Title of Regulation: 2VAC5-405. Regulations for the Application of Fertilizer to Nonagricultural Lands (adding 2VAC5-405-10 through 2VAC5-405-110).

Statutory Authority: § 3.2-3602.1 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: April 1, 2011.

Agency Contact: Erin Williams, Policy and Planning Coordinator, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-1308, FAX (804) 371-7479, TTY (800) 828-1120, or email erin.williams@vdacs.virginia.gov.

Basis: Section 3.2-3602.1 of the Code of Virginia authorizes and requires the Board of Agriculture and Consumer Services to adopt regulations to certify the competency of contractor-applicators and licensees who apply fertilizer to nonagricultural lands.

Purpose: This regulation is intended to address the growing concern over the environmental impact of off-target applications of fertilizer on impervious surfaces that result primarily from lawn care activities. The Board of Agriculture and Consumer Services is required to promulgate this regulation, which the General Assembly has deemed necessary in order to minimize the potential environmental impact that may result from improper use and over application of fertilizer on nonagricultural lands. Such impact is of particular concern with respect to water quality. This regulation seeks to protect the health and safety of citizens and improve the water quality in streams and rivers of the Commonwealth, as well as the Chesapeake Bay, through the establishment of training, certification, and recordkeeping requirements that will ultimately impact the flow of excess nutrients into those bodies of water. At present, there are no such training, certification, and recordkeeping requirements for contractor-applicators or licensees.

Substance: The proposed regulation sets forth the application process to become a certified fertilizer applicator, the general knowledge requirements for certified fertilizer applicators, the core areas on which applicants for certification will be tested, and the certification renewal process. The proposed regulation also sets forth the qualifications for trained applicators and the recordkeeping requirements for the application of fertilizer. The proposed regulation also prescribes the penalties that may be assessed for violations of the regulation.

Issues: The primary advantage of this regulation to the public, the department, and the Commonwealth is that it will serve to address the growing concern over the environmental impact of off-target applications of fertilizer on impervious surfaces that result primarily from lawn care activities. The expected reduction in excess nutrient run-off will have a beneficial impact on the quality of the water in Virginias streams, lakes, and rivers and, ultimately, on the environmental health of the Chesapeake Bay. This regulation will not pose a disadvantage to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 686 of the 2008 Acts of the Assembly, the Board of Agricultural and Consumer Services (Board) proposes to promulgate new regulations for the certification of fertilizer applicators. Specifically, these regulations will establish:

• The application process for becoming a certified fertilizer applicator,

• Exemptions from the requirements of these regulations for certain categories of individuals,

• Core areas of testing for certification applicants,

• The certification renewal process,

• Supervision requirements for noncertified individuals who apply fertilizer to nonagricultural lands,

• Recordkeeping requirements for fertilizer applicators and

• The $250 civil penalty that will be assessed for to individuals who offer their services as certified fertilizer applicators without first obtaining Board certification or who supervise the application of fertilizer to nonagricultural land when they have not been certified by the Board.

Result of Analysis. There is insufficient information to ascertain whether the benefits of this proposed certification program will outweigh its costs.

Estimated Economic Impact. In 2008, the General Assembly passed a bill that requires the Board to set training requirements and proper nutrient management practices for individuals who apply fertilizer to nonagricultural land. The Board now proposes to promulgate new regulations to fulfill these legislative requirements.

The proposed regulations do not contain specifics for the training that will be required for fertilizer applicators. Instead, these regulations give the Commissioner of Agricultural and Consumer Services the authority to approve courses of training and allow individuals who have complete a non-approved training program that is comparable to those that are approved to petition for program approval. The Virginia Department of Agricultural and Consumer Services (VDACS) reports that no training courses have been approved yet and that the Board is still contemplating the appropriate scope of the training that will be required. These regulations will specifically require two hours of continuing education every two years which VDACS estimates will cost approximately $100 per certificate holder and that the training for individual fertilizer applicators will cost approximately $50. Although VDACS does not know yet how many hours of initial training will be required for certified fertilizer applicators, they estimate that this training will cost approximately $500 per person. Certification is valid for four years from the date it is issued and then must be renewed by making application to VDACS and providing proof of completed continuing education.

