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Home My WebLink AboutPSD-015-01 J , . -!; ~ " Cl~mglOn REPORT PLANNING SERVICES DEPARTMENT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE MONDAY SEPTEMBER 17, 2001 Resolution #:(;f(1-Lj63-{) / Date: Report #: PSD-015-01 File # PLN 28.7 By-law # Subject: BILL 81 DRAFT NUTRIENT MANAGEMENT ACT, 2001 Recommendations: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report PSD-015-01 be received and endorsed as the Municipality's comments regarding Bill 81 Draft Nutrient Management Act, 2001; 2. THAT a copy of this report and Council's resolution regarding this matter be forwarded to Mr. Tom Prins, Clerk of the Standing Committee - Justice and Social Policy for consideration; and 3. THAT the Clarington Agricultural Advisory Committee be thanked for their input and comments. Submitted by: Da id . Crome, M.C.I.P., R.P.P. Director of Planning Services Reviewed bQ Franklin Wu Chief Administrative Officer HB*BN*DC*sn September 7,2001 658 , " REPORT: PSD-015-01 PAGE 2 1.0 BACKGROUND 1.1 The Province of Ontario has proposed the Nutrient Management Act as part of the Ontario Government's Operation Clean Water Strategy. This Act was prepared by the Ministry of Agriculture, Food and Rural Affairs and the Ministry of the Environment and will provide new standards for all land-applied materials containing nutrients. This includes those nutrients used and generated by the agricultural industry including livestock manure and commercial fertilizers, as well as municipal biosolids, septage, industrial pulp and paper sludge. 1.2 The legislation sets out a framework that will allow for the establishment of province-wide standards for the collection, storage, handling, transportation and application of nutrients on land. Currently, the land application of these materials is governed by an array of legislative and regulatory provisions, guidelines, voluntary best management practices and a patchwork of Municipal by-laws. Eventually, all land-applied materials containing nutrients will be managed according to a Nutrient Management Plan or Strategy, The Nutrient Management Plan is intended to be a science-based tool that will identify how manure, commercial fertilizers, other nutrients and existing soil fertility are effectively managed in an environmentally responsible manner, The preparation of a Nutrient Management Plan or Strategy will be mandatory for all agricultural operations and other businesses that apply nutrients to the land. 1.3 The legislation has been drafted and will require the adoption of many regulations to implement the bill. The regulations will deal with a wide variety of items including regulating the use of prescribed nutrients, dealing with farm animals, specifying criteria for education, training and certification, issuance of orders, administrative penalties, and many other things. At this time, the regulations have not been prepared. Until such time as the regulations are prepared, a complete assessment of the impact this bill may have on farming operations of the municipality can not be determined. 659 , . ~ ~ .... REPORT: PSD.015-01 PAGE 3 1.4 It is anticipated that different categories of operations will be regulated in different ways, focusing a greater level of attention and resources where the risk to the environment is greatest. The Province has stated that the legislation will be phased in and it is anticipated that: . All new large livestock operations will be regulated immediately, as will expansion to large livestock facilities (large has been defined as 450 livestock units or more) Existing large livestock operations will be regulated in 3 years Standards for all other farms will be applied in 5 years . . Non-farm applications will continue to require a Certificate of Approval from MOE, but the Certificate of Approval will require a Nutrient Management Plan to be completed. 2.0 CLARINGTON AGRICULTURAL ADVISORY COMMITTEE COMMENTS 2.1 The Clarington Agricultural and Advisory Committee (CAAC) reviewed the draft legislation and noted that the legislation reflects the results of consultation with agricultural producers and organizations. The legislation promotes best practices and the CAAC supports the need to establish a regulatory framework for the management and use of nutrients. The CAAC is in support of establishing legislation to regulate nutrients and they provided the following comments with respect to the draft legislation. A member of the CAAC will be providing verbal comments to the Justice and Social Policy Committee on September 20th, 2001 in Peterborough. Generally, Staff supports the recommendations of the CAAC. 2.2 Definitions The Committee recommends that the definition of "Processing" be revised to include the term "further processing". This will reflect those operations that require extra measures in the preparation of produce for market such as freezing. It is recommended that the definition of "Processing" be revised to include the term "further processing". 660 . ~ '- REPORT: PSD-015-01 PAGE 4 2.3 Licensing, Certification and Education The CMC is concemed that the regulations will require that the person applying the nutrient must be licensed. Since nutrients do not pose a health hazard to the person applying the product, they believe that limiting the licensing to a single person is not warranted. The CMC recommends that the regulations provide options in licensing, allowing companies to obtain a license or to agree that non-licensed persons may apply nutrients under the supervision and guidance of a licensed person. 