Compliance Tools for Nutrient Management

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The information contained in this document is derived from the Nutrient Management Act, 2002 and O. Reg 267/03 as amended. Every effort has been made to make it as accurate as possible, but is not authoritative. Please refer to the e-Laws website or the official volumes printed by Publications Ontario for the authoritative text of the act.

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Table of Contents

1. Introduction
2. Types of Compliance Tools
3. Selecting Compliance Tools for Nutrient Management

Introduction

The Nutrient Management Act, 2002 (NMA) provides for the environmentally sustainable use of nutrients through a preventative and proactive planning approach. The Ministry of the Environment (MOE) Agricultural Environmental Officers (AEOs) are provincial officers with specialized agricultural training and are responsible for working with farmers to encourage compliance with the NMA. They have a number of compliance tools that can be used in cases where corrective action is required. Different tools are applied in different situations depending on the compliance history of the person involved, the consequences of the violation, and the individual circumstances of the issue. It is important for farmers to understand what these tools are, how they work and when they would typically be used.

As the NMA is based on a preventative planning approach, most violations of the NMA are administrative in nature. Table 1 (on page 3) outlines what tools are available and how an AEO would select the appropriate compliance tool based on the compliance history and intent of the person. In all cases, the role of AEO is to work with the farmer or land owner to come into compliance with the requirements of the law.

Types of Compliance Tools

Abatement Program

An AEO may make an oral or written request to the person responsible that they voluntarily undertake an abatement program within a specified time period to correct a non-compliance. Such requests are typically used for minor issues where the cause is a lack of information or knowledge and the corrective action is simple to achieve in a short period of time with a low potential for environmental consequences if the action is not performed. At a minimum, the abatement program will outline the steps to be taken and the timeframe in which the program must be completed.

Amend Conditions of the Nutrient Management Strategy and/or Plan

In response to non-compliance, an AEO may request that the Approvals Unit of OMAFRA's Nutrient Management Branch amend a condition of approval for a nutrient management strategy or plan. This option would be chosen if the conditions of the approval documents did not accurately reflect reality or if they did not provide a sufficient level of protection based on the local conditions. An amendment of a condition of approval may be appealed to the Environmental Review Tribunal.

Issue a Provincial Officer's Order

A Provincial Officer's Order is a more formalized approach than the abatement program. An Order is a legally binding document that sets out legal obligations for a specific person or persons in relation to a specific operation. They are typically used to give weight to actions dealing with serious non-compliance or if there is reason to believe the person involved with the non-compliance will not respond to an abatement approach. An Order may be issued by a Provincial Officer to address a non-compliance issue or to prevent an adverse effect that will result or is likely to result if materials containing nutrients are discharged into the natural environment. A person to whom a Provincial Officer's Order is issued may request it be reviewed by a Director (who is normally the manager of the local MOE office) and subsequently may appeal it to the Environmental Review Tribunal within certain timelines.

Issue a Provincial Offences Act Ticket

There are certain violations which may warrant the issuance of a Part I Provincial Offences Act offence notice, commonly known as a ticket. Tickets are similar to speeding tickets, usually include a preset fine, and are issued where there are more serious environmental consequences or there is a lack of willingness to comply with an order or abatement program. A ticket may not be appealed to the Environmental Review Tribunal; however, the person to whom the ticket is issued may choose to plead guilty and pay the fine, which is a conviction, or they may plead guilty with a reason, or not guilty, and defend themselves in Provincial Offences Court.

Referral to the Investigations and Enforcement Branch (IEB)

As a last option or when there have been serious problems, a referral to the Ministry's Investigations and Enforcement Branch may be made for investigation and, if warranted, prosecution. Prosecutions begin with an investigation which may result in a Part III summons under the Provincial Offenses Act. Even when enforcement action is initially recommended or undertaken, the Ministry will continue to act to achieve compliance with the regulatory requirements of the legislation.

Selecting Compliance Tools for Nutrient Management

Level 1

Compliance History and Intent: No compliance history/Previous violation (unrelated)/Previous violation (related)

Options for Compliance Tools*

• Abatement Program
• Amend approval conditions of the NM Strategy and/or Plan
• Issue a Provincial Officer's Order
• Issue a Provincial Offences Act Ticket

Example: While conducting an inspection, an AEO determines that although the farmer has established vegetated buffer strips in the field along a creek edge, the strips are not wide enough in a few places to meet the requirements of the NMA. As the farmer has no compliance history and only requires some additional guidance, the AEO may make a written request for the farmer to voluntarily enter into an abatement program that requires the farmer to increase the width of the buffer strips. The farmer and the AEO agree that this can be accomplished within six (6) months. The AEO checks on the farmer six months later to confirm that the work has been done.

Level 2

Compliance History and Intent: Ongoing Violation

Options for Compliance Tools*

• Amend approval conditions of the NM Strategy and/or Plan
• Issue a Provincial Officer's Order
• Issue a Provincial Offences Act Ticket
• Referral to MOE’;s Investigations and Enforcement Branch

Example: If in the previous example, the farmer failed to increase the width of the buffer strips as was outlined in the voluntary abatement program, the AEO, upon visiting the farmer after six (6) months and noting that the required work had not been done, could issue an Order to have the farmer complete the work. This would be an ongoing violation, and thus an abatement program would no longer be an option for the AEO.

Example: While conducting an inspection of a farm, an AEO determines that a farmer has not completed his Nutrient Management Strategy accurately. The farmer had previously failed to submit a Nutrient Management Strategy and Plan when required, until he was directed to do so under an abatement program, which had subsequently been completed on time. As this is an ongoing issue and there appears to be an unwillingness on the part of the farmer to comply with the requirements of the NMA, both an order to resubmit the strategy for approval and a ticket are issued.

Level 3

Compliance History and Intent: Previous Significant Convictions / Obstruction

Options of Compliance Tools*

• Amend approval conditions of the NM Strategy and/or Plan
• Issue a Provincial Officer's Order
• Referral to MOE's Investigations and Enforcement Branch

Example: In responding to an alleged incident of a manure spill on a farm, an AEO is confronted by a landowner. The AEO identifies himself/herself, indicates that he/she is responding to an incident, and requests that he/she be granted access to the stream at the rear of the property. The landowner refuses to allow access and demands that the AEO leave the property. This is obstruction and the issue is referred to the IEB for investigation and, if warranted, prosecution.

* These options are only guidelines for administrative violations. Individual circumstances may require a different response.