1. (a) This section applies to CAFOs that are feeding operations confining cattle that have been or may be used for dairy purposes, or otherwise associated with a dairy, including cows, calves, and bulls, in a major sole-source impairment zone, as defined in §321.32 of this title (relating to Definitions).
2. (b) For new CAFOs or CAFOs increasing the number of animals, the requirements of this section must be implemented concurrently with the next required annual soil sampling date established in the pollution prevention plan.
3. (c) For existing CAFOs not increasing the number of animals, the requirements of this section must be implemented concurrently with the next required annual soil sampling date established in the pollution prevention plan, beginning six months after the effective date of these amended and new rules (2002).

4. (d) The CAFO operator shall:

   1. (1) contract with a person described in §321.48(e) of this title (relating to Regulation of Certain Dairy Concentrated Animal Feeding Operations (CAFOs)) and approved by the executive director to collect one or more representative composite soil samples from each waste application field, including each historical waste application field, and to ensure compliance with subsection (f) of this section; and
   2. (2) have sampling under subsection (d)(1) of this section performed in accordance with the requirements of §321.39 of this title (relating to Pollution Prevention Plans) and not less often than once every 12 months, in accordance with the procedures in §321.39(f)(28)(A) - (D) of this title.
5. (e) The CAFO operator shall ensure that each sample collected under subsection (d) of this section is tested in accordance with the applicable requirements of §321.39(f)(28)(A) - (F) of this title and is tested for any other nutrient designated by the executive director.
6. (f) The CAFO operator shall ensure that the analytical results from the testing performed under subsection (e) of this section are submitted to the executive director and that a copy is submitted to the appropriate commission regional office and the operator of the CAFO within 60 days of the sampling.
7. (g) If the samples tested under subsection (e) of this section show a phosphorus level in the soil of more than 500 parts per million (ppm) in Zone 1 (0 - 6 inch) depth, the operator shall file with the executive director a new or amended nutrient utilization plan with a phosphorus reduction component that is certified as acceptable by a person described in §321.48(e) of this title.

8. (h) If the samples tested under subsection (e) of this section show a phosphorus level in the soil of more than 200 ppm but not more than 500 ppm in Zone 1 (0 - 6 inch) depth, the operator shall:

   1. (1) file with the executive director a new or amended nutrient utilization plan with a phosphorus reduction component that is certified as acceptable by a person described in §321.48(e) of this title; or
   2. (2) show that the level is supported by a nutrient utilization plan certified as acceptable by a person described under §321.48(e) of this title.
9. (i) If the owner or operator of a waste application field is required by this section to have a nutrient utilization plan with a phosphorus reduction component, and if the results of tests performed on composite soil samples collected 12 months or more after the plan is filed do not show a reduction in phosphorus concentration in Zone 1 (0 - 6 inch) depth, then the owner or operator is subject to enforcement action at the discretion of the executive director. The executive director, in determining whether to take an enforcement action, shall consider any explanation presented by the owner or operator regarding the reasons for the lack of phosphorus reduction, including, but not limited to, an act of God, meteorologic conditions, diseases, vermin, crop conditions, or variability of soil testing results.

Source Note:The provisions of this §321.49 adopted to be effective March 6, 2002, 27 TexReg 1511.