204 The CMC would like clarification as to the type of education that will be required in order to be licensed to apply nutrients or store nutrients. Details on certification including expiry of certification, number of courses or hours required to achieve certification and who would be responsible for paying course registration fees, if there are fees, has also been requested. The CMC is concerned that the monetary cost and the amount of time dedicated to education and training will be onerous, making it impossible for the average farmer to effectively participate in certification. 2.5 Role of Local Advisory Committee The legislation allows for the creation of local farm advisory committees to promote awareness of the new nutrient management rules and to mediate local nutrient management noncompliance issues. The CMC supports the concept of having a local committee involved in resolving a dispute. However, the CMC is concerned that the local advisory committees may not have the expertise to deal with all the issues. It is recommended that training in mediation, negotiation and the identification and determination of potential impacts of all kinds of nutrients be provided for a local advisory committee, and that the cost of training be the responsibility of the Province. 661 . , REPORT: PSD-015-01 PAGE 5 2.6 Issues of Liability The draft legislation does not appear to address the issue of liability excepting the clause exempting the Province from liability. A farmerllandowner should not be liable for the misapplication of nutrients if applied by an independent body. Clarification on who would be responsible for the misapplication of nutrients is required. 2.7 Financing and Funding The draft legislation does not address funding and financing options. Funding is required to support the manpower needed to review Nutrient Management Plans, enforce the legislation, provide training and education, establish and operate the registry system and to support scientific research needed to substantiate the regulations. Costs should not be bourn 100% by the farmer. Costs to comply with the legislation may result in bankruptcy of many farms. Financial incentives for retrofitting existing infrastructure or building new structures due to locational or capacity issues should be considered. The cost of administering and ensuring that this legislation is effectively implemented should be addressed in the legislation. 2.8 Delegation of Authority The legislation provides for the delegation of powers to review and approve Nutrient Management Plans to other organizations, agencies or persons. The CAAC wants to ensure that the organization or body being the recipient of the delegated authority is familiar with the local agricultural industry and agricultural conditions. The CAAC recommends that the delegation of authority be to a person, agency or organization that is abundantly familiar with the local agricultural milieu. 662 REPORT: PSD-015-01 PAGE 6 3.0 STAFF COMMENTS 3.1 Bill 81 is enabling legislation only. This legislation should lead to a clear set of regulations that will apply consistently across the Province. However, until regulations are prepared, a detailed assessment of the potential impacts and implications this legislation may have on the Municipality and the agricultural industry will be difficult to determine. 3.2 The Province of Ontario fully intends to delegate the review and approval of Nutrient Management Plans within 2 years, The Region of Durham was advised that this function will be carried out by a private organization. However, this will be dictated by the regulations, and until the regulations are finalized there is the possibility that it could be delegated to a municipality. The Municipality would have to hire additional staff to take on the additional responsibilities and would assume legal liability. There would also be an expectation from the public that adequate staff resources and expertise is available. Accordingly the Municipality does not support the delegation of the review and approval of Nutrient Management Plans to municipalities. 3,3 The proposed legislation and the subsequent regulations will only make meaningful improvements if there is dedicated monitoring and enforcement staff. The Province's shift to self-regulation of many industries over recent years does not protect the environment or the health of citizens. Neither does a downsized enforcement staff. Without sufficient staff, enforcement will only be complaint driven. There should be sufficient staff resources to undertake periodic inspections to ensure that operators are complying with the approved nutrient management plans. 3.4 The Municipality supports the proposals to give enforcement staff the authority to enter lands, inspect and issue compliance and preventative orders on-site without having to wait for the time consuming court system. While this ensures that health issues are addressed, it is recognized that there is a system to 663 , REPORT: PSD-01S-01 PAGE 7 appeal Provincial decisions to the Environmental Review Tribunal or Divisional Court to ensure that orders and penalties are appropriate. 3,5 The forthcoming regulations from this legislation must clearly ensure that farms are not simply used as a convenient disposal site for manure and biosolids. Recent experience in Clarington has highlighted that biosolids are being disposed on farmland at rates much higher than needed for soil enrichment. 