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No. WQCC 11-04 (R)

@ ~ ' J . ~ 2 9 3 0 3 7~ f 0 ' It)(; SEP 2011STATE OF NEW MEXICO A ~ i ~ ~ . BEFORE THE WATER QUALITY CONTROL COMMISSI ~ : 5

,,06}> ...."e,~ l 9 t 9l.\7\,,,11

In the Matter of:PROPOSED AMENDMENTTO 20.6.6 NMAC (Dairy Rule)

))))))

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NEWMEXICO ENVIRONMENT DEPARTMENT, DAIRY INDUSTRY GROUP FORA CLEAN ENVIRONMENT, AND AMIGOS BRAVOS, CABALLO CONCERNEDCITIZENS, AND SIERRA CLUB RIO GRANDE CHAPTERNOTICE OF INTENT TO PRESENT TECHNICAL TESTIMONY

The New Mexico Environment Department ("Department"), Dairy Industry Group for aClean Environment ("DIGCE"), and Amigos Bravos, the Caballo Concerned Citizens, and theSierra Club Rio Grande Chapter (collectively, "The Coalition"), pursuant to Section 303 of theGuidelines for Water Quality Control Commission Regulation Hearings and the ProceduralOrder issued on August 26,2011, file this Notice ofIntent to Present Technical Testimony at thepublic hearing scheduled for November 16, 2011.

1. Person filing the statement.This statement is filed by the Department, DIGCE, and the Coalition.2. Witnesses and Qualifications.

A. William C. Olson B.S. Geology, New Mexico Institute of Mining andTechnology, 1983; M.S. Hydrology, New Mexico Institute ofMining and Technology, 1989.

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1 " . ~ f 3 i l l Olson was Bureau Chief of the GroundWater Quality Bureau, a position he heldfrom 02tober 2004 to October 2011. The Ground Water Quality Bureau includes the PollutionPrevention Section, Remediation Oversight Section, Mining Enviromnental Compliance Section,Superfund Oversight Section and Grant and Planning Section. He also served as the Energy,Minerals and Natural Resources Department designee on the Oil Conservation Commission. Mr.Olson has an extensive knowledge and understanding of the Water Quality Control CommissionRegulations, and directed and approved permitting and enforcement of discharge plans underthose regulations. He also directed the investigation and abatement of contaminated sQil andground water pursuant to the New Mexico Water Quality Act and New Mexico Water QualityControl Commission regulations. Mr. Olson led the Department's rule development efforts onthe Dairy Rule and was an expert witness for the Department at the Dairy Rule hearings in 2010.Mr. Olson's resume is attached as Petitioners ' NOr Exhibit A.

B. Kathy Martin, P.E. (for The Coalition) B.S., Petroleum Engineering,1987, University ofOklahoma, M.S., Civil Engineering, 1989, University of Oklahoma.

Ms. Martin is a Professional Engineer licensed in Oklahoma, an environmentalconsultant, and the principal in Martin Environmental Services, Norman, Oklahoma. Followingan extensive career in the public sector, in her private consulting activities Ms. Martin providesexpertise in areas of industrial permitting for air quality, non-hazardous industrial wastewater,

and closure of surface impoundments. She has also performed engineering review and critiquesof pennit applications submitted to regulatory agencies with respect to wastewater treatmenttechnology and compliance with environmental regulations. Ms. Mariin provided extensive

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expert testimony in the original dairy regulations proceedings in 2010. Her curriculum vitae isattached as Petitioners' NOI Exhibit C.

C. Alva CarterMr. Carter's background and qualifications are included in his direct testimony attached

hereto as Petitioners' NOI Exhibit E.3. Testimony and Exhibits.The Petitioners' direct testimony and exhibits are attached. Consistent with the

Procedural Order in this proceeding, each witness may give a brief summary of testimony up to15 minutes. The witnesses will give their oral summaries, and then testify as a panel.

4. Text ofRecommended Modifications. The Petitioners have identified allmodifications in their prefiled testimony attached to this Notice ofIntent.

Respectfully submitted,

NEW MEXICO ENVIRONMENT DEPARTMENT1/ t> / ~ ~ l, i ' .I C(l ! /: ". /11 >/ i i / IIn v ( . { I \ } I ; ' '. '. ./ 1 ~ L ~ , f I / :

Attorney for New Mexico Environment Department

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Electronically approvedJonathan Block, StaffAttorneyNew Mexico Enviromnental Law Center1405 Luisa St. #5Santa Fe, New Mexico 87505-4074Telephone (505) 989-9022 Ext. 22Attomey for The Coalition

Electronically approvedDanielle J. DiamondDiamond & LeSueur, PC3431 West Elm StreetMcHemy, Illinois 60050Telephone (815) 403-0278Attomey for The Coalition

Electronically approvedDalva MoellenbergGallagher & Kennedy P.A.2575 E Camelback RdPhoenix, Arizona 85016Telephone (602) 530-8223Attorney for DrGCE

Electronically approvedAnthony J. TrujilloGallagher and Kennedy P.A.1233 Paseo de PeraltaSanta Fe, NM 87501-2758Telephone (505) 982-9523Attorney for DrGCE

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CERTIFICATE OF SERVICEI hereby certify that a copy of this Petitioners' Notice ofIntent to File Technical Testimony wasserved on the following parties on September 29,2011:

Carmella CasadosAdministratorNMED Boards and Commissions1190 St. Francis Dr., N2153Santa Fe, New Mexico 87502

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ResumeWilliam C. Olson

14 Cosmic WayLamy, NM 87540(505) 466-2969EducationM.S. Hydrology, 1989, NM Institute ofMining and Technology, Socorro, NMB.S. Geology, 1983, NM Institute ofMining and Technology, Socorro, NM

Boards and Commissions1991 - 2004, New Mexico Water Quality Control Commission2005 - 2011, NewMexico Oil Conservation Commission

EmploymentNM Environment DepartmentGround Water Quality Bureau1190 St. Francis DriveSanta Fe, NM 87505

Title: Bureau ChiefDates Employed: 10/04 - 10/11

Supervise and manage environmental regulatory personnel for the Ground Water Quality Bureau whichincludes the Pollution Prevention Section, Remediation Oversight Section, Mining EnvironmentalCompliance Section, Superfund Oversight Section, and Grants and Planning Section. Serve as acommissioner on the Oil Conservation Commission as a designee of the Secretary of the Energy,Minerals, and Natural Resources Department. Supervise fiscal management of budgets. Direct andapprove permitting and enforcement of discharge plans, and investigation and abatement ofcontaminated soil and ground water pursuant to the NewMexico Water Quality Act and New MexicoWater Quality Control Commission (WQCC) regulations; investigation and remediation ofcontaminated properties pursuant to the Voluntary Remediation Act (VRA) and Voluntary RemediationRegulations; investigation and remediation of abandoned sites in support of the U.S. EnvironmentalProtection Agency (EPA) Superfund Program, and implementation of the New Mexico EnvironmentDepartment's (NMED) responsibilities under the New Mexico Mining Act. Develop and write rules andregulatory language and guidelines. Conduct, lead and participate in public and industry regulatorywork groups and meetings. Coordinate activities and actions with state, federal and local governmentalorganizations. Testify as an expert witness at regulation and rule making hearings. Testify as an expertwitness at permitting and enforcement hearings. Represent the NMED at public meetings andconferences. Interpret federal and state rules and regulations. Communicate with and advise industryand the public on laws, rules, regulations and procedures, and their interpretation.

EXHIBIT A

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NM Energy, Minerals & Natural Resources Dept.Oil Conservation DivisionEnvironmental Bureau1220 St. Francis Dr.Santa Fe, NM 87505

Title: Senior HydrologistDates Employed: 11/97 - 10/04

- ,

Implement environmental regulatory permitting and enforcement programs under the New Mexico Oil& Gas Act, Water Quality Act and Geothermal Act for permitting of discharge plans, and reclamationand abatement of contaminated soil and ground water at oil, natural gas and geothermal facilities. Serveon the New Mexico Water Quality Control Commission as designee for the Director of the OCD.Supervise and review hydrological, geological and engineering work products of 3 Bureau staff. Traindistrict staff in permitting and enforcement of rules, regulations and guidelines, sample collection andinspections. Develop and write rules and regulatory language and guidelines for environmentalpermitting. Conduct, lead and participate in public and industry regulatory work groups and meetings.Coordinate activities and actions with state, federal and local governmental organizations. Testify as anexpert witness at regulation and rule making hearings. Develop, write and evaluate pricing agreementsand contracts for soil and ground water remediation, and laboratory analytical services. Direct andsupervise contractors on state funded investigations of ground water contamination under the Oil & GasReclamation Fund. Oversee, manage, develop, evaluate, write, issue and enforce environmental permitsfor the protection of ground water and surface water, and soil and ground water remediation andabatement plans. Negotiate technical engineering controls and hydrogeological issues on soil andground water remediation permits and plans with industry, enviromnental groups, governmentalagencies, consultants and private landowners. Testify as an expeli witness at OCD and New Mexico OilConservation Commission permitting and enforcement hearings. Evaluate, conduct and superviseanalyses of hydrological, geological, engineering and chemical data, and engineering controls fortechnical adequacy and feasibility on environmental permits, and for abatement of soil and ground waterpollution. Perform and supervise field inspections, water and waste quality sampling and other fieldtests to ensure compliance with applicable permits, rules, orders and regulations. Respond to publiccomplaints and concerns of ground water and soil contamination. Conduct and supervise soil, water,effluent and waste quality sampling for field and laboratory analysis. Represent the OCD at publicmeetings and conferences. Write and present papers on technical and environmental regulatory issues atconferences. Interpret federal and state rules and regulations. Communicate with and advise industryand the public on laws, rules, regulations and procedures, and their interpretation.