Pursuant to Chapter 686, affected individuals will have 12 months after the effective date of these regulations to comply with the mandates of both the regulations and the relevant legislative code. After that point, and with three exceptions, any business that applies fertilizer to nonagricultural land will have to employ at least one certified fertilizer applicator or contract with a certified fertilizer applicator for his services. Other employees who have gone through individual applicator training will be able to apply fertilizer independent of the supervision of a certified fertilizer applicator. Employees who have not undergone the individual applicator training will only be able to work under the direct supervision of a certified fertilizer applicator. These regulations allow three exemptions from these requirements; individuals will not have to become certified if 1) they are conducting research in laboratories or field test plots involving fertilizer, 2) they are employees and only apply fertilizer to land belonging to their employer or 3) they already have a turf and landscape certification from the Department of Conservation and Recreation. After the point in time that landscaping businesses and any other business that applies fertilizer would be required to comply with these regulations, VDACS will assess a $250 fine to anyone who offers their services as certified fertilizer applicators without first obtaining Board certification or who supervises the application of fertilizer to nonagricultural land when they have not been certified by the Board. VDACS will also assess the $250 fine to any business that does not comply with the recordkeeping requirements of these regulations.

These regulations, and the legislation that mandates them, will likely increase costs for businesses that offer services that include spreading fertilizer on nonagricultural land. These costs will likely include higher wage costs since they will be required by law to have at pay for the services of a certified fertilizer applicator. This will allow them less flexibility to hire the mix of employees that they believe will allow them to provide services in the most efficient way possible. They will likely also incur recordkeeping costs because these proposed regulations will require businesses to keep very specific records of any jobs that include the application of fertilizer for at least three years. These records will have to include:

• The name, mailing address and phone number of the customer as well as the address where the fertilizer was applied,

• Name of the person applying the fertilizer of supervising the application,

• Day, month and year of the application,

• Weather conditions at the start of the application,

• Acreage, area, square footage or number of plants treated,

• Analysis of fertilizer applied,

• Amount of fertilizer used by weight of volume and

• Type of application equipment used.

The aim of these proposed regulations is to reduce water pollution that can be traced to the misapplication and over-application of fertilizer to nonagricultural lands. Whether the benefits of these regulations outweigh the costs will largely depend on whether the forgone costs of prevented pollution are greater in magnitude than the costs that will be imposed on the affected businesses and individuals.

Businesses and Entities Affected. VDACS reports that there are approximately 1,000 individuals who have VDACS issued permits that allow them to distribute and/or apply fertilizer. Older information from the Virginia Employment Commission (VEC) indicates that there were approximately 2,500 landscaping businesses in the Commonwealth as of the fourth quarter of 2007. This information from the VEC, although older, indicates that there is likely a large population of affected entities who do not currently hold permits from VDACS and may not know that they will be subject to these proposed regulations. Most of the affected businesses likely meet the requirements to be classified as small businesses.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. The costs that businesses will likely incur to comply with this legislatively mandated certification program may cause some of these businesses to close, particularly if they are only marginally profitable. The landscaping businesses that remain may choose to employ fewer people because their costs will be higher.

Effects on the Use and Value of Private Property. This regulatory action will likely increase the costs for businesses that apply fertilizer to nonagricultural lands. Other factors held constant, these increasing costs will likely raise the price of landscaping services and decrease the quantity demanded for these services. These likely changes in business costs and quantity demanded mean that the profits, and therefore the value, of affected landscaping businesses may decrease by a small amount after these certification requirements go into effect.

Small Businesses: Costs and Other Effects. Affected small businesses in the Commonwealth will incur costs for training and testing as well as for complying with recordkeeping requirements.

Small Businesses: Alternative Method that Minimizes Adverse Impact. VDACS can minimize the adverse impact of this certification program by only requiring training that is absolutely necessary to meet the legislatures goal of reducing pollution caused by nonagricultural application of fertilizer.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency concurs with the analysis of the Department of Planning and Budget.

