Effective Date of Rule: Thirty-one days after filing.

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

     Statutory Authority for Adoption: RCW 90.64.110.

     Other Authority: Chapter 34.05 RCW.

      Adopted under notice filed as WSR 12-18-078 on September 5, 2012.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 7, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Date Adopted: October 29, 2012.

Dan Newhouse

Director

OTS-3736.4

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

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

     "Department" means the Washington state department of agriculture.

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

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

     (a) Application acreage;

     (b) Application rate;

     (c) Application times; and

     (d) Transfer rate and time.

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

     (a) Soil analysis.

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

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

     (A) Organic matter;

     (B) pH;

     (C) Ammonium nitrogen;

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

     (E) Potassium; and

     (F) A measure of electrical conductivity.

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

     (c) Application records must include:

     (i) Field identification and year of application;

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

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

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

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

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

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

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

     (i) Date of manure transfer;

     (ii) Amount of nutrients transferred;

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

     (iv) Nutrient analysis of manure transferred.

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

     (i) Field identification;

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

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

     (a) Choosing not to pursue a civil penalty;

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

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

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

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

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

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

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

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

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

     (a) The gravity and magnitude of the violation;

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

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

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

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

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

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

     (5) Penalty schedule for recordkeeping violations.

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

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

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

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

     (i) Waters of the state;

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

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

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

     (c) Economic value derived from noncompliance.

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

     (a) Voluntary disclosure of a violation;

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

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

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

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

1Statutory authority RCW 90.48.144.

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