3.6 If the Ministry is required to undertake remedial work that the operator refuses to do, the Ministry may make an order for costs against a property owner and direct the Municipality to collect the costs through the municipal tax roll. Any reasonable costs attributable to the collection will be paid to the Municipality. If the taxes resulting are not paid, the Municipality may proceed by means of tax sales with the attributable portion payable from the proceeds of the tax sale. If the offence occurs on land rented by a farmer, the municipal lien may be placed on other land that is owned by the farmer and collected in the same manner. This could result in the Municipality adding the costs of remedial work in another municipality to the tax rolls in Clarington. The Finance Department has some concerns with the tax sale procedure. Since the order for costs would have the same precedence as Municipal tax arrears, there is the possibility that it could result in lost funds to the Municipality in the event of tax sale proceedings. 3.7 The Nutrient Management Act and the subsequent regulations will supercede municipal by-laws that deal with the same subject matter. Some municipalities have Nutrient Management By-laws so these will be superceded. Under the Act, the Minister may regulate the size, capacity and location of a building to store nutrients and to house farm animals. However, until the regulations are drafted, it is not known whether the Nutrient Management Act will limit the Municipality's powers to regulate intensive livestock operations through its zoning powers. 664 '- REPORT: PSD-01S-01 PAGE 8 3.8 The legislation and regulations have the potential to place a financial burden on existing agricultural operations. Considerable investment in time and money may be required to comply with the legislation. However, the Ontario Federation of Agriculture supports this legislation as necessary to address the environmental impacts of farming. The phase-in period will assist farmers to prepare. I n order to ensure that smaller farms can make the changes necessary to fulfill the requirements of the legislation, it is suggested that there be some financial incentives to help smaller farms comply. 4.0 CONCLUSION We commend the Province for preparing this legislation. The underlying intent to regulate the land application of nutrients is required to ensure that the environmental health of the residents of the Province is not jeopardized. The Municipality of Clarington has carefully considered the legislation, in consultation with the Clarington Agricultural Advisory Committee and it is recommended that the Province gives due consideration to the comments contained in this report. It is also requested that the Municipality of Clarington and the Clarington Agricultural Advisory Committee be provided with an opportunity to comment on the regulations when prepared. Attachment: Attachment 1 - News Release on Nutrient Management Act 2001 665 '. REPORT: PSD-01S-01 PAGE 9 Interested parties to be notified of Council and Committee's decision: Mr. Tom Prins Clerk, Standing Committee-Justice and Social Policy Rm. 1405, Whitney Block Queen's Park TORONTO, Ontario M7A 1A2 Arnot Wotten, Chair CMC 1933 Concession Road 6 RR # 1 HAMPTON, Ontario LOB 1JO CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE. ONTARIO L 1 C 3A6 T (905) 623-3379 F (905) 623-0830 666 , OMAFRA News Release Page I of 5 ATTACHMENT 1 @Ontario Ministry of Agriculture, Food and Rural Affairs news release For release: June 13, 2001 NEW ONTARIO LEGISLATION WILL PROTECT WATER AND SET CLEAR STANDARDS FOR FARMS TORONTO - The Ontario government is introducing a new law that would set and enforce clear, consistent standards for nutrient management on farms and protect the environment, announced Minister of Agriculture, Food and Rural Affairs Brian Coburn today, "We're proposing preventive measures to address the effects of agricultural operations and municipal activities and the safe and effective management of land-applied materials containing nutrients," Cobum said, "Clear requirements based on the work developed with farmers - and the best practices many farmers already use - will ensure sustainable growth, safeguard the environment and make rural Ontario attractive to economic investment." "This proposed legislation will protect the environment with strong, new preventive measures. Highly trained Provincial Officers with a knowledge of agriculture will ensure focused and effective environmental enforcement of strong new standards," said Environment Minister Elizabeth Witmer. "We thank all the individuals, organizations and other stakeholders, who participated in the consultation process and encourage them to comment further on this proposed legislation." Under the proposed Nutrient Management Act 2001, clear new standards will be developed for all land-applied materials containing nutrients relating to agriculture - including livestock manure, commercial fertilizer, municipal biosolids, septage and industrial pulp and paper sludge. Stakeholders and the Ministry of the Environment (MOE) will partner with the Ministry of Agriculture, Food and Rural Affairs over the summer to develop the provincial standards. The proposed legislation would provide authority for regulations goveming several areas including: . mandatory Nutrient Management Plans (NMPs). · certification of commercial land applicators of materials containing nutrients. · distance requirements for manure and biosolids application near wells and waterways, · banning the land application of untreated septage over a five-year period. · establishing and delivering associated education, training and certification