Summary:

Pursuant to Chapter 686 of the 2008 Acts of the Assembly, the proposed regulations establish requirements for certification of fertilizer applicators. Specifically, the proposed regulations establish: (i) the application process for becoming a certified fertilizer applicator; (ii) exemptions from the requirements of these regulations for certain categories of individuals; (iii) core areas of testing for certification applicants; (iv) the certification renewal process; (v) supervision requirements for noncertified individuals who apply fertilizer to nonagricultural lands; (vi) recordkeeping requirements for fertilizer applicators; and (vii) the $250 civil penalty that will be assessed to individuals who offer their services as certified fertilizer applicators without first obtaining board certification or who supervise the application of fertilizer to nonagricultural land when they have not been certified by the board.

CHAPTER 405
REGULATIONS FOR THE APPLICATION OF FERTILIZER TO NONAGRICULTURAL LANDS

2VAC5-405-10. Definitions.

The following words and terms when used in this regulation shall have the following meanings unless the context clearly indicates otherwise.

"Accident" means an unexpected, undesirable event involving the use of fertilizer or the presence of a fertilizer that adversely affects the environment.

"Agricultural activity" means any activity used in the production of food and fiber for commercial purposes, including farming, feedlots, grazing livestock, poultry raising, dairy farming, and aquaculture activities.

"Agricultural products" means any livestock, aquacultural, poultry, horticultural, floricultural, viticultural, silvicultural, or other farm crops produced for commercial purposes.

"Board" means the Board of Agriculture and Consumer Services.

"Board-approved training" means training offered by a state agency or private entity approved by the board that includes, at a minimum, study and review of course material pertaining to the application of fertilizer on nonagricultural land. Such training shall include testing and certification of the individual's successful completion of the training.

"Certificate" means the document issued to a fertilizer applicator upon satisfactory completion of board-approved training.

"Certification" means the recognition granted by the board to a fertilizer applicator upon satisfactory completion of board-approved training.

"Certified fertilizer applicator" means any individual who has successfully completed board-approved training.

"Commissioner" means the Commissioner of the Department of Agriculture and Consumer Services.

"Contractor-applicator" means any person required to hold a permit to distribute or apply any fertilizer pursuant to § 3.2-3608 of the Code of Virginia.

"Department" means the Department of Agriculture and Consumer Services.

"Distribute" means to import, consign, manufacture, produce, compound, mix, blend, or in any way alter the chemical or physical characteristics of a fertilizer, or to offer for sale, sell, barter, warehouse, or otherwise supply fertilizer in the Commonwealth.

"Fertilizer" means any substance containing one or more recognized plant nutrients that is used for its plant nutrient content and that is designed for use, or claimed to have value, in promoting plant growth. Fertilizer does not include unmanipulated animal and vegetable manures, marl, lime, limestone, and other products exempted by regulation.

"Incident" means a definite and separate occurrence or event involving the use of fertilizer or the presence of a fertilizer that adversely affects the environment.

"Individual applicator training" means training provided to individuals by a certified fertilizer applicator or training offered to individuals by any state agency or private entity approved by the board that includes, at a minimum, a study and review of fertilizer equipment calibration; handling of accidents involving fertilizer; proper methods of storing, mixing, loading, transporting, handling, applying, and disposing of fertilizer; and safety and health concerns related to fertilizer, including proper use of personal protective equipment.

"Label" means the display of all written, printed, or graphic matter upon the immediate container or a statement accompanying a fertilizer, including an invoice.

"Licensee" means the person who receives a license to distribute any fertilizer under the provisions of § 3.2-3606 of the Code of Virginia.

"Nonagricultural land" means land upon which no agricultural activities are conducted and from which no agricultural products are derived.

"Noncertified fertilizer applicator" means either a trained applicator or an untrained applicator, neither of whom has received certification as a certified fertilizer applicator.

"Trained applicator" means an individual who is not a certified fertilizer applicator but who has successfully completed individual applicator training.

"Under the direct on-site supervision of" means the act or process whereby the application of a fertilizer is made by an individual acting under the instructions and control of a certified fertilizer applicator who is responsible for the actions of that person and who is physically present on the land upon which the fertilizer is being applied.

