PLEASE TAKE NOTICE that, pursuant to 3 Del.C. §2221, the Department of Agriculture has developed, in conjunction with the Delaware Nutrient Management Commission, and proposes to adopt regulations governing the certification of persons who conduct certain activities that involve the generation or application of nutrients to land or water, or who are involved in providing advice or consultation regarding the same, and regulations governing the investigation and resolution of complaints concerning alleged violations of Delaware’s nutrient management laws (3 Del.C. Chapter 22) or regulations developed thereunder. These regulations are proposed to meet the mandate set forth in 3 Del.C. Chapter 22 and put into effect the purpose of that chapter to help improve and maintain the quality of Delaware’s ground and surface waters in the interest of the overall public welfare. These proposals represent new substantive and procedural regulations in areas not previously regulated, and their term shall be permanent unless subsequently amended or repealed in accordance with the Administrative Procedures Act (29 Del.C. Chapter 101).
Public hearings on these proposed regulations shall be held on the following dates and locations:
• October 24, 2000 (Tuesday) at 6:00 pm, Messick’s Community Building, 8314 Vernon Road, Harrington, DE 19952;
• October 26, 2000 (Thursday) at 6:00 pm, Gumboro Volunteer Fire Company, RD3, Route 26, Gumboro, DE 19966; and
• November 2, 2000 (Thursday) at 6:00 pm, Townsend Volunteer Fire Company, 107 Main Street, Townsend, DE 19734.
The Department of Agriculture, in conjunction with the Delaware Nutrient Management Commission, will receive and consider input in writing from any person on the proposed regulations. Any written comments should be submitted to the Department and the Commission in care of William R. Rohrer, Nutrient Management Program Administrator, at the Department of Agriculture, 2320 South DuPont Highway, Dover, Delaware 19901. The final date to submit written comments shall be at the public hearing on November 2, 2000. It is requested that anyone wishing to present verbal comments at a public hearing contact Mr. Rohrer at the above address or by calling (302) 739-4811 or (800) 282-8685 (within Delaware only). To accommodate all who wish to speak at these meetings, limits on the length of verbal comments may be necessary. For this reason, it is requested that anyone wishing to present verbal comments bring a written copy as well. Copies of the proposed regulations may be obtained by contacting Mr. Rohrer, or on the Department of Agriculture’s website at http://www.state.de.us/deptagri.
Notice of the public hearing will be published in two newspapers of general circulation not less than twenty (20) days prior to the date of the hearing.
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 , 2000.