NM Energy, Minerals & Natural Resources Dept.Oil Conservation DivisionEnvironmental Bureau1220 St. Francis Dr.Santa Fe, NM 87505 Title: Geologist 4Dates Employed: 6/92 - 11/97Implement and enforce environmental regulatory programs under the New Mexico Oil & Gas Act,Water Quality Act and Geothermal Act for permitting of discharge plans, and reclamation andabatement of contaminated soil and ground water at oil, natural gas and geothermal facilities. Serve onthe New Mexico Water Quality Control Commission as designee for the Director of the OCD. Developand write rules and regulatory language and guidelines for environmental permitting. Conduct, lead andpmiicipate in public and industry regulatory work groups and meetings. Coordinate activities andactions with state, federal and local governmental organizations. Testify as an expeli witness at

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regulation and rule making hearings. Train district staff in permitting and enforcement of rules.regulations and guidelines, sample collection and inspections. Oversee, manage, develop, evaluate,write, issue and enforce environmental permits for the protection of ground water and surface water, andsoil and ground water remediation and abatement plans. Negotiate technical engineering controls andhydrogeological issues on soil and ground water remediation permits and plans with industry,environmental groups, governmental agencies, consultants and private landowners. Testify as an expertwitness at OCD and New Mexico Oil Conservation Commission permitting and enforcement hearings.Evaluate, conduct and supervise analyses of hydrological, geological, engineering and chemical data,and engineering controls for technical adequacy and feasibility on environmental permits, and forabatement of soil and ground water pollution. Conduct and supervise field inspections, and soil, waterand waste quality sampling and other field tests to ensure compliance with applicable permits, rules,orders and regulations. Respond to public complaints and concerns of ground water and soilcontamination. Represent the OCD at public meetings and conferences. Write and present papers ontechnical and environmental regulatory issues at conferences. Interpret federal and state rules andregulations. Communicate with and advise industry and the public on laws, rules, regulations andprocedures, and their interpretation.

NM Energy, Minerals & Natural Resources Dept.Oil Conservation DivisionEnvironmental Bureau310 Old Santa Fe TrailSanta Fe, NM 87505

Title: Geologist 3Dates Employed: 2/90 - 6/92Implement and enforce environmental regulatory programs under the New Mexico Oil & Gas Act,Water Quality Act and Geothermal Act for permitting of discharge plans, and reclamation andabatement of contaminated soil and ground water at oil and natural gas facilities. Serve on the NewMexico Water Quality Control Commission as designee for the Director of the OCD. Develop and writerules and regulatory language and guidelines for environmental permitting. Conduct, lead andparticipate in public and industry regulatory work groups and meetings. Coordinate activities andactions with state, federal and local governmental organizations. Testify as an expert witness atregulation and rule making hearings. Train district staff in permitting and enforcement of rules,regulations and guidelines, sample collection and inspections. Oversee, manage, develop, evaluate,write, issue and enforce environmental permits for the protection of ground water and surface water, andsoil and ground water remediation and abatement plans. Negotiate technical engineering controls andhydrogeological issues on soil and ground water remediation permits and plans with industry,environmental groups, governmental agencies, consultants and private landowners. Testify as an expertwitness at OCD and New Mexico Oil Conservation Commission permitting and enforcement hearings.Evaluate and conduct analyses of hydrological, geological, engineering and chemical data, andengineering controls for technical adequacy and feasibility on environmental permits, and for abatementof soil and ground water pollution. Conduct field inspections, and soil, water and waste qualitysampling and other field tests to ensure compliance with applicable permits, rules, orders andregulations. Respond to public complaints and concerns of ground water and soil contamination.Represent the OCD at public meetings and conferences. Write and present papers on technical andenvironmental regulatory issues at conferences. Interpret federal and state rules and regulations.Communicate with and advise industry and the public on laws, rules, regulations and procedures, andtheir interpretation.

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NM Environmental Improvement DivisionGround Water Bureau1190 St. Francis Dr.Santa Fe, NM 87505

Title: Water Resource Spec 2Dates Employed: 3/88 - 2/90Oversee, manage, develop, evaluate, write, issue and enforce environmental permits for soil and groundwater remediation, reclamation and abatement under the New Mexico Water Quality Act and WaterQuality Control Commission Regulations. Negotiate technical engineering controls andhydrogeological issues on soil and ground water remediation permits and plans with industry,environmental groups, governmental agencies, consultants and private landowners. Train staff inmonitor well drilling, monitor well construction and water quality sampling activities. Participate inpublic and industry regulatory work groups and meetings. Coordinate activities and actions with state,federal and local governmental organizations. Evaluate and conduct analyses of hydrological,geological, engineering and chemical data, and engineering controls for technical adequacy andfeasibility for remediation and abatement of soil and ground water pollution. Conduct field inspections,and soil, water and waste quality sampling and other field tests to ensure compliance with applicablepermits, rules, orders and regulations. Respond to and investigate public complaints and concerns ofground water and soil contamination. Represent the NewMexico Environmental Improvement Divisionat public meetings. Write and present papers on technical and environmental regulatory issues atconferences. Interpret federal and state rules and regulations. Communicate with and advise industryand the public on laws, rules, regulations and procedures, and their interpretation. Serve as QualityAssurance Officer and develop and write EPA Quality Assurance/Quality Control plans. Supervise andoperate drilling rig for installation of soil borings and ground water monitoring wells.

NM Energy, Minerals & Natural Resources Dept.Oil Conservation DivisionEnvironmental Bureau310 Old Santa Fe TrailSanta Fe, NM 87505

Title: Water Resource Spec. 2Dates Employed: 9/86 - 3/88Conducted a hydrogeologic study on the impact of oil and gas waste disposal practices on ground waterin the San Juan Basin. Evaluate geologic and hydrologic information submitted with permitapplications. Conduct field inspections, and soil, water and waste quality sampling and other field teststo ensure compliance with applicable permits, rules, orders and regulations. Respond to and investigatepublic complaints and concerns of ground water and soil contamination. Participate in public andindustry regulatory work groups and meetings. Assist 'and advise industry and the public on laws, rules,regulations and procedures, and their interpretation.

Professional Melliberships and AssociationsNational Ground Water AssociationNew Mexico Geological SocietyAmerican Morgan Horse Association

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STATE OF NEW MEXICOBEFORE THE WATER QUALITY CONTROL COMMISSION

))In the Matter of: )

)PROPOSED AMENDMENT )TO 20.6.6 NMAC (Dairy Rule) )))

No. WQCC 11-04 (R)

DIRECT TESTIMONY OF BILL OLSONMy name is William Olson, and I am the former Bureau Chief of the Ground

Water Quality Bureau of the New Mexico Environment Department ("Department"). Iam presenting this written testimony in support of the petition filed by the Department,the Dairy Industry Group for a Clean Environment ("DIGCE"), and Amigos Bravos, theCaballo Concerned Citizens, and the Sierra Club Rio Grande Chapter (collectively, "TheCoalition") to amend the Ground Water Protection - Supplemental PermittingRequirements for Dairy Facilities Regulations, 20.6.6 NMAC (Dairy Rule).

I. BACKGROUND AND EXPERIENCEI have a Bachelors of Science degree in Geology and a Masters of Science degree

in Hydrology from the New Mexico Institute ofMining and Technology, and over 25years of experience in working on ground water discharge permits and remediation ofcontaminated ground water under both NewMexico Water Quality Control Commission("Commission") and New Mexico Oil Conservation Division rules and regulations.

I held the position of Bureau Chief of the Ground Water Quality Bureau fromOctober of2004 until October of2011. As Bureau Chief, I was responsible forsupervising and managing environmental regulatory personnel of the Ground Water

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Quality Bureau's Pollution Prevention Section, Remediation Oversight Section, MiningEnvironmental Compliance Section, Superfund Oversight Section, and Grants andPlanning Section. My duties included directing and approving the permitting andenforcement of discharge plans, and the investigation and abatement of contaminated soiland ground water pursuant to the New Mexico Water Quality Act (WQA) andCommission regulations; investigation and remediation of contaminated propertiespursuant to the Voluntary Remediation Act and Voluntary Remediation Regulations;investigation and remediation of abandoned sites in support of the U.S. EnvironmentalProtection Agency (EPA) Superfund Program, and implementation of the EnvironmentDepartment's responsibilities under the New Mexico Mining Act.

