NUTRIENT MANAGEMENT REGULATIONS
MEMORANDUM FOR RECORD
| SUBJECT: | Secretary's order adopting regulations establishing requirements for implementation of mandatory nutrient management plan reporting. |
| DATE: | July 8, 2003 |
Pursuant to 29 Del.C. §10118,
I hereby enter this Order which adopts regulations establishing requirements for implementation of mandatory nutrient management plan reporting pursuant to Delaware's nutrient management law (3 Del.C. Chapter 22) and Section 5, 72 Del. Laws, c. 60, and for persons selected for mandatory nutrient management plan reporting to register with the Delaware Nutrient Management Commission. Authority for the regulations appears at Title 3 Del.C. Chapter 22.
1. Brief summary of evidence and information submitted. The Department of Agriculture ("Department"), in conjunction with the Delaware Nutrient Management Commission ("Commission") posted public notice of the proposed regulations in the June 1, 2003 Register of Regulations. The proposal stated that the Department, in conjunction with the Commission, would receive and consider written comments on the proposed regulations from any person, and included directions for the submission of such comments. No written public comments were received during the comment period.
2. Brief summary of findings of fact with respect to the evidence and information. The public was given notice and an opportunity to provide the Department and the Commission with comments in writing on the proposed regulations. No comments were received from the public. The proposed regulations require persons notified that they have been selected by the Commission to be phased into the nutrient management planning program and mandatory nutrient management plan reporting to register with the Commission within a certain period of time after receiving such notice. I find that the proposed regulations will enable the Nutrient Management Program to more smoothly implement the phase-in of the Delaware Nutrient Management law (3 Del.C. Chapter 22) and mandatory nutrient management plan reporting, as required by Section 5, 72 Del. Laws, c. 60, and to more efficiently target resources to those persons affected. I find that adoption of the proposed regulations in their proposed form is in the best interests of the public and consistent with the Commission's duties under 3 Del.C. Chapter 22 and Section 5, 72 Del. Laws, c. 60. (page 2 of 2, Memorandum for Record, July 8, 2003)
3. Decision to adopt the regulations. I hereby adopt the regulations as proposed and set forth below.
4. Text and citation of such regulations adopted. The exact test and citation of the regulations adopted herein appear below.
5. The effective date of the Order. The Order shall take effect ten (10) days from the date the Order has been published in its final form in the Register of Regulations.
Michael T. Scuse
Delaware Department of Agriculture Secretary
Exhibit A
DELAWARE DEPARTMENT OF AGRICULTURE
NUTRIENT MANAGEMENT CERTIFICATION REGULATIONS
Developed with the Guidance, Advice and Consent of the Delaware Nutrient Management Commission.
PREAMBLE
These regulations have been developed pursuant to Title 3, Chapter 22, of the Delaware Code. That statute established the Delaware Nutrient Management Commission and authorized the Commission to develop, review, approve, and enforce nutrient management regulations, including regulations governing the certification of persons who conduct certain activities that involve the generation or application of nutrients to lands or water, or who are involved in providing advice or consultation regarding such application of nutrients. These regulations were developed by the Commission and the Delaware Department of Agriculture. They are adopted with the guidance, advice, and consent of the Commission.
A. AUTHORITY. These regulations are promulgated pursuant to the authority provided by Section 2221, Chapter 22, Title 3, of the Delaware Code.
B. PURPOSE. The purpose of these regulations is to establish certification requirements for certain generators or handlers of nutrients, or who engage in advising or consulting with others regarding the formulation, application, or scheduling of nutrients within the State of Delaware.
C. DEFINITIONS. For purposes of these regulations, the following words or terms shall have the meanings as indicated:
1. "Animal Feeding Operation" or "AFO" means any area or facility where animals have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12 month period.
2. "Animal unit" shall be as defined by the United States Department of Agriculture Natural Resources Conservation Service, and is approximately 1,000 lbs. "average" live body weight.
3. "Applicant" means any person seeking a certificate from the Commission.