"Untrained applicator" means an individual who is not seeking or has not successfully completed individual applicator training.

"Use of fertilizer" includes application or mixing and handling, transfer, or any act with respect to a particular fertilizer that is consistent with the label directions for that particular fertilizer.

2VAC5-405-20. General requirements.

A. The board authorizes the commissioner to approve all courses of training required in this regulation.

B. All licensees and contractor-applicators who apply fertilizer for commercial purposes to nonagricultural land shall:

1. Employ or retain the services of a certified fertilizer applicator.

2. Apply fertilizer at rates, times, and methods that are consistent with standards and criteria for nutrient management promulgated pursuant to § 10.1-104.2 of the Code of Virginia.

3. Ensure that fertilizer applications are conducted as prescribed by board-approved training or individual applicator training.

4. Comply with all applicable recordkeeping requirements in this regulation.

C. Certified fertilizer applicators may apply fertilizer to nonagricultural land for commercial purposes.

D. The following individuals may apply fertilizer to nonagricultural land for commercial purposes provided they are under the control and instruction of a certified fertilizer applicator who is responsible for the actions of those individuals:

1. Trained applicators. The certified fertilizer applicator does not need to be physically present on the land upon which trained applicators are applying fertilizer. Trained applicators are not authorized to supervise the application of fertilizer by untrained applicators.

2. Untrained applicators provided that they are under the direct on-site supervision of a certified fertilizer applicator.

3. Individuals engaged in training required for certification as a certified fertilizer applicator provided that the individuals are under the direct on-site supervision of a certified fertilizer applicator.

2VAC5-405-30. Qualifications for certification as a certified fertilizer applicator.

All persons desiring certification as certified fertilizer applicators shall successfully complete board-approved training.

2VAC5-405-40. Application process.

A. The application to become a certified fertilizer applicator shall be in writing to the commissioner on a form as specified and approved by the commissioner and shall contain:

1. Last name, first name, and middle initial of the applicant;

2. Mailing address; and

3. Documentation of successful completion of board-approved training.

B. Any individual desiring certification as a certified fertilizer applicator who has completed a comparable course of training not yet approved by the board may petition the commissioner to approve the course. The petition shall include verifiable documentation of successful course completion.

C. Any individual who is denied certification as a certified fertilizer applicator may appeal the decision to the board through an appeal process that is compliant with the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). The procedure for appealing a decision shall be specified by the commissioner and shall be made available to the person denied certification.

D. Upon certification, a card will be issued to the certified fertilizer applicator, which will remain valid for four years from the date of issuance. A certified fertilizer applicator may request a duplicate of the certification card if the card has been lost, stolen, mutilated, or destroyed. The department shall issue a duplicate card to the certified fertilizer applicator upon payment of the costs of duplication.

2VAC5-405-50. Exemptions from certification.

The following individuals are exempt from certification:

1. Individuals conducting research in laboratories or field test plots involving fertilizers.

2. Individuals who use fertilizer or supervise the use of fertilizer as part of their duties only on nonagricultural land owned or leased by their employers.

3. Individuals holding turf and landscape certification from the Department of Conservation and Recreation as nutrient management planners.

2VAC5-405-60. General knowledge requirements for certified fertilizer applicators; continuing education.

A. All applicants for certification as a certified fertilizer applicator shall demonstrate practical knowledge of the principles and practices of the environmentally safe use of fertilizer.

B. Applicants shall be tested on their knowledge and qualifications concerning the use of fertilizer and the handling of fertilizer in the board-approved training. Testing will be based on problems and situations in the following core areas:

1. Proper nutrient management practices such as allowable rate of application for nutrients for various types of vegetation and determining quantity of product to apply based on nutrient analysis;

2. Timing of application during appropriate seasons for various types of vegetation and restrictions on intervals for reapplication;

3. Soil analysis techniques and interpretation of soil analysis results such as proper frequency and depth of sampling and determining appropriate rates of application based on soil analyses;

4. Equipment calibration techniques and procedures for liquid and dry fertilizer applicators and determination of size of application areas;

