SSB 5602 -
By Representatives Pettigrew, Holmquist, Kretz, Linville
ADOPTED 04/14/2005
Strike everything after the enacting clause and insert the following:
"NEW SECTION. Sec. 1 (1) This chapter applies to all operations
that meet the definition of an animal feeding operation.
(2)(a) This chapter creates specific permit requirements consistent
with state and federal water quality laws for concentrated animal
feeding operations.
(b) All dairies are required to implement nutrient management plans
and perform certain reporting.
(c) AFOs that are not CAFOs or dairies are not required to have a
plan under this chapter and are only required to obtain a permit if it
has been determined by the department that they are discharging to the
waters of the state. However, no AFO is allowed to pollute waters of
the state, and all AFOs may be inspected by the department under this
chapter.
Sec. 2 RCW 90.64.005 and 1998 c 262 s 1 are each amended to read
as follows:
The legislature finds that there is a need ((to establish a clear
and understandable process that provides for the proper and effective
management of dairy nutrients that affect the quality of surface or
ground waters in the state of Washington. The legislature finds that
there is a need for a program that will provide a stable and
predictable business climate upon which dairy farms may base future
investment decisions.)) for an effective livestock
nutrient management program for all AFOs that meets federal and state
water quality rules. The goals of the program are to provide clear
guidance to animal feeding operations about their responsibilities
under state and federal water quality laws and to implement the
necessary program requirements in a consistent manner that will
maintain a healthy and productive livestock industry in Washington
state while preventing degradation of water quality. It is the intent
of the legislature that the department of agriculture continues the
existing program for all licensed dairies, implements the revised
program for CAFOs and AFOs, and carries out effective, fair, and
equitable enforcement.
The legislature finds that federal regulations require a permit
program for dairies with over seven hundred head of mature cows and,
other specified dairy farms that directly discharge into waters or are
otherwise significant contributors of pollution. The legislature finds
that significant work has been ongoing over a period of time and that
the intent of this chapter is to take the consensus that has been
developed and place it into statutory form.
It is also the intent of this chapter to establish an inspection
and technical assistance program for dairy farms to address the
discharge of pollution to surface and ground waters of the state that
will lead to water quality compliance by the industry. A further
purpose is to create a balanced program involving technical assistance,
regulation, and enforcement with coordination and oversight of the
program by a committee composed of industry, agency, and other
representatives. Furthermore, it is the objective of this chapter to
maintain the administration of the water quality program as it relates
to dairy operations at the state level.
It is also the intent of this chapter to recognize the existing
working relationships between conservation districts, the conservation
commission, and the department of ecology in protecting water quality
of the state. A further purpose of this chapter is to provide
statutory recognition of the coordination of the functions of
conservation districts, the conservation commission, and the department
of ecology pertaining to development of dairy waste management plans
for the protection of water quality
Sec. 3 RCW 90.64.010 and 1998 c 262 s 2 are each amended to read
as follows:
Unless the context clearly requires otherwise, the definitions in
this section apply throughout this chapter.
(1) (("Advisory and oversight committee" means a balanced committee
of agency, dairy farm, and interest group representatives convened to
provide oversight and direction to the dairy nutrient management
program.)) "Department" means the department of agriculture of the state
of Washington.
(2) "Bypass" means the intentional diversion of waste streams from
any portion of a treatment facility.
(3) "Catastrophic" means a tornado, hurricane, earthquake, flood,
or other extreme condition that causes an overflow from a required
waste retention structure.
(4)
(2) "Director" means the director of the department or the
director's designee.
(3) "Animal feeding operation" or "AFO" means a lot or facility,
other than an aquatic animal production facility, where the following
conditions are met:
(a) Animals, other than aquatic animals, have been, are, or will be
stabled or confined and fed or maintained for a total of forty-five
days or more in any twelve-month period; and
(b) Crops, vegetation, forage growth, or postharvest residues are
not sustained in the normal growing season over any portion of the lot
or facility.
(4) "Certification" means:
(a) The acknowledgment by ((a local conservation district)) the
department that a ((dairy)) livestock producer has constructed or
otherwise put in place the elements and management necessary to
implement his or her ((dairy)) livestock nutrient management plan; and
(b) The acknowledgment by a ((dairy)) livestock producer that he or
she is managing ((dairy)) livestock nutrients and maintaining records
as specified in his or her approved ((dairy)) livestock nutrient
management plan.
(5) (("Chronic" means a series of wet weather events that precludes
the proper operation of a dairy nutrient management system that is
designed for the current herd size.)) "Conservation commission" or "commission" means the
conservation commission under chapter 89.08 RCW.
(6)
(((7))) (6) "Conservation districts" or "district" means a
subdivision of state government organized under chapter 89.08 RCW.
(((8))) (7) "Concentrated ((dairy)) animal feeding operation" or
"CAFO" means ((a dairy animal feeding operation subject to regulation
under this chapter which the director designates)) an AFO that is
defined as a large CAFO or as a medium CAFO under this section, or that
is designated as a CAFO under RCW 90.64.020 ((or meets the following
criteria:)) (as recodified by this act). Two or more AFOs under common
ownership are considered to be a single AFO for the purposes of
determining the number of animals at an operation, if they adjoin each
other or if they use a common area or system for the disposal of
livestock nutrients.
(a) Has more than seven hundred mature dairy cows, whether milked
or dry cows, that are confined; or
(b) Has more than two hundred head of mature dairy cattle, whether
milked or dry cows, that are confined and either:
(i) From which pollutants are discharged into navigable waters
through a manmade ditch, flushing system, or other similar manmade
device; or
(ii) From which pollutants are discharged directly into surface or
ground waters of the state that originate outside of and pass over,
across, or through the facility or otherwise come into direct contact
with the animals confined in the operation.
(9) "Dairy animal feeding operation" means a lot or facility where
the following conditions are met:
(a) Dairy animals that have been, are, or will be stabled or
confined and fed for a total of forty-five days or more in any twelve-month period; and
(b) Crops, vegetation forage growth, or postharvest residues are
not sustained in the normal growing season over any portion of the lot
or facility. Two or more dairy animal feeding operations under common
ownership are considered, for the purposes of this chapter, to be a
single dairy animal feeding operation if they adjoin each other or if
they use a common area for land application of wastes.
(10)
(8) "Dairy ((farm))" means any farm that is licensed to produce
milk under chapter 15.36 RCW.
(((11) "Dairy nutrient" means any organic waste produced by dairy
cows or a dairy farm operation.))
(12) "Dairy nutrient management plan" means a plan meeting the
requirements established under RCW 90.64.026.
(13) "Dairy nutrient management technical assistance team" means
one or more professional engineers and local conservation district
employees convened to serve one of four distinct geographic areas in
the state.
(14) "Dairy producer" means a person who owns or operates a dairy
farm.
(15) "Department" means the department of ecology under chapter
43.21A RCW.
(16) "Director" means the director of the department of ecology, or
his or her designee.
(17) "Upset" means an exceptional incident in which there is an
unintentional and temporary noncompliance with technology-based permit
effluent limitations because of factors beyond the reasonable control
of the dairy. An upset does not include noncompliance to the extent
caused by operational error, improperly designed treatment facilities,
inadequate treatment facilities, lack of preventive maintenance, or
careless or improper operation.
(18) "Violation" means the following acts or omissions: (a) A
discharge of pollutants into the waters of the state, except those
discharges that are due to a chronic or catastrophic event, or to an
upset as provided in 40 C.F.R. Sec. 122.41, or to a bypass as provided
in 40 C.F.R. Sec. 122.41, and that occur when:
(i) A dairy producer has a current national pollutant discharge
elimination system permit with a wastewater system designed, operated,
and maintained for the current herd size and that contains all process-generated wastewater plus average annual precipitation minus
evaporation plus contaminated storm water runoff from a twenty-five
year, twenty-four hour rainfall event for that specific location, and
the dairy producer has complied with all permit conditions, including
dairy nutrient management plan conditions for appropriate land
application practices; or
(ii) A dairy producer does not have a national pollutant discharge
elimination system permit, but has complied with all of the elements of
a dairy nutrient management plan that: Prevents the discharge of
pollutants to waters of the state, is commensurate with the dairy
producer's current herd size, and is approved and certified under RCW
90.64.026;
(b) Failure to register as required under RCW 90.64.017; or
(c) The lack of an approved dairy nutrient management plan by July
1, 2002; or
(d) The lack of a certified dairy nutrient management plan for a
dairy farm after December 31, 2003.
(9) "Large concentrated animal feeding operation" or "large CAFO"
means an AFO that stables or confines as many as or more than the
numbers of animals specified in any of the following categories:
(a) 700 mature dairy cows, whether milked or dry;
(b) 1,000 veal calves;
(c) 1,000 cattle other than mature dairy cows or veal calves.