4. "Apply, applying", or any derivation of the word "apply", as it relates to the application of nutrients, means the human controlled mechanical conveyance of nutrients to land for the purpose of applying organic and/or inorganic nutrients.
5. "Certification" means the recognition by the Commission that a person has met the qualification standards established by the Commission and has been issued a written certificate authorizing such person to perform certain functions specified in these regulations.
6. "Commercial nutrient handler" means a person who applies organic or inorganic nutrients to lands or waters in the State as a component of a commercial or agricultural business in exchange for a fee or service charge.
7. "Commercial processor" means any individual, partnership, corporation, association or other business unit that controls, through contracts, vertical integration or other means, several stages of production and marketing of any agricultural commodity.
8. "Commission" or "DNMC" means the Delaware Nutrient Management Commission.
9. "Credit" represents a unit of measuring education for certification as defined by the Commission and is dependent upon such factors as curricula intensity and class time.
10. "Direct Supervision" refers to actions by a person who is certified with the State Nutrient Management Program and directs individuals within the same organization/company in applying nutrients. Direct supervisors hold responsibility for nutrient application actions for those under his/her supervision.
11. "Nutrient consultant" means a person who is engaged in the activities of advising or consulting with another person who is required to have a certificate under these regulations, regarding the formulation, application, or scheduling of organic or inorganic nutrients within the State. Provided, however, any employee of any federal, State or local government agency or the University of Delaware, or other organization duly recognized by the Commission for such purpose, who provides advice or consultation in his/her capacity as such an employee, without compensation, shall not be deemed to be a nutrient consultant unless such advice and consultation constitutes a direct and substantial part of a nutrient management plan developed pursuant to these regulations.
12. "Nutrient generator" means a person who owns or operates a facility within the State that produces organic or inorganic nutrients.
13. "Nutrient Management Plan" or "plan" means a plan by a certified nutrient consultant to manage the amount, placement, timing, and application of nutrients in order to reduce nutrient loss or runoff and to maintain the productivity of soil when growing agricultural commodities and turfgrass.
14. "Nutrients" means nitrogen, nitrate, phosphorus, organic matter, and any other elements necessary for or helpful to plant growth.
15. "Person" means any individual, partnership, association, fiduciary, or corporation or any organized group of persons, whether incorporated or not.
16. "Private nutrient handler" means a person in the State who applies organic or inorganic nutrients to lands or waters he/she owns, leases, or otherwise controls.
17. "Program Administrator" or "Nutrient Management Program Administrator" means the exempt employee of the Delaware Department of Agriculture who is responsible for the operation of the State Nutrient Management Program.
18. "Secretary" means the Secretary of the Delaware Department of Agriculture or his/her designee.
19. "State Nutrient Management Program" or "SNMP" means all the nutrient management program elements developed by the Commission, whether or not reduced to rules or regulations.
D. CERTIFICATION CATEGORIES AND ACTIVITIES REQUIRING CERTIFICATION.
1. No later than January 1, 2004, any person who engages in any of the following activities must have the applicable certificate or certificates required by and issued pursuant to these regulations, as follows:
a. Nutrient generator certification - A nutrient generator who owns or operates any animal feeding operation in excess of eight animal units must have a nutrient generator certificate.
b. Private nutrient handler certification - A private nutrient handler who, on an annual basis, applies nutrients to 10 acres or greater of land or waters owned, leased, or otherwise controlled by such handler must have a private nutrient handler certificate.
c. Commercial nutrient handler certification - A commercial nutrient handler who, on an annual basis, applies nutrients to 10 acres or greater of land or waters of the state must have a commercial nutrient handler certificate.
d. Nutrient consultant certification - A nutrient consultant who is engaged in the provision of nutrient management advice or the formulation of a nutrient management plan or in nutrient management planning as it relates to the application or disposal of nutrients at or from a specific site in the State of Delaware must have a nutrient consultant certificate.
