Pennsylvania Act 2004-49 — COMMERCIAL MANURE HAULER AND BROKER CERTIFICATION ACT - ENACTMENT

Act text

COMMERCIAL MANURE HAULER AND BROKER CERTIFICATION ACT - ENACTMENT
                  Act of Jun. 28, 2004, P.L. 454, No. 49              Cl. 03
                                  AN ACT

     Providing for a commercial manure hauler and broker
        certification program; and establishing requirements.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

     Section 1.  Short title.
        This act shall be known and may be cited as the Commercial
     Manure Hauler and Broker Certification Act.
     Section 2.  Definitions.
        The following words and phrases when used in this act shall
     have the meanings given to them in this section unless the
     context clearly indicates otherwise:
        "Agricultural operation" or "operation."  The management and
     use of farming resources for the production of crops, livestock
     or poultry.
        "Agricultural operator."  A person that has management
     control of an agricultural operation.
        "Board."  The Nutrient Management Advisory Board created
     under section 8 of the act of May 20, 1993 (P.L.12, No.6), known
     as the Nutrient Management Act.
        "Commercial manure broker."  A person that is not working for
     or under the control of an agricultural operator and that
     assumes temporary control or ownership of manure from an
     agricultural operation and arranges for transport to and
     utilization at an importing operation or other location.
        "Commercial manure hauler."  A person that transports or
     land-applies manure as a contract agent for an agricultural
     operator or commercial manure broker under the direction of the
     operator or broker.
        "Commission."  The State Conservation Commission established
     under the act of May 15, 1945 (P.L.547, No.217), known as the
     Conservation District Law.
        "Concentrated animal feeding operation" or "CAFO."  An
     agricultural operation that meets the criteria established by
     the Department of Environmental Protection under 25 Pa. Code §
     92.1 (relating to definitions).
        "Concentrated animal operation" or "CAO."  An agricultural
     operation that meets the criteria established under the act of
     May 20, 1993 (P.L.12, No.6), known as the Nutrient Management
     Act, and implementing regulations.
        "Department."  The Department of Agriculture of the
     Commonwealth.
        "Importer" or "importing operation."  A person that receives
     and utilizes or processes manure not produced by poultry or
     livestock under the management control of that person.
        "Nutrient."  A substance or recognized plant nutrient,
     element or compound that is used or sold for its plant nutritive
     content or its claimed nutritive value. The term includes, but
     is not limited to, livestock and poultry manures, compost used
     as fertilizer, commercially manufactured chemical fertilizers,
     sewage sludge or combinations thereof.
        "Nutrient balance sheet."  A written, site-specific document,
     meeting the requirements established by the State Conservation
     Commission under this act and the act of May 20, 1993 (P.L.12,
     No.6), known as the Nutrient Management Act, used to determine
     appropriate manure, fertilizer and other nutrient source
     application rates on importing operations.
        "Nutrient management plan."  A written, site-specific plan
     which incorporates best management practices to manage the use
     of manure and other plant nutrients for crop production and
     water quality protection consistent with the criteria
     established under the act of May 20, 1993 (P.L.12, No.6), known
     as the Nutrient Management Act.
        "Secretary."  The Secretary of Agriculture of the
     Commonwealth.
        "Volunteer operation."  An agricultural operation that
     voluntarily meets the requirements of the act of May 20, 1993
     (P.L.12, No.6), known as the Nutrient Management Act.
     Section 3.  Commercial manure hauler and broker certification
                    program.
        (a)  Duty and responsibility of the department.--
            (1)  The department shall establish, within 18 months of
        the effective date of this act, in consultation with the
        commission and the board, a commercial manure hauler and
        broker certification program for the purpose of certifying
        persons as certified manure haulers or brokers. The
        department shall by regulation establish such terms,
        conditions and fees for certification as it deems
        appropriate.
            (2)  For purposes of the certification program, the
        department shall develop, in consultation with the commission
        and the board, such training and educational requirements,
        testing and other criteria as it deems necessary for
        certification. Training shall at a minimum address the
        following topics:
                (i)  Laws and regulations pertaining to manure
            application.
                (ii)  Information necessary for understanding and
            following a nutrient management plan and nutrient balance
            sheet.
                (iii)  Best management practices with respect to
            manure hauling and application, transport safety
            procedures, calibration of application rates for various
            types of application equipment, setbacks from water
            sources and property lines, nutrient runoff concerns and
            incorporation techniques.
                (iv)  Recordkeeping by certified manure haulers or
            brokers necessary to meet all regulatory requirements of
            this act and the act of May 20, 1993 (P.L.12, No.6),
            known as the Nutrient Management Act.
                (v)  Certified manure broker training shall include
            procedures necessary for the development and filing of a
            nutrient balance sheet.
