WSR 12-18-078

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed September 5, 2012, 10:18 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 10-13-070.

Title of Rule and Other Identifying Information: Chapter 16-611 WAC, Nutrient management.

Hearing Location(s): Washington State Department of Agriculture (WSDA), 2nd Floor, Conference Room 238-B, 21 North 1st Avenue, Yakima, WA 98902, on Tuesday, October 9, 2012, at 2:00 p.m.; and at the Natural Resources Building, 2nd Floor, Conference Room 259, 1111 Washington Street S.E., Olympia, WA 98504, on Thursday, October 11, 2012, at 2:00 p.m.

Date of Intended Adoption: October 25, 2012.

Submit Written Comments to: Teresa Norman, WSDA, P.O. Box 42560, Olympia, WA 98504-2560, e-mail WSDARulesComments@agr.wa.gov, fax (360) 902-2092, by October 11, 2012, 5:00 p.m.

Assistance for Persons with Disabilities: Contact WSDA receptionist, TTY (800) 833-6388.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: In 2009, the legislature established a requirement to chapter 90.64 RCW that dairy producers must maintain records to demonstrate that applications of nutrients to crop land are within acceptable agronomic rates (RCW 90.64.010 (17)(c)). In 2010, the legislature established a new penalty under the Dairy Nutrient Management Act for lack of recordkeeping, with criteria for the level of penalty to be adopted in rule (RCW 90.64.102). The department is proposing a rule to establish a penalty matrix for discharge violations and recordkeeping violations (chapter 16-611 WAC).

Reasons Supporting Proposal: The department is drafting a rule to provide clarity of when and how penalties will be used by the department for discharge violations and recordkeeping violations.

Statutory Authority for Adoption: RCW 90.64.110 and chapter 34.05 RCW.

Statute Being Implemented: Chapter 90.64 RCW.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: WSDA, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Nora Mena, 2nd Floor, 1111 Washington Street S.E., Olympia, 98504, (360) 902-1928.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

Overview: The division of pesticide management within WSDA is proposing a new rule under the authorization of chapter 90.64 RCW. This proposal will provide fair and uniform determination of civil penalties issued under the Dairy Nutrient Management Act, chapter 90.64 RCW, passed by the 1998 legislature. RCW 90.64.102 and 90.64.110 authorize the director of agriculture to adopt by rule, a graduated civil penalty schedule and rules necessary to implement chapter 90.64 RCW. The proposed rule includes:


Recordkeeping requirements:
o For manure applications,
o For manure transfers,
o For irrigation water management.
Soil testing requirements.
Nutrient analysis requirements.
Cropping information requirements.
Field identification.
Penalty schedule.

The provisions of this proposed rule would apply to all four hundred sixty licensed cow dairy farm operations defined under chapter 15.36 RCW. The rule provides clear guidelines for issuance of penalties, and recordkeeping practices to be implemented by cow dairy farm operations.

The following small business economic impact statement (SBEIS) was prepared in compliance with the Regulatory Fairness Act, RCW 19.85.040, and provides an analysis of the proposed rule impact on small businesses compared to large businesses. The intent of the proposed rule is to provide clarity to business owners from a regulatory perspective.

Citizens Affected by This Proposal: Legislation passed in 1998 created the Dairy Nutrient Management Act with the intent to establish an enforcement program along with technical assistance for dairy farms to address and prevent discharges of pollution to surface and ground waters of the state. Current[ly] there are just over four hundred sixty licensed dairy cow operations in Washington state that would fall under this rule. Over ninety percent of the licensed cow dairy farms impacted under this proposed rule would be considered small businesses (employing fifty or fewer employees).