Cattle includes but is not limited to heifers, steers, bulls, and
cow/calf pairs;
(d) 2,500 swine each weighing 55 pounds or more;
(e) 10,000 swine each weighing less than 55 pounds;
(f) 500 horses;
(g) 10,000 sheep or lambs;
(h) 55,000 turkeys;
(i) 30,000 laying hens or broilers, if the AFO uses a liquid manure
handling system;
(j) 125,000 chickens, other than laying hens, if the AFO uses other
than a liquid manure handling system;
(k) 82,000 laying hens, if the AFO uses other than a liquid manure
handling system;
(l) 30,000 ducks, if the AFO uses other than a liquid manure
handling system; or
(m) 5,000 ducks, if the AFO uses a liquid manure handling system.
(10) "Livestock nutrient" means manure, bedding, compost, and raw
materials or other materials commingled with manure or set aside for
disposal or process wastewater, which means water directly or
indirectly used in the operation of the AFO for any or all of the
following: Spillage or overflow from animal or poultry watering
systems; washing, cleaning, or flushing pens, barns, manure pits, or
other AFO facilities; direct contact swimming, washing, or spray
cooling of animals; or dust control. Process wastewater also includes
any water which comes into contact with any raw materials, products, or
byproducts including manure, litter, feed, milk, eggs, or bedding.
(11) "Livestock producer" means an owner or operator of an AFO,
CAFO, or dairy.
(12) "Medium concentrated animal feeding operation" or "medium
CAFO" means any AFO with the type and number of animals that fall
within any of the ranges listed below and which has been defined or
designated as a CAFO. An AFO is defined as a medium CAFO if:
(a) The type and number of animals that it stables or confines
falls within any of the following ranges:
(i) 200 to 699 mature dairy cows, whether milked or dry;
(ii) 300 to 999 veal calves;
(iii) 300 to 999 cattle other than mature dairy cows or veal
calves. Cattle includes but is not limited to heifers, steers, bulls,
and cow/calf pairs;
(iv) 750 to 2,499 swine each weighing 55 pounds or more;
(v) 3,000 to 9,999 swine each weighing less than 55 pounds;
(vi) 150 to 499 horses;
(vii) 3,000 to 9,999 sheep or lambs;
(viii) 16,500 to 54,999 turkeys;
(ix) 9,000 to 29,999 laying hens or broilers, if the AFO uses a
liquid manure handling system;
(x) 37,500 to 124,999 chickens, other than laying hens, if the AFO
uses other than a liquid manure handling system;
(xi) 25,000 to 81,999 laying hens, if the AFO uses other than a
liquid manure handling system;
(xii) 10,000 to 29,999 ducks, if the AFO uses other than a liquid
manure handling system; or
(xiii) 1,500 to 4,999 ducks, if the AFO uses a liquid manure
handling system; and
(b) Either one of the following conditions are met:
(i) Pollutants are discharged into waters of the state through a
man-made ditch, flushing system, or other similar man-made device; or
(ii) Pollutants are discharged directly into waters of the state
which originate outside of and pass over, across, or through the
facility or otherwise come into direct contact with the animals
confined in the operation.
(13) "Permit" means either a state waste discharge permit or a
national pollutant discharge elimination system (NPDES) permit, or
both.
(14) "Person" means any political subdivision, government agency,
municipality, industry, public or private corporation, partnership,
association, firm, individual, or any other entity whatsoever.
(15) "Plan" means a livestock nutrient management plan.
(16) "Pollution" means contamination, or other alteration of the
physical, chemical, or biological properties, of any waters of the
state, including change in temperature, taste, color, turbidity, or
odor of the waters, or such discharge of any liquid, gaseous, solid,
radioactive, or other substance into any waters of the state as will or
is likely to create a nuisance or render the waters harmful,
detrimental, or injurious to the public health, safety, or welfare, or
to domestic, commercial, industrial, agricultural, recreational, or
other legitimate beneficial uses, or to livestock, wild animals, birds,
fish, or other aquatic life.
(17) "Small concentrated animal feeding operation" or "small CAFO"
means an AFO that is designated as a CAFO and is not a medium CAFO.
(18) "Waters" or "waters of the state" means lakes, rivers, ponds,
streams, inland waters, underground waters, saltwaters, and all other
surface waters and watercourses within the jurisdiction of the state of
Washington.
Sec. 4 RCW 90.64.020 and 1993 c 221 s 3 are each amended to read
as follows:
(1) The director ((of the department of ecology may)) shall
designate any ((dairy animal feeding operation as a concentrated dairy
animal feeding operation)) AFO as a CAFO upon determining that it is a
significant contributor of pollution to the ((surface or ground))
waters of the state.
(2) The director may designate any AFO as a CAFO upon determining
that it is discharging to the waters of the state.
(3) In making ((this)) a designation, the director shall consider
the following factors:
(a) The size of the ((animal feeding operation)) AFO and the amount
of ((wastes)) livestock nutrients reaching waters of the state;
(b) The location of the ((animal feeding operation)) AFO relative
to waters of the state;
(c) The means of conveyance of ((animal wastes and process waters))
livestock nutrients into the waters of the state;
(d) The slope, vegetation, rainfall, and other factors affecting
the likelihood or frequency of discharge of ((animal wastes and process
wastewaters)) livestock nutrients into the waters of the state; ((and))
(e) The effort by the AFO to stop the discharge; and
(f) Other relevant factors as established by the department by
rule.
(((2) A notice of intent to apply for a permit shall not be
required from a concentrated dairy animal feeding operation designated
under this section until the director has conducted an on-site
inspection of the operation and determined that the operation should
and could be regulated under the permit program.))
(4) An AFO shall not be designated as a CAFO under this section
unless the director has conducted an on-site inspection of the
operation and determined that the operation should be regulated under
the permit program. In addition, no AFO with numbers of animals below
those for a medium CAFO may be designated as a CAFO unless:
(a) Pollutants are discharged into waters of the state through a
man-made ditch, flushing system, or other similar man-made device; or
(b) Pollutants are discharged directly into waters of the state
which originate outside of the facility and pass over, across, or
through the facility or otherwise come into direct contact with the
animals confined in the operation.
(5) Any AFO designated as a CAFO shall apply for a permit as
described in section 22 of this act.
Sec. 5 RCW 90.64.023 and 1998 c 262 s 5 are each amended to read
as follows:
(1) ((By October 1, 1998, the department shall initiate an
inspection program of all dairy farms in the state. The purpose of the
inspections is to:)) The department has the authority to conduct inspections under
this chapter to:
(a)
(a) Determine if an animal feeding operation meets the definition
of a CAFO under this chapter;
(b) Ensure compliance by AFOs, CAFOs, and dairies with state and
federal water quality laws and rules, including those adopted under
chapter 90.48 RCW;
(c) Determine whether a permitted CAFO is complying with the terms
and conditions of its permit;
(d) Survey for evidence of violations;
(((b))) (e) Identify corrective actions for actual or imminent
discharges that violate or could violate the state's water quality
standards or this chapter;
(((c))) (f) Monitor the development and implementation of ((dairy))
livestock nutrient management plans; and
(((d))) (g) Identify ((dairy producers who would benefit from))
AFOs, CAFOs, and dairies that are eligible for technical assistance or
education programs.
(2) ((Local conservation district employees may, at their
discretion, accompany department inspectors on any scheduled inspection
of dairy farms except random, unannounced inspections.)) The department shall inspect all dairies and
permitted CAFOs at least once every two years.
(3) Follow-up inspections shall be conducted by the department to
ensure that corrective and other actions as identified in the course of
initial inspections are being carried out. The department shall also
conduct such additional inspections as are necessary to ensure
compliance with state and federal water quality requirements, provided
that all licensed dairy farms shall be inspected once within two years
of the start of this program. The department, in consultation with the
advisory and oversight committee established in section 8 of this act,
shall develop performance-based criteria to determine the frequency of
inspections.
(4) Dairy farms
(3) Dairies and permitted CAFOs shall be prioritized for inspection
based on ((the development of)) criteria that include, but are not
limited to, the following factors:
(a) Existence or implementation of a ((dairy)) livestock nutrient
management plan;
(b) Proximity to impaired waters of the state; ((and))
(c) Proximity to all other waters of the state((. The criteria
developed to implement this subsection (4) shall be reviewed by the
advisory and oversight committee.));
(d) Proximity to shellfish beds;
(e) Permit status;
(f) Compliance history; and
(g) Other relevant factors as may be determined by the department.
(4)(a) All permitted CAFOs must make available during inspection
those records required to be kept by the permit.
(b) Dairies not covered by a permit and AFOs shall make available
during inspection records including, but not limited to, animal
inventories for purposes of determining if the dairy or AFO is subject
to regulation as a CAFO, to assess compliance with state and federal
water quality laws, and to verify qualification for technical
assistance programs, education programs, or any tax exemptions
available under state law.
(5) The department may conduct follow-up inspections to ensure that
corrective actions identified in the course of an inspection are being
carried out. The department may conduct such additional inspections as
are necessary to ensure compliance with administrative orders issued by
the department and compliance with permit conditions and state and
federal water quality laws and rules.