        (b)  Training program approval.--The department shall have
     the authority to approve, for the purposes of training and
     education, programs developed by The Pennsylvania State
     University and other educational institutions or entities that
     meet the requirements of this section.
     Section 4.  Requirements for commercial manure haulers and
                    commercial manure brokers.
        (a)  Prohibition.--No commercial manure hauler or broker may
     transport or land-apply manure in this Commonwealth on behalf of
     an agricultural operation, regardless of where the manure is
     generated, unless the hauler or broker has:
            (1)  successfully completed a manure hauler or broker
        certification program, as applicable, approved by the
        department;
            (2)  received the appropriate certification by the
        department; and
            (3)  maintained certification under the requirements of
        the certification program.
        (b)  Land-applying of manure.--All commercial manure haulers
     and commercial manure brokers shall, when land-applying manure
     on behalf of an agricultural operator required under the
     provisions of section 5 to use a certified manure hauler or
     certified manure broker, do so only in accordance with the
     provisions of an approved nutrient management plan or nutrient
     balance sheet.
        (c)  Records.--All commercial manure haulers and commercial
     manure brokers shall maintain such records of all manure they
     broker, transport or land-apply as the department, in
     consultation with the commission and the board, determines to be
     necessary to meet the requirements of this act and the
     regulations promulgated under the act of May 20, 1993 (P.L.12,
     No.6), known as the Nutrient Management Act.
     Section 5.  Exporting requirements.
        In order to export manure to other agricultural operations or
     other persons, all CAOs, CAFOs and volunteer operations shall do
     all of the following:
            (1)  No later than the time of transfer of the manure,
        provide a nutrient balance sheet to all importing operations
        receiving manure for land application from the CAO, CAFO or
        volunteer operation. If the CAO, CAFO or volunteer operation
        enters into a contract or other agreement with a commercial
        manure broker, the broker shall provide, no later than the
        time of transfer, a nutrient balance sheet to the importing
        operation, and copies of the nutrient balance sheet shall be
        provided to the county conservation districts in the counties
        in which the importing and exporting operations are located.
            (2)  When using a commercial manure hauler or commercial
        broker to export manure from an agricultural operation,
        utilize only certified manure haulers or certified manure
        brokers for the transport and land application of manure
        exported from the operation.
            (3)  Maintain records sufficient to meet all regulatory
        requirements with respect to manure export, transport and
        land application or other use at an importing operation
        established by the commission, in consultation with the
        department and the board, under the authority of this act and
        the act of May 20, 1993 (P.L.12, No.6), known as the Nutrient
        Management Act.
            (4)  In the case of an agricultural operation designated
        as a CAFO, meet any additional requirements under the act of
        June 22, 1937 (P.L.1987, No.394), known as The Clean Streams
        Law.
     Section 6.  Unlawful conduct.
        It shall be unlawful to fail to comply with or to cause or
     assist in the violation of a provision of this act, a regulation
     promulgated under this act or an order issued under this act.
     Section 7.  Administrative penalties.
        (a)  Administrative penalty.--
            (1)  In addition to proceeding under any other remedy
        available at law or in equity for a violation of this act,
        the department may assess an administrative penalty of not
        more than $500 for the first day of each offense and $100 for
        each additional day of continuing violation. The factors for
        consideration in determining the amount of the penalty are:
                (i)  The seriousness of the violation.
                (ii)  The potential harm to the public.
                (iii)  The potential effect on the environment.
                (iv)  The willfulness of the violation.
                (v)  Previous violations.
                (vi)  The economic benefit to the violator for
            failing to comply with this act.
            (2)  If the department finds that a violation did not
        cause harm to human health or an adverse effect on the
        environment, the department may issue a warning in lieu of
        assessing a penalty if the agricultural operator, commercial
        manure broker or commercial manure hauler, upon notice, takes
        immediate action to resolve the violation and come into
        compliance.
            (3)  A person may appeal a penalty under this subsection
        to the secretary as follows:
                (i)  The appeal must be filed within 30 days of the
            date of the penalty assessment.
                (ii)  The secretary shall issue a decision on the
            appeal within 30 days of the filing of an appeal under
            subparagraph (i). If the secretary does not meet the time
            period under this subparagraph, the assessment of the
            penalty shall be deemed withdrawn.
            (4)  This subsection is subject to 2 Pa.C.S. Chs. 5
        Subch. A (relating to practice and procedure of Commonwealth
        agencies) and 7 Subch. A (relating to judicial review of
        Commonwealth agency action).
        (b)  Collection.--In cases of inability to collect the
     administrative penalty or failure of a person to pay all or a
     portion of the penalty, the department may refer the matter to
     the Office of General Counsel or the Office of Attorney General,
     which shall be authorized to institute an action in the
     appropriate court to recover the penalty. A penalty assessed
     shall operate as a lien on the property of the person against
     whom the penalty has been assessed.
