist order.--If an adjudication under
24 section 315(d) (relating to action by office) or 316(d)
25 (relating to board hearing) is that an ordinance is in violation
26 of the provisions of section 311 (relating to prohibition), the
27 adjudicating body shall order the local government unit to cease
28 and desist enforcement of the ordinance.
29 (b) Noncompliance.--
30 (1) If a local government unit fails to comply with an
20050H1646B2075 - 10 -
1 order under subsection (a), the secretary shall request the
2 Attorney General to initiate appropriate legal action to
3 obtain compliance with the order. The request shall be made
4 within 30 days of the date the secretary becomes aware of the
5 noncompliance.
6 (2) Within 60 days of receipt of a request under
7 paragraph (1), the Attorney General shall initiate an action
8 in a court of competent jurisdiction to declare the ordinance
9 invalid.
10 § 318. Advisory opinions.
11 (a) Authorization.--A person authorized to make an
12 application under section 314(a)(1) (relating to review of
13 ordinances) may request the office to issue an advisory opinion
14 on a proposed ordinance in terms of compliance with the
15 provisions of section 311 (relating to prohibition).
16 (b) Form of request.--The request under subsection (a) shall
17 be in writing and in a form prescribed by the office and shall
18 include a copy of the proposed ordinance and any other relevant
19 documents or information.
20 (c) Content.--The advisory opinion may include suggestions
21 for modifications that would bring the proposed ordinance into
22 compliance with the provisions of section 311.
23 SUBCHAPTER C
24 MISCELLANEOUS PROVISIONS
25 Sec.
26 331. Other statutes not affected.
27 332. Commonwealth agencies.
28 333. Regulations.
29 § 331. Other statutes not affected.
30 This chapter shall not be construed to modify, rescind or
20050H1646B2075 - 11 -
1 supersede any other statute or to regulate biosolids. This
2 chapter shall be construed in pari materia with other statutes.
3 § 332. Commonwealth agencies.
4 Nothing in this chapter shall limit the powers and duties
5 conferred upon any Commonwealth agencies under statutes other
6 than this chapter.
7 § 333. Regulations.
8 (a) Authority.--The department is authorized to adopt
9 regulations to administer this chapter.
10 (b) Interim regulations.--Prior to the promulgation of
11 regulations under subsection (a), the department shall
12 promulgate interim regulations to administer this chapter.
13 Regulations under this subsection:
14 (1) are exempt from the act of July 31, 1968 (P.L.769,
15 No.240), referred to as the Commonwealth Documents Law;
16 (2) are exempt from the act of October 15, 1980
17 (P.L.950, No.164), known as the Commonwealth Attorneys Act;
18 (3) are exempt from the act of June 25, 1982 (P.L.633,
19 No.181), known as the Regulatory Review Act; and
20 (4) shall expire two years from the effective date of
21 this section.
22 CHAPTER 5
23 NUTRIENT MANAGEMENT AND ODOR MANAGEMENT
24 Sec.
25 501. Scope.
26 502. Declaration of legislative purpose.
27 503. Definitions.
28 504. Powers and duties of commission.
29 505. Powers and duties of Department of Environmental
30 Protection.
20050H1646B2075 - 12 -
1 506. Nutrient management plans.
2 507. Manure application setbacks and buffers.
3 508. Nutrient management certification program and odor
4 management certification program.
5 509. Odor management plans.
6 510. Nutrient Management Advisory Board.
7 511. Financial assistance.
8 512. Nutrient Management Fund.
9 513. Unlawful conduct.
10 514. Civil penalties and remedies.
11 515. Limitation of liability.
12 516. Enforcement authority; enforcement orders.
13 517. Appealable actions.
14 518. Powers reserved under existing laws.
15 519. Preemption of local ordinances.
16 520. Repeals.
17 521. Other statutes not affected.
18 522. Regulations.
19 § 501. Scope.
20 This chapter relates to nutrient management and odor
21 management.
22 § 502. Declaration of legislative purpose.
23 The purposes of this chapter are as follows:
24 (1) To establish criteria, nutrient management planning
25 requirements and an implementation schedule for the
26 application of nutrient management measures on certain
27 agricultural operations which generate or utilize animal
28 manure.
29 (2) To provide for the development of an educational
30 program by the State Conservation Commission in conjunction
20050H1646B2075 - 13 -
1 with the Cooperative Extension Service of The Pennsylvania
2 State University, the department and conservation districts
3 to provide outreach to the agricultural community on the
4 proper utilization and management of nutrients on farms to
5 prevent the pollution of surface water and ground water.
6 (3) To require the State Conservation Commission, in
7 conjunction with the Cooperative Extension Service of The
8 Pennsylvania State University, the Department of
9 Environmental Protection, the department and the Nutrient
10 Management Advisory Board to develop and provide technical
11 and financial assistance for nutrient management and
12 alternative uses of animal manure, including a manure
13 marketing and distribution program.
14 (4) To require the Department of Environmental
15 Protection to assess the extent of nonpoint source pollution
16 from other nutrient sources, determine the adequacy of
17 existing authority and programs to manage those sources and
18 make recommendations to provide for the abatement of that
19 pollution.
20 (5) To require the State Conservation Commission, in
21 conjunction with the Nutrient Management Advisory Board, to
22 develop and administer a regulatory program requiring odor
23 management plans addressing new and expanded animal housing
24 facilities and manure management facilities at concentrated
25 animal operations and concentrated animal feeding operations
26 after July 19, 1993, and to encourage the voluntary
27 implementation of odor management plans for other
28 agricultural operations.
29 § 503. Definitions.
30 The following words and phrases when used in this chapter
20050H1646B2075 - 14 -
1 shall have the meanings given to them in this section unless the
2 context clearly indicates otherwise:
3 "AEU." Animal equivalent unit.
4 "AEU per acre." An animal equivalent unit per acre of crop
5 land or acre of land suitable for application of animal manure.
6 "Agricultural operations." The management and use of farming
7 resources for the production of crops, livestock or poultry.
8 "Animal equivalent unit." One thousand pounds live weight of
9 livestock or poultry animals, regardless of the actual number of
10 individual animals comprising the unit.