NEW SECTION. Sec. 6 (1) All CAFOs required to apply for a permit
and all dairies are required to develop a livestock nutrient management
plan. These plans must be approved by the department and certified as
fully implemented by the department and the livestock producer. If at
any time compliance with a livestock nutrient management plan fails to
prevent the discharge of pollutants or if complying with the plan would
still pose a significant potential to discharge pollutants to waters of
the state, the livestock producer must revise the plan as directed by
the department.
(2) Plans must be developed using natural resource conservation
service (NRCS) practice standards. Equivalent practices and standards
may be used if the department determines they meet or exceed NRCS
standards and there is a substantial likelihood that, once implemented,
the alternative practices and standards would meet state and federal
water quality standards. The department shall establish by rule a
technical review process to make determinations on proposed equivalent
practices and standards.
(3) Prior to approval and certification, a nutrient management plan
must be verified by a conservation district as meeting the NRCS
standards except that, at the request of the producer, verification may
be by a technical review team convened by the director. The team must
include a representative of a conservation district.
NEW SECTION. Sec. 7 The following requirements apply to all
CAFOs required to apply for a permit.
(1) All CAFOs required to apply for a permit must meet livestock
nutrient management plan deadlines for development and implementation
required by this chapter, permit, or rule.
(2) At a minimum, a livestock nutrient management plan for a CAFO
required to apply for a permit must include site-appropriate best
management practices including those set out in 40 C.F.R. Sec. 412.4
(April 14, 2003), and procedures necessary to implement applicable
effluent limitations including those set out in 40 C.F.R. Part 412
(April 14, 2003), and standards. The plan must, to the extent
applicable:
(a) Ensure adequate storage of livestock nutrients, including
procedures to ensure proper operation and maintenance of the storage
facilities;
(b) Ensure proper management of dead animals to ensure that they
are not disposed of in a liquid manure, storm water, or process
wastewater storage or treatment system that is not specifically
designed to treat animal mortalities;
(c) Ensure that clean water is diverted, as appropriate, from the
production area;
(d) Prevent direct contact of confined animals with waters of the
state;
(e) Ensure that chemicals and other contaminants handled on-site
are not disposed of in any livestock nutrients or storm water storage
or treatment system unless specifically designed to treat such
chemicals and other contaminants;
(f) Identify appropriate site-specific conservation practices to be
implemented, including as appropriate buffers or equivalent practices,
to control runoff of pollutants to waters of the state;
(g) Identify protocols for appropriate testing of livestock
nutrients and soil;
(h) Establish protocols to apply livestock nutrients in accordance
with site-specific nutrient management practices that ensure
appropriate agricultural utilization of the nutrients in the livestock
nutrients; and
(i) Identify specific records that will be maintained to document
the implementation and management of the minimum elements described in
(a) through (h) of this subsection.
(3) Review and approval of a plan by the department is part of the
permit application and issuance process. The department shall
determine whether a plan contains the elements identified in subsection
(2) of this section, meets the permit requirements, and is adequate to
meet applicable state and federal water quality laws, including chapter
90.48 RCW.
(4)(a) An approved plan shall be certified by the department and
the livestock producer when the plan is fully implemented and is being
used as designed and intended.
(b) A certification form shall be developed by the department and
shall provide for a signature by both the director and the livestock
producer. The livestock producer must submit to the department a
signed certification form.
(c) Upon receipt of the completed certification form, the
department shall determine within one hundred twenty days whether the
approved plan has been fully implemented. If the department finds the
plan is not fully implemented, the department shall deny certification.
The department shall notify the livestock producer in writing of the
reasons for the denial of certification.
NEW SECTION. Sec. 8 The following requirements apply to all
dairies not required to apply for a permit.
(1) A dairy that is not a CAFO required to apply for a permit has
six months from the date of obtaining a license under chapter 15.36 RCW
to submit its livestock nutrient management plan to the department and
eighteen months from the date of plan approval to submit the plan to
the department for certification.
(2) The plan for a dairy that is not a CAFO required to apply for
a permit shall include the minimum elements as defined by the
department by rule.
(3) The department shall review and determine whether a plan
contains the minimum elements. The department shall approve or deny
approval of the plan no later than ninety days after receiving the
plan. If the department denies approval, the department shall notify
the livestock producer in writing of the denial and of modifications
needed for plan compliance no later than ninety days after receiving
the plan. The livestock producer must provide a revised plan that
includes the needed modifications within ninety days of the date of the
department's notification.
(4)(a) An approved plan shall be certified by the department and
the livestock producer when the plan is fully implemented and is being
used as designed and intended.
(b) A certification form shall be developed by the department and
shall provide for a signature by both the director and the livestock
producer. The livestock producer must submit to the department a
signed certification form within eighteen months of plan approval.
(c) Upon receipt of the completed certification form, the
department shall determine within one hundred twenty days whether the
approved plan has been fully implemented. If the department finds the
plan is not fully implemented, the department shall deny certification.
The department shall notify the livestock producer in writing of the
reasons for the denial of certification and set a date by which full
implementation must occur.
(5) A dairy that is not a CAFO required to apply for a permit that
fails to have an approved or a certified livestock nutrient management
plan in place by the timelines specified in this section is in
violation of this chapter. Each month beyond these deadlines that the
dairy is out of compliance with the requirement for either plan
approval or plan certification is considered a separate violation that
may subject the dairy to penalties. The penalties are one hundred
dollars per month for each violation up to a combined total of one
thousand two hundred dollars and then the penalty is two hundred
dollars per month for each violation up to a combined maximum of five
thousand dollars.
NEW SECTION. Sec. 9 AFOs that are not dairies may voluntarily
develop and implement livestock nutrient management plans. If an AFO
requests that the department approve and certify the plan, then the
plan must meet the minimum elements required in section 8 of this act.
Plan approval and certification shall follow the same process as
identified in section 8 of this act.
Sec. 10 RCW 90.64.028 and 1998 c 262 s 7 are each amended to read
as follows:
(1) ((Conservation district)) (a) Department decisions pertaining
to denial of approval or denial of certification of a ((dairy))
livestock nutrient management plan for a facility not required to have
a permit, including a denial of the use of alternative standards and
practices; modification or amendment of a plan; conditions contained in
a plan; application of any ((dairy)) livestock nutrient management
practices, standards, methods, and technologies to a particular AFO,
CAFO, or dairy ((farm)); and the failure to adhere to plan review and
approval timelines identified in ((RCW 90.64.026)) section 8 of this
act are appealable under this chapter. ((Department actions pertaining
to water quality violations are appealable under chapter 90.48 RCW.)) (b) Within thirty days of receiving ((
In addition, a dairy producer who is constrained from complying
with the planning requirements of this chapter because of financial
hardship or local permitting delays may request a hearing before the
conservation commission and may request an extension of up to one year
beyond the approval and certification dates prescribed in this chapter
for plan approval and certification.
(2)a local conservation
district)) notification regarding any of the decisions identified in
(a) of this subsection (((1) of this section)), a ((dairy)) livestock
producer who disagrees with any of these decisions ((may request an
informal hearing before the conservation commission or)) may appeal
((directly)) to the pollution control hearings board. ((The commission
shall issue a written decision no later than thirty days after the
informal hearing.)) (c) When an appeals process is initiated under this section,
the length of time extending from the start of the appeals process to
its conclusion shall be added onto the timelines provided in this
chapter for plan development, approval, and certification ((
(3) If the conservation commission reverses the decision of the
conservation district, the conservation district may appeal this
reversal to the pollution control hearings board according to the
procedure in chapter 43.21B RCW within thirty days of receipt of the
commission's decision.
(4)only if an
appeal is heard by the pollution control hearings board)).
(2) For facilities applying for a permit, department decisions
pertaining to those elements of a livestock nutrient management plan
that are conditions of a permit are made as part of the permit
application and issuance process and are appealable by any person to
the pollution control hearings board under RCW 43.21B.110.
Sec. 11 RCW 90.64.030 and 2003 c 325 s 3 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.)) (a) The department shall investigate a ((
(2)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.
Within twenty days of receiving a ((written)) complaint, a copy of the
findings shall be provided to the ((dairy)) livestock producer subject
to the complaint, and, if requested, to the complainant if the person
gave his or her name and address to the department at the time the
complaint was filed.
(((3))) (b) The department may consider past complaints against the
same AFO, CAFO, or dairy ((farm)) from the same person and the results
of its previous inspections, and has the discretion to decide whether
to conduct an inspection if:
(((a))) (i) The same or a similar complaint or complaints have been
filed against the same AFO, CAFO, or dairy ((farm)) within the
immediately preceding six-month period; and
(((b))) (ii) The department made a determination that the activity
that was the subject of the prior complaint was not a violation.
(((4))) (c) If the decision of the department is not to conduct an
inspection, it shall document the decision and the reasons for the
decision within twenty days. The department shall provide the decision
to the complainant if the name and address were provided to the
department, and to the ((dairy)) livestock producer subject to the
complaint, and the department shall place the decision in the
department's administrative records.
