[atlas:bill]

AN ACT Relating to complaints against dairy farms; amending RCW 90.64.030; and adding a new section to chapter 43.21A RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. A new section is added to chapter 43.21A RCW to read as follows:

(1) For complaints received by the department against a dairy farm for any reason, the department shall require a one hundred dollar security deposit if:

(a) The person making the complaint has filed a complaint against the same dairy farm within the immediately preceding calendar year; and

(b) The department made a determination that the activity that was the subject of the prior complaint was not a violation of state law or rule, a permit condition, or a notice of corrective action.

(2)(a) If the department determines that there was no violation of state law or rule, a permit condition, or a notice of corrective action, the security deposit shall be forfeited.

(b) If the department determines that there was a violation of state law or rule, a permit condition, or a notice of corrective action, the security deposit shall be returned.

Sec. 2. RCW 90.64.030 and 1998 c 262 s 11 are each amended to read as follows:

(1) Under the inspection program established in RCW 90.64.023, the department may investigate a dairy farm to determine whether the operation is discharging pollutants or has a record of discharging pollutants into surface or ground waters of the state. Upon concluding an investigation, the department shall make a written report of its findings, including the results of any water quality measurements, photographs, or other pertinent information, and provide a copy of the report to the dairy producer within twenty days of the investigation.

(2) The department shall investigate a written complaint filed with the department within three working days and shall make a written report of its findings including the results of any water quality measurements, photographs, or other pertinent information. A copy of the findings shall be provided to the dairy producer subject to the complaint within twenty days. Only findings of violations shall be entered into the data base identified in RCW 90.64.130. If, upon investigation on the basis of a complaint received under this subsection, the department determines that a confined animal feeding operation has not violated a provision of this chapter, or chapter 90.48 RCW, or rules adopted under chapter 90.48 RCW, or the conditions of a permit issued under chapter 90.48 RCW, the department shall require that any additional complaint filed by the same person in the same calendar year be accompanied by a security deposit of one hundred dollars. If, after investigation, the department determines that a violation has occurred, the security deposit shall be returned to the person who filed the complaint. If the department determines that a violation has not occurred, the security deposit shall be forfeited.

(3) A dairy farm that is determined to be a significant contributor of pollution based on actual water quality tests, photographs, or other pertinent information is subject to the provisions of this chapter and to the enforcement provisions of chapters 43.05 and 90.48 RCW, including civil penalties levied under RCW 90.48.144.

(4) If the department determines that an unresolved water quality problem from a dairy farm requires immediate corrective action, the department shall notify the producer and the district in which the problem is located. When corrective actions are required to address such unresolved water quality problems, the department shall provide copies of all final dairy farm inspection reports and documentation of all formal regulatory and enforcement actions taken by the department against that particular dairy farm to the local conservation district and to the appropriate dairy farm within twenty days.

(5) For a violation of water quality laws that is a first offense for a dairy producer, the penalty may be waived to allow the producer to come into compliance with water quality laws. The department shall record all legitimate violations and subsequent enforcement actions.

(6) A discharge, including a storm water discharge, to surface waters of the state shall not be considered a violation of this chapter, chapter 90.48 RCW, or chapter 173-201A WAC, and shall therefore not be enforceable by the department of ecology or a third party, if at the time of the discharge, a violation is not occurring under RCW 90.64.010(18). In addition, a dairy producer shall not be held liable for violations of this chapter, chapter 90.48 RCW, chapter 173-201A WAC, or the federal clean water act due to the discharge of dairy nutrients to waters of the state resulting from spreading these materials on lands other than where the nutrients were generated, when the nutrients are spread by persons other than the dairy producer or the dairy producer's agent.

(7) As provided under RCW 7.48.305, agricultural activities associated with the management of dairy nutrients are presumed to be reasonable and shall not be found to constitute a nuisance unless the activity has a substantial adverse effect on public health and safety.

(8) This section specifically acknowledges that if a holder of a general or individual national pollutant discharge elimination system permit complies with the permit and the dairy nutrient management plan conditions for appropriate land application practices, the permit provides compliance with the federal clean water act and acts as a shield against citizen or agency enforcement for any additions of pollutants to waters of the state or of the United States as authorized by the permit.

(9) A dairy producer who fails to have an approved dairy nutrient management plan by July 1, 2002, or a certified dairy nutrient management plan by December 31, 2003, and for which no appeals have been filed with the pollution control hearings board, is in violation of this chapter. Each month beyond these deadlines that a dairy producer is out of compliance with the requirement for either plan approval or plan certification shall be considered separate violations of chapter 90.64 RCW that may be subject to penalties. Such penalties may not exceed one hundred dollars per month for each violation up to a combined total of five thousand dollars. Failure to register as required in RCW 90.64.017 shall subject a dairy producer to a maximum penalty of one hundred dollars. Penalties shall be levied by the department.