Stakeholder Involvement and Cost Survey Examination: As the rule proposal was being drafted, the agency held at least four stakeholder meetings between September 2010 and December 2011 to gather information and input in development of the proposed rule. Participants in these stakeholder meetings included members of the Washington State Dairy Federation, private consultants to the dairy industry, conservation district staff, natural resource conservation service staff, conservation commission staff, partner state agencies and WSDA staff. From these meetings, the final proposed rule was developed. Costs, concerns and impacts to cow dairy operations as related to implementation of this proposal were discussed during the stakeholder meetings. Assumptions on impacts to these small businesses are based on discussions during the four stakeholder meetings.

Costs of Complying with This Proposed Rule: This rule proposal provides clarity for recordkeeping requirements and a penalty structure to be utilized when enforcement actions are taken. All requirements and regulations provided in this proposal should not require licensed cow dairy operations to need the assistance of professional services to comply with the proposal. This proposed rule should not create any additional cost for cow dairy operations to implement as all requirements and regulations under this proposed rule are already defined in chapter 90.64 RCW and currently required of all licensed cow dairy operations in our state. The proposed rule is designed to provide regulatory clarity and not create a reduction or loss of sales, and will not require the addition or loss of jobs in order to be in compliance.

Considerations to Reduce Impact to Small Business: The agency reviewed the following potential impacts to small businesses and identified where possible reductions in impacts could be found.


Reducing, modifying, or eliminating regulatory requirements.
o The proposed rule provides clarity of current regulations required of cow dairy operations.
Simplifying, reducing or eliminating recordkeeping and reporting requirements.
o The proposed rule clearly defines a minimal amount of recordkeeping and management needed to be in compliance with chapter 90.64 RCW.
Reducing the frequency of inspections.
o Inspections will be conducted only on a routine bases [basis] unless a discharge from the operation has been noted or reported.
Delaying compliance timelines.
o The agency will follow all provisions of chapter 43.05 RCW in providing technical assistance and clear timelines for compliance to the business owner.
Reducing or modifying fine schedules for compliance.
o The proposed rule provides a clear penalty schedule to be implemented when compliance actions are taken.

With stakeholder input, the agency has provided in the proposal, clear guidelines and definitions for compliance with the key objective to provide clarity and to limit costs to the business associated with regulatory compliance.

Conclusion: The intent of legislation passed in 1998 and 2008 was to establish a clear and understandable process providing for proper and effective management of dairy nutrients. The proposed rule was drafted with input from stakeholders to provide regulatory clarity and guidelines for the implementation of chapter 90.64 RCW, Dairy Nutrient Management Act. The goal of this proposed rule is to provide small businesses with a stable and predictable business climate and to prevent pollution discharges to surface and ground waters of the state. The agency concludes that costs to comply with the proposed rules are not more than minor, will not create a reduction or loss of sales, and will not require the addition or loss of jobs in order to be in compliance.

For more information, please contact Nora Mena at (360) 902-2894.

A copy of the statement may be obtained by contacting Nora Mena, Dairy Nutrient Management Program, P.O. Box 42560, Olympia, WA 98504-2560, phone (360) 902-1928, fax (360) 902-2093, e-mail nmena@agr.wa.gov.

A cost-benefit analysis is not required under RCW 34.05.328. WSDA is not a listed agency under RCW 34.05.328 (5)(a)(i).

September 5, 2012

Ted Maxwell

Acting Assistant Director

OTS-3736.4

Chapter 16-611 WAC

NUTRIENT MANAGEMENT


NEW SECTION
WAC 16-611-005   Purpose.   The purpose of this chapter is to provide for fair and uniform determination of civil penalties issued for violations of chapter 90.64 RCW.

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NEW SECTION
WAC 16-611-010   Definitions.   "Agronomic rate" means the application of nutrients to supply crop or plant nutrient needs to achieve realistic yields and minimize the movements of nutrients to surface and ground waters.

"Dairy nutrient management plan" means a plan meeting the requirements established under RCW 90.64.026.

"Dairy producer" means a person who owns or operates a licensed dairy farm.

"Department" means the Washington state department of agriculture.

"Nutrient," for purposes of this rule, means any product or combination of products used to supply crops with plant nutrients including, but not limited to, manure or commercial fertilizer.