(((5))) (2) The report of findings of any inspection conducted as
the result of ((either an oral or a written)) a complaint shall be
placed in the department's administrative records. ((Only findings of
violations shall be entered into the data base identified in RCW
90.64.130.)) (3) An AFO, CAFO, or dairy ((
(6) Afarm)) that is determined to
be a significant contributor of pollution based on actual water quality
tests, photographs, or other pertinent information, or that violates
the terms and conditions of a permit 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 or this
chapter.
(((7))) (4) If the department determines that an unresolved water
quality problem from ((a)) an AFO, CAFO, or dairy ((farm)) requires
immediate corrective action, the department shall notify the livestock
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)) facility to the livestock producer within
twenty days.
(((8) 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)) (5) The penalty may
be waived for the first violation of water quality laws on an AFO,
CAFO, or dairy to allow the livestock producer to promptly come into
compliance. The department shall record all ((legitimate)) violations
and subsequent enforcement actions.
(((9))) (6) A discharge of pollutants, including ((a)) an
agricultural storm water discharge, ((to surface)) into waters of the
state by an AFO, CAFO, or dairy 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, 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))) section 34 of this act.
In addition, a ((dairy)) livestock 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))
livestock 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))
livestock producer or the ((dairy)) producer's agent.
(((10))) (7) As provided under RCW 7.48.305, agricultural
activities associated with the management of ((dairy)) livestock
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.
(((11))) (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))
livestock 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.
(((12) 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. The department has
discretion in imposing penalties for failure to meet deadlines for plan
approval or plan certification if the failure to comply is due to lack
of state funding for implementation of the program. 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.))
Sec. 12 RCW 90.64.040 and 1993 c 221 s 5 are each amended to read
as follows:
Enforcement actions and administrative orders issued by the
department ((of ecology)) may be appealed to the pollution control
hearings board in accordance with the provisions of chapter 43.21B RCW.
Sec. 13 RCW 90.64.050 and 1998 c 262 s 12 are each amended to
read as follows:
(1) The department has the ((following duties)) duty to implement
and administer a livestock nutrient management program including the
duty to:
(a) Enforce this chapter including carrying out inspections and
enforcement actions, and assessing penalties;
(b) Identify existing or potential water quality problems resulting
from a dairy farm((s)) or CAFO through implementation of the inspection
program in ((RCW 90.64.023)) this chapter;
(((b) Inspect a dairy farm upon the request of a dairy producer;))
(c) Receive, process, and verify complaints concerning discharge of
pollutants from ((all dairy farms)) any AFO, CAFO, or dairy;
(d) ((Determine if a dairy-related water quality problem requires
immediate corrective action under the Washington state water pollution
control laws, chapter 90.48 RCW, or the Washington state water quality
standards adopted under chapter 90.48 RCW. The department shall
maintain the lead enforcement responsibility;)) Upon delegation, administer and enforce ((
(e)national pollutant
discharge elimination system)) permits for ((operators of))
concentrated ((dairy)) animal feeding operations, where required by
federal regulations and state laws or upon request of a ((dairy))
livestock producer;
(((f) Participate on the advisory and oversight committee;)) (e) Require the ((
(g) Encourage communication and cooperation between local
department personnel and the appropriate conservation district
personnel;
(h)use of dairy)) development of livestock
nutrient management plans as required under this chapter ((for entities
required to plan under this chapter)); and
(((i) Provide to the commission and the advisory and oversight
committee an annual report of dairy farm inspection and enforcement
activities)) (f) Approve and certify livestock nutrient management
plans that meet the minimum standards developed under this chapter.
(2) The department ((may not delegate its responsibilities in
enforcement)) has the authority to:
(a) Inspect a facility upon the request of the livestock producer;
(b) Provide technical assistance to AFOs, CAFOs, and dairies in
gaining compliance with this chapter and in implementing livestock
nutrient management plans to protect water quality;
(c) Maintain and manage data necessary to administer the program
effectively and to track compliance activity;
(d) Provide communication and outreach to representatives of
agricultural and environmental organizations; and
(e) Coordinate with conservation districts or other agencies and
organizations that provide education and technical or financial
assistance programs for AFOs, CAFOs, and dairies.
Sec. 14 RCW 90.64.110 and 1993 c 221 s 12 are each amended to
read as follows:
(1) In addition to the specific grants of rule-making authority in
this chapter, the department may adopt rules as necessary to implement
this chapter, including rules concerning the administration of permit
programs.
(2) The department has the authority to adopt in rule any
provisions in the following federal regulations: 40 C.F.R. parts 9,
122, 123, 124, and 412 (April 14, 2003). The department is authorized
to adopt rules to accommodate changes to federal regulations that are
subsequently adopted by the United States environmental protection
agency.
Sec. 15 RCW 90.64.150 and 2003 c 325 s 5 are each amended to read
as follows:
((The livestock nutrient management account is created in the
custody of the state treasurer.)) All receipts from monetary penalties
levied pursuant to violations of this chapter must be deposited into
the livestock nutrient management grant account hereby created within
the agricultural local fund. Expenditures from the account may be used
only to provide grants for research or education proposals that assist
livestock operations to achieve compliance with state and federal water
quality laws. The director ((of agriculture)) shall accept and
prioritize research proposals and education proposals. Only the
director or the director's designee may authorize expenditures from the
account. The account is subject to allotment procedures under chapter
43.88 RCW, but an appropriation is not required for expenditures.
NEW SECTION. Sec. 16 Any residual balance of funds remaining in
the livestock nutrient management account on the effective date of this
section shall be transferred to the livestock nutrient management grant
account within the agricultural local fund.
NEW SECTION. Sec. 17 (1) Permitted CAFOs shall maintain and make
available to the department the records and annual reports as described
in 40 C.F.R. Sec. 122.42(e) (2), (3), and (4) (April 14, 2003). The
department shall develop a standard annual reporting form and a
submittal date by rule for the annual report from CAFOs.
(2) Dairies that are not a CAFO required to apply for a permit
shall maintain and make available to the department all records
required by their livestock nutrient management plans. These dairies
must also submit a completed summary report to the department every two
years beginning in 2006. The department shall develop and send out a
standard reporting form and designate a submittal date by rule for the
report. If the producer fails to submit a completed summary report by
the submittal date, the department shall levy a penalty of one hundred
dollars.
NEW SECTION. Sec. 18 The department may coordinate with
Washington State University, the conservation commission, conservation
districts, the department of ecology, other federal, state, and local
agencies, and private organizations and individuals in implementing an
education program for improvement of nutrient management by dairies,
AFOs, and CAFOs and to prevent livestock nutrients from degrading the
quality of waters of the state. The department may refer livestock
producers to conservation districts, Washington State University, and
other entities for educational programs, technical assistance, or
financial assistance.
NEW SECTION. Sec. 19 (1) Conservation districts may, at the
request of a livestock producer, provide technical or financial
assistance in developing or revising and implementing the producer's
livestock nutrient management plan.
(2) The conservation commission and conservation districts shall,
to the extent practical and to the extent that funding allows, provide
technical and financial assistance to livestock producers to assist
them in complying with this chapter.
NEW SECTION. Sec. 20 When the environmental protection agency
delegates authority under the federal clean water act to the department
and the department of ecology relinquishes its authority under RCW
90.48.260 to administer its national pollutant discharge elimination
permit system authority and other duties regarding animal feeding
operations and concentrated animal feeding operations, the department
is hereby authorized to participate fully in the programs of the
federal clean water act as well as to take all action necessary to
secure to the state the benefits and to meet the requirements of that
act for AFOs and CAFOs. Implementation shall be accomplished so that
compliance with AFO and CAFO rules, permits, programs, and directives
will achieve compliance with all federal and state water pollution
control laws. The powers granted in this section include, among
others, and notwithstanding any provisions of chapter 90.48 RCW or
otherwise, the following:
(1) Complete authority to establish and administer a livestock
nutrient management program, including a pollution discharge
elimination permit program which will allow the department to be the
sole agency issuing permits required by such national system operating
in the state of Washington. Program elements authorized may include,
but are not limited to: (a) Issuance of permits; (b) termination and
modification of permits for cause; (c) requirements for public notices
and opportunities for public hearings; (d) requirements for inspection,
monitoring, entry, and reporting; (e) enforcement of the program
through penalties, emergency powers, and criminal sanctions; (f) a
continuing planning process; and (g) user charges.
(2) The power to establish and administer a state program in a
manner which will ensure the procurement of moneys, whether in the form
of grants, loans, or otherwise, to assist in the construction,
operation, and maintenance of various water pollution control
facilities and works.
(3) The power to develop and implement appropriate programs
pertaining to continuing planning processes.
NEW SECTION. Sec. 21 Until the department receives federal
delegation for the NPDES CAFO program, the department of ecology shall
remain responsible for NPDES permit administration as described under
a memorandum of understanding between the department and the department
of ecology. Sections 22 through 26 of this act are not effective until
federal delegation occurs.