11 "Animal housing facility." A roofed structure or facility,
12 or any portion thereof, used for occupation by livestock or
13 poultry.
14 "Best management practice" or "BMP." A practice or
15 combination of practices determined by the commission to be
16 effective and practicable (given technological, economic and
17 institutional considerations) to manage nutrients to protect
18 surface and ground water taking into account applicable nutrient
19 requirements for crop utilization. The term includes, but is not
20 limited to:
21 (1) Conservation tillage.
22 (2) Crop rotation.
23 (3) Soil testing.
24 (4) Manure testing.
25 (5) Diversions.
26 (6) Manure storage facilities.
27 (7) Storm water management practices.
28 (8) Nutrient application.
29 "Board." The Nutrient Management Advisory Board created by
30 section 510 (relating to Nutrient Management Advisory Board).
20050H1646B2075 - 15 -
1 "Commission." The State Conservation Commission established
2 by the act of May 15, 1945 (P.L.547, No.217), known as the
3 Conservation District Law.
4 "Concentrated animal feeding operation." An agricultural
5 operation that meets the criteria established by the Department
6 of Environmental Protection under authority of the act of June
7 22, 1937 (P.L.1987, No.394), known as The Clean Streams Law.
8 "Concentrated animal operation." Agricultural operations
9 meeting the criteria established under this chapter.
10 "Conservation district." Any county conservation district
11 established under the act of May 15, 1945 (P.L.547, No.217),
12 known as the Conservation District Law.
13 "Cooperative extension." The Cooperative Extension Service
14 of The Pennsylvania State University.
15 "Department." The Department of Agriculture of the
16 Commonwealth.
17 "Fund." The Nutrient Management Fund.
18 "Manure management facility." A manure storage facility,
19 including a permanent structure or facility, or a portion of a
20 structure or facility, utilized for the primary purpose of
21 containing manure. The term includes liquid manure structures,
22 manure storage ponds, component reception pits and transfer
23 pipes, containment structures built under a confinement
24 building, permanent stacking and composting facilities and
25 manure treatment facilities. The term does not include the
26 animal confinement areas of poultry houses, horse stalls, free
27 stall barns or bedded pack animal housing systems.
28 "Nutrient." A substance or recognized plant nutrient,
29 element or compound which is used or sold for its plant
30 nutritive content or its claimed nutritive value. The term
20050H1646B2075 - 16 -
1 includes, but is not limited to, livestock and poultry manures,
2 compost as fertilizer, commercially manufactured chemical
3 fertilizers, sewage sludge or combinations thereof.
4 "Nutrient management plan." A written site-specific plan
5 which incorporates best management practices to manage the use
6 of plant nutrients for crop production and water quality
7 protection consistent with the criteria established in sections
8 504 (relating to powers and duties of commission) and 506
9 (relating to nutrient management plans).
10 "Nutrient management specialist." A person satisfying the
11 certification requirements of section 508 (relating to nutrient
12 management certification program and odor management
13 certification program).
14 "Odor management plan." A written site-specific plan
15 identifying the practices, technologies, standards and
16 strategies to be implemented to manage the impact of odors
17 generated from animal housing or manure management facilities
18 located or to be located on the site.
19 § 504. Powers and duties of commission.
20 The commission shall have the following powers and duties:
21 (1) Before July 19, 1995, and periodically thereafter,
22 to promulgate regulations, in consultation with the
23 department, the Department of Environmental Protection and
24 the board, establishing minimum criteria for nutrient
25 management plans developed in accordance with section 506
26 (relating to nutrient management plans) and other regulatory
27 requirements to implement this chapter. In establishing such
28 criteria, the commission shall consult the Manure Management
29 for Environmental Protection Manual of the Department of
30 Environmental Protection, the Pennsylvania Agronomy Guide,
20050H1646B2075 - 17 -
1 published by The Pennsylvania State University, and the
2 Pennsylvania Technical Guide for Soil and Water Conservation,
3 published by the United States Department of Agriculture's
4 Soil Conservation Service. The criteria to be established
5 pursuant to this section shall include the following:
6 (i) An identification of nutrients as defined by
7 this chapter. Unless otherwise appropriate pursuant to
8 specific criteria which shall be established by the
9 commission, there shall be a presumption that nitrogen is
10 the nutrient of primary concern.
11 (ii) The establishment of procedures to determine
12 proper application rates of nutrients to be applied to
13 land based on conditions of soil and levels of existing
14 nutrients in the soil and the type of agricultural,
15 horticultural or floricultural production to be conducted
16 on the land.
17 (iii) An identification of best management practices
18 to be utilized for proper nutrient management.
19 (iv) The establishment of recordkeeping requirements
20 related to land application and distribution of
21 nutrients.
22 (v) The establishment of minimum standards of
23 construction, location, storage capacity and operation of
24 facilities intended to be used for storage of animal
25 manure.
26 (vi) The establishment of conditions under which
27 amendments to nutrient management plans are required to
28 be made after initial development or filing.
29 (vii) The establishment of special criteria which
30 may be utilized for manure handling in emergency
20050H1646B2075 - 18 -
1 situations where there is an outbreak of a contagious
2 disease.
3 (viii) The establishment of conditions under which
4 changes due to unforeseen circumstances render the plan
5 amendment process set forth in section 506(e)
6 impracticable. Where such conditions exist, the owner or
7 operator of an agricultural operation shall follow the
8 procedures set forth in section 506(f).
9 (1.1) Within two years following the effective date of
10 this section, and periodically thereafter, to promulgate
11 regulations, in consultation with the department, the
12 Department of Environmental Protection and the board,
13 establishing practices, technologies, standards, strategies
14 and other requirements for odor management plans developed
15 in accordance with section 509 (relating to odor management
16 plans). The commission shall consider the following in
17 promulgating the regulations under this paragraph:
18 (i) Site-specific factors such as proximity to
19 adjoining landowners, land use of the surrounding area,
20 type of structures proposed, species of animals, local
21 topography and direction of the prevailing winds.