I previously served on the Commission as the designee of the New Mexico OilConservation Division for a period of approximately 13 years. I also served on the NewMexico Oil Conservation Commission as the designee of the Secretary of the EnergyMinerals and Natural Resources Department from September of2005 to January of2011.

A copy ofmy resume is marked as Petitioners NOI Exhibit A. It is accurate andup-to-date.

II. INTRODUCTION

On December 22, 2009, the Department submitted a petition for regulatorychange to the Commission. The petition proposed to amend the Ground and SurfaceWater Protection Regulations, 20.6.2 NMAC, to include new industry specific rules forthe dairy industry. The petition was in response to 2009 legislative amendments to theWater Quality Act requiring the Commission to adopt new industry-specific dischargepermit rules for the dairy industry and "to specify in regulations the measures to be taken

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to prevent water pollution and to monitor water quality." NMSA 1978, 74-6-4(K). Apublic hearing was held on the proposed regulatory change on April 13-16 and June 8-17,2010. The hearing participants were the Department, DraCE and The Coalition.

The Commission approved the Dairy Rule on December 15,2010. On January21,2011 DraCE filed a Notice ofAppeal to the COUli ofAppeals seeking judicial reviewof the Dairy Rule. Following lengthy settlement negotiations, all of the parties reachedan agreement on proposed changes to the Dairy Rule on July 7,2011. The purpose of theproposed amendments at this hearing is to make changes to the Dairy Rule consistentwith the terms of the settlement. The proposed amendments are intended to protectground water at dairy facilities while allowing greater flexibility for dairy operators in themanagement of their facilities. Two changes are also proposed to correct minor errors inthe Dairy Rule that were contained in the final version filed with the State RecordsCenter. Other minor housekeeping changes, such as correction of cross-references, arealso proposed to ensure internal consistency of the Rule.

III. PROPOSED AMENDMENTSMy testimony will present the proposed agreed amendments resulting from the

settlement negotiations and discuss the reasons for the proposed amendments as follows:Section 20.6.6.11(C)(l)(b)

(b) If any corporate entity, including but not limited to a corporation or alimited liability company, holds an ownership interest in the dairy facility, thenthe applicant shall also list the name(s), as filed with the New Mexico publicregulation commission, of the corporate entity, and the corporate entity'sregistered agent's name and address and the names of each of the corporateentity's directors, officers, members, or partners.

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Section 20.6.6.12(C)(l)(b)(b) If any corporate entity, including but not limited to a corporation or alimited liability company, holds an ownership interest in the dairy facility, thenthe applicant shall also list the name(s), as filed with the NewMexico publicregulation commission, of the corporate entity and the corporate entity'sregistered agent's name and address, and the names of each of the corporateentity's directors, officers, members, or partners.This language is proposed to be deleted to remove the requirement that an

applicant for a new discharge permit provide the names of corporate directors, officers,members, or partners. Although this language was rejected by the Commission in theirDecember 2010 deliberations, it was inadvertently included in the version of the DairyRule filed with the State Records Office. This change is necessary to correct the recordand accurately reflect the language of the Dairy Rule as adopted by the Commission onDecember 15, 2010.Section 20.6.6.11 (I)

I. Wastewater quality. An application shall include estimatedconcentrations ofwastewater quality for total dissolved solids, chloride,total sulfur, nitrate as nitrogen, and total Kjeldahl nitrogen and otherconstituents of concern related to the standards of 20.6.2.31 03 NMAC thatmay be contained in the wastewater at the dairy facility based on datacollected at other dairy facilities with similar discharge(s) volumes and\Vasteviater management systems.This deletion of the language "and other constituents ojconcern related to the

standards oj20.6.2.3103 NMAC that may be contained in the wastewater at the dairyfacility" is proposed to be consistent with other sections of the Dairy Rule. In itsadoption of the Dairy Rule, the Commission rejected the requirement proposed by theDepartment that applicants must provide estimates of other constituents of concern andthe relevant language was deleted from other sections of the rule by the Commission.The failure to remove the requirement from this Subsection appears to be an inadvertent

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oversight. This change is necessary to accurately reflect the deliberations of theCommission and the language of the Dairy Rule as adopted by the Commission onDecember 15,2010.

In addition, the language "based on data collected at other dairyfacilities withsimilar dischargers) volumes and wastewater management systems" is proposed to bedeleted to reduce the burden on the dairy operator to research wastewater informationfrom other dairies in the state. The applicant will still need to provide an estimate of thedairy wastewater quality for permitting purposes. This wastewater quality estimate willbe supplanted after a permit has been issued with actual facility data that will be used inthe operation and management of the permitted dairy facility.Section20.6.6.1l(J)(4)

(4) The identification of proposed additional wastev,zater and stormwatersystem components such as, but not limited to, sumps and mix tanks,including information for each component regarding its location, purpose,date of original construction, construction material, dimensions andcapacity.This change is proposed to remove an application requirement that is vague. The

Dairy Rule does not specify what "additional wastewater and stormwater systemcomponents" are. This change is necessary to provide clarity to the information requiredin the submission of a permit application.Section 20.6.6.1l(J)(S)

(5) A description of the proposed location of all manure, silage andcompost storage areas at the dairy facility: and a description of theproposed methodes) employed to protect each manure, silage and compoststorage area from stormwater runoff and run-on, and to minimize leachate.This change is proposed to recognize that an applicant need not identify the

location of these waste management components so long as the applicant demonstrates

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that they are adequately protected from stormwater runoff and run-o.n and leachate isminimized. The location of these features may change relatively frequently. This changeis necessary to allow for changes in the location of manure, silage and compost storageoperations without a permit modification and provides flexibility to the dairy operator inmanaging their dairy operations. This change will be protective of ground water at dairyfacilities since the waste management methods for protection of stormwater runoff andrun-on and minimization ofleachate will be consistent regardless of the location of thesewaste management units.Section20.6.6.1l(K)

K. Flow Metering. An application shall describe a dairy facility's flowmetering system pursuant to pursuant to Subsections J, K, L, M, Nand 0 of20.6.6.20 NMAC and Subsections I and J G and H of20.6.6.21 NMAC,including:(1) the identification of the methodes) (i.e., pumped versus gravity flow) ofwastewater discharge, stormwater transfer, and wastewater and stormwater landapplication;(2) the proposed flow measurement devices for each flow method; and

(3) the identification of flow meter locations.This change is necessary to provide correct reference citations due to proposed

deletions in 20.6.6.21 NMAC which change the order of the Subsection lettering in thatpOltion of the rule.Section 20.6.6.11(R)(1) and (3)

R. Land application area. For a dairy facility with a landapplication area, an application shall include the follo\vinginformation.

(1) Documentation of irrigation \vater rightspursuant to Subsection D 0[20.6.6.21 NMAC.( ~ 1 ) A nutrient management plan (NMP) pursuant

to Subsections K and L I and J of20.6.6.21 NMAC.( ~ 2 ) A written description of the wastewatersampling location(s) between the manure solids separator(s) and

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the \vaste\vater impoundment(s) pursuant to Subsection C of20.6.6.25 NMAC.The deletion of Paragraph (1) is proposed to recognize that dairy operators may

only irrigate land application areas if they have sufficient water rights, and requiring thisdocumentation places an Ulmecessary burden on applicants. The existing language alsodelves into water rights issues that are the purview of the Office of the State Engineer.This change is necessary to remove the burden on the applicant for meeting this permitapplication requirement.

The words "between the manure solids separator(s) and wastewaterimpoundment(s) " are removed from paragraph (3) for consistency with proposed changesto the wastewater sampling locations in Subsection C of20.6.6.25 NMAC.

In addition, the change to the Subsection lettering from "K and L" to "I and}" inParagraph (2) is necessary to provide correct reference citations due to proposed deletionsin 20.6.6.21 NMAC which change the order of the Subsection lettering in that portion ofthe rule.Section20.6.6.12(H)(4)

(4) The identification of additional 'vVastewater and stormv/ater systemcomponents such as, but not limited to, sumps and mix tanks, includinginformation for each component regarding its location, purpose, date oforiginal construction, construction material, dimensions and capacity.This change is proposed to remove an application requirement that is vague. The

Dairy Rule does not specify what "additional wastewater and stonnwater systemcomponents" are. This change is necessary to provide clarity to the information requiredin the submission of a permit application.

