Monday, July 25, 2005

HB 1646 The ACRE Proposal relating to Municipal Ordinances and Farming Operations

This three-part bill addresses itself to the impact of local government ordinances on farming, and, on the other hand, creates protections for rural neighbors from odors from large farms and from water pollution from large farms’ manure storage activities.

The first part of the bill, as amended in committee on June 22, 2006, creates an expedited review process by the Attorney General for farmers who believe that a local ordinance affecting farming exceeds the authority granted to municipalities under state law. The bill provides that the Attorney General may, but is not required to, bring suit against any such ordinance upon a finding that it is “unauthorized”. A related provision authorizes Commonwealth Court to appoint Masters to hear such complaints if a farmer either disagrees with the AG’s finding, or prefers to have the court render a decision. In that route, the Master’s opinion becomes the court’s upon acceptance by the Presiding Judge. The Presiding Judge my elect to have the whole court hear the complaint in lieu of accepting the Master’s opinion.

This Attorney General/Commonwealth Court language replaces the entire section devoted to the ACRE review board and the related, subordinate Office of Ordinance Review. However, the Committee chose to retain the scope of ordinances subject to review as any matter affecting agriculture which may exceed municipal authority. No existing municipal authority, such as zoning, is abridged or eliminated by the bill.

The second part of the bill requires all new or expanded Concentrated Animal Feeding Operations (CAFO’s) to develop an Odor Management Plan under the supervision of the local Conservation District and specially-trained odor management specialists. Such plans can include factors like design of the animal facility and manure storage and handling areas, siting (such as with regard to prevailing winds and topography), fans/dryers, planting of vegetative buffers to absorb odors, feeding practices, etc. The principal administrative tool for measuring compliance with this part of the measure is the concept of “Best Management Practices”, as periodically identified and defined by the State Conservation Commission.

The third part of the bill, which carries the odor management plan section within in it, is the existing, freestanding Nutrient Management Act, or “Act 6”, in effect for the last ten years. Act 6 requires all CAFO’s to develop plans for storage and spreading of manure that protects groundwater and nearby surface waters.

EXISTING LAW:
The sole related existing law is Act 6 of 1993, The Nutrient Management Act.

ANALYSIS:

Municipalities in Pennsylvania may only do what state law authorizes them to do, either explicitly, or implicitly. This bill does not remove their ability to zone properly so that incompatible land uses are separated. However, it does effectively pre-empt municipalities from setting standards for farming that are greater than those judged appropriate by state law. In this respect, this bill is similar to the decision recently to enact a statewide building code in lieu of multiple municipalities developing each their own. To the extent that such ordinances do exist across the state, this bill gives farmers an expedited avenue of review by a competent legal authority that, it is believed, will require less in time and legal expense than the sole current avenue of filing a complaint in the Court of Common Pleas.

Many Members have received complaints from Township Supervisors that the original ordinance review process of the bill was biased toward agriculture, and against local governments. In that version, ordinance complaints would first be heard by an Office of Ordinance Review (staffed by an Executive Director appointed by the Secretary of Agriculture as chair of the State Conservation Commission), then, upon appeal, by a five-member ACRE Review board composed of the Secretary’s of Community and Economic Development, Environmental Protection, and Agriculture, the Dean or a faculty member from the PSU College of Agriculture, and a fifth gubernatorial appointee (confirmed by the Senate). The Committee’s discard of this process may assuage the concerns of township supervisors.

The odor management plan section of the bill is nationally unprecedented, as is the use of “best management practices” as a regulatory tool in this context. The basic premise is that the standards developed by the Conservation Commission will require every practice and technology available that is not inconsistent with the financial viability of the farm.

The Nutrient Management Act has been in force for about ten years, and no major manure spills, accidents, etc. have occurred during that time, as compared with other states that have experienced major pollution events. This does not mean that there have been no incidents, however, and there have been a number of leakages, spills, etc which have drawn fines from DEP for the operators. The administration is concurrently introducing additional regulations that broaden the number and size of farms covered by these tools. Some environmentalists have argued that increased financial support is necessary for conservation districts to adequately oversee Act 6.

HB 1646 does not address some issues raised by the environmental community such as whether ammonia pollution from large farms needs regulated, the impact of antibiotic use in animal agriculture on water quality and the food chain, and the use of municipal sludge on farms; and it does not address animal welfare concerns raised by animal rights advocates. The Administration reports that it did not believe that a bill could be successfully negotiated that would include these matters and retain the support of the farm community for the concessions on odor management. A significant portion of Pennsylvania’s economy depends upon agriculture.

EFFECTIVE DATE: Effective immediately; portions requiring regulatory publication take effect upon adoption of regulations.

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