22 (ii) Reasonably available technology, practices,
23 standards and strategies to manage odor impacts,
24 considering both the practical and economic feasibility
25 of installation and operation and the potential impacts
26 from the facilities. Only those technologies, practices,
27 standards and strategies that are necessary to address
28 the off-site impacts of odors associated with these new
29 facilities will be required to be included in the odor
30 management plans.
20050H1646B2075 - 19 -
1 (2) Prior to the adoption of regulations under paragraph
2 (1.1), to establish interim guidelines for the operations
3 identified in section 509.
4 (3) To continually evaluate emerging practices, methods
5 and technology for utilization as best management practices
6 and to so identify the practices, where appropriate, pursuant
7 to paragraph (1)(iii).
8 (4) Beginning October 1, 2002, to evaluate the criteria
9 for concentrated animal operations in this Commonwealth and
10 to make appropriate changes in those criteria by regulation.
11 Any such regulatory change related to concentrated animal
12 operations shall require a two-thirds majority vote of the
13 commission.
14 (5) Prior to the adoption of regulations under paragraph
15 (1), to recommend, in consultation with the Department of
16 Environmental Protection, the department and the board,
17 interim criteria for the sole purpose of facilitating the
18 initial development of the nutrient management certification
19 program established by this chapter.
20 (6) Before July 19, 1995, to develop and implement, in
21 cooperation with the department, the board, the Cooperative
22 Extension Service and conservation districts, a program to
23 provide education and technical assistance to the
24 agricultural community and, to the extent funds are
25 available, to provide financial assistance to existing
26 agricultural operations for implementation of proper methods,
27 practices, facilities and techniques for the utilization and
28 management of nutrients on the farm to prevent the pollution
29 of groundwater and surface water.
30 (7) To consult with the board as provided in section 510
20050H1646B2075 - 20 -
1 (relating to Nutrient Management Advisory Board).
2 (8) To issue orders and take actions as are necessary to
3 administer and enforce this chapter.
4 (9) To delegate administration or enforcement authority,
5 or both, under this chapter to county conservation districts
6 that have an adequate program and sufficient resources to
7 accept and implement this delegation.
8 § 505. Powers and duties of Department of Environmental
9 Protection.
10 The Department of Environmental Protection shall have the
11 following powers and duties:
12 (1) Before July 19, 1994, to make an assessment of and
13 report to the Environmental Quality Board and the General
14 Assembly on the extent to which malfunctioning on-lot sewage
15 systems contribute to the pollution of waters of this
16 Commonwealth and to identify what regulatory or legislative
17 initiatives, if any, the Department of Environmental
18 Protection deems necessary to abate that pollution.
19 (2) Before July 19, 1994, to make an assessment of and
20 report to the Environmental Quality Board and the General
21 Assembly on the extent to which improper water well
22 construction contributes to groundwater pollution due to the
23 intrusion of nutrients from the surface and to identify what
24 regulatory or legislative initiatives, if any, the Department
25 of Environmental Protection deems necessary to abate that
26 pollution.
27 (3) Before July 19, 1995, to make an assessment of and
28 report to the Environmental Quality Board and the General
29 Assembly on the extent to which the application of chemical
30 fertilizers and other plant nutrients for nonagricultural
20050H1646B2075 - 21 -
1 purposes contributes to the pollution of the waters of this
2 Commonwealth and to identify what regulatory or legislative
3 initiatives, if any, the Department of Environmental
4 Protection deems necessary to abate that pollution.
5 (4) Before July 19, 1995, to make an assessment of and
6 report to the Environmental Quality Board and the General
7 Assembly on the extent to which nutrients from storm water
8 runoff contribute to the pollution of waters of this
9 Commonwealth and to identify what regulatory or legislative
10 initiatives, if any, the Department of Environmental
11 Protection deems necessary to abate that pollution.
12 (5) Before July 19, 1995, to make an assessment of and
13 report to the Environmental Quality Board and the General
14 Assembly on the extent to which atmospheric deposition of
15 nutrients contribute to the pollution of the waters of this
16 Commonwealth and to identify what regulatory or legislative
17 initiatives, if any, the Department of Environmental
18 Protection deems necessary to abate that pollution.
19 (6) To include in the assessments in paragraphs (1)
20 through (5), recommendations to the General Assembly for
21 budgetary and legislative initiatives where program resources
22 or statutory authority is not adequate to address pollution
23 sources identified in those assessments.
24 (7) To provide technical and administrative assistance
25 to the commission in carrying out its responsibilities under
26 this chapter.
27 § 506. Nutrient management plans.
28 (a) Concentrated animal operations.--Concentrated animal
29 operations are those agricultural operations where the animal
30 density exceeds two AEU's per acre on an annualized basis.
20050H1646B2075 - 22 -
1 Beginning October 1, 2002, the commission, in consultation with
2 the department, the board, the Department of Environmental
3 Protection and the Cooperative Extension Service shall review
4 the criteria used to identify concentrated animal operations and
5 make appropriate changes to the definition of concentrated
6 animal operations by regulation.
7 (b) Development of nutrient management plans.--The operator
8 of any concentrated animal operation shall develop and implement
9 a nutrient management plan consistent with the requirements of
10 this section.
11 (c) Certification of plans.--All plans and plan amendments
12 shall be developed by nutrient management specialists who shall
13 certify that the plans are in accordance with the requirements
14 of this chapter and the regulations promulgated under this
15 chapter.
16 (d) Review procedure.--Nutrient management plans required by
17 this section shall be submitted for review in accordance with
18 the following schedule:
19 (1) For a concentrated animal operation in existence on
20 October 1, 1997, by October 1, 1998.
21 (2) For a concentrated animal operation which comes into
22 existence after October 1, 1997, by the later of:
23 (i) January 1, 1998; or
24 (ii) commencement of operations.
25 (3) For an agricultural operation which, because of
26 expansion, meets the criteria for a concentrated animal
27 operation, within three months after the date of expansion.