2. These certification requirements shall not apply to individuals who perform services under the direct supervision of a certified person, provided that the certified person assures that such individuals act in accordance with the standards or practices which the certified person would follow if such person performed the service. Nor shall the certification requirements of this section apply to persons who utilize a person certified under these regulations to conduct the activities identified in this section, provided that such persons do not engage in any of the activities themselves and the certified person is certified at the time the activities are undertaken.
3. Conditional certifications may be issued for any reason specified by the Commission and shall be issued for periods not to exceed one year.
E. CERTIFICATION REQUIREMENTS.
Any person who seeks a certification shall file with the Commission an application on a form provided by the Commission, along with the application fee. The minimum requirements for the certifications follow.
1. Nutrient generator certificates - To obtain a nutrient generator certificate, the applicant must take and successfully complete at least 6 credits of educational course work as approved by the Commission or Program Administrator. Proof of such completion of course work shall be submitted with the application.
2. Private nutrient handler - To obtain a private nutrient handler certificate, the applicant must take and successfully complete at least 9 credits of educational course work as approved by the Commission or Program Administrator. Proof of such completion of course work shall be submitted with the application.
3. Commercial nutrient handler - To obtain a commercial nutrient handler certificate the following criteria must be satisfied: a. The applicant must take and successfully complete at least 12 credits of educational course work as approved by the Commission or Program Administrator. Proof of such completion of course work shall be submitted with the application. b. The applicant must pass a written test approved by the Commission.
4. Nutrient consultant - To obtain a nutrient consultant certificate the following criteria must be satisfied:
a. The applicant must take and successfully complete at least 12 credits of educational course work as approved by the Commission or Program Administrator. Proof of such completion of course work shall be submitted with the application.
b. The applicant must pass a written test approved by the Commission.
F. RECIPROCITY.
Notwithstanding the requirements of Section E, supra, any person may obtain a certificate under these regulations if all the following requirements are satisfied.
1. The applicant must submit an application for the applicable certificate on a form provided by the Commission, along with the application fee.
2. The applicant must have a valid certificate or equivalent authorization, such as a license for the certificated activity, from another state or organization that requires qualifications at least as rigorous as those required under these regulations and approved by the Commission.
3. The applicant must pass a test approved by the Commission related to specific Delaware Nutrient Management requirements. The Commission may in its sole discretion waive this test requirement.
G. CONTINUING EDUCATION.
1. After a certificate is issued, the certificate holder must take and successfully complete continuing education courses approved by the Commission or Program Administrator in accordance with the following:
a. Nutrient generator - 6 credits of continuing education in each three-year period following the issuance of the certification.
b. Private nutrient handlers - 6 credits of continuing education in each three-year period following the issuance of the certification.
c. Commercial nutrient handlers - 9 credits of continuing education in each three-year period following the issuance of the certification.
d. Nutrient consultants - 8 credits of continuing education each year following the issuance of the certification.
2. Failure to satisfy the continuing education requirements may result in the revocation of a certificate or non-renewal of the certificate.
3. Any dispute regarding continuing education credits may be directed to the Commission which will determine whether a hearing is necessary to resolve the dispute.
H. DURATION OF CERTIFICATES AND CERTIFICATION FEES.
1. Certificates normally will be issued and renewed for periods of three years for nutrient generators, private nutrient handlers, and commercial nutrient handlers. Certified nutrient consultants will be issued and renewed certifications annually.
2. Certificate fees are due with the application. The fee for a one-year certificate issued to nutrient consultants shall be $100.00. The certificate fee for commercial nutrient handlers for a three-year certificate shall be $150.00.
3. No fee will be charged for certification of a nutrient generator or a private nutrient handler.
I. SUSPENSIONS, MODIFICATIONS, AND REVOCATIONS.
The Commission may, after notice and opportunity for hearing, suspend, modify, or revoke any certificate where the Commission has reasonable grounds to believe that the certificate holder is responsible for violations of the nutrient management statute (Title 3, Chapter 22, of the Delaware Code) or Commission regulations. The Commission shall furnish the person accused of a violation with notice of the time and place of the hearing, which notice shall be served personally or by registered mail directly to such person's place of business or last known address with postage fully paid no sooner than 10 days but within 21 days of the time fixed for the hearing.
