Act 38 Administrative Update

2013 Pa Inter-agency Nutrient Management Annual Conference

Administrative Manual

• • • • • Primarily administrative manual for Conservation District Delegation Agreements Last updated in 2000 as a DEP document SCC is taking over writing, review, and administrative functions of the manual Whole manual will be re-written No timeline established, but looking for late 2013 / early 2014 release.

NM (Act-38) Program Compliance Strategy

History

• • • • Administrative Manual – last updated in November 2000 • Contained some initial policy and strategies Many separate and individual policies between November 2000 and now • Draft compliance strategy update developed in 2010 but never formally approved by the SCC Current update will provide overall coordination of all policy decisions made in the past Update will provide one document that will contain all compliance strategies

4 Separate Sections (Scenarios)

1.

2.

3.

4.

When Conservation District (CD) suspects an operation to be a Concentrated Animal Operation (CAO) CAOs that have not obtained an approved Nutrient Management Plan (NMP) Act-38 Participants whose NMPs are about to, or have, expired Operations that fail to fully implement an approved NMP

General Information

• Applicable to all 4 situations 1.

2.

3.

4.

Only CAOs and VAOs that have received NMA grant funding are relevant for enforcement. VAOs that have not received grant funding are non-enforceable under Act-38 CD staff should document all communications with the operators – documentation to be kept in each NMP file CD staff is encouraged to keep the regional NM coordinator, as well as their district managers and Board of Directors (BOD) abreast of all situations where they are struggling to gain compliance Once referred to SCC for enforcement, CD staff are invited to assist the SCC, but their assistance is not mandatory

When Conservation District (CD) suspects an operation to be a Concentrated Animal Operation (CAO)

• Two Options Provided

1

st

Option

o Preferred Option o Speak with the farmer directly to assist them in completing the CAO assessment worksheet • If non-CAO, inform them verbally and send letter stating they are not a CAO and remind them of their obligations under Chapter 91 • If a CAO, inform them verbally and send them a letter stating they are a CAO and direct them towards gaining compliance.

When Conservation District (CD) suspects an operation to be a Concentrated Animal Operation (CAO)

2 nd Option o Use after 3 unsuccessful attempts to meet with operation 1.

2.

3.

Send 1 st letter requesting them to complete CAO calculation within 14 days Send 2 nd letter requesting CAO calculation within 7 days Call to try to arrange a meeting and send 3 rd letter with a set meeting date and time or complete CAO calculation over the phone.

• Letter sent certified (return receipt) mail o If CAO calculation has not been completed after the 1 st and 2 nd options (site visits and 3 letters) refer to SCC for future action

CAOs that have not obtained an approved Nutrient Management Plan (NMP)

o Generally rely on a “3 step” procedure 1.

1 st letter asking to submit NMP within 60 days 2.

Verbal communication and 2 nd days letter to submit NMP within 30 3.

Verbal communication and 3 rd NMP within 15 days • letter (last chance) to submit Letter sent certified (return receipt) mail • Should review 3 rd sending letter with Conservation District (CD) BOD before • CD BOD should vote to give staff authority to turn non-compliance over to SCC for action – vote recorded in minutes o If non-compliant after the 3 rd SCC for enforcement letter, forward information to

Act-38 Participants whose NMPs are about to, or have, expired

o CAOs 1.

Required by Act-38 to have a NMP at all times o VAOs 1.

Need to maintain NMP to continue with Limited Liability Protection and eligibility requirements for financial assistance

Act-38 Participants whose NMPs are about to, or have, expired

1.

2.

1 st letter sent 3 months prior to expiration of NMP reminding operation of their obligations and asking that amended NMP be submitted before plan expires 2 nd letter requesting operation to submit amended NMP within 60 days 3.

3 rd 30 days • letter requesting operation to submit amended NMP within Letter sent certified (return receipt) mail • Should review 3 rd letter with Conservation District (CD) Board of Directors (BOD) before sending • CD BOD should vote to give staff authority to turn case over to SCC action – vote recorded in meeting minutes o If none compliant after the 3 rd letter, forward information on CAOs to SCC for enforcement. VAOs would be considered non participants from this point forward

Operations that fail to fully implement an approved NMP

• Normally determined during annual status reviews, inspections, or complaint investigations • Documentation of non-compliance should be completed on the status review report or complaint investigation report

Operations that fail to fully implement an approved NMP

1.

2.