28 (e) Plan review and approval.--Plans or plan amendments
29 required under this chapter shall be submitted to local
30 conservation districts for review and approval or alternatively
20050H1646B2075 - 23 -
1 to the commission for agricultural operations located in
2 counties not delegated administrative authority under section
3 504 (relating to powers and duties of commission). Any person
4 performing the plan review must be certified in accordance with
5 section 508 (relating to nutrient management certification
6 program and odor management certification program). Within 90
7 days of receipt of a nutrient management plan or plan amendment,
8 the reviewing agency shall either approve, modify or disapprove
9 the plan or plan amendment. Approvals shall only be granted for
10 those plans or plan amendments which satisfy the requirements of
11 this chapter and the regulations promulgated under this chapter.
12 Notice of determination to approve, modify or disapprove a plan
13 or plan amendment shall be provided in writing to the person
14 submitting same. Notice of a determination to modify or
15 disapprove shall include an explanation specifically stating the
16 reasons for modification or disapproval. If a plan or plan
17 amendment is disapproved, the person submitting a plan or plan
18 amendment for the first time shall have 90 days after receipt of
19 notice of disapproval to resubmit a revised plan or plan
20 amendment. An agricultural operation that submits a complete
21 plan or plan amendment is authorized to implement the same if
22 the reviewing agency fails to act within 90 days of submittal.
23 Where the reviewing agency fails to so act and the plan or plan
24 amendment is resubmitted and the reviewing agency again fails to
25 act within 90 days of resubmittal, it shall be deemed approved.
26 (f) Amendments due to unforeseen circumstances.--Amendments
27 to plans or to implementation of plans made after initial
28 development or filing which satisfy the criteria established
29 under section 504(1)(vii) shall be certified by a nutrient
30 management specialist prior to implementation and submitted to
20050H1646B2075 - 24 -
1 the district within 30 days of implementation.
2 (g) Implementation.--A person required to develop a nutrient
3 management plan pursuant to subsection (b) shall fully implement
4 such plan within three years of the date such plan is approved,
5 or is deemed approved, or for which implementation is otherwise
6 authorized pursuant to subsection (e), unless extended for cause
7 shown or by a plan amendment. The three-year implementation
8 schedule shall be extended an additional two years for
9 individual substantial capital improvements required under an
10 approved plan for an operation required to submit a plan under
11 subsection (d)(1) if:
12 (1) the owner or operator demonstrates that the cost of
13 all or part of the individual improvements for which the
14 extension is applicable cannot be financed through available
15 funding mechanisms; and
16 (2) a sum of $2,000,000 or more has not been
17 appropriated for grants and loans to the Nutrient Management
18 Fund created under section 512 (relating to Nutrient
19 Management Fund), above and beyond any Chesapeake Bay
20 nonpoint source pollution abatement moneys that may be
21 appropriated to the fund, before October 1, 1998.
22 (h) Voluntary plans.--Any agricultural operation which is
23 not a concentrated animal operation may voluntarily develop a
24 nutrient management plan and have it reviewed pursuant to this
25 section. To the extent possible, the commission, the Cooperative
26 Extension Service, the department, the Department of
27 Environmental Protection and conservation districts shall assist
28 and promote the development of voluntary plans.
29 (i) Financial assistance.--Any agricultural operation
30 receiving financial assistance under the Chesapeake Bay Nonpoint
20050H1646B2075 - 25 -
1 Source Pollution Abatement Program or otherwise receiving
2 financial assistance under this chapter for the development of a
3 nutrient management plan shall agree to develop and implement a
4 nutrient management plan as a condition for receiving this
5 financial assistance.
6 (j) Compliance plans.--Any agricultural operation found to
7 be in violation of the act of June 22, 1937 (P.L.1987, No.394),
8 known as The Clean Streams Law, may be required to submit a
9 nutrient management plan within three months of notification
10 thereof and implement the plan in order to prevent or abate such
11 pollution.
12 (k) Transferability of plans.--A plan approved under this
13 section shall be transferable to a subsequent owner of an
14 agricultural operation upon notification thereof to the
15 district, unless the transfer results in operational changes
16 requiring plan modification pursuant to the criteria established
17 under section 504(1)(vi).
18 (l) Construction of section.--The density criteria for
19 concentrated animal operations as identified in subsection (a)
20 or as it may be subsequently modified by the commission shall
21 only be utilized to identify those agricultural operations for
22 which the planning requirements of this section shall apply and
23 shall not be construed to prohibit the development or expansion
24 of agricultural operations meeting or exceeding such criteria.
25 § 507. Manure application setbacks and buffers.
26 (a) General rule.--Unless the commission establishes a
27 stricter requirement by regulation, no concentrated animal
28 operation, or other agricultural operation receiving manure from
29 a concentrated animal operation directly or indirectly through a
30 broker or other person, may mechanically land apply manure
20050H1646B2075 - 26 -
1 within 100 feet of surface water, unless a vegetated buffer no
2 less than 35 feet in width and meeting standards established by
3 the Natural Resources Conservation Service is used to prevent
4 manure runoff into the surface water.
5 (b) Definition.--As used in this section, the term "surface
6 water" means a perennial or intermittent stream with a defined
7 bed and bank, a lake or a pond.
8 § 508. Nutrient management certification program and odor
9 management certification program.
10 (a) Requirement.--The department shall establish, in
11 consultation with the commission, a nutrient management
12 certification program for the purpose of certifying individuals
13 who have demonstrated the competency necessary to develop
14 nutrient management plans and an odor management certification
15 program for the purpose of certifying individuals who have
16 demonstrated the competency necessary to develop odor management
17 plans. The department or its designee shall develop such written
18 testing procedures, educational requirements and examinations as
19 it deems appropriate to carry out its responsibilities under
20 this section. The department shall by regulation establish such
21 fees and terms and conditions of certification as it deems
22 appropriate. The department shall establish individual,
23 commercial and public certification categories, including a
24 certification category for farmers to develop and certify
25 nutrient management plans and odor management plans for their
26 own agricultural operations.
27 (b) Interim nutrient management certification program.--
28 Until the department develops and implements a nutrient
29 management certification program, persons having the following
30 qualifications shall, upon request, receive interim
20050H1646B2075 - 27 -
1 certification from the department.