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Section 20.6.6.12(H)(7)(7) A description of the location of all manure, silage and compoststorage areas at the dairy facility; and a description of the methodes)employed to protect each manure, silage and compost storage area fromstormwater runoff and run-on, and to minimize leachate.This change is proposed to recognize that an applicant need not identify the

location of these waste management components so long as the application demonstratesthat they are adequately protected from stormwater runoff and run-on and leachate isminimized. The location of these features may change relatively frequently. This changeis necessary to allow for changes in the location ofmanure, silage and compost storageoperations without a permit modification and provides flexibility to the dairy operator inmanaging their dairy operations. This change will be protective of ground water at dairyfacilities since the waste management methods for protection of stormwater runoff andrun-on and minimization of leachate will be consistent regardless of the location of thesewaste management units.Section20.6.6.12(1)

I. Flow Metering. An application shall describe a dairy facility's flowmetering system pursuant to pursuant to Subsections J, K, L, M, Nand 0 of20.6.6.20 NMAC and Subsections I and J G and H of20.6.6.21 NMAC,including:(1) the identification of the methodes) (i.e., pumped versus gravity flow) ofwastewater discharge, stormwater transfer, and wastewater and stormwater landapplication;(2) the proposed flow measurement devices for each flow method; and

(3) the identification of flow meter locations.This change is necessary to provide correct reference citations due to proposed

deletions in 20.6.6.21 NMAC which change the order of the Subsection lettering in thatportion of the rule.

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Section 20.6.6.12(0)(3)O. Engineering and surveying. An application shall include thefollowing information.(1) Plans and specifications for new or improved structures andassociated liners proposed by the applicant pursuant to 20.6.6.17 NMAC.(2) Record drawings and final specifications for existing structures andassociated liners. For existing impoundments where record drawings andfinal specifications do not exist, survey data and capacity calculationsshall be submitted pursuant to Subsection C of 20.6.6.20 NMAC.(3) A grading and drainage report and plan pursuant to Paragraph (6) ofSubsection C of20.6.6.17 NMAG.This change is proposed to be consistent with the proposed changes to

20.6.6.17(C)(6) NMAC. Under the proposed amendments, a grading and drainage reportand plan is only required to be submit ted with an application for a new dairy facility, andnot for a permit renewal or modification of an existing dairy. This change is necessary toreduce the burden on dairy operators that would need to hire an engineer to prepare thesetypes of engineering reports for existing, already constructed operations.Section 20.6.6.12(P) (1) and (4)

P. Land application area. For a dairy facility with a landapplication area, an application shall include the followinginformation.

(1) Documentation of irrigation '

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The deletion of Paragraph (1) is proposed to recognize that dairy operators mayonly irrigate land application areas if they have sufficient water rights, and requiring thisdocumentation places an unnecessary burden on applicants. The existing language alsodelves into water rights issues that are the purview of the Office of the State Engineer.This change is necessary to remove the burden on the applicant for meeting this permitapplication requirement.

The words "between the manure solids separator(s) and wastewaterimpoundment(s)" are removed from paragraph (3) for consistency with proposed changesto the wastewater sampling locations in 20.6.6.25(C) NMAC.

In addition, the change to the Subsection lettering from "G" to "E" as well as "Kand L" to "J and J" in Paragraph (2) and (3) is necessary to provide correct referencecitations due to proposed deletions in 20.6.6.21 NMAC which change the order of theSubsection lettering in that portion of the rule.Section 20.6.6.13

20.6.6.13 APPLICATION REQUIREMENTS FORA DISCHARGEPERMIT FOR CLOSURE: An application for a discharge permit for closureshall include the information required by Subsections B, C, D, E, F, J, K, L, Mand N of20.6.6.12 NMAC and Paragraphs (1), (2), (3) and (4) of Subsection H of20.6.6.12 NMAC. For dairy facilities with or previously having a landapplication area, the application shall also include Paragraph ~ ( l ) of SubsectionP of20.6.6.12 NMAC, specifically pertaining to the past methodes) of wastewaterdischarge and stormwater application to the land application area.This change to the Paragraph referencing is necessary to provide correct reference

citations due to proposed deletions in 20.6.6.12.P NMAC which change the Paragraphnumbering in that Subsection of the rule.

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Section 20.6.6.17(C)(6)(6) Grading and drainage report and plan. An applicant or permitteeshall submit with the application for a new, rene'vved or modified dischargepermit, a grading and drainage report and a grading and drainage plan,including supplemental information associated with the plan. Thesubmittal shall include, at a minimum, the following information.This change is proposed to recognize that creating a grading and drainage plan for

an existing dairy places an unnecessary burden on applicants. New dairies will still berequired to submit a grading and drainage plan. This change is necessary to reduce theburden on dairy operators that would need to hire an engineer to prepare these types ofengineering reports for existing, already constructed operations.Section 20.6.6.17(C)(7)

(7) Flow metering plans and specifications. An applicant or permitteeproposing or required to install a flow meter(s) shall submitdocumentation to support the selection of the proposed device asmmropriate for the expected flow rate along with construction plans andspecifications detailing a description of the location and information onthe installation or construction of each device.

(a) Construction plans and specifications Such informationproposed by the applicant or permittee shall be submitted to thedepartment with the application for a new, renewed or modified dischargepermit.

(b) Construction plans and specifications Such information notproposed by the applicant or permittee but required to achieve compliancewith the dairy rule shall be submitted to the department within 90 days ofthe effective date of the discharge permit.These changes are proposed to remove the requirement that an applicant or

permittee submit constructions plans and specifications for flow meters. These changesare necessary in order to reduce the burden on dairy operators that would need to hire anengineer to prepare these types of engineering documents.

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Section 20.6.6.17(D)(2)(d) Notwithstanding Subparagraphs (a) and (b) of this paragraph, awastewater impoundment or system ofwastewater impoundments existingas of the effective date of the dairy rule may continue to be operated basedupon the design capacity required under the applicable discharge permit aslast issued or amended before the effective date of the dairy rule.The purpose of this new subparagraph is to clarify that the intent of this provision

is not to require the expansion or replacement of existing impoundments that aredesigned to the capacity required by the last Discharge Permit issued prior to the effectivedate of the Dairy Rule. The existing language could require replacement or expansion ofan existing impoundment or system of impoundments that does not meet the capacityrequirements of the Dairy Rule, but meets other operational provisions of the Dairy Rule.This change is necessary to reduce the burden on existing dairy operators for having toexpand or replace existing impoundments that are designed to the capacity required bythe last Discharge Permit.Section 20.6.6.17(D)(4)

(c) The sub-grade of an impoundment shall be compacted to a minimumof 9 Q ~ p e r c e n t of standard proctor density. If the existing material isunsuitable for compaction, a minimum depth of 18 inches of suitablematerial shall be used as sub-grade.This change is proposed to correct an error in the version of the Dairy Rule filed

with the State Records Office. The language approved by the Commission in theirDecember 2010 deliberations provides for the sub-grade to be compacted to 90 percent ofstandard proctor density. This change is necessary to accurately reflect the deliberationsof the Commission and the language of the Dairy Rule as adopted by the Commission onDecember 15,2010.

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New Section 20.6.6.18 - VariancesA. A petition for a variance from the dairy rule shall be submitted inaccordance with Subsection A of20.6.2.1210 NMAC.B. In addition to any other criteria offered by the petitioner, thecommission may consider as an unreasonable burden upon the petitioner'sactivity that the requirements of the dairy rule are unnecessary to preventground water pollution due to site-specific conditions.C. In addition to any other information required under Paragraph (7)of that Subsection, the petition shall, if applicable, identify any alternativefacility design, alternative measuring device, or other variation from therequirements of the dairy rule and describe why variation from the dairyrule is warranted based upon site-specific conditions.D. Notwithstanding Subsection C of20.6.2.1210 NMAC, a variancefrom the requirements of the dairy rule may be granted for a period of timein excess of five years through the period of the expected useful life of thefeature for which a variance is granted.E. The department may review a variance every five years inconjunction with the discharge permit renewal to determine whether thevariance is achieving its designed purpose and whether the variance hascaused an exceedance of the standards of20.6.2.3103 NMAC. If a fiveyear review demonstrates that the variance cannot meet these criteria, thedepartment may request a hearing before the commission to revoke thevanance.Variances are provided for under existing Commission regulations in 20.6.2.1210

NMAC. However, the existing Commission variance rule limits the approval ofvariances to a five year time period. This does not provide sufficient certainty to dairyoperators to construct a facility under a variance when its expected life is more than fiveyears. Construction of a system granted a variance could be a substantial cost investmentto the dairy operator and have a design life greater than a five year period. Constructionof such substantial investments should be allowed to continue in operation as long as thegranted variance is achieving its designated purpose and is not causing an exceedance ofCommission water quality standards. The proposed change allows for a variance fromthe requirements of the Dairy Rule when its requirements are not appropriate due to site-specific conditions. The new Section also allows for a variance to be granted for longer

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than five years and for the Department to review a variance every five years to evaluatewhether the variance is achieving its designated purpose and that it is not causing anexceeclance of Commission water quality standards.Section 20.6.6.20(A)

A. Notice of presence of livestock lactating cows and wastewaterdischarge. A permittee shall provide written notice to the department ofthe commencement, cessation, or recommencement of wastewaterdischarge or the placement, removal, or reintroduction of livestocklactating cows as follows.

(1) For new dairy facilities.(a) Placement of livcstocl{ lactating cows. A

permittee shall provide written notice to the department a minimum of 30days before the placement of livestock lactating cows at the dairy facility.A permittee shall provide written verification to the department of theactual date of placement oflivestock lactating cows within 30 days ofplacement.