J. CERTIFICATION RENEWALS.
1. At least 60 days before the expiration of a certificate, the certificate holder shall file an application with the Commission for renewal of the certificate, along with the certification fee.
2. Nutrient consultants must file with the application and fee evidence that the consultant prepared at least one nutrient management plan during the preceding three-year period. If no such plan was prepared, the certificate shall not be renewed.
3. The certificate holders must also supply with the application and renewal fee evidence that they have complied with the continuing education and record keeping and reporting requirements contained in these regulations.
4. Absent good cause for failure to timely file an application for renewal in compliance with these requirements, the certificate holder must reapply for the certificate in the same manner required for the issuance of the original certificate.
5. Decisions to refuse renewal of a certificate shall be final and conclusive unless appealed to the Commission pursuant to Section 2262, Chapter 22, of the Delaware Code.
K. APPEALS TO THE SECRETARY.
All decisions of the Commission under this regulation shall be final and conclusive unless appealed to the Secretary pursuant to Section 2263, Chapter 22, of the Delaware Code. Provided, however, that the denial of a certificate pursuant to Sections 2243 or 2245, Chapter 22, of the Delaware Code shall first be appealed to the Commission which shall hold a hearing.
L. RECORD KEEPING.
1. Nutrient generators shall record and keep the following available for inspection by the Secretary or the Commission: a. A contemporaneously recorded log that contains the dates, approximate quantities, locations, and disposition (stored, shipped, etc.) of nutrients that are applied to land or transported from land owned, leased or otherwise controlled by the Nutrient Generator. b. A copy of any applicable nutrient management plan.
2. Private nutrient handlers shall record and keep the following available for inspection by the Secretary or the Commission:
a. A contemporaneously recorded log showing the dates, locations, approximate quantities, acreage and methods of nutrient application.
b. A copy of any applicable nutrient management plan.
3. Commercial nutrient handlers shall prepare and keep available for inspection by the Secretary or the Commission, a contemporaneously recorded log showing the dates, locations, approximate quantities, acreage, and methods of nutrient application.
4. Nutrient consultants shall prepare and/or keep available for inspection by the Secretary or the Commission, copies of any written materials prepared by the nutrient consultants or at their direction that establish how nutrients are to be managed at specific sites within Delaware, such as nutrient management plans.
5. The information required in this section shall be kept and maintained for a period of 6 years.
M. EFFECTIVE DATE.
These regulations shall become effective on January 10, 2001.
Exhibit B
DELAWARE DEPARTMENT OF AGRICULTURE
REGULATIONS GOVERNING THE PROCESSING OF COMPLAINTS OF
VIOLATIONS
Developed with the Guidance, Advice and Consent of
the Delaware Nutrient Management Commission.
PREAMBLE
These regulations have been developed pursuant to Title 3, Chapter 22, of the Delaware Code. That statute established the Delaware Nutrient Management Commission and authorized the Commission to develop, review, approve, and enforce nutrient management regulations, including regulations governing the investigation and resolution of complaints concerning alleged violations of the statute or regulations. These regulations were developed by the Commission and the Delaware Department of Agriculture. They are adopted with the guidance, advice, and consent of the Commission.
PART A. AUTHORITY.
These regulations are promulgated pursuant to the authority provided by Sections 2221 and 2260, Chapter 22, Title 3, of the Delaware Code.
PART B. PURPOSE.
These regulations establish processes for the filing, investigation, and resolution of complaints against any person who allegedly has violated the Nutrient Management Law, Title 3, Chapter 22, of the Delaware Code, or regulations promulgated pursuant thereto.
PART C. DEFINITIONS.
For purposes of these regulations, the following words or terms shall have the meanings as indicated:
1. "Administrator," "Program Administrator," or "Nutrient Management Program Administrator" means the exempt employee of the Delaware Department of Agriculture who is responsible for the operation of the State Nutrient Management Program, or his or her designee.