2 (1) the person has at least two years' experience in the
3 development of nutrient management plans;
4 (2) the person is approved to develop nutrient
5 management plans approved under the Chesapeake Bay Nonpoint
6 Source Pollution Abatement Program, the United States
7 Department of Agriculture's Water Quality Improvement
8 Projects Program or other programs requiring submission and
9 approval of a nutrient management plan, including sludge
10 disposal under the act of July 7, 1980 (P.L.380, No.97),
11 known as the Solid Waste Management Act; or
12 (3) the person is a farmer who has been provided
13 training and assistance in developing and implementing
14 nutrient management plans.
15 (c) Nutrient management specialist.--A person shall not
16 certify a nutrient management plan or plan amendment unless that
17 person has first satisfied the requirements of this section.
18 (d) Odor management specialist.--A person shall not certify
19 an odor management plan or plan amendment unless that person has
20 first satisfied the applicable requirements of this section.
21 § 509. Odor management plans.
22 (a) Requirement.--
23 (1) The following operations shall develop and implement
24 an odor management plan as described in this chapter:
25 (i) Existing concentrated animal operations and
26 existing concentrated animal feeding operations, when
27 doing any of the following:
28 (A) Erecting or constructing a new animal
29 housing facility or a new manure management facility.
30 The odor management plan required by this paragraph
20050H1646B2075 - 28 -
1 shall be developed and implemented only with respect
2 to the new facility.
3 (B) Erecting or constructing an expansion of an
4 animal housing facility or a manure management
5 facility. The odor management plan required by this
6 paragraph shall be developed and implemented only
7 with respect to the newly erected or newly
8 constructed portion of the facility.
9 (ii) Existing agricultural operations which, because
10 of an increase, resulting from expansion or construction,
11 in the number of animals maintained at the operation,
12 will become regulated as either a concentrated animal
13 operation or a concentrated animal feeding operation. The
14 odor management plan required by this paragraph shall be
15 developed and implemented only with respect to the newly
16 expanded or newly constructed portion of the operation.
17 (iii) New agricultural operations which will be
18 regulated as either a concentrated animal operation or a
19 concentrated animal feeding operation.
20 (2) The operations described in paragraph (1)(i) and
21 (ii) shall obtain approval of their odor management plan
22 prior to the earlier of erection or construction of new or
23 expanded animal housing facilities or the construction of new
24 or expanded manure management facilities.
25 (b) Certification of plans.-- All odor management plans and
26 plan amendments shall be developed by odor management
27 specialists who shall certify that the plans are in accordance
28 with the requirements of the odor management regulations
29 promulgated under this chapter.
30 (c) Reviewing entities.--Odor management plans or plan
20050H1646B2075 - 29 -
1 amendments required by this section shall be submitted to the
2 commission for review and approval or, at the commission's
3 discretion, to the appropriate local conservation district for
4 review and approval.
5 (d) Plan review and approval.--Any person performing the
6 plan review must be certified in accordance with section 508
7 (relating to nutrient management certification program and odor
8 management certification program). Within 90 days of receipt of
9 an odor management plan or plan amendment, the reviewing agency
10 shall approve or disapprove the plan or plan amendment.
11 Approvals shall only be granted for those plans or plan
12 amendments which satisfy the requirements of the regulations
13 promulgated under this chapter. Notice of determination to
14 approve or disapprove a plan or plan amendment shall be provided
15 in writing to the person submitting same. Notice of a
16 determination to disapprove shall include an explanation
17 specifically stating the reasons for disapproval. If a plan or
18 plan amendment is disapproved, the person submitting a plan or
19 plan amendment for the first time shall have 90 days after
20 receipt of notice of disapproval to resubmit a revised plan or
21 plan amendment. An existing or proposed concentrated animal
22 operation or concentrated animal feeding operation that submits
23 a complete plan or plan amendment is authorized to implement the
24 same if the reviewing agency fails to act within 90 days of
25 submittal.
26 (e) Implementation.--A person required to have an odor
27 management plan under this section shall fully implement the
28 plan prior to commencing use of the new animal housing facility
29 or animal manure facility.
30 (f) Voluntary plans.-- Any agricultural operation which is
20050H1646B2075 - 30 -
1 not required to comply with subsection (a) may voluntarily
2 develop an odor management plan and have it reviewed pursuant to
3 this section. To the extent possible, the commission, the
4 Cooperative Extension Service, the department, the Department of
5 Environmental Protection and conservation districts shall assist
6 and promote the development of voluntary plans.
7 (g) Transferability of plans.--A plan approved under this
8 section shall be transferable to a subsequent owner of an
9 agricultural operation upon notification thereof to the
10 district, unless the transfer results in operational changes
11 requiring plan modification pursuant to the criteria established
12 in this section.
13 (h) Effectiveness of the section.--The requirements of this
14 section shall become mandatory 90 days following the effective
15 date of the regulations promulgated under section 504(1.1)
16 (relating to powers and duties of commission).
17 § 510. Nutrient Management Advisory Board.
18 (a) Creation.--There is created the Nutrient Management
19 Advisory Board. The board shall consist of 16 members appointed
20 by the chairman of the commission and approved by a two-thirds
21 vote of the commission. The members so appointed shall consist
22 of five active commercial farm owners or operators representing
23 the livestock, swine, meat poultry, egg poultry and dairy
24 industry nominated by Statewide general farm organizations, one
25 veterinary nutrition specialist, one representative from the
26 feed industry, one representative from the fertilizer industry,
27 one representative of commercial agricultural lenders, one
28 representative of local government, one representative of
29 academia who shall be an agronomist or plant scientist faculty
30 member of the school of agriculture of a Pennsylvania college or
20050H1646B2075 - 31 -
1 university, one representative of academia who shall be an
2 animal science faculty member with an expertise in odor
3 management from the school of agriculture of a college or
4 university within this Commonwealth, one hydrologist, two
5 citizen representatives who are not farmers and one
6 environmental representative, all of whom shall have sufficient
7 knowledge, experience or familiarity with agronomic practices,
8 nutrient management practices or odor management practices and
9 all of whom shall be residents of this Commonwealth.