"Transfer of manure" means the transfer of manure, litter or process waste water to other persons when the receiving facility is in direct control of:

(a) Application acreage;

(b) Application rate;

(c) Application times; and

(d) Transfer rate and time.

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NEW SECTION
WAC 16-611-020   Recordkeeping requirements.   (1) In accordance with RCW 90.64.010 (17)(c) and 90.64.102, dairy producers must maintain records to demonstrate that applications of nutrients to crop land are within acceptable agronomic rates.

(2) Dairy producers must maintain the following records to demonstrate that applications of nutrients to the land were within acceptable agronomic rates:

(a) Soil analysis.

(i) Annual post-harvest soil nitrate nitrogen analysis;

(ii) Every three years, a current soil analysis that includes:

(A) Organic matter;

(B) pH;

(C) Ammonium nitrogen;

(D) Phosphorus (the Bray-1 method must be used to determine soil phosphorus for soils below pH 7 and the Olsen bicarbonate method must be used for soils at or above pH 7);

(E) Potassium; and

(F) A measure of electrical conductivity.

(b) Nutrient analysis for all sources of organic and inorganic nutrients including, but not limited to, manure and commercial fertilizer supplied for crop uptake. Manure and other organic sources of nutrients must be analyzed annually for organic nitrogen, ammonia nitrogen, and phosphorus.

(c) Application records must include:

(i) Field identification and year of application;

(ii) Crop grown in each field where the application occurred;

(iii) Crop nutrient needs based on expected crop yield;

(iv) Nutrient sources available from residual soil nitrogen including contributions from soil organic matter, previous legume crop, and previous organic nutrients applied;

(v) Date of applications, method of application, nutrient sources, nutrient analysis, amount of nitrogen and phosphorus applied and available for each source;

(vi) Total amount of nitrogen and phosphorus applied to each field each year; and

(vii) Weather conditions twenty-four hours prior to and at time of application.

(d) Manure transfer records, including imports or exports. Records must include:

(i) Date of manure transfer;

(ii) Amount of nutrients transferred;

(iii) The name of the person supplying and receiving the nutrients; and

(iv) Nutrient analysis of manure transferred.

(e) Irrigation water management records. Records must include:

(i) Field identification;

(ii) Total amount of irrigation water applied to each field each year.

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NEW SECTION
WAC 16-611-100   Assessing civil penalties.   The department may assess civil penalties.

(1) Nothing in this chapter shall prevent the department from:

(a) Choosing not to pursue a civil penalty;

(b) Issuing a notice of correction in lieu of pursuing a civil penalty;

(c) Negotiating a settlement of cases of such terms and for reasons as it deems necessary; or

(d) Referring a violation to any federal or state agency with jurisdiction over the activities in question.

(2) Prior violations may be used by the department for the purpose of determining the appropriate penalty for current violations.

(3) Responses and mitigating actions taken by the dairy and responsible party may be used by the department for the purpose of determining the appropriate penalty for current violations.

(4) Civil penalties under this rule are imposed pursuant to the procedures set forth in RCW 43.21B.300 and may be appealed to the pollution control hearings board in accordance with chapter 43.21B RCW.

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NEW SECTION
WAC 16-611-110   Issuing a civil penalty without first issuing a notice of correction.   (1) Pursuant to RCW 43.05.100, the department may issue a notice of correction when the department becomes aware of conditions that are not in compliance with the applicable laws and rules enforced by the department.

(2) The department may assess a civil penalty without first issuing a notice of correction in accordance with RCW 43.05.110 and 34.05.110.

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NEW SECTION
WAC 16-611-200   Penalty for lack of recordkeeping.   (1) In accordance with RCW 90.64.010 (17)(c) and 90.64.102, failure to maintain all records necessary to show that applications of nutrient to the land were within acceptable agronomic rates may be subject to a civil penalty. The aggregate amount of civil penalties issued to a dairy producer under this section shall not exceed five thousand dollars per calendar year. Each violation is a separate and distinct offense.