     Section 8.  Civil remedies.
        (a)  Law.--The General Counsel may institute an action at law
     in a court of competent jurisdiction to recover damages for a
     violation of this act, a regulation promulgated under this act
     or an order issued under this act.
        (b)  Equity.--The General Counsel may institute an action in
     equity in a court of competent jurisdiction to restrain a
     violation of this act, a regulation promulgated under this act
     or an order issued under this act.
            (1)  The court may fix a reasonable time during which the
        person responsible for the violation may make provision for
        the abatement of the violation.
            (2)  In cases where the circumstances require it or the
        public health is endangered, the court may issue a
        preliminary injunction, special injunction or temporary
        restraining order.
            (3)  In a proceeding under this subsection:
                (i)  The Commonwealth shall not be required to
            furnish bond.
                (ii)  The court shall issue a preliminary injunction
            if it finds that the defendant is engaging in unlawful
            conduct as proscribed by this act or is engaged in
            conduct which is causing immediate and irreparable harm
            to the public.
            (4)  Equitable relief under this subsection may be in
        addition to damages under subsection (a).
     Section 9.  Enforcement orders; revocation or suspension of
                    certification.
        (a)  Orders.--The department may issue orders necessary for
     the enforcement of the provisions of this act. An order issued
     under this section shall take effect upon notice unless the
     order specifies otherwise.
        (b)  Revocation or suspension of certification.--The
     department may suspend or revoke a certification granted under
     this act if it finds that the broker or hauler has failed or
     continues to fail to comply with a provision of this act, the
     certification criteria, the regulations promulgated under this
     act or an order of the department under this act.
        (c)  Procedure.--A person may appeal an action under this
     section to the secretary as follows:
            (1)  The appeal must be filed within 30 days of the date
        of the order, revocation or suspension.
            (2)  The secretary shall issue a decision on the appeal
        within 30 days of the filing of an appeal under paragraph
        (1). If the secretary does not meet the time period under
        this paragraph, the order, revocation or suspension shall be
        deemed withdrawn.
            (3)  This subsection is subject to 2 Pa.C.S. Chs. 5
        Subch. A (relating to practice and procedure of Commonwealth
        agencies) and 7 Subch. A (relating to judicial review of
        Commonwealth agency action).
     Section 10.  Powers reserved under existing laws.
        (a)  Reservation.--Nothing in this act shall limit the powers
     conferred upon the department, the State Conservation
     Commission, the Department of Environmental Protection or a
     county conservation district under laws other than this act,
     including the act of June 22, 1937 (P.L.1987, No.394), known as
     The Clean Streams Law, the act of July 7, 1980 (P.L.380, No.97),
     known as the Solid Waste Management Act, and common law. These
     powers are preserved.
        (b)  Exhaustion.--A court exercising equitable jurisdiction
     in accordance with section 8(b) shall not be deprived of
     jurisdiction even though a nuisance or condition detrimental to
     public health is subject to regulation or other action by the
     department under this act.
     Section 11.  Preemption of local ordinances.
        (a)  General rule.--This act and its provisions are of
     Statewide concern and occupy the whole field of regulation
     regarding the certification and regulation of commercial manure
     brokers and commercial manure haulers, the transportation of
     animal manure by commercial manure haulers and commercial manure
     brokers and the exporting of animal manure from agricultural
     operations to importing operations, to the exclusion of all
     local regulations. Except as otherwise specifically provided in
     this act, no ordinance or regulation of a political subdivision
     may prohibit or attempt to regulate the certification or
     operations of commercial manure brokers and commercial manure
     haulers, the transportation of animal manure by brokers and
     haulers or the exporting of animal manure from agricultural
     operations to importing operations.
        (b)  Local power.--
            (1)  Except as set forth in paragraph (2), nothing in
        this act shall prevent a political subdivision from adopting
        and enforcing ordinances or regulations which are consistent
        with and no more stringent than the requirements of this act
        and the regulations promulgated under this act.
            (2)  No penalty shall be assessed under a local ordinance
        or regulation for a violation for which a penalty has been
        assessed under this act.
     Section 12.  Limitation of liability.
        If a person operating as a commercial manure hauler or
     commercial manure broker is properly certified under this act
     and has complied with this act in the transportation,
     utilization, land application and activities related to the
     management of animal manure, certification and compliance shall
     be given appropriate consideration as a mitigating factor in an
     action arising from the management or utilization of nutrients
     transported or land applied by the hauler or broker.
     Section 30.  Effective date.
        This act shall take effect as follows:
            (1)  Section 4(a) shall take effect in 18 months.
            (2)  This section shall take effect immediately.
            (3)  The remainder of this act shall take effect in 60
        days.