10 (b) Compensation.--Board members shall not receive a salary
11 but shall be reimbursed for all reasonable and necessary
12 expenses incurred in the performance of their duties.
13 (c) Meetings.--A majority of the board shall constitute a
14 quorum. All actions of the board shall be by a majority vote.
15 The board shall meet upon the call of the commission, but not
16 less than semiannually, to carry out its duties under this
17 chapter. The board shall annually select a chairman and such
18 other officers as it deems appropriate.
19 (d) Duties.--The board shall review and comment on all
20 commission proposed regulations, the interim guidelines under
21 section 504(2) (relating to powers and duties of commission) and
22 the interim criteria under section 504(5) developed to implement
23 the provisions of this chapter. The commission shall have no
24 power to promulgate regulations, interim guidelines or interim
25 criteria under this chapter until receipt of written comments on
26 the proposed regulations, guidelines or criteria from the board
27 or until 60 days have expired from the date when the
28 regulations, guidelines or criteria were submitted by the
29 commission to the board for its comments. Existing regulations,
30 guidelines and criteria shall continue until modified,
20050H1646B2075 - 32 -
1 superseded or repealed by the commission.
2 (e) Term.--The term of office for each board member shall be
3 three years except that the commission shall stagger the initial
4 terms of the charter members such that five shall serve for one
5 year, five shall serve for two years and six shall serve for
6 three years. Board members may be appointed to successive terms
7 at the discretion of the commission, provided that no member may
8 serve more than two three-year terms.
9 § 511. Financial assistance.
10 (a) Loans, grants, etc.--The commission shall, to the extent
11 funds are available, provide financial assistance in the form of
12 loans, loan guarantees and grants for the implementation of
13 nutrient management plans and of odor management plans for
14 existing agricultural operations.
15 (b) Criteria for eligibility.--In reviewing applications for
16 financial assistance, the commission shall consider the
17 following:
18 (1) Whether the project will improve the health, safety
19 or environment of the people of this Commonwealth and
20 otherwise satisfy the purposes of this chapter.
21 (2) The cost-effectiveness of the proposed practices in
22 comparison with other alternatives.
23 (3) The applicant's ability to operate or maintain the
24 practices in a proper manner.
25 (c) Issuance and terms.--Subject to this section, the
26 commission shall issue loans and set terms applicable thereto in
27 any manner it deems appropriate. The commission may consider
28 such factors as it deems relevant, including current market
29 interest rates, the financial ability of the applicant to repay
30 and the necessity to maintain the funds created hereunder in a
20050H1646B2075 - 33 -
1 financially sound manner. Loans may be based on the ability to
2 repay from future revenue to be derived from the applicant's
3 agricultural operation, by a mortgage or other security
4 interest, or by any other fiscal manner which the commission
5 deems appropriate. The board shall have the power to defer
6 principal on loans for up to 12 months. The minimum rate of
7 interest to be paid on any loan made pursuant to this section
8 shall be 1%.
9 (d) Grants.--Grants shall be made available as follows:
10 (1) Where funds have been made available to the
11 commission, subject to any conditions that may have
12 accompanied the receipt of such funds.
13 (2) Where the commission, in its sole discretion,
14 determines that the financial condition of the recipient is
15 such that repayment of a loan is unlikely and that the
16 recipient will be financially distressed by the
17 implementation of practices without a grant.
18 (e) Grants and loans.--The commission shall, where it deems
19 it appropriate and to the extent financial circumstances permit,
20 mix grant funds with loan funds.
21 § 512. Nutrient Management Fund.
22 (a) Establishment of fund.--There is established a special
23 nonlapsing fund in the State Treasury to be known as the
24 Nutrient Management Fund. All fees, fines, judgments and
25 interest collected by the commission under this chapter shall be
26 paid into the fund. All money placed in the fund and the
27 interest it accrues are hereby appropriated to the commission on
28 a continuing basis for any activities necessary to meet the
29 requirements of this chapter.
30 (b) Supplements to fund.--The Nutrient Management Fund may
20050H1646B2075 - 34 -
1 be supplemented by moneys received from the following sources:
2 (1) State funds appropriated to the commission.
3 (2) Federal funds appropriated to the commission.
4 (3) Proceeds from the sale of any bonds made available
5 to the commission.
6 (4) Repayment of loan principal.
7 (5) Payment on interest loans made by the commission.
8 (6) Gifts and other contributions from public and
9 private sources.
10 (c) Fund administration.--The commission shall have
11 authority to adopt procedures for the use of moneys in the fund,
12 including the creation of accounts within the fund for the
13 purposes of administering the loan and grant programs authorized
14 by this chapter.
15 (d) Status of fund.--The Nutrient Management Fund shall not
16 be subject to 42 Pa.C.S. Ch. 37 Subch. C (relating to judicial
17 computer system).
18 (e) Deposit and use of funds.--No administrative action
19 shall prevent the deposit of moneys into the fund in the fiscal
20 year in which they are received. The funds shall only be used
21 for the purposes authorized by this chapter and shall not be
22 transferred or diverted to any other purpose by administrative
23 action.
24 § 513. Unlawful conduct.
25 It shall be unlawful to fail to comply with or to cause or
26 assist in the violation of any order or any of the provisions of
27 this chapter or the rules and regulations adopted under this
28 chapter or to fail to comply with a nutrient management plan or
29 an odor management plan.
30 § 514. Civil penalties and remedies.
20050H1646B2075 - 35 -
1 (a) Civil penalty.--In addition to proceeding under any
2 other remedy available at law or in equity for a violation of a
3 provision of this chapter or a rule or regulation adopted, order
4 issued or odor management plan or nutrient management plan
5 approved under this chapter, the commission may assess a civil
6 penalty of not more than $500 for the first day of each offense
7 and $100 for each additional day of continuing violation. The
8 factors for consideration in determining the amount of the
9 penalty are:
10 (1) The gravity of the violation.
11 (2) The potential harm to the public.
12 (3) The potential effect on the environment.
13 (4) The willfulness of the violation.
14 (5) Previous violations.