(2) The median penalty shall be assessed unless an adjustment is warranted due to the presence of aggravating or mitigating factors.

(3) Aggravating factors. The department may consider aggravating circumstances and enhance the penalty based on the seriousness of the violation. When the department determines that one or more aggravating factors are present, the department may assess the maximum penalty as listed within the penalty schedule table in subsection (5) of this section or may, in its discretion, assess a civil penalty in an amount between the median and maximum amount or increase the penalty above the maximum penalty listed for the violation in subsection (5) of this section. Aggravating factors include, but are not limited to, the following:

(a) The gravity and magnitude of the violation;

(b) Whether the violation was repeated or is continuous;

(c) Whether the cause of the violation was due to negligence, or an intentional act; and

(d) The immediacy and extent to which the violation threatens the public health or safety or harms the environment.

(4) Mitigating factors. The department may consider mitigating circumstances and reduce the penalty. When the department determines that one or more mitigating factors are present, the department may assess the minimum penalty for the violation within the penalty schedule table in subsection (5) of this section or may, in its discretion, assess a civil penalty in an amount between the minimum and median amount listed for the violation in WAC 16-611-300(5). Mitigating factors include, but are not limited to, the following:

(a) Whether the cause of the violation was an unavoidable accident;

(b) The violator's efforts to correct the violation.

(5) Penalty schedule for recordkeeping violations.


Penalties Recordkeeping Violations
Minimum Median Maximum
First $100.00 $250.00 $2500.00
Second $200.00 $500.00 $3000.00
Third or subsequent $400.00 $1000.00 $5000.00

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NEW SECTION
WAC 16-611-300   Penalty for discharge of pollutants.   (1) In accordance with RCW 90.64.010 (17)(a), 90.48.080, and 90.48.144, a discharge of pollutants into the waters of the state may be subject to a civil penalty in the amount of up to ten thousand dollars a day for each violation. Each violation is a separate and distinct offense and, in case of a continuing violation, every day's continuance is a separate and distinct violation.

(2) The median penalty shall be assessed unless an adjustment is warranted due to the presence of aggravating or mitigating factors.

(3) Aggravating factors. The department may consider aggravating circumstances and enhance the penalty based on the seriousness of the violation. When the department determines that one or more aggravating factors are present, the department may assess the maximum penalty as listed within the penalty schedule table in subsection (5) of this section or may, in its discretion, assess a civil penalty in an amount between the median and maximum amount. Aggravating factors include, but are not limited to, the following:

(a) The magnitude of harm or potential harm to:

(i) Waters of the state;

(ii) Humans, animals, plants, property, the environment; or

(iii) Species listed as threatened or endangered caused by the violation(s).

(b) The similarity of the current alleged violation to previous history of the dairy, or the extent to which the alleged violation is part of a pattern of the same or substantially similar conduct.

(c) Economic value derived from noncompliance.

(4) Mitigating factors. The department may consider mitigating circumstances and reduce the penalty. When the department determines that one or more mitigating factors are present, the department may assess the minimum penalty for the violation within the penalty schedule table in subsection (5) of this section or may, in its discretion, assess a civil penalty in an amount between the minimum and median amount listed for the violation in subsection (3) of this section. Mitigating factors include, but are not limited to, the following:

(a) Voluntary disclosure of a violation;

(b) Speed and effectiveness of actions taken to correct the violation or stop a discharge to waters of the state;

(c) Remedial actions taken to repair or compensate for impacts or that will result in increased public protection or that will permanently result in a decreased likelihood that the violation will be repeated.

(5) Penalty schedule for discharges to waters of the state.


Violation Discharge to Waters of the State
Minimum Median Maximum
First $1000.00 $4000.00 $10,000.00
Second $2000.00 $6000.00 $10,000.00
Third or subsequent $4000.00 $8000.00 $10,000.001

1Statutory authority RCW 90.48.144.

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