programs, . establishing a database system to record land applications of materials containing nutrients, with an Initial focus on biosolids and manure, · establishing minimum quality and application standards for land applied nutrients. The bill would provide for a framework to phase In standards over time, depending gn the size of operations and the kinds of practices that are carried out. At a minimum, the following categories would be defined: . Large livestock operations (e.g, 450 livestock units) . Smaller livestock operations . Other agricultural operations (e,g, greenhouses, mushroom facilities, cash crops) The proposed legislation responds to consultations conducted with municipal, farm and htlp:llwww.goy.on.ca/OMAFRA/englishlinfores/releases/06 I 30 I .hlml 667 6/14/01 OMAFRA News Release Page 2 of 5 environmental stakeholders; is consistent with the Environmental Commissioner's report; responds to the "Managing the Environment Report"; and fits with the government's Smart Growth vision, - 30- Ref: Jo-Anne Farquhar OMAFRA Minister's Office 416-326-6439 Barry Wilson MOE Minister's Office 416-314-6739 Randy Jackiw OMAFRA Resources Management 519-826-3577 Mark Rabbior MOE Communications Branch 416-314-6084 BACKGROUND Proposed Nutrient Management Act 2001 Context As part of the Ontario government's Operation Clean Water strategy, the proposed Nutrient Management Act 2001 would provide for province-wide standards to address the effects of agricultural practices on the environment, especially as they relate to land-applied materials containing nutrients. The proposed legislation would provide authority to establish province-wide standards for the management of materials containing nutrients and set out requirements and responsibilities for farmers, municipalities and others in the business of managing nutrients. The sources of these nutrients include manure and other materials generated through agricultural operations, commercial fertilizers, biosolids generated by municipal sewage treatment, septage and pulp and paper sludge. Currently, the land application of these materials is governed by an array of legislative and regulatory provisions, guidelines, voluntary best management practices and a patchwork of municipal by-laws. There remains, however, a need for a comprehensive, clear, provincewide approach that protects the water, environment and well-being of communities in rural Ontario, while ensuring farmers can invest in and operate their farms with confidence. This need was confirmed by farmers themselves, municipalities, environmental groups and others during consultations held by the Task Force on Intensive Agricultural Operations in Rural Ontario during early 2000. The proposed legislation responds to the results ofthese consultations, and Its development was guided by the "Managing the Environment" report released in January 2001 , which strongly recommended an integrated approach to environmental management. The bill also addresses the issues and risks identified in the Environmental Commissioner's special report of July 2000, "The Protection of Ontario's Groundwater and Intensive Farming," It also builds on the gavernment's Smart Growth Strategy which calls for well-planned and environmentally sensitive development. What would the legislation do? The proposed Nutrient Management Act was developed by the Ministry of Agriculture, Food and Rural Affairs (OMAFRA) and the Ministry of the Environment (MOE) using the recommendations of many private and public sector sources. It would: http://www.gov.on.ca/OMAFRA/english/infores/releases/06 1 30 1 .hlml 668 6/14/01 ~ OMAFRA News Release Page 3 of5 . set out a comprehensive and integrated approach to all land-applied materials and the safe disposal of deadstock; . ensure that all land-applied materials will be managed in a sustainable, beneficial manner which results In environmental protection; . provide for clear, province-wide standards so that farmers can invest with confidence in their businesses; and . increase public confidence in a sustainable future for agricultural and rural development. What's in the legislation? The bill is enabling legislation that would support the Implementation of a comprehensive regulatory framework regarding nutrient management and other related farm practices in Ontario, The key to this proposed framework would be the Nutrient Management Plan (NMP), which is a science-based tool identifying how manure, commercial fertilizers, other nutrients and existing soil fertility are effectively managed in an environmentally responsible manner. Different types of operations would have different requirements and eventually all land-applied materials containing nutrients would be managed according to a NMP, Many guidelines and other reference documents have already been developed which could provide a good basis for these standards, Examples Include the Ontario Farm Environmental Coalition's Nutrient Management Strategy, Environmental Fann Plan and many Best Management Practices, The legislation would also provide enforcement authority. In line with other environmental legislation, provincial government officers who are knowledgeable in agriculture and the environment would have the authority to inspect and issue compliance and preventive orders. The legislation would also establish the right to appeal to the Environmental Review Tribunal. Municipal responsibilities would be clarified under the bill, New standards would replace the patchwork of municipal bylaws regarding nutrient management. Municipalities would have this as