15 (6) The economic benefit to the violator for failing to
16 comply with this chapter.
17 Whenever the commission finds that a violation did not cause
18 harm to human health or an adverse effect on the environment,
19 the commission may issue a warning in lieu of assessing a
20 penalty where the owner or operator, upon notice, takes
21 immediate action to resolve the violation and come into
22 compliance. If the commission finds the nutrient pollution or
23 the danger of nutrient pollution or the negative impacts from
24 odor associated with new or expanded facilities results from
25 conditions, activities or practices which are being or have been
26 implemented in accordance with a nutrient management plan or
27 odor management plan developed and approved pursuant to and
28 consistent with this chapter and the regulations developed under
29 this chapter and which is being or has been fully implemented
30 and maintained, the owner or operator of the agricultural
20050H1646B2075 - 36 -
1 operation shall be exempt from the imposition of penalties under
2 this chapter.
3 (b) Collection.--In cases of inability to collect the civil
4 penalty or failure of any person to pay all or a portion of the
5 penalty, the commission may refer the matter to the Office of
6 General Counsel or the Office of Attorney General which shall
7 institute an action in the appropriate court to recover the
8 penalty. Any penalty assessed shall act as a lien on the
9 property of the person against whom the penalty has been
10 assessed.
11 (c) Civil remedies.--In addition to any other remedies
12 provided for in this chapter, any violation of this chapter, the
13 rules and regulations promulgated under this chapter or any
14 order or nutrient management plan or odor management plan
15 approved under this chapter shall be abatable in the manner
16 provided by law or equity for the abatement of public nuisances.
17 In addition, in order to restrain or prevent any violation of
18 this chapter or the rules and regulations promulgated under this
19 chapter or any order or nutrient management plan or odor
20 management plan approved under this chapter, suits may be
21 instituted in equity or at law in the name of the Commonwealth
22 upon relation of the Attorney General, the General Counsel, the
23 district attorney of any county, the solicitor of any
24 municipality affected or the solicitor of any conservation
25 district, provided that the General Counsel, district attorney
26 or solicitor shall first serve notice upon the Attorney General
27 of the intention to so proceed. These proceedings may be
28 prosecuted in the Commonwealth Court or in the court of common
29 pleas of the county where the activity has taken place, the
30 condition exists or the public is affected, and, to that end,
20050H1646B2075 - 37 -
1 jurisdiction is hereby conferred in law and equity upon these
2 courts. Except in cases of emergency where, in the opinion of
3 the court, the exigencies of the case require immediate
4 abatement of the nuisance, the court may, in its decree, fix a
5 reasonable time during which the person responsible for the
6 nuisance may make provision for the abatement of same.
7 (d) Equitable relief.--In cases where the circumstances
8 require it or the public health is endangered, a mandatory
9 preliminary injunction, special injunction or temporary
10 restraining order may be issued upon the terms prescribed by the
11 court, provided that notice of the application has been given to
12 the defendant in accordance with the rules of equity practice.
13 In any such proceeding the Attorney General, the General
14 Counsel, the district attorney or the solicitor of any
15 municipality or conservation district shall not be required to
16 give bond. In any such proceeding, the court shall issue a
17 prohibitory or mandatory preliminary injunction if it finds that
18 the defendant is engaging in unlawful conduct as defined by this
19 chapter or is engaged in conduct which is causing immediate and
20 irreparable harm to the public. In addition to an injunction,
21 the court in such equity proceeding may assess civil penalties
22 in accordance with this section.
23 § 515. Limitation of liability.
24 If a person is fully and properly implementing a nutrient
25 management plan or an odor management plan approved by the local
26 conservation district or the commission and maintained under
27 this chapter for an agricultural operation, the implementation
28 shall be given appropriate consideration as a mitigating factor
29 in any civil action for penalties or damages alleged to have
30 been caused by the management or utilization of nutrients or the
20050H1646B2075 - 38 -
1 abatement of odor impacts pursuant to the implementation.
2 § 516. Enforcement authority; enforcement orders.
3 (a) Right of access.--A duly authorized agent of the
4 commission or a conservation district shall have authority to
5 enter any agricultural operation at reasonable times to conduct
6 such investigations and to take such actions as are necessary to
7 enforce the provisions of this chapter or any order, rule or
8 regulation issued hereunder.
9 (b) Duty to grant access.--Any person owning or operating an
10 agricultural operation shall grant access to any duly authorized
11 agent of the commission or a conservation district pursuant to
12 subsection (a) and shall not hinder, obstruct, prevent or
13 interfere with such agents in the performance of their duties,
14 provided, however, that agents shall perform such reasonable
15 measures and actions as directed by the owner or operator of an
16 agricultural operation as will reasonably and substantially
17 prevent the spread or outbreak of contagious diseases.
18 (c) Orders.--The commission or any conservation district
19 delegated enforcement authority may issue such orders as are
20 necessary to aid in the enforcement of the provisions of this
21 chapter. Any order issued under this section shall take effect
22 upon notice unless the order specifies otherwise. An appeal of
23 the order to the Environmental Hearing Board shall not act as a
24 supersedeas, provided that upon application for and cause shown,
25 the Hearing Board may issue such a supersedeas under the rules
26 established by the Hearing Board.
27 § 517. Appealable actions.
28 Any person aggrieved by an order or other administrative
29 action of the commission issued pursuant to this chapter shall
30 have the right, within 30 days from actual or constructive
20050H1646B2075 - 39 -
1 notice of the action, to appeal the action to the Environmental
2 Hearing Board.
3 § 518. Powers reserved under existing laws.
4 Nothing in this chapter shall limit in any way whatever the
5 powers conferred upon the commission, the department, the
6 Department of Environmental Protection, or a conservation
7 district under laws other than this chapter, including, but not
8 limited to, the act of June 22, 1937 (P.L.1987, No.394), known
9 as The Clean Streams Law, and the act of July 7, 1980 (P.L.380,
10 No.97), known as the Solid Waste Management Act, and common law.
11 All such powers are preserved and may be freely exercised. A
12 court exercising general equitable jurisdiction shall not be
13 deprived of such jurisdiction even though a nuisance or
14 condition detrimental to health is subject to regulation or
15 other action by the board under this chapter.