5. Understanding and interpreting fertilizer labels;

6. Proper handling and appropriate notification procedures of accidents and incidents;

7. Proper methods of storing, mixing, loading, transporting, handling, applying, and disposing of fertilizer;

8. Managing applications near impervious surfaces such as streets, driveways, sidewalks, or paved ditches, as well as near water bodies to avoid off-target applications;

9. Safety and health, including proper use of personal protective equipment; and

10. Recordkeeping requirements of this regulation.

C. Continuing education requirement. Certified fertilizer applicators shall complete a minimum of two hours of course work every two years on at least one of the following:

1. Proper nutrient management practices;

2. Timing of fertilizer application;

3. Soil analysis techniques and interpretation;

4. Equipment calibration;

5. Understanding and interpreting fertilizer labels; or

6. Management of fertilizer applications near impervious surfaces.

The courses may be offered by any state agency or private entity recognized by the board.

2VAC5-405-70. Renewal of certification.

A. Every certification shall be valid for a period of four years. Upon expiration of certification, the certified fertilizer applicator's certificate shall become invalid and the holder shall not be allowed to offer his services as a certified fertilizer applicator.

B. Any certified fertilizer applicator who desires to renew his certification shall submit an application for renewal. The application shall be in writing to the commissioner on a form as specified and approved by the commissioner and shall contain:

1. Last name, first name, and middle initial of the applicant;

2. Mailing address; and

3. Documentation of satisfactory compliance with the continuing education requirements in 2VAC5-405-60.

C. The application for certification renewal shall be submitted within the 60 days immediately prior to or the 60 days immediately following the expiration of the certification. Any certified fertilizer applicator who desires to renew his certification but fails to do so within this timeframe shall be subject to the application process requirements of 2VAC5-405-40. The 60 days following expiration of the certification is a grace period to allow certified fertilizer applicators to renew their certification. A certified fertilizer applicator whose certification has expired shall not offer his services as a certified fertilizer applicator during this 60-day grace period.

2VAC5-405-80. Qualifications for trained applicators.

All noncertified applicators desiring to apply fertilizer for commercial purposes on nonagricultural land while not under the direct on-site supervision of a certified fertilizer applicator shall successfully complete individual applicator training.

2VAC5-405-90. Recordkeeping requirements for trained applicators.

A. Licensees and contractor-applicators subject to this regulation shall maintain training records for each trained applicator employed by the licensee or contract-applicator.

B. The training record shall include (i) the name of the trained applicator; (ii) the name of the state agency or private entity approved by the board or the name and affiliation of the certified fertilizer applicator providing the training; (iii) the type of training received; and (iv) the date when the trained applicator successfully completed individual applicator training.

C. The training records shall be maintained for as long as the trained applicator continues to apply fertilizer on nonagricultural land on behalf of the licensee or contractor-applicator and for three years following separation and shall be available for inspection by the commissioner.

2VAC5-405-100. Recordkeeping requirements for the application of fertilizer.

Licensees and contractor-applicators shall maintain records of each application of fertilizer to nonagricultural land for at least three years following the application. These records shall be available for inspection by the commissioner. Each record shall contain the:

1. Name, mailing address, and telephone number of customer, as well as address of application site if different from customer's mailing address;

2. Name of the person making or supervising the application;

3. Day, month, and year of application;

4. Weather conditions at the start of the application;

5. Acreage, area, square footage, or plants treated;

6. Analysis of fertilizer applied;

7. Amount of fertilizer used, by weight or volume; and

8. Type of application equipment used.

2VAC5-405-110. Violations and penalties for noncompliance.

A. Any individual who offers his services as a certified fertilizer applicator or who supervises the application of any fertilizer on nonagricultural land without obtaining prior registration certification from the commissioner shall be assessed a penalty of $250.

B. Violations of the provisions of these regulations shall be handled in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

C. Any penalties assessed for violations of this regulation shall be handled in accordance with a board-approved administrative process.

D. In addition to any monetary penalties provided in this section, certified fertilizer applicators who violate any provision of this regulation may also be subject to the provisions of § 3.2-3621 of the Code of Virginia regarding the cancellation of certification.