(b) Commencement of wastewater discharge. Aminimum of 30 days prior to the estimated initial wastewater dischargedate a permittee shall provide written notice to the department indicatingthe date discharge is proposed to commence. A permittee shall providewritten verification to the department of the actual date of dischargecommencement within 30 days of commencement.

(2) For existing dairy facilities.(a) Removal or reintroduction of livcstoel{lactating cows. A permittee shall provide written notice to the depmimentindicating the date of removal of alllf..:ves.teek lactating cows from thedairy facility or the date of reintroduction of any If..:ves.teek lactating cowsat the dairy facility, if all lactating cows were previously removed, within30 days of livestock lactating cow removal or reintroduction.This change is proposed to clarify that the presence of lactating cows at a dairy

facility means that milking operations are commencing and that a discharge from themilking barn to the wastewater impoundments will occur. This change is not intended torequire a dairy facility to notify the Depmiment when individual lactating cows areremoved or reintroduced to a dairy facility once milking operations begin. This change is

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necessary to provide the Department with advance notice of the commencement,cessation or recommencement of discharges to the wastewater impoundments.Section 20.6.6.20CD)

D. Free-liquid capacity of existing impoundment - determination.An applicant or permittee shall measure the thickness of settled solids ineach existing wastewater and combination wastewater/stormwaterimpoundment during the twelve-month period prior to the submission ofan application for a renewed or modified discharge permit and inaccordance with one of the following p r o c e d u r e ~ .(1 ) Measure settled solids when the impoundment contains water usingthe following method:(a) The total surface area of the impoundment shall be divided into nineequal sub-areas.(b) A settled solids measurement device shall be used to obtain onesettled solids thickness measurement (to the nearest half-foot) per subarea. The nine settled solids measurements shall be taken on the same dayand the date shall be recorded and submitted to the department with themeasurements.(c) The nine settled solids measurements shall be averaged.(d) The total volume of settled solids in the impoundment shall beestimated by multiplying the average thickness of the solids layer by thearea of the top of the settled solids layer. The area shall be calculatedusing the impoundment dimensions corresponding to the estimated surfaceof the settled solids layer.(e) The estimated volume of settled solids shall be subtracted from thedesign capacity of the impoundment (less two feet of freeboard) toestimate the actual free-liquid capacity.() The settled solids measurements, calculations, estimation of totalsettled solids volume and volume of the actual free-liquid capacity foreach impoundment shall be submitted to the department with theapplication for a renewed or modified discharge permit.(2) Measure settled solids when the impoundment has been drained ofwater to its lowest seasonal level using the following method:(a) Place a visible mark on each of the sidewalls of the pond showing thedesign depth allowed for sludge accumulation, or establish at least twovertical staff gauges marked to show the design depth allowed for sludgeaccumulation. The design depth shall be determined based upon thedesign capacity approved in the most recent discharge permit.i l l When the pond is drained to its lowest seasonal level, such that themarks showing the depths described above are visible (or would be visibleexcept for sludge accumulation), photograph each of the markings andsubmit the photographs with the application.

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bearing the seal and signature of a licensed New Mexico professionalengineer. (1) For new dairy facilities, tIhe grading and drainage systemshall be completed and the post-development drainage report shall besubmitted to the department before placing any livestock at the dairyfacility.(2) For eKisting dairy facilities, the improvements to the grading anddrainage system shall be completed within one year of the effective date ofthe discharge permit. The post development drainage report shall besubmitted to the department \vithin 90 days of completion ofimprovements.These changes are proposed to be consistent with the changes to the engineering

requirements of Paragraph (6) of Subsection C of20.6.6.17 NMAC requiring onlyapplicants for permits for a new dairy facility to submit a grading and drainage report andplan.Section 20.6.6.20CJ)

J. Flow meter installation. A permittee shall employ a flowmetering system that uses flow measurement devices (flow meters) tomeasure the volume ofwastewater discharged at the dairy facility. Flowmeters shall be installed in accordance with the plansand specificationssubmitted with the application for a new, renewed or modified dischargepermit, or those submitted after issuance of a discharge permit to achievecompliance with the dairy rule, pursuant to this section, Subsection C of20.6.6.17 NMAC, and Subsections I and J G and H of20.6.6.21 NMAC.Flow meters shall be physically and permanently labeled with thedischarge permit number, meter identification nomenclature as specifiedin a discharge permit, and the month and year of meter installation.Confirmation of installation shall include a description of the device type,manufacturer, meter identification, location, record drawings, and theresults of the initial field calibration completed pursuant to Subsection Eof 20.6.6.24 NMAC.

These changes are necessary to be consistent with the proposed changes to theengineering requirements of Paragraph (7) of Subsection C of20.6.6.17 NMAC thatremoves the requirement for the submission of engineering specifications for flowmeters.

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In addition, the change to the Subsection lettering from "1 and J" to "0 and N' isnecessary to provide correct reference citations due to proposed deletions in 20.6.6.21NMAC which change the order of the Subsection lettering in that portion of the rule.Section 20.6.6.20(L)

L. Flowmeter locations. An applicant or permittee shall identify flow meterlocations in the application for a new, renewed or modified discharge permit. Allflow meters shall be located pursuant to this section and Subsections I and J Gand H of 20.6.6.21 NMAC, and indicated on the scaled map required bySubsection U of this section.The change to the Subsection lettering from "1 and J" to "0 and N' is necessary

to provide correct reference citations due to proposed deletions in 20.6.6.21 NMACwhich change the order of the Subsection lettering in that portion of the rule.Section 20.6.6.20(M)

M. Authorized use of existing flow meters. An applicant or permitteeproposing to use an existing flow meter(s) shall submit documentationdemonstrating that the existing flow meter(s) is installed consistent with thissection, and Subsections I and J G and H of20.6.6.21 NMAC, as appropriate.The proposal shall be submitted with an application for a new, renewed andmodified discharge permit and shall include the following documentation.

The change to the Subsection lettering from "1and .F' to "0 and N' is necessaryto provide correct reference citations due to proposed deletions in 20.6.6.21 NMACwhich change the order of the Subsection lettering in that portion of the rule.Section 20.6.6.20(N)

N. Flow metering - wastewater to impoundment. A permittee shallinstall flow meters to measure the volume of wastewater discharged fromall wastewater sources to the wastewater or combinationwastewaterlstormwater impoundment(s). The flow meter(s) shall beinstalled on the discharge line(s) from all wastewater sources to thewastewater impoundment(s). Meter installation and confirmation ofmeterinstallation shall be performed pursuant to this section. Alternatively, adairy existing on the effective date of the dairy rule that does not utilize

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flow meters meeting the requirements of the preceding sentence mayinstall a flow meter(s) on the water supply liners) that serve all wastewatersources. Readings from flow meter(s) on water supply lines shall be usedto estimate wastewater volumes discharged to wastewater or combinationwastewaterlstormwater impoundment(s) without adjustments ordeductions to the meter readings.This change is proposed to allow a dairy existing on the effective date of the

Dairy Rule, that does not utilize flow meters that meet the requirements of the DairyRule, the option to install flow meters on the fresh water supply lines in lieu of installinga flow meter on the discharge lines to the wastewater impoundment. This changerecognizes that it may be costly and difficult to retrofit existing dairies that do not alreadyhave flow meters between wastewater sources and the impoundment. This change willcontinue to be protective of ground water at dairy facilities but will allow greaterflexibility for existing dairy operators in the management of their facilities.Section 20.6.6.20(0)

o. Flow meter inspection and maintenance. A permittee shall visuallyinspect flow meters on a weekly basis for evidence ofmalfunction. If a visualinspection indicates a flow meter is not functioning to measure flow, the permitteeshall repair or replace the meter within 30 days of discovery. The repaired orreplaced flow meter shall be installed and calibrated pursuant to the dairy rule.(1) For repaired meters, the permittee shall submit a report to thedepartment with the next qUaIierly monitoring report following the repair thatincludes a description of the malfunction; a statement verifying the repair; and aflow meter field calibration report completed pursuant to Subsection E of20.6.6.24 NMAC.