16 § 519. Preemption of local ordinances.
17 (a) General.--This chapter and its provisions are of
18 Statewide concern and occupy the whole field of regulation
19 regarding nutrient management and odor management, to the
20 exclusion of all local regulations.
21 (b) Nutrient management.--No ordinance or regulation of any
22 political subdivision or home rule municipality may prohibit or
23 in any way regulate practices related to the storage, handling
24 or land application of animal manure or nutrients or to the
25 construction, location or operation of facilities used for
26 storage of animal manure or nutrients or practices otherwise
27 regulated by this chapter if the municipal ordinance or
28 regulation is in conflict with this chapter and the regulations
29 or guidelines promulgated under it.
30 (c) Odor management.--No ordinance or regulation of a
20050H1646B2075 - 40 -
1 political subdivision or home rule municipality may regulate the
2 management of odors generated from animal housing or manure
3 management facilities regulated by this chapter if the municipal
4 ordinance or regulation is in conflict with this chapter and the
5 regulations or guidelines promulgated under it.
6 (d) Stricter requirements.--Nothing in this chapter shall
7 prevent a political subdivision or home rule municipality from
8 adopting and enforcing ordinances or regulations which are
9 consistent with and no more stringent than the requirements of
10 this chapter and the regulations or guidelines promulgated under
11 this chapter. No penalty shall be assessed under any such local
12 ordinance or regulation under this subsection for any violation
13 for which a penalty has been assessed under this chapter.
14 § 520. Repeals.
15 All acts and parts of acts are repealed insofar as they are
16 inconsistent with this chapter.
17 § 521. Other statutes not affected.
18 This chapter shall not be construed as modifying, rescinding
19 or superseding any other statute, or as regulating biosolids,
20 and shall be read in pari materia with other statutes. Nothing
21 in this chapter shall limit in any way whatever the powers
22 conferred upon the department, the Department of Environmental
23 Protection and the State Conservation Commission under statutes
24 other than this chapter. All such powers are preserved and may
25 be freely exercised.
26 § 522. Regulations.
27 The Department of Environmental Protection is authorized to
28 adopt such regulations as it deems necessary to its
29 administration and enforcement of this chapter. This includes
30 the authority to establish, by regulation, such fees as are
20050H1646B2075 - 41 -
1 reasonably necessary to fund the implementation and enforcement
2 of this chapter.
3 Section 2. (a) Except as set forth in subsection (b), the
4 provisions of this act are severable. If any provision of this
5 act or its application to any person or circumstance is held
6 invalid, the invalidity shall not affect other provisions or
7 applications of this act which can be given effect without the
8 invalid provision or application.
9 (b) If any provision of the addition of 3 Pa.C.S. Ch. 3
10 relating to the establishment, procedures or operation of the
11 Office of Ordinance Review or the Agricultural Review Board or
12 the application of such a provision to any person or
13 circumstance is held invalid, the following provisions are void:
14 (1) The addition of 3 Pa.C.S. Ch. 5.
15 (2) Section 3 of this act.
16 Section 3. The act of May 20, 1993 (P.L.12, No.6), known as
17 the Nutrient Management Act, is repealed.
18 Section 4. The addition of 3 Pa.C.S. Ch. 5 is a continuation
19 of the act of May 20, 1993 (P.L.12, No.6), known as the Nutrient
20 Management Act. The following apply:
21 (1) Except as otherwise provided in 3 Pa.C.S. Ch. 5, all
22 activities initiated under the Nutrient Management Act shall
23 continue and remain in full force and effect and may be
24 completed under 3 Pa.C.S. Ch. 5. Orders, regulations, rules
25 and decisions which were made under the Nutrient Management
26 Act and which are in effect on the effective date of section
27 3 of this act shall remain in full force and effect until
28 revoked, vacated or modified under 3 Pa.C.S. Ch. 5. Contracts
29 and obligations entered into under the Nutrient Management
30 Act are not affected nor impaired by the repeal of the
20050H1646B2075 - 42 -
1 Nutrient Management Act.
2 (2) Except as set forth in paragraph (3), any difference
3 in language between 3 Pa.C.S. Ch. 5 and the Nutrient
4 Management Act is intended only to conform to the style of
5 the Pennsylvania Consolidated Statutes and is not intended to
6 change or affect the legislative intent, judicial
7 construction or administration and implementation of the
8 Nutrient Management Act.
9 (3) Paragraph (2) does not apply to the addition of any
10 of the following provisions of 3 Pa.C.S.:
11 (i) Section 501.
12 (ii) Section 502(5).
13 (iii) The definitions of "animal housing facility,"
14 "concentrated animal feeding operation," "manure
15 management facility" and "odor management plan" in
16 section 503.
17 (iv) Section 504(1.1) and (2).
18 (v) Section 506.
19 (vi) Section 507.
20 (vii) Section 508.
21 (viii) Section 509.
22 (ix) Section 510(a), (d) and (e).
23 (x) Section 511(a).
24 (xi) Section 513.
25 (xii) Section 514(a), (c) and (d).
26 (xiii) Section 515.
27 (xiv) Section 519.
28 (xv) Section 521.
29 (xvi) Section 522.
30 (4) The addition of 3 Pa.C.S. Ch. 5 does not affect the
20050H1646B2075 - 43 -
1 terms of office of the members of the Nutrient Management
2 Advisory Board in office on the effective date of this
3 paragraph.
4 Section 5. This act shall take effect as follows:
5 (1) The addition of 3 Pa.C.S. § 507 shall take effect in
6 180 days.
7 (2) The addition of 3 Pa.C.S. § 519(c) shall take effect
8 on the earlier of:
9 (i) the effective date of regulations promulgated
10 under 3 Pa.C.S. § 504(1.1); or
11 (ii) the publication in the Pennsylvania Bulletin of
12 interim guidelines under 3 Pa.C.S. § 504(2).
13 (3) The remainder of this act shall take effect
14 immediately.
D13L03VDL/20050H1646B2075 - 44 -