2. "Certificate" means recognition by the Commission that a person has met the qualification standards established by the Commission and has been issued a written certificate authorizing such person to perform certain functions specified in regulations adopted by the Department of Agriculture with the Commission's approval.
3. "Chairman" means the Chairman of the Delaware Nutrient Management Commission.
4. "Commission" means the Delaware Nutrient Management Commission.
5. "Person" means any individual, partnership, association, fiduciary, or corporation or any organized group of persons, whether incorporated or not.
PART D. COMPLAINTS AND INVESTIGATIONS.
1. Any person wishing to file a complaint with the Commission against any person regarding an alleged violation of the Nutrient Management Law, or any regulation promulgated pursuant thereto, shall direct such complaint to the Nutrient Management Program Administrator.
2. Complaints must be in writing and include at least the following information: a) name of complainant; b) information on how the Administrator may contact the complainant; and c) sufficient information to identify the location of the alleged violation, the nature thereof, and any other material fact known to the complainant that supports the complaint.
3. The Commission and the Administrator shall not investigate or respond to anonymous complaints, and, when requested, shall keep confidential the identity of complainants.
4. The Administrator shall provide the members of the Commission with a copy of any complaint that complies with the above section 2 requirements as soon as practicable, but no later than within 14 days of receipt of the complaint. A copy of any complaint that does not comply with the section 2 requirements shall, if possible, be returned to the complainant with an explanation of how the complaint is deficient.
5. Unless otherwise directed by the Chairman or the Commission, the Administrator shall conduct an investigation sufficient to determine if the complaint appears to have any merit and whether there is a possible means of resolving it. If the Administrator determines that the complaint may be meritorious, the alleged violator(s) shall be informed of the complaint and provided an opportunity to respond.
6. The Administrator shall prepare a report and present it to the Commission that relates his/her investigative findings and recommendations.
7. If the Administrator's report indicates that the complaint appears not to have any merit or that for any other reason enforcement action is not warranted, the Commission may dismiss the complaint.
8. If the report indicates that a resolution has been tentatively agreed to by the alleged violator(s) and the Administrator, the Commission may authorize approval of the resolution, pursue another acceptable resolution, or hold a hearing on the complaint.
9. The dismissal of a complaint or any other resolution approved by the Commission without holding a hearing shall take place at a public meeting of the Commission and before any complaint is dismissed or any resolution is approved by the Commission, any interested person shall be provided an opportunity to explain to the Commission why such action should not be taken or why a hearing should be held.
PART E. HEARINGS.
1. A hearing shall be held on any complaint if it is requested by an interested party or the Commission determines in its sole discretion to hold a hearing.
2. Requests for a hearing may be made at any time before the Commission authorizes a disposition of the case without a hearing.
3. Any request for a hearing shall be in writing, unless made at the Commission meeting at which the case disposition is considered, and shall include a statement of how the person requesting the hearing may be affected by the resolution of the case.
4. The Commission shall send not less than 10 days written notice of any hearing to the alleged violator(s) and any other person who has requested notification.
5. All hearings shall be conducted by the Commission. Interested persons shall be provided an opportunity to present relevant evidence that is not unduly repetitive. Formal rules of evidence need not be observed within the discretion of the Commission.
6. A record of the hearing shall be kept by the Commission until all appeal periods are exhausted and shall include all the evidence presented to the Commission.
7. The Commission's decision shall recite: (a) its findings of fact; (b) the manner in which the Commission construed the law and applied it to the facts; (c) any remunerative action a violator must take or has taken; (d) any fine a violator must pay pursuant to Department regulations and a reference to the applicable regulations; and (e) any revocation, suspension or modification to any certificate that has occurred.
8. Any decision of the Commission made pursuant to PART E. shall be final and conclusive unless a party to such hearing shall appeal the decision within 15 days of receipt of notice thereof.
PART F. EFFECTIVE DATE. These regulations shall become effective on January 10, 2001.