(2) For replacement meters, the permittee shall submit a report tothe department with the next quarterly monitoring report following thereplacement that includes plans and specifications for the device pursuantto Subsection C of 20.6.6.17 NMAC, and a flow meter field calibrationreport completed pursuant to Subsection E of 20.6.6.24 NMAC.This change is necessary to be consistent with the proposed changes to the

engineering requirements of Paragraph (7) of Subsection C of 20.6.6.17 NMAC that

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removes the requirement for the submission of engineering specifications for flowmeters.Section 20.6.6.20CU)

U. Scaled map of dairy facility. An applicant or permittee shallsubmit a scaled map of the dairy facility to the department with anapplication for a new, renewed or modified discharge permit. The mapshall be clear and legible, and drawn to a scale such that all necessaryinformation is plainly shown and identified. The map shall show the scalein feet or metric measure, a graphical scale, a north arrow, and theeffective date of the map. Multiple maps showing different pOliions ofthe facility may be provided using different scales as appropriate torepresent the facility. Documentation identifying the means used tolocate the mapped objects (i.e., global positioning system (OPS), landsurvey, digital map interpolation, etc.) and the relative accuracy of the data(i.e., within a specified distance expressed in feet or meters) shall beincluded with the map. Any object that cannot be directly shown due toits location inside of existing structures, or because it is buried withoutsurface identification, shall be identified on the map in a schematic formatand identified as such. The map shall include the following objects:This change is proposed to clarify that dairies are not required to create new maps

when there are existing maps available that could be submitted to the department thatotherwise meet the requirements of Subsection U. This change is necessary to allow forthe use of multiple maps when the use of different scales are appropriate to showdifferent features for large scale areas of the dairy facility, such as land application areas,versus smaller scale areas of the dairy facility, such as detailed features in the productionarea.Section 20.6.6.2l(B)

B. Prohibition of irrigation water storage in permittedimpoundments. A permittee shall not introduce irrigation water into anyimpoundment authorized by a discharge permit for the storage ofwaste\vater or stormvv'ater.This change is proposed to allow dairy operators to add irrigation water to

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wastewater prior to land application, subject to the additional conditions proposed belowin 20.6.6.21.F. This method will allow the continuation of this current practice at somedairies and reduce the economic burden on those dairy facilities that would be required toconstruct new wastewater/irrigation water blending systems. With the addition of theproposed conditions in 20.6.6.21.F, this proposed change will allow greater flexibility fordairy operators in the management of their facilities.Section 20.6.6.2l(D)

D. Irrigation water rights documentation. An applicant or permitteeshall submit documentation of irrigation '.vater rights from the office of the stateengineer for all fields within the land application area to the department with theapplication for a new, reoowed or modified discharge permit. Lm1d applicationshall not be authorized unless the documentation demonstrates adequate \vaterrights are held for irrigation to produce and harvest the crops necessary for theremoval of nitrogen while the permit is in effect as required in this section.This change is proposed to be consistent with the proposed changes to Subsection

P of 20.6.6.12. This change is proposed to recognize that dairy operators may onlyirrigate land application areas if they have sufficient water rights, and requiring thisdocumentation places an unnecessary burden on applicants. The existing language alsodelves into water rights issues that are the purview ofthe Office of the State Engineer.This change is necessary to remove the burden on the applicant for meeting this permitapplication requirement.Section 20.6.6.2l(F)

F. Wastewater/irrigation water blending. A permittee shall notcombine wastewater with irrigation '.vater in an impoundment.Wastewater may be blended in-line (i.e., fresh irrigation water supplylines) when fresh water irrigation lines are equipped with a reducedpressure principle backflow prevention assembly (RP). Wastewater mayalso be blended in a mix-tank(s), applied alternately in the same irrigationline which has been physically disconnected from supply wells, or appliedin a separate line, as authorized by a discharge permit. Wastewater may

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be blended with fresh water in a wastewater impoundment prior to landapplication so long as:

(1) The permittee maintains an accurate written record ofthe volume of fresh water added to the wastewater and that volume isaccounted for in determining the volumes of wastewater applied forpurposes of the nutrient management plan.

(2) Fresh water is introduced in a safe manner to preventscouring of the liner.

(3) The impoundment capacity requirements of this rule are

This change is proposed to be consistent with the proposed changes to SubsectionB of 20.6.6.21. This change will permit the blending of fresh water with wastewater inan impoundment provided certain requirements are met. The conditions are intended toensure that fresh water volumes used for blending are accounted for in the nutrientmanagement plan, and to protect the integrity of impoundment liners, while maintainingimpoundment capacity. These proposed changes will allow greater flexibility for dairyoperators in the management of their facilities.Section 20.6.6.2l(L)

L. Crop removal - mechanical or grazing. A permittee shall remove cropsfrom fields within the land application area by mechanical harvest unlessan alternative proposal for the use of grazing is submitted with theapplication for a new, renewed, or modified discharge permit. If grazingis the method proposed for crop removal, the nutrient management plan(NMP) prepared pursuant to Subsection Kolof this section shall include aproposal for the use of grazing for crop removal by means of an activelymanaged rotational grazing system which promotes uniform grazing andwaste distribution throughout the field(s) (and pastures within the field).Proposals shall quantify the degree of nitrogen removal expected to beachieved by grazing, and shall provide scientific documentationsupporting the estimated nitrogen removal and justification for theselection of input parameters used in calculations or computer modeling.The NMP proposing grazing for crop removal shall be implemented in itsentirety. Annual updates to the NMP shall include updates to the grazingplan as well as a report of actual weight gains, actual nitrogen uptake ofthe crop, and estimated crop and nutrient removal from the previousseason. An NMP which proposes grazing for crop removal shall alsoinclude, at a minimum, the following elements.

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(l ) The length of the grazing season.(2) The size and number of animals to be grazed.(3) The estimated weight gain of animals to be grazed, or estimatedintake for maintenance or milk production.(4) The calculations to determine stocking rates, total acreage neededand residency period.(5) The plant species used to establish pastures and the pasturerenovation practices to be employed.(6) The yield of plant species grown in each pasture and the foragesupplied on a monthly basis.(7) The grazing management system employed and a map indicatingkey features of the system including water tanks, fencing, and pasturelayout with numbering system and acreage of each pasture.

The change to the Subsection lettering from "K" to " f ' is necessary to providecorrect reference citations due to proposed deletions in 20.6.6.21 NMAC which changethe order of the Subsection lettering in that portion of the rule.Section 20.6.6.2l(M)

M. Crop removal - changes to method(s}. If a permittee proposes to changethe methodes) (i.e., mechanical versus grazing) of crop removal on any fieldwithin the land application area authorized by the discharge permit, the permitteeshall apply to modify the discharge permit. The permittee shall submit anapplication which includes the proposed change(s) pursuant to Subsection K:-aRE!bI and J of this section. The permittee shall not implement the changes unless thedepartment issues a modified permit approving the changes.The change to the Subsection lettering from "K and L" to "1 and J" is necessary to

provide correct reference citations due to proposed deletions in 20.6.6.21 NMAC whichchange the order of the Subsection lettering in that portion of the rule.Section 20.6.6.2l(N)

N. Irrigation ditches - inspection and maintenance. Irrigationditches used to land apply wastewater or stormwater at a dairy facilityshall be concrete-lined and shall be maintained in good repairwith sealedexpansion joints. The permittee shall visually inspect the ditch system ona monthly basis to ensure proper maintenance. Any damage to a linedditch shall be repaired immediately within a reasonable time period. A logshall be kept on-site documenting the inspection findings and repairsmade, and the log shall be made available to the department upon request.

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This change is proposed in recognition that it is not necessary that irrigationditches have sealed expansion joints so long as they are kept in good repair and operate asdesigned. This change also gives a permittee a reasonable amount of time to makerepairs to damaged ditches. This change is protective of ground water at dairy facilitieswhile allowing greater flexibility for dairy operators in the management of their facilities.Section 20.6.6.21(P)

P. Backflow prevention by reduced pressure principle backflowprevention assembly - inspection and maintenance. A permittee shallhave each reduced pressure principle backflow prevention assembly (RP)inspected and tested by a certified backflow prevention assemblytestefperson qualified by the manufacturer at the time of installation,repair, or relocation, and at least on an annual schedule thereafter. +Bebackflow prevention assembly tester shall have successfully completed a40 hour bacldlow prevention course based on the university of southernCalifornia's backflov,r prevention standards ffi1d test procedures, andobtained certification demonstrating completion. A malfunctioning RPdevice shall be repaired or replaced within 30 days of discovery, and useof all supply lines associated with the RP device shall cease until repair orreplacement has been completed. Copies of the inspection andmaintenance records and test results for each RP device associated withthe backflow prevention program shall be submitted to the departmentannually in the monitoring reports due by May 1.This change is proposed to recognize that there may be limited availability of

persons in New Mexico with the certification required by the Dairy Rule for testing ofthese devices and that a person qualified by the manufacturer should be allowed toperform inspections and testing on these devices.

In order to clarify the intent of the use of backflow prevention devices, theDepartment would also like to clarify that under Section 20.6.6.21(0), one backflowprevention device can protect multiple wells. No changes are proposed for this section.