NEW SECTION. Sec. 22 (1) Any person who owns or operates a dairy
or CAFO that is required to apply for a permit under RCW 90.64.020 (as
recodified by this act) or under the federal CAFO rule shall obtain a
permit from the department. Any AFO that is determined by the
department to be discharging into the waters of the state is required
to obtain a state waste discharge permit from the department.
(2) The permit issued by the department shall meet the requirements
of either the NPDES or the state waste discharge permit system, or
both.
(3) A livestock operation meeting the definition of large CAFO may
seek a determination from the department that the large CAFO has no
potential to discharge to the waters of the state. Within sixty days
of such a request, the director will make a determination using the
process and criteria of 40 C.F.R. Sec. 122.23(f) (April 14, 2003). A
livestock operation that receives a determination that it has no
potential to discharge is not required to apply for permit coverage.
Such a livestock operation is not relieved from liability under this
chapter for actual discharges.
NEW SECTION. Sec. 23 (1) Applications for permits or
modifications of a permit must be made on forms prescribed by the
department, which shall be consistent with the federal CAFO permit
application form. A copy of the nutrient management plan must be
submitted with the application. An application for a permit shall be
made:
(a) At least one hundred eighty days prior to commencement of
operation of any new source CAFO required to apply for a permit;
(b) At least one hundred eighty days prior to the permit expiration
date;
(c) Within ninety days of designation as a newly designated CAFO;
or
(d) Within ninety days of the change in circumstance that causes a
facility not covered by a permit to become defined as a CAFO required
to apply for a permit.
(2) The department shall establish by rule public notice and public
hearing requirements pertaining to department decisions on applications
and permits in conformance with the requirements of 40 C.F.R. Secs.
124.10, 124.11, and 124.12 (April 14, 2003) and any other applicable
federal regulation. At a minimum, the department's rules shall include
providing notice of permit application. These rules shall also define
the methods of public notice including, but not limited to, electronic
means.
(3) When an application has been filed with the department that
complies with this chapter and its rules, the department shall
determine whether the management of livestock nutrients as proposed
will pollute waters of the state in violation of the public policy of
the state.
NEW SECTION. Sec. 24 The department shall issue a permit under
section 22 of this act unless it finds that the disposal of livestock
nutrients as proposed in the application will pollute or present a
substantial potential to pollute the waters of the state in violation
of state or federal law. The department shall have authority to
specify conditions necessary to avoid such pollution in each permit
under which livestock nutrients may be disposed of by the permittee.
Permits, whether individual or general, shall not be valid for more
than five years from the date of issuance.
NEW SECTION. Sec. 25 A permit under section 22 of this act shall
be subject to termination upon thirty days' notice in writing if the
department finds:
(1) That it was procured by misrepresentation of any material fact
or by lack of full disclosure in the application;
(2) That there has been a violation of the conditions thereof;
(3) That a material change in quantity or type of livestock
nutrient disposal exists.
NEW SECTION. Sec. 26 In the event that a material change in the
condition of the waters occurs, the department may, by appropriate
order, modify permit conditions or specify additional conditions in
permits previously issued.
NEW SECTION. Sec. 27 It is unlawful for any person regulated by
this chapter to throw, drain, run, or otherwise discharge into any of
the waters of this state, or to cause, permit, or suffer to be thrown,
run, drained, allowed to seep, or otherwise discharged into such waters
any organic or inorganic matter, including livestock nutrients, that
shall cause or tend to cause pollution of such waters according to the
determination of the department, as provided for in this chapter.
NEW SECTION. Sec. 28 If any discharge to waters of the state
occurs, a permitted CAFO shall notify the department as specified in
the permit. A dairy or CAFO that is not a permitted CAFO shall notify
the department within twenty-four hours and submit a written report
within five days describing at a minimum: The discharge, receiving
water, cause, dates, estimated quantities, corrective steps taken to
repair impacts, and how it will prevent any future discharge.
NEW SECTION. Sec. 29 (1) The director has the authority to enter
any AFO, CAFO, or dairy at any reasonable time and inspect property or
facilities and records required under this chapter. Upon arrival at an
AFO, CAFO, or dairy, the department shall present identification and
give verbal notification of the purpose of the inspection, which may
include sampling and testing, to the livestock producer or his or her
agent.
(2) If the director is denied access to property, facility, or
records, the director may apply to a court of competent jurisdiction
for a search warrant authorizing access to property, facilities, or
records for purposes of inspections, sampling, or testing as authorized
in this chapter. The court may upon the application issue a search
warrant for the purposes requested.
NEW SECTION. Sec. 30 The department, with the assistance of the
attorney general, is authorized to bring any appropriate action at law
or in equity, including action for injunctive relief, in the name of
the people of the state of Washington as may be necessary to carry out
this chapter.
NEW SECTION. Sec. 31 (1) Whenever, in the opinion of the
department, any person violates or creates a substantial potential to
violate this chapter, or fails to control the polluting content of
waste discharged or to be discharged into any waters of the state, the
department shall notify the person of its determination by registered
or certified mail. Such determination shall not constitute an order or
directive under chapter 43.21B or 34.05 RCW. Within thirty days from
the receipt of notice of the determination, the person must file with
the department a full report stating what steps have been and are being
taken to control the waste or pollution or to otherwise comply with the
determination of the department. The department then shall issue such
order or directive as it deems appropriate under the circumstances, and
shall notify the person by registered or certified mail.
(2) Whenever the department deems immediate action is necessary to
accomplish the purposes of this chapter, it may issue such order or
directive, as appropriate under the circumstances, without first
issuing a notice or determination pursuant to subsection (1) of this
section. An order or directive issued pursuant to this subsection
shall be served by registered or certified mail or personally upon any
person to whom it is directed.
NEW SECTION. Sec. 32 Any person found guilty of willfully
violating this chapter, or any final written orders or directive of the
department or a court in pursuance thereof, is guilty of a gross
misdemeanor, and upon conviction thereof shall be punished by a fine of
up to ten thousand dollars and costs of prosecution, or by imprisonment
in the county jail for not more than one year, or by both such fine and
imprisonment in the discretion of the court. Each day upon which a
willful violation of this chapter occurs may be deemed a separate and
additional violation.
NEW SECTION. Sec. 33 (1) Any person who:
(a)(i) Violates this chapter;
(ii) Fails to perform any duty imposed by this chapter;
(iii) Violates an order or other determination of the department or
the director made under this chapter;
(iv) Violates the conditions of a permit issued under this chapter;
or
(v) Otherwise causes a reduction in the quality of the state's
waters below the standards set under chapter 90.48 RCW or, if no
standards have been set, causes significant degradation of water
quality, thereby damaging the state's waters; and
(b) Causes the death of, or injury to, fish, animals, vegetation,
or other resources of the state;
shall be liable to pay the state and affected counties and cities
damages in an amount determined under RCW 90.48.367.
(2) An action is not authorized under this section against any
person operating in compliance with the conditions of a permit issued
under this chapter.
NEW SECTION. Sec. 34 (1) Except as provided in chapter 43.05
RCW, every person who:
(a) Violates the terms or conditions of a permit issued under this
chapter or chapter 90.48 RCW for an AFO or a CAFO;
(b) Operates a CAFO without a permit as required by this chapter or
chapter 90.48 RCW; or
(c) Discharges livestock nutrients in violation of this chapter, or
rules or orders adopted or issued under this chapter or chapter 90.48
RCW,
shall incur, in addition to any other penalty as provided by law, a
penalty in an amount of up to ten thousand dollars a day for every such
violation. Each and every such violation shall be a separate and
distinct offense, and in case of a continuing violation, every day's
continuance shall be and be deemed to be a separate and distinct
violation. Every act of commission or omission which procures, aids,
or abets in the violation shall be considered a violation under this
section and subject to the penalty provided for in this section. The
penalty amount shall be set in consideration of the previous history of
the violator and the severity of the violation's impact on public
health or the environment in addition to other relevant factors. The
department is authorized to set forth the procedures and the criteria
for setting the penalty in rule.
(2) A discharge of pollutants into the waters of the state is a
violation of this chapter, except those discharges that occur when a
livestock producer has a current national pollutant discharge
elimination system permit with a wastewater system designed,
constructed, operated, and maintained for the current herd size and
that contains all process-generated wastewater plus average annual
precipitation minus evaporation plus contaminated storm water runoff
from a rainfall event as specified for the type of facility in 40
C.F.R. Part 412 (April 14, 2003) for that specific location, the
discharge is the result of a rainfall event as specified for the type
of facility in 40 C.F.R. Part 412 (April 14, 2003), and the livestock
producer has complied with all permit conditions, including livestock
nutrient management plan conditions for appropriate land application
practices.
(3) A livestock producer may assert upset as an affirmative defense
to allegations of discharge in violation of a permit. "Upset" means an
exceptional incident in which there is an unintentional and temporary
noncompliance with technology-based permit effluent limitations because
of factors beyond the reasonable control of the producer. An upset
does not include noncompliance to the extent caused by operational
error, improperly designed treatment facilities, inadequate treatment
facilities, lack of preventive maintenance, or careless or improper
operation. In any enforcement proceeding the permittee seeking to
establish the occurrence of an upset has the burden of proof.