While on site verbally inform the operator of the non-compliance issues. Follow up with 1 st letter on non-compliance issues, what corrective actions are needed, and establish a timeframe for corrective actions. A copy of the status review or inspection reports shall also be enclosed o Contact SCC regional coordinator for assistance in establish timeframes After the 1 st timeframe has expired, perform a follow up inspection. If corrective action have not occurred record those on the inspection report and verbally inform the operator. Follow up with 2 • Should review 2 nd nd letter on non-compliance issues, what corrective actions are needed, and establish a timeframe for corrective actions. A copy of the status review or inspection reports shall also be enclosed letter with Conservation District (CD) Board of Directors (BOD) before sending • CD BOD should vote to give staff authority to turn case over to SCC for enforcement by the timeframe established 3.

• If none compliant after the 2 nd letter, forward information on CAOs to SCC for enforcement. VAOs would be considered non participants from this point forward Note: This area is the only area that doesn’t follow the “3 step rule”. SCC staff interprets that the operation was told to implement the approved plan at the time of plan approval . If the operations doesn’t implement the plan on schedule, that was step 1. Our first re-notification letter above would actually be step 2 , but only the 1 st letter, and the second notification would actually be step 3, but only the 2 nd letter.

Next Steps

• • • • Draft strategy sent to delegated CDs on March 28, 2013 for 30 day comment Informational presentation to the Nutrient Management Advisory Board (NMAB) on April 18, 2013 and State Conservation Commission on May 14, 2013 Look for SCC approval at their July 16, 2013 meeting Strategy to become effective immediately after SCC approval

Annual Status Reviews

• • • • • • On-site Status Reviews promote plan implementation and provide for periodic review and assistance.

Make an appointment, don’t show up unannounced.

Frequency • CAOs – every year • VAOs – every 3 years unless received financial assistance then every 2 years • VAO / CAFOs – every 3 years CAFOs – coordinate with DEP regional office. VAO/CAFOs get inspected yearly by DEP, but since they are VAOs, CD’s only need to inspection NMP every 3 years Informal invitation to plan writer is recommended. If plan writer can join, that can be beneficial.

Document findings and follow-up as appropriate. Formal letter and copy of Inspection report need to be sent

VAO Withdrawal from the Program

• • When a VAO NMP is expected to expire it is recommended that in the January/February time frame of the year when the plan expires, the Conservation District sends a letter informing the operator their Act 38 plan expires on September 30 th of that year. • Those letters mailed in January/February informs the operators that they should be contacting their nutrient management specialist to start the process of performing their triennial review. Since the letter will go out early in the year (January/February) the operators/planners should have sufficient time to gather the required soil and manure test results collected over the previous 3 years to write the new annual or three year NMP.

VAO Withdrawal from the Program

• If the operator allows the VAO plan to expire, the operator has one of two alternatives: • Submit a new annual or triennial plan for review and approval • Withdrawal the plan from the Act 38 program • When withdrawing a VAO NMP, the operator should send an appropriate withdrawal letter to the appropriate Conservation District. An example letter is contained in the Tech Manual and titled “Nutrient Management Act

Program Withdrawal”.

• The SCC has developed a sample “Nutrient Management Plan Date

Expiration, 1 st

letter” which can be utilized to inform operators of their responsibility. • Some Conservation Districts send a second letter, similar to the 1 st letter, if no response to the first mailing, giving the operator an additional opportunity to comply and return the intent to withdraw the plan from the program form. • 2 nd letter indicates that the NMP has expired and that they have forfeited the limited liability eligibility as well as the ability to receive funding from the program

Quarterly Reports (Update)

• Attachment H (# of plans approved, # of farms with plans, # on-site status reviews, # of complaints, etc.) will become part of e-commerce on July 1. Electronic submission of this form from this point forward.

• Attachment F (individual plan data) • Added Manure Analysis information to assist DEP in the CBP and PSU with book values. This information can be taken directly from Appendix 3 of the NMP • Added Exported Manure Summary to assist DEP in the CBP. In 2010 and 2013, CD’s were asked to perform a survey for this information. With the inclusion in Attachment F, future surveys will be unnecessary.

New Quarterly Report

• Attachment G • This reporting is to cover the Chapter 91.36 activities that are containing in the delegation agreement.

• Reporting includes: • • • # of MMP Outreach activities # of MMP Training activities # of on-farm assistance • MMP Voluntary verifications