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New Section 20.6.6.23(N)N. Proposed location of monitoring wells - dispute resolution. Ifthe department provides a notice of technical deficiency pursuant toSubsection G of 20.6.6.1 0 NMAC due to a disagreement with the numberor location ofmonitoring wells proposed in the application, or ifthedepartment notifies a permittee to replace a monitoring well pursuant toSubsection C of 20.6.6.27 NMAC, the applicant or permittee may notifythe secretary by certified mail, sent within thiliy days after the date ofpostal notice of the department's notice, that the applicant or permitteeinvokes dispute resolution under this subsection. Upon such notice, thedepmiment, as represented by the secretary, deputy secretary, or divisiondirector and the applicant or permittee shall meet in person within thiliydays and shall attempt in good faith to resolve the dispute.This proposed change provides a formal mechanism to resolve disputes

concerning the proposed location of a monitoring well. Under this subsection, an in-person meeting will be held within thirty days of notice of a dispute and the parties willattempt in good faith to resolve the dispute. This additional subsection is necessary toreduce the number of potential permit hearings and appeals that might otherwise takeplace.Section 20.6.6.25(C)

C. Wastewater to be land applied - sampling and reporting. Apermittee shall collect and analyze wastewater samples on a quarterlybasis for nitrate as nitrogen, total Kjeldahl nitrogen, chloride, total sulfurand total dissolved solids pursuant to Subsection B of 20.6.6.24 NMAC.Samples shall be collected during active milking from a location betweenthe manure solids separator(s) and \vastewater impoundment(s) for eachseparator associated '.-vith an individual parlor. Representative samplesshall be collected from the wastewater impoundments. The representativesamples shall consist of eight samples taken from eight different locationsevenly distributed throughout the impoundment. Wastevv'ater samplesshall be collected from the sampling location(s) proposed in theapplication for a new, renewed and modified discharge permit, andspecified in the discharge permit. A permittee shall submit the analyticalresults to the department in the quarterly monitoring repmis.

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This change is proposed to allow for a sampling method and location that is lessburdensome on dairy operators. It requires an eight-point composite sample from eachimpoundment used to store wastewater for land application. The composite sample fromeach impoundment consists of samples collected from eight different sample locationsthroughout each impoundment. This change will allow greater flexibility for dairyoperators in the management of their facilities.Section 20.6.6.27(A)

A. Exceedance of ground water standards - all monitoring wellsexcept impoundment monitoring wells. If the constituent concentrationin a ground water sample and in aE:j'--the next subsequent ground watersample collected from the same monitoring well intended to monitor acontamination source other than an impoundment exceeds one or more ofthe ground water standards of20.6.2.3103 NMAC and exceeds theconcentration of such constituent(s) in a ground water sample collectedfrom the upgradient monitoring well, then the permittee shall take thefollowing actions. For the purpose of this subsection, grow1d watersamples obtained from the source monitoring well and the upgradientmonitoring well that are used for comparison of constituent concentrationsshall be collected within two days of each other, provided that if there issufficient ground water quality data to demonstrate that samples fromdifferent periods should be compared, the department may allow such acomparison. I f ground water quality data for the upgradient monitoringwell are not submitted by the permittee, the ground water standards of20.6.2.3103 NMAC shall be the applicable standard used to determine ifthe requirements of this subsection must be met. The contingencyrequirements of Paragraphs (l) and (2) of this subsection shall not apply ifcorrective action previously has been taken to address ground watercontamination and constituent concentrations have stabilized or improved,but this exception shall no longer apply if a constituent concentrationincreases for two consecutive sampling events and exceeds its standard orthe upgradient concentration. Once enacted the contingency requirementsof this subsection apply until the permittee has fulfilled the requirementsof this subsection and ground water monitoring pursuant to 20.6.6.23NMAC confirms for a minimum of eight consecutive ground watersampling events that the standards of20.6.2.3103 NMAC are notexceeded and the total nitrogen concentration in ground water is less thanor equal to 10 milligrams per liter or until the department requires anabatement plan pursuant to Paragraph (3) of this subsection.

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Section 20.6.6.27(B)B. Exceedance of ground water standards - impoundmentmonitoring well. If the constituent concentration in a ground watersample and in any-the next subsequent ground water sample collectedfrom a monitoring well intended to monitor an impoundment(s) exceedsone or more ofthe ground water standards of 20.6.2.31 03 NMAC andexceeds the concentration of such constituent(s) in a ground water samplecollected from the upgradient monitoring well, then the permittee shallenact one of the following measures. For the purpose of this subsection,ground water samples obtained from the impoundment monitoring welland the upgradient monitoring well that are used for comparison ofconstituent concentrations shall be collected within two days of eachother, provided that if there is sufficient ground water quality data todemonstrate that samples from different periods should be compared, thedepartment may allow such a comparison. If ground water quality data forthe upgradient monitoring well are not submitted by the permittee, theground water standard(s) of20.6.2.3103 NMAC shall be the applicablestandard(s) used to determine if the requirements of this subsection mustbe met. The contingency requirements ofParagraph ( l )(a) through (c) andParagraph (2)(a)(i) tlu'ough (iii) of this subsection shall not apply ifcorrective action previously has been taken to address ground watercontamination and constituent concentrations have stabilized or improved,but this exception shall no longer apply if a constituent concentrationincreases for two consecutive sampling events and exceeds its standard orthe upgradient concentration. Once enacted the contingency requirementsof this subsection apply until the permittee has fulfilled the requirementsofthis subsection and ground water monitoring pursuant to 20.6.6.23NMAC confirms for a minimum of eight consecutive ground watersampling events that the standards of20.6.2.3l03 NMAC are notexceeded and the total nitrogen concentration in ground water is less thanor equal to 10 milligrams per liter or until the department requires anabatement plan pursuant to Paragraph (n(d) or Paragraph (2)(a)(iv) of thissubsection.These changes are necessary to account for situations where a corrective action

previously has been taken by a dairy operator and ground water quality has stabilized orimproved, but still exceeds Commission ground water quality standards as well asup gradient groundwater quality. Under the existing rule, a contingency action may betriggered by a second exceedance for a water quality constituent in a monitoring well thatoccurs years after the initial exceedance and is not repeated. The changes also allow for

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of a new wastewater impoundment or improvement of an existingwastewater impoundment, and ground water quality standards have notbeen exceeded in monitoring wells installed to monitor the existingimpoundment for the four quarters preceding submission of the correctiveaction plan, the permittee may propose and the department may approve aliner for the new wastewater impoundment or improvement of the existingimpoundment consistent with the liner design approved by the departmentat the time of the last discharge permit issued by the department before theeffective date of the dairy rule.Section 20.6.6.27(F)

F. Inability to preserve required freeboard. If a minimum of twofeet of freeboard cannot be preserved in the wastewater impoundment, thepermittee shall submit a corrective action plan to the department forapproval. The conective action plan shall be submitted within 30 days ofthe date of the initial exceedance of the freeboard requirement. The planmay include, but is not limited to, proposals for constructing an additionalimpoundment, reducing the maximum daily discharge volume, changingwastewater management practices, or installing an advanced wastewatertreatment system. The corrective action plan shall include actions to beimmediately implemented to regain and maintain a minimum of two feetof freeboard until permanent corrective actions have been completed. Theconective action plan shall include a schedule for implementation throughcompletion of corrective actions. The corrective action plan scheduleshall propose completion not to exceed one year from the submittal date ofthe initial corrective action plan. Within 30 days of the date of postalnotice of the department's approval of the corrective action plan, thepermittee shall initiate implementation of the plan. NotwithstandingParagraph (6) of Subsection D of 20.6.6.17 NMAC, if a corrective actionplan required under this subsection calls for construction of a newwastewater impoundment or improvement of an existing wastewaterimpoundment, and ground water quality standards have not been exceededin monitoring wells installed to monitor the existing impoundment for thefour quarters preceding submission of the corrective action plan, then thepennittee may propose and the department may approve a liner for thenew wastewater impoundment or improvement of the existingimpoundment consistent with the liner design approved by the departmentat the time of the last discharge permit issued by the depariment before theeffective date of the dairy rule.

Section 20.6.6.27(G)G. Impoundment - structural integrity compromised. Within 24hours of discovery, a permittee shall repOli to the department, any damageto the berms or the liner of an impoundment or any condition that exists

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that may compromise the structural integrity of the impoundment. Within15 days of the reported discovery, the permittee shall submit to thedepartment a corrective action plan describing any actions taken orproposed to be taken to repair the damage or condition. Within 30 days ofreceipt, the department shall respond to the proposed corrective actionplan. Repairs to the impoundment liner or berms shall be completedpursuant to 20.6.6.17 NMAC. The corrective action plan shall include aschedule for implementation through completion of corrective actions.The conective action plan schedule shall propose completion not toexceed one year from the submittal date of the initial corrective actionplan. The schedule of corrective actions shall be commensurate to themagnitude and scope of the activities to be completed. Within 30 days ofthe date of postal notice of the department's approval of the correctiveaction plan, the permittee shall initiate implementation of the plan.Notwithstanding ParagraplliQlof subsection D of 20.6.6.17 NMAC, if acorrective action plan required under this subsection calls for constructionof a new wastewater impoundment or improvement of an existingwastewater impoundment, and ground water quality standards have notbeen exceeded in monitoring wells installed to monitor the existingimpoundment for the four quarters preceding submission of the correctiveaction plan, then the permittee may propose and the department mayapprove a liner for the new wastewater impoundment or improvement ofthe existing impoundment consistent with the liner design approved by thedepartment at the time of the last discharge permit issued by thedepartment before the effective date of the dairy rule.These changes are proposed to address certain situations at existing dairies, for

example, where the existing Dairy Rule could require a new or expanded impoundment atan existing dairy where clay-lined impoundments previously have been approved and theuse of the impoundment has not caused an exceedance of ground water quality standards.According to the existing Dairy Rule, should the permittee propose to install a newimpoundment as a conective action, the new impoundment would be required to have a60-mil synthetic liner even if the existing clay-lined impoundment has not caused groundwater contamination in excess of Commission water quality standards. These changesallow the permittee for an existing dairy facility with existing clay-lined impoundmentsto install additional clay-lined impoundments if the following requirements are met: (1)

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the ground water in monitoring wells located hydrologically downgradient of the existingimpoundment cannot have exceeded ground water quality standards in the four quartersproceeding submission of the corrective action plan; (2) the permittee has proposed aliner for the new wastewater impoundment that is consistent with the liner designapproved by NMED in the last discharge permit issued before the effective date of therule; and (3) NMED approves the proposed liner design for the new impoundment at thedairy facility.