NEW SECTION. Sec. 35 (1) Notwithstanding any other provisions of
this chapter, whenever it appears to the director that a person
regulated by this chapter is causing water quality conditions to exist
which require immediate action to protect the public health or welfare,
the director may issue a written temporary order to cease and desist to
the person responsible without prior notice or hearing, directing the
person to either: (a) Immediately discontinue or modify the discharge
into the waters of the state; or (b) appear before the department at
the time and place specified in the order to provide the department
information pertaining to the violations and conditions alleged in the
order. The temporary order to cease and desist is effective upon
service on the responsible person and will remain in effect until ten
days after the informational meeting. The responsible person shall be
given not less than twenty-four hours' notice of the informational
meeting.
(2) Following the informational meeting or if the responsible
person fails to attend the informational meeting, if the department
determines that water quality conditions exist which require immediate
action to protect the public health or welfare, the department may
issue a written permanent order to cease and desist requiring the
person to immediately discontinue or modify the discharge into waters.
The permanent order to cease and desist is effective upon service. If
this order is not immediately complied with, the attorney general, upon
request of the department, may seek enforcement of the order in the
superior court of the county in which the violation took place.
Permanent orders to cease and desist issued by the department are
appealable under chapter 43.21B RCW.
NEW SECTION. Sec. 36 (1) The department shall establish by rule
annual fees for administering permits issued under this chapter. Fees
shall be used for costs incurred by the department in processing permit
applications and modifications, monitoring and evaluating compliance
with permits, conducting inspections, securing laboratory analysis of
samples taken during inspections, reviewing plans and documents
directly related to operations of permittees, overseeing performance of
delegated pretreatment programs, and supporting the overhead expenses
that are directly related to these activities.
(2) The initial fee schedule adopted after delegation of national
pollutant discharge elimination system permit authority from the
environmental protection agency shall be the same as the fee schedule
established by the department of ecology except that fees may rise in
accordance with the fiscal growth factor as provided in chapter 43.135
RCW. Until the initial fee schedule is adopted, the fees established
by the department of ecology shall be in effect.
(3) All fees collected under this section shall be deposited in the
livestock nutrient management permit account within the agricultural
local fund and used only for purposes of administering permits under
this chapter.
NEW SECTION. Sec. 37 (1) Prior to issuing an order related to
discharges from agricultural activity on agricultural land, the
department shall consider whether an enforcement action would
contribute to the conversion of agricultural land to nonagricultural
uses. Any enforcement action shall attempt to minimize the possibility
of such conversion.
(2) As used in this section:
(a) "Agricultural activity" means the growing, raising, or
production of horticultural or viticultural crops, berries, poultry,
livestock, grain, mint, hay, and dairy products.
(b) "Agricultural land" means at least five acres of land devoted
primarily to the commercial production of livestock or agricultural
commodities.
NEW SECTION. Sec. 38 (1) The department of ecology shall develop
and maintain a standard protocol for water quality monitoring of the
waters of the state within the vicinity of dairies and CAFOs. The
protocol shall include sampling methods and procedures and identify the
water quality constituents to be monitored.
(2) The department of ecology shall submit the initial protocol
developed according to this section to the appropriate committees of
the legislature by December 1, 2005.
Sec. 39 RCW 43.21B.001 and 2004 c 204 s 1 are each amended to
read as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "Business days" means Monday through Friday exclusive of any
state or federal holiday.
(2) "Date of receipt" means:
(a) Five business days after the date of mailing; or
(b) The date of actual receipt, when the actual receipt date can be
proven by a preponderance of the evidence. The recipient's sworn
affidavit or declaration indicating the date of receipt, which is
unchallenged by the agency, shall constitute sufficient evidence of
actual receipt. The date of actual receipt, however, may not exceed
forty-five days from the date of mailing.
(3) "Department" means the department of ecology, except for
references pertaining to chapter 16.-- RCW (created by section 48 of
this act), in which case "department" means the department of
agriculture.
(4) "Director" means the director of ecology, except for references
pertaining to chapter 16.-- RCW (created by section 48 of this act), in
which case "director" means the director of the department of
agriculture or a duly authorized representative.
Sec. 40 RCW 43.21B.110 and 2003 c 393 s 19 are each amended to
read as follows:
(1) The hearings board shall only have jurisdiction to hear and
decide appeals from the following decisions of the department, the
department of agriculture, the director, local conservation districts,
and the air pollution control boards or authorities as established
pursuant to chapter 70.94 RCW, or local health departments:
(a) Civil penalties imposed pursuant to section 17 of this act,
section 34 of this act, RCW 18.104.155, 70.94.431, 70.105.080,
70.107.050, 88.46.090, 90.03.600, 90.48.144, 90.56.310, ((and))
90.56.330, and section 8 of this act.
(b) Orders issued pursuant to section 31 of this act, section 35 of
this act, RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332,
70.105.095, 86.16.020, 88.46.070, 90.14.130, 90.48.120, and 90.56.330.
(c) Except as provided in RCW 90.03.210(2), the issuance,
modification, or termination of any permit, certificate, or license by
the department or any air authority in the exercise of its
jurisdiction, including the issuance or termination of a waste disposal
permit, the denial of an application for a waste disposal permit, the
modification of the conditions or the terms of a waste disposal permit,
or a decision to approve or deny an application for a solid waste
permit exemption under RCW 70.95.300.
(d) Decisions of local health departments regarding the grant or
denial of solid waste permits pursuant to chapter 70.95 RCW.
(e) Decisions of local health departments regarding the issuance
and enforcement of permits to use or dispose of biosolids under RCW
70.95J.080.
(f) Decisions of the department regarding waste-derived fertilizer
or micronutrient fertilizer under RCW 15.54.820, and decisions of the
department regarding waste-derived soil amendments under RCW 70.95.205.
(g) Decisions of ((local conservation districts)) the department of
agriculture related to the denial of approval or denial of
certification of a ((dairy)) livestock nutrient management plan;
conditions contained in a plan; application of any ((dairy)) livestock
nutrient management practices, standards, methods, and technologies to
a particular ((dairy farm)) facility; and failure to adhere to the plan
review and approval timelines in ((RCW 90.64.026)) section 8 of this
act.
(h) Any other decision by the department or an air authority which
pursuant to law must be decided as an adjudicative proceeding under
chapter 34.05 RCW.
(2) The following hearings shall not be conducted by the hearings
board:
(a) Hearings required by law to be conducted by the shorelines
hearings board pursuant to chapter 90.58 RCW.
(b) Hearings conducted by the department pursuant to RCW 70.94.332,
70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.
(c) Proceedings conducted by the department, or the department's
designee, under RCW 90.03.160 through 90.03.210 or 90.44.220.
(d) Hearings conducted by the department to adopt, modify, or
repeal rules.
(e) Appeals of decisions by the department as provided in chapter
43.21L RCW.
(3) Review of rules and regulations adopted by the hearings board
shall be subject to review in accordance with the provisions of the
Administrative Procedure Act, chapter 34.05 RCW.
Sec. 41 RCW 43.21B.300 and 2004 c 204 s 4 are each amended to
read as follows:
(1) Any civil penalty provided in section 8 of this act, section 17
of this act, section 34 of this act, RCW 18.104.155, 70.94.431,
70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.48.144, 90.56.310, and
90.56.330 shall be imposed by a notice in writing, either by certified
mail with return receipt requested or by personal service, to the
person incurring the penalty from the department, the department of
agriculture, or the local air authority, describing the violation with
reasonable particularity. Within thirty days after the notice is
received, the person incurring the penalty may apply in writing to the
department, the department of agriculture, or the authority, as
appropriate, for the remission or mitigation of the penalty. Upon
receipt of the application, the department, the department of
agriculture, or authority may remit or mitigate the penalty upon
whatever terms the department, the department of agriculture, or the
authority in its discretion deems proper. The department, the
department of agriculture, or the authority may ascertain the facts
regarding all such applications in such reasonable manner and under
such rules as it may deem proper and shall remit or mitigate the
penalty only upon a demonstration of extraordinary circumstances such
as the presence of information or factors not considered in setting the
original penalty.
(2) Any penalty imposed under this section may be appealed to the
pollution control hearings board in accordance with this chapter if the
appeal is filed with the hearings board and served on the department,
the department of agriculture, or authority thirty days after the date
of receipt by the person penalized of the notice imposing the penalty
or thirty days after the date of receipt of the notice of disposition
of the application for relief from penalty.
(3) A penalty shall become due and payable on the later of:
(a) Thirty days after receipt of the notice imposing the penalty;
(b) Thirty days after receipt of the notice of disposition on
application for relief from penalty, if such an application is made; or
(c) Thirty days after receipt of the notice of decision of the
hearings board if the penalty is appealed.