support for their continued responsibility for land use planning and building code approvals, It would also allow for the creation of local advisory committees to promote awareness of the new rules, and mediate local nutrient management noncompliance related issues. Administratively, the legislation would provide for alternate delivery of the review and approval of NMPs and for the establishment of a registry for NMPs, It would provide the authority to establish fees for any activity undertaken, In the first two years MaE will coordinate the review and approvals of nutrient management plans and other requirements for large operations, while OMAFRA will review and approve NMPs for mid-sized livestock operations. The proposed legislation prohibits the delivery of enforcement through an alternative delivery mechanism. The proposed Act would re-affirm the ultimate authority of the Environmental Protection Acl, the Ontario Water Resources Act and the Pesticides Acl. It would also effect complementary amendments to these Acts, and the Farming and Food Production Protection Act. How would it work? The proposed Nutrient Management Act, 2001 would provide the authority to develop and implement new, enforceable standards, supported by new inspection and compliance measures and new authority for remedial action and provincial enforcement. By recognizing the roles of both the Ministry of Agriculture, Food and Rural Affairs and the Ministry of the Environment, the bill would provide a framework for these ministries to work with a broad range of stakeholders to develop the specific http://www.gov.on.Ca/OMAFRNenglish/infores/releases/06130I.htm] 669 6/14/0] f < , , .PMAFRA News Release Page 4 of 5 standards. lt would provide authority for regulations governing several areas, including: . Collecting, storing, handling, using and transporting materials containing nutrients; . Establishing qualifications, education, training and certification for farmers and others applying materials containing nutrients to land; . Establishing requirements for NMPs, including record keeping and filing; · Providing for the use, establishment and access to a registry in which NMPs would be recorded; . Enhancing regulations for the use and application of land applied nutrients; · Establishing minimum distance separation requirements for land application and buildings to protect land and water; . Using innovative technologies (e,g. composting) to manage materials containing nutrients; . Mediating issues locally, including establishing local advisory commlttees:MOE will deal with any Issues related to noncompliance; · Establishing categories of agricultural operations and standards relating to fann practices for these categories. · Banning the land application of untreated septage over a five year period, How would It be Implemented? The bill would provide the authority to implement a risk-based approach called for in the Managing the Environment report. Different categories of operations would be regulated In different ways, focusing a greater level of attention and resources where the risk to the environment is greatest. The bill would provide for a framework to phase In standards over time, depending on the size of the operations and the kinds of practices that are carried out. At a minimum the following categories would be defined: . Large livestock operations (e,g. 450 livestock units) . Smaller livestock operations · Other agricultural operations (e.g. greenhouses, mushroom facilities, cash crops) · Non-farm operations generating materials containing nutrients such as municipal sewage treatment facilities. Non-farm nutrient generators would be categorized separately from the agricultural operations. Any number of sub-categories could also be defined to ensure that different types of operations would be regulated in the most effective way. All farms would eventually be governed by new regulated farm practice standards, New standards would be established immediately for the new construction or expansion of large livestock operations. They would apply to existing larger animal operations within three years, Appropriate standards will be established for all other farms within five years. The bill would establish authority for a range of new approval and review requirements designed to minimize environmental risks, These would be most stringent for large livestock operations, which would need provincial certification, Including approval for their NMPs, These operations would be inspected by a team of provincial government staff who are knowledgeable in agriculture and the environment. Mid-size livestock operations wanting to build or expand would be subject to provincial review, These and other agricultural and smaller livestock operations would be responsible for having up-to-date http://www.gov.on.ca/OMAFRA/engl ish/infores/releases/06l30 l,html 670 6114/0 ] . QMAFRA News Release Page 5 of 5 NMPs available for Inspection and review, The bill would provide authority for several functions including the review and approval of NMPs, education and training and certification to eventually be managed independently outside government. Education and training requirements would be an integral part of the new legislation, so that fanners and others with new responsibilities would be well-equipped to adhere to its standards and regulations. Next Steps Consultations regarding the provincial standards will be held over the summer. I Return to Index I I verslonfrancaise dlsDonible I hltp://www.gov.on.ca/OMAFRNenglishlinfores/releases/06130\.html 671 6/\4/01