These proposed changes allow a permittee to continue to use a clay-linedimpoundment in situations where the existing clay-lined impoundment system may nothave caused ground water contamination in excess of Commission standards without theneed for a variance.

The Department would also like to clarify that the intent of Section 20.6.6.27(D),which concerns exceedances of permitted maximum daily discharge volume, is not torequire replacement of an existing clay-lined impoundment that has not caused groundwater contamination. No changes are proposed to this section.

IV. STATUTORY CRITERIAPursuant to the Water Quality Act the Commission must consider certain statutory

criteria when it promulgates regulations. Section 74-6-4.E of the Water Quality Actprovides that

In making regulations, the commission shall give weight itdeems appropriate to all relevant facts and circumstances,including:(l ) character and degree of injury to or interference withhealth, welfare, environment and propeliy;(2) the public interest, including the social and economicvalue of the sources ofwater contaminants;

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(3) technical practicability and economic reasonablenessof reducing or eliminating water contaminants from thesources involved and previous experience with equipmentand methods available to control the water contaminantsinvolved;(4) successive uses, including but not limited todomestic, commercial, industrial, pastoral, agricultural,wildlife and recreational uses;(5) feasibility of a user or a subsequent user treating thewater before a subsequent use;(6) property rights and accustomed uses; and(7) federal water quality requirements.

Each of the listed criteria is addressed below.(1) character and degree of injury to or intelierence with health, welfare,environment andproperty.The amendments to the Dairy Rule as presented in my testimony are proposed jointly

by the Department, DIGCE, and the Coalition in consideration of this criteria and shouldnot result in any injury to or interference with health, welfare, environment or propeliy.The amendments are intended to allow greater flexibility for dairy operators in themanagement and operation of dairy facilities while still being protective of ground waterquality.

(2) the public interest, including the social and economic value ofthe sources ofwater contaminants.The proposed amendments are protective of the public interest. The amendments are

the result of extended negotiations between the Department, the dairy industry, andcitizen groups. The amendments are intended to strike a balance between the public'sinterest in protecting ground water quality for social and economic use, and the social andeconomic value the dairy industry provides for New Mexico.

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The proposed amendments to the Dairy Rule will not affect property rights oraccustomed uses.

(7) federal water quality requirements.The proposed amendments will not affect federal water quality requirements and are

proposed to prevent ground water contamination, monitor ground water quality to detectany contamination in excess ofwater quality standards, and protect public health and theenvironment.

rn addition to the factors listed above, the Commission must consider the bestavailable scientific information. NMSA 1978 74-6-4.K. The proposed amendmentsare supported by scientific information presented at the hearing on the Dairy Rule and inthe testimony presented by the Depmiment, DraCE and the Coalition at this hearing.While in some cases the amendments propose different methods or requirements thanwere adopted in the initial Dairy Rule, the proposed amendments contain adequatesafeguards to ensure these methods and requirements are protective of ground waterquality using the best available scientific information.

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Kathy J. Martin, PE3122 Tall Oaks Circle' Norman, Oklahoma 73072 . Telephone: (405) 321-3176Current Position _ . . _ENVIRONMENTAL CONSULTANT, MARTIN ENVIRONMENTAL SERVICES, NORMAN, OKProfessional engineer in Civil Engineering providing expertise in areas of industrial permitting for air quality,non-hazardous industrial wastewater, and closure of surface impoundments. Perform engineering review andcritique of permit applications submitted by swine facilities to regulatory agency with respect to wastewatertreatment technology and compliance with environmental regulations.EducationUNIVERSITY O . . Q ! ~ l : A H O M A .. __ . ._ _ ... . .... _MS. Civil Engineering, 1989Thesis: The Removal of Polychlorinated Biphenyls from Topsoil Using Nonionic SurfactantsUNIVERSITY OF OKLAHOMAB.S. Petroleum Engineering, 1987National Dean's List, 1986-87ExperienceMOBILE MEAT HARVESTING UNIT - Team member, 2010 to presentProvide technical assistance in developing water and wastewater treatment strategies for the mobile meat harvestingunit as it relates to slaughter of beef, hog, and poultry, including but not limited to potable water treatment, slaughterwaste treatment and disposal, HAACP, and other USDA requirements for small slaughterhouses.ADJACENT LANDOWNERS TO LIVESTOCK FACILITlESSubcontracted as Martin Environmental Services, June 1997 to presentPerform technical and regulatory review of approximately 150 CAFO permit applications in 21 states nationally todetermine if the application is sufficient for a permit writer to draft a permit. The purpose was to determine if therewere technical and/or regulatOly deficiencies in the application and prepare a written report for use in administrativeproceedings by concerned citizens and adjacent landowners.SEWARD COUNTY COMMISSIONERS, SEWARD COUNTY, KANSASSubcontracted as Martin Environmental Services, June - October 1998Drafted environmental regulations for confined animal feeding operations (CAFOs) with respect to the design,construction, operation, maintenance, and closure of surface impoundments and the disposal of CAFO waste by landapplication. The resulting work product was a set of regulations that is a complete permitting program includingpublic notice, hearings, permit application processes and fees, as well as provisions for compliance and enforcement.

DEPARTMENT OF ENVIRONMENTAL QUALITYEnvironmental Engineer 11, July 1, 1993 to November 1, 1996Special training in areas of Air Quality and Hazardous Waste permits and regulatOly reqUirements. Providedtechnical and regulatory assistance to business and industry with respect to environmental permits issued by theODEQ in water quality, air quality, and solid waste programs.OKLAHOMA WATER RESOURCES BOARDEnvironmental Engineer 1, April 1990 to June 30, 19935pecial training in areas of industrial wastewater disposal permits and inspections.surface impoundments and land application of non-hazardous industrial wastewater.discharge facilities. Project officer of Tar Creek Superfund Site.

Drafted state regulations forIssued state permits for non-

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Kathy J Martin, Resume Page 2 of 3Technical Expertise ,o Professional Engineer in Oklahoma (No. 18254) February 1997 to presento 15 years continuing education regarding CAFO waste management systemso Extensive research and knowledge of lagoon liner systems and waste/liner compatibilityo 10 years continuing education regarding pathogen transport and fate from CAFOso 13 years continuing education regarding air pollution and odors from CAFOso Other topics of continuing education: GPS, perimeter t ile design, concrete, and soil scienceo Drafted Oklahoma state regulations for permitting of surface impoundments and disposal by land applicationused by facilities with non-hazardous industrial wastewater

o Drafted county regulations for CAFO impoundments and land application ofmanureo Familiarity with CAFO regulations in AR, CA, CO, GA, lA, ID, IL, IN, KS, KY, MO, MS, NO, NE, NM,OK, PA, SO, TX, UT, and WY

o Coordinated Superfund activities between USGS, Oklahoma State and EPA Interacted with State Legislators (OK and KS) on technical issues related to CAFOs Provide expert testimony regarding CAFO waste management systems in Arkansas, Indiana, Kansas,Kentucky, Missouri, Nebraska, New Mexico, Oklahoma, and Utah

Provide technical and regulatory reviews of CAFO permit applications in AR, CA, CO, GA, lA, ID, IL, IN,KS, KY, MO, MS, NO, NE, NM, OK, PA, SO, TX, UT, and WY

Graduate Oegree coursework included: Groundwater Protection, Groundwater Seepage, GroundwaterModeling, Groundwater Pollution Control, Air Pollution Controls, Air Pollution Engineering, EnvironmentalImpact Assessment, Risk Assessment, Industrial Hygiene, Reservoir Dam Engineering, Open Channel Flow,Chemical and Biological Aspects ofEnvironmental Engineering, Advanced Wastewater Treatment, SoilClassification, Soil Science, Hazardous Waste Control, Solid Waste Engineering/Landfill Design, Land UseManagement, Surfactants and Colloidal Science, Corrosion Engineering, Field Application's, andNonparametric Statistics.

Ten years leadership positions in local, state, and national organizations Developed state-wide foundry and metal cast ing facility environmental program in Oklahoma -- and trainedstate agencies in Louisiana and Arkansas to do the same.

Active contributor to proposed regulatory