(4) If the amount of any penalty is not paid to the department or
the department of agriculture, as appropriate, within thirty days after
it becomes due and payable, the attorney general, upon request of the
department or the department of agriculture, shall bring an action in
the name of the state of Washington in the superior court of Thurston
county, or of any county in which the violator does business, to
recover the penalty. If the amount of the penalty is not paid to the
authority within thirty days after it becomes due and payable, the
authority may bring an action to recover the penalty in the superior
court of the county of the authority's main office or of any county in
which the violator does business. In these actions, the procedures and
rules of evidence shall be the same as in an ordinary civil action.
(5) All penalties recovered shall be paid into the state treasury
and credited to the general fund except those penalties imposed
pursuant to RCW 18.104.155, which shall be credited to the reclamation
account as provided in RCW 18.104.155(7), RCW 70.94.431, the
disposition of which shall be governed by that provision, RCW
70.105.080, which shall be credited to the hazardous waste control and
elimination account, created by RCW 70.105.180, ((and)) RCW 90.56.330,
which shall be credited to the coastal protection fund created by RCW
90.48.390 and chapter 16.-- RCW (created by section 48 of this act)
which shall be credited to the livestock nutrient management grant
account created by RCW 90.64.150 (as recodified by this act).
Sec. 42 RCW 43.21B.310 and 2004 c 204 s 5 are each amended to
read as follows:
(1) Except as provided in RCW 90.03.210(2), any order issued by the
department, the department of agriculture, or local air authority
pursuant to section 31 of this act, section 35 of this act, RCW
70.94.211, 70.94.332, 70.105.095, 43.27A.190, 86.16.020, 88.46.070, or
90.48.120(2) or any provision enacted after July 26, 1987, or any
permit, certificate, or license issued by the department may be
appealed to the pollution control hearings board if the appeal is filed
with the board and served on the department, the department of
agriculture, or authority within thirty days after the date of receipt
of the order. Except as provided under chapter 70.105D RCW and RCW
90.03.210(2), this is the exclusive means of appeal of such an order.
(2) The department, the department of agriculture, or the authority
in its discretion may stay the effectiveness of an order during the
pendency of such an appeal.
(3) At any time during the pendency of an appeal of such an order
to the board, the appellant may apply pursuant to RCW 43.21B.320 to the
hearings board for a stay of the order or for the removal thereof.
(4) Any appeal must contain the following in accordance with the
rules of the hearings board:
(a) The appellant's name and address;
(b) The date and docket number of the order, permit, or license
appealed;
(c) A description of the substance of the order, permit, or license
that is the subject of the appeal;
(d) A clear, separate, and concise statement of every error alleged
to have been committed;
(e) A clear and concise statement of facts upon which the requester
relies to sustain his or her statements of error; and
(f) A statement setting forth the relief sought.
(5) Upon failure to comply with any final order of the department
or the department of agriculture, the attorney general, on request of
the department or the department of agriculture, may bring an action in
the superior court of the county where the violation occurred or the
potential violation is about to occur to obtain such relief as
necessary, including injunctive relief, to insure compliance with the
order. The air authorities may bring similar actions to enforce their
orders.
(6) An appealable decision or order shall be identified as such and
shall contain a conspicuous notice to the recipient that it may be
appealed only by filing an appeal with the hearings board and serving
it on the department or the department of agriculture within thirty
days of the date of receipt.
Sec. 43 RCW 90.64.813 and 2003 c 325 s 2 are each amended to read
as follows:
(1) A livestock nutrient management program development and
oversight committee is created comprised of the following members,
appointed as follows:
(a) The director of the department of agriculture, or the
director's designee, who shall serve as committee chair;
(b) The director of the department of ecology, or the director's
designee;
(c) A representative of the United States environmental protection
agency, appointed by the regional director of the agency unless the
agency chooses not to be represented on the committee;
(d) One member from each of the two major caucuses of the house of
representatives, appointed by the speaker of the house of
representatives, and one member from each of the two major caucuses of
the senate, appointed by the president of the senate;
(e) A representative of commercial shellfish growers, nominated by
an organization representing these growers, appointed by the
((governor)) director;
(((e))) (f) A representative of an environmental interest
organization with familiarity and expertise in water quality issues as
nominated by a statewide environmental organization, appointed by the
((governor)) director;
(((f))) (g) A representative of tribal governments as nominated by
an organization representing tribal governments((, appointed by the
governor));
(((g))) (h) A representative of Washington State University
appointed by the dean of the college of agriculture and home economics;
(((h))) (i) A representative of the Washington association of
conservation districts, appointed by the association's board of
officers;
(((i))) (j) Three representatives of dairy producers nominated by
a statewide organization representing dairy producers in the state,
appointed by the ((governor)) director;
(((j))) (k) Two representatives of beef cattle producers nominated
by a statewide organization representing beef cattle producers in the
state, appointed by the ((governor)) director;
(((k))) (l) One representative of poultry producers nominated by a
statewide organization representing poultry producers in the state,
appointed by the ((governor)) director;
(((l))) (m) One representative of the commercial cattle feedlots
nominated by a statewide organization representing commercial cattle
feedlots in the state, appointed by the ((governor)) director; and
(((m))) (n) A representative of any other segment of the livestock
industry determined by the director of agriculture to be subject to
federal rules regulating animal feeding or concentrated animal feeding
operations.
(2) The state department of agriculture shall provide staff for the
committee. The department of agriculture may request staff assistance
be assigned by the United States environmental protection agency to
assist the director in staffing the committee.
(3) The committee shall establish a work plan that includes a list
of tasks and a projected completion date for each task.
(4) The committee may establish a subcommittee for each of the
major industry segments that is covered by the recently adopted federal
regulations that pertain to animal feeding operations and concentrated
animal feeding operations. The subcommittee shall be composed of
selected members of the full committee and additional representatives
from that major segment of the livestock industry as determined by the
director. The committee shall assign tasks to the subcommittees and
shall establish dates for each subcommittee to report back to the full
committee.
(5) The committee shall examine the recently adopted federal
regulations that provide for the regulation of animal feeding
operations and concentrated animal feeding operations and develop a
program to be administered by the department of agriculture that meets
the requirements and time frames contained in the federal rules.
Elements that the committee shall evaluate include:
(a) A process for adopting standards and for developing plans for
each operation that meet these standards;
(b) A process for revising current national pollution discharge
elimination system permits currently held by livestock operations and
to transition these permits into the new system; and
(c) In consultation with the director, a determination of what
other work is needed and what other institutional relationships are
needed or desirable. The committee shall consult with representatives
of the statewide association of conservation districts regarding any
functions or activities that are proposed to be provided through local
conservation districts.
(6) The committee shall review and comment on proposals for grants
from the livestock nutrient management account created in RCW
90.64.150.
(7) The committee shall develop draft proposed legislation that
includes:
(a) Statutory changes, including a timeline to achieve the phased-in levels of regulation under federal law, to comply with the minimum
requirements under federal law and the minimum requirements under
chapter 90.48 RCW. These changes must meet the requirements necessary
to enable the department of agriculture and the department of ecology
to pursue the United States environmental protection agency's approval
of the transfer of the permitting program as it relates to the
concentrated animal feeding operations from the department of ecology
to the department of agriculture;
(b) Statutory changes necessitated by the transfer of functions
under chapter 90.64 RCW from the department of ecology to the
department of agriculture;
(c) Continued inspection of dairy operations at least once every
two years;
(d) An outreach and education program to inform the various animal
feeding operations and concentrated animal feeding operations of the
program's elements; and
(e) Annual reporting to the legislature on the progress of the
state strategy for implementing the animal feeding operation and
concentrated animal feeding operation.
(8) The committee shall provide a report by December 1, 2003, to
appropriate committees of the legislature that includes the results of
the committee's evaluation under subsection (5) of this section and
draft legislation to initiate the program.
(9) The committee shall evaluate simplified nutrient management
planning tools and systematic practices that can be offered to those
livestock operations not required to have permits or farm plans. The
goal shall be to introduce these practical models through technical
assistance, education, and outreach so that all livestock owners will
have clear guidance on how to meet basic responsibilities to protect
water quality. The committee shall report its recommendations on tools
and service delivery options to appropriate committees of the
legislature during the September 2005 assembly.
(10) With respect to the federal requirement that livestock
nutrient management plans contain a component ensuring proper
management of dead animals, the committee shall review issues
concerning routine animal carcass disposal in Washington, including
composting, rendering, burying, landfills, and incineration. The
committee may appoint a subcommittee including appropriate technical
staff from state agencies to undertake this task and make
recommendations back to the full committee. At the legislative
assembly in September 2005, the department of agriculture, the
department of ecology, the state board of health, and committee
representatives shall present reports as follows to the appropriate
legislative committees:
(a) The department of ecology shall report on the status of off-site animal composting options that meet the livestock industry's need
for disposal alternatives while assuring consumer protection and equity
with other composters;
(b) The department of agriculture shall report on the status of a
comprehensive, clearly written guidance document for the livestock
industry on alternatives currently available for routine disposal of
animal carcasses. The guidance document shall include, at a minimum,
the disposal alternatives of rendering, burying, landfills, and
composting; and
(c) The state board of health shall report on the status of rule
making that clarifies burial depth, location of burial sites in
relation to drinking water wells, and incineration.
