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.

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


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.

SB 724, P.N 868 Amending Title 75 (Vehicles) to impliment the Federal Motor Carrier Safety Improvement Act of 1999

PROPOSAL/EXECUTIVE SUMMARY: Would amend Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, implementing the Federal Motor Carrier Safety Improvement Act of 1999.

EXISTING LAW: Chapter 16 of the Vehicle Code currently regulates the licensing and duties of commercial drivers. Currently, only violations occurring while driving a commercial vehicle would be counted against a driver’s record and ability to maintain a valid CDL license. Also, the Vehicle Code requires PENNDOT to maintain records of convictions reported to it for official use. If a violation occurred in a non-commercial motor vehicle, PENNDOT maintains a record only if the conviction results in a sanction or possible subsequent action to be reflected on any driver’s record.

Major Disqualifications:
The following violations which occur in a commercial motor vehicle constitute major disqualifiers:
o Conviction of driving under the influence of alcohol or a controlled substance
o Accidents involving death or personal injury
o Accidents involving damages to attended vehicle or property
o Accidents involving damages to unattended vehicle or property
o Driving a CMV without a valid CDL
o Committing a misdemeanor or felony offense in which a court determines a CMV was essentially involved in the commission of the offense
o Driving a CMV while operating privilege is suspended, revoked, cancelled or recalled o while subject to an out-of-service order
o Refusal to submit to chemical testing while operating a CMV
Chemical testing refusals carry a one-year disqualification with no escalation for repeat refusals
Some ARDs are not included and maintained by the department (although some statutory language was contained to allow PENNDOT to maintain ARDs in Act 24 of 2003)

Serious Traffic Offenses:
Only violations occurring in a commercial motor vehicle count toward a potential disqualification action
Those leading to a suspension in Pennsylvania now count as violations against a person’s CDL. They would be as follows:
o Excessive speeding as defined by the United States Secretary of Transportation
o Exceeding the speed limit by 15 miles per hour or more in a work zone
o Reckless driving
o Any offense of state or local law resulting in a fatality

Railroad Crossings:
Currently, fines are given to those failing to obey railroad crossings, but no disqualification level penalties can be imposed under the Vehicle Code. PENNDOT is currently disqualifying CDL drivers based on the enactment of the federal rule implementing MCSIA

Out-of-Service Orders:
Alcohol related out-of-service orders carry a $1,000 fine and non alcohol related orders carry a fine of $500

ANALYSIS: The federal MCSIA requires all states to enact standard laws, which tie violations by licensed commercial drivers in their personal vehicles to their commercial driving record. In order for Pennsylvania to comply several changes are needed to the Vehicle Code to allow for the tracking of the off duty violations.

For the CDL driver all violations whether in a personal vehicle or a commercial vehicle would be assessed for major disqualifiers and serious traffic offenses. Currently, Pennsylvania uses the federal authority for disqualifying a CDL for railroad-highway grad crossing offenses; however in order to be in compliance Pennsylvania must incorporate these changes in Title 75. When applying for a CDL drivers will need to provide information on all states where they were previously licensed and PENNDOT will need to obtain the driver record over the prior ten years from previous states and reflect all history on the PA record. Currently it is necessary to notify other states of any violation committed by the other state’s CDL drivers. It is now necessary for the Department to transmit all violations within 30 days of conviction by 9/30/05 and within 10 days by 9/30/08 for all CDL holders. The federal definition of conviction is expanded and requires states to record all violations on a driving record (except parking).

Amends section 102 and chapters 15, 16, 41 and 63 of Title 75 (Vehicles) to implement the Federal Motor Carrier Safety Improvement Act of 1999 (MCSIA).

The bill amends various sections as they relate to commercial drivers in order to strengthen the CDL disqualification program, required by the federal government. The changes would include additional offenses leading to disqualification; impose longer suspension terms, and higher fines. The bill also provides language needed for PENNDOT to meet the federal requirement that states maintain a complete driving record for commercial drivers and such records be maintained for the lifetime (defined by the federal government as 55 years) of the driver.

The major provisions of the bill are as follows:

Expands the definition of the term “conviction” to include any admission of guilt, payment of a fine, acceptance of Accelerated Rehabilitative Disposition (ARD) or other preadjudication disposition of an offense, or any determination of a violation by an administrative tribunal.
Prohibits the expungement of ARD’s from commercial driver’s record.
All administrative per se actions in other states must now count as a license suspension for a commercial driver.
Prohibits the “masking” of offenses—i.e. all convictions must show on the driver’s record regardless if they used to impose a suspension, sanction or maintained for subsequent offenses;
All chemical test refusals both in state and out of state are considered “major offenses” and subject to the lifetime disqualification penalties;
Increases the number of violations that will count against a CDL holder’s license, and also counts those violations resulting in a suspension or revocation occurring in private vehicles.
Expands the list of “serious traffic offenses” to include more improper passing, speeding and lane restriction penalties. The following violations which occur in a commercial motor vehicle are considered serious traffic offenses (those with an asterisk would apply to non commercial vehicles too):
o Improper passing on the right
o Improper passing on the left
o Improper passing on a hill
o Improper passing at a railroad crossing or intersection
o Improper passing at a bridge or tunnel
o Driving roadways lined for traffic
o Following too closely
o Failure to yield in construction and maintenance areas
o Exceeding the speed limit by 15 miles per hour or more* (also would include suspensions for speeding in a work zone while driving a non commercial vehicle)
o Exceeding special speed limit for trucks on downgrades
o Reckless driving*
o Any offense of state law or local ordinance resulting in a fatality while operating a motor vehicle*
Expands the vehicles required to stop at railroad grade crossings and then provides for a suspension of operating privileges for violations;
Increases the fines for out-of-service violations from a range of $500 to a $1,000 to a $1,100 to $2,750 scale. Also, requires that drug and alcohol related violations have a minimum fine of $2,750;
Requires PENNDOT to obtain a 10 year driving record and then crosscheck all CDL applicants and renewals with several national databases to ensure all possible violations are obtained and known;
Adds school vehicles to the provisions of MCSIA.

EFFECTIVE DATE: An immediate effective date is contained in the bill to allow PENNDOT to publish in the Pennsylvania Bulletin when they are prepared to implement the required administrative changes. The remainder of the bill takes effect in 90 days after the publication of this notice.