(11) The committee shall evaluate the use of ranges as a means for
state and local agencies to respond to public records requests made
under chapter 42.17 RCW for information obtained from dairies and AFOs
not required to apply for a permit. The ranges must provide meaningful
information while ensuring confidentiality of business information
regarding the following characteristics of livestock operations: (a)
Number of animals; (b) volume of livestock nutrients generated; (c)
number of acres covered by the plan or used for land application of
livestock nutrients; (d) livestock nutrients transferred to other
persons; and (e) crop yields. The committee shall make recommendations
and provide draft legislation regarding the use of ranges to the
appropriate committees of the legislature by December 1, 2005.
(12) This section expires ((June 30, 2006)) when the federal
environmental protection agency delegates authority for the NPDES CAFO
program to the department. The department shall provide notice to the
legislature of the date of any such delegation of authority.
NEW SECTION. Sec. 44 (1) By July 1, 2005, the department and the
department of agriculture, in consultation with the department of
health, shall make available to livestock producers clearly written
guidelines for the composting of bovine and equine carcasses for
routine animal disposal.
(2) Composters of bovine and equine carcasses are exempt from the
metals testing and permit requirements under the solid waste handling
rules for compost that is distributed off-site if the following
conditions are met:
(a) The carcasses to be composted are not known or suspected to be
affected with a prion-protein disease such as bovine spongiform
encephalopathy, a spore-forming disease such as anthrax or other
diseases designated by the state veterinarian;
(b) The composter follows the written guidelines provided for in
subsection (1) of this section;
(c) The composter does not accept for composting animal mortalities
from other sources not directly affiliated with the composter's
operation;
(d) The composter provides information to the end-user that
includes the source of the material; the quality of the compost as to
its nutrient content, pathogens, and stability; and the restrictions on
use of the compost as stated in (f) of this subsection;
(e) The composter reports annually to the department the number of
bovines and equines and the amounts of other material composted,
including the composter's best estimate of the tonnage or yardage
involved; and
(f) The end-user applies the compost only to agricultural lands
that are not used for the production of root crops except as prescribed
in the guidelines and ensures no compost comes into contact with the
crops harvested from the lands where the compost is applied.
(3) If a compost production facility does not operate in compliance
with the terms and conditions established for an exemption in this
section, the facility shall be subject to the permitting requirements
for solid waste handling under this chapter.
Sec. 45 RCW 70.95.315 and 1998 c 156 s 7 are each amended to read
as follows:
The department may assess a civil penalty in an amount not to
exceed one thousand dollars per day per violation to any person exempt
from solid waste permitting in accordance with RCW 70.95.300 ((or)),
70.95.305, or section 44 of this act who fails to comply with the terms
and conditions of the exemption. Each such violation shall be a
separate and distinct offense, and in the case of a continuing
violation, each day's continuance shall be a separate and distinct
violation.
NEW SECTION. Sec. 46 The following acts or parts of acts are
each repealed:
(1) RCW 90.64.015 (Environmental excellence program agreements--Effect on chapter) and 1997 c 381 s 29;
(2) RCW 90.64.017 (Registration of dairy producers -- Information
required -- Information to producers regarding chapter) and 1998 c 262 s
3;
(3) RCW 90.64.026 (Dairy nutrient management plans -- Elements--Approval -- Timelines -- Certification) and 1998 c 262 s 6;
(4) RCW 90.64.070 (Duties of conservation district) and 1998 c 262
s 13 & 1993 c 221 s 8;
(5) RCW 90.64.080 (Duties of conservation commission) and 1998 c
262 s 14 & 1993 c 221 s 9;
(6) RCW 90.64.130 (Data base) and 1998 c 262 s 9;
(7) RCW 90.64.140 (Technical assistance teams -- Standards and
specifications for dairy nutrient management plans) and 1998 c 262 s
10;
(8) RCW 90.64.160 (Grants for dairy producers -- Statement of
environmental benefits -- Development of outcome-focused performance
measures) and 2001 c 227 s 4; and
(9) RCW 90.64.800 (Reports to the legislature) and 1998 c 262 s 17.
NEW SECTION. Sec. 47 RCW 90.64.900 and 90.64.901 are decodified.
NEW SECTION. Sec. 48 The following sections are codified or
recodified in the following order as a new chapter in Title 16 RCW:
(1) Intent and overview/authority
RCW 90.64.005
RCW 90.64.010
Section 1 of this act
RCW 90.64.050
RCW 90.64.110
(2) Permits
RCW 90.64.120
Section 20 of this act
Section 21 of this act
Section 22 of this act
RCW 90.64.020
Section 23 of this act
Section 24 of this act
Section 26 of this act
Section 25 of this act
Section 36 of this act
(3) Nutrient management plans
Section 6 of this act
Section 7 of this act
Section 8 of this act
Section 9 of this act
RCW 90.64.028
Section 17 of this act
(4) Field inspection and compliance
Section 27 of this act
Section 28 of this act
RCW 90.64.023
Section 29 of this act
RCW 90.64.030
Section 31 of this act
Section 35 of this act
Section 34 of this act
Section 32 of this act
RCW 90.64.040
Section 30 of this act
Section 33 of this act
Section 37 of this act
RCW 90.64.100
(5) Miscellaneous
Section 18 of this act
Section 19 of this act
RCW 90.64.813
RCW 90.64.150
Section 38 of this act
Section 50 of this act
NEW SECTION. Sec. 49 Section 44 of this act is added to chapter
70.95 RCW to be codified after RCW 70.95.305.
NEW SECTION. Sec. 50 If any provision of this act or its
application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other
persons or circumstances is not affected."
SSB 5602 -
By Representatives Pettigrew, Holmquist, Kretz, Linville
ADOPTED 04/14/2005
On page 1, line 1 of the title, after "nutrients;" strike the remainder of the title and insert "amending RCW 90.64.005, 90.64.010, 90.64.020, 90.64.023, 90.64.028, 90.64.030, 90.64.040, 90.64.050, 90.64.110, 90.64.150, 43.21B.001, 43.21B.110, 43.21B.300, 43.21B.310, 90.64.813, and 70.95.315; adding a new section to chapter 70.95 RCW; adding a new chapter to Title 16 RCW; creating a new section; recodifying RCW 90.64.005, 90.64.010, 90.64.050, 90.64.110, 90.64.120, 90.64.020, 90.64.028, 90.64.023, 90.64.030, 90.64.040, 90.64.100, 90.64.813, and 90.64.150; decodifying RCW 90.64.900 and 90.64.901; repealing RCW 90.64.015, 90.64.017, 90.64.026, 90.64.070, 90.64.080, 90.64.130, 90.64.140, 90.64.160, and 90.64.800; prescribing penalties; and providing a contingent expiration date."
EFFECT: H-3006.7 makes the following changes to SSB 5602:
Creates permit requirements consistent with state and federal water
quality laws and rules. Narrows who must be permitted. Replaces
combined state/federal permit with a state waste discharge permit, a
national pollutant discharge elimination system permit, or both.
Requires WSDA director to designate any AFO as a CAFO subject to
permitting after determining that it is significantly polluting the
waters of the state. Allows the WSDA director discretion in
designating any AFO as a CAFO after determining that it is discharging
to ground or surface water. Clarifies regulatory requirements for
three categories of animal feeding operations. Allows practices and
standards that meet or exceed NRCS standards to be used in developing
nutrient management plans if there is substantial likelihood that the
practices and standards would meet state and federal water quality
standards. Requires nutrient management plan verification by a
conservation district prior to approval and certification by WSDA,
unless the producer requests verification by a technical team including
a conservation district representative. Clarifies that WSDA decisions
on elements of a plan that are conditions of a permit are part of the
permit application and issuance process and are appealable by any
person to the Pollution Control Hearings Board. Clarifies conditions
for violation exceptions. Confirms WSDA's current practice of
investigating written and oral complaints. Clarifies which WSDA
responsibilities are duties and which are authorities. Does not limit
public disclosure only to the extent required by federal rule.
Eliminates statutory creation of program advisory committee. Clarifies
that any AFO determined by the department to be discharging into waters
of the state must obtain a state waste discharge permit from the
department. Specifies public notice and public hearing requirements
for department decisions on applications and permits. Requires that
the nutrient management plan be submitted with the permit application.
Authorizes WSDA to modify or revoke and reissue permits. Eliminates
the current violation exception for pollutant discharges by a livestock
producer who has no NPDES permit but has an approved and certified farm
plan. Specifies burden of proof on a permittee claiming "upset."
Requires DOE to develop, maintain, and submit to the Legislature a
standard protocol for water quality monitoring. Changes membership,
appointments, expiration of the Development Oversight Committee, and
adds three tasks. Exempts composters of bovine and equine carcasses
from metals testing and permit requirements under solid waste handling
rules for compost distributed off-site if certain conditions are met.