Pages 731 to 784 include ARC 2086B to ARC 2117B

Schedule for rule making 724

Publication procedures 725

Administrative rules on CD–ROM 725

Agency identification numbers 729

Opinions summarized

Filed, Waivers or variances from administrative
rules, ch 12 ARC 2117B 768

CITATION OF ADMINISTRATIVE RULES 723

Notice, Approval of postsecondary schools,
21.1 ARC 2091B 731

Notice, Expiration date for dental assistant
trainee status; application for dental assistant
trainee status for person enrolled in an Iowa
high school cooperative education or work–
study program, 20.4, 20.6 ARC 2114B 731

Filed Without Notice, Correction of cross
references, 7.1(5), 11.5(5), 11.6(6),
11.8(5), 13.2(7), 14.1(5), 14.5(4), 25.11
ARC 2115B 768

Notice, Definitions—“emission data” and
“effluent data,” 2.1 ARC 2097B 732

Notice, Contested cases—adoption by reference,
7.1 ARC 2099B 733

Notice, Minimum separation distances; collection
of annual compliance fee; submission of annual
manure management plan updates; site inspection
and construction permit application review process;
master matrix, 65.1, 65.3(3), 65.9(1), 65.10,
65.11(2), 65.16, ch 65 appendix C, master
matrix; tables 6, 7 ARC 2101B 733

Notice, Waste tire management—separation
distance for permitted waste tire stockpile and
implement, 117.3(3), 117.4(3) ARC 2100B 752

Filed, Private water well construction permits,
38.2 to 38.9, 38.12 to 38.15 ARC 2096B 768

Filed Well contractor certification, ch 82
ARC 2098B 769

Notice, Support establishment and adjustment
services—child support recovery unit,
amendments to ch 99 ARC 2116B 752

Filed, HAWK–I program—uninsured status,
86.2(4) ARC 2087B 769

Notice, Proposed workers’ compensation
rate filing 758

Notice, Terminology related to certain drawing,
sales, and vending equipment for delivery of
lottery games and services; authorized and
unauthorized equipment, 13.2 ARC 2086B 759

Notice, Rules of practice in contested cases,
7.1 to 7.4, 7.9, 7.10(1), 7.12, 7.13,
7.15 to 7.19 ARC 2095B 759

Notice, Correction of cross reference, 6.15(3)
ARC 2113B 763

Filed, Automated medication distribution system—
pharmacist or nurse verification, 9.7(2)
ARC 2112B 770

Filed, Precursor substances, ch 12 ARC 2111B 770

Filed, Public information and inspection of
records, ch 14 ARC 2110B 771

Filed, Pharmacy compounding practices, ch 20
ARC 2109B 771

Filed, Petitions for rule making, ch 26
ARC 2108B 775

PHARMACY EXAMINERS BOARD[657] (Cont’d)

Filed, Impaired pharmacy professional and
technician recovery program, 30.1 to 30.6,
30.7(4), 30.8 ARC 2107B 775

Filed, Contested cases, amendments to ch 35
ARC 2094B 775

Filed, Discipline, 36.1 to 36.5, 36.6(1), 36.8,
36.11 to 36.15, 36.17, 36.18 ARC 2093B 776

Notice, Optometrists—completion of mandatory
training on identifying and reporting child and
dependent adult abuse, 180.1, 180.5
ARC 2088B 764

Filed, Administrative and regulatory authority
for the board of physician assistant examiners,
ch 325 ARC 2089B 776

Summarized list 726

Filed, Commission approval of contracts and
business arrangements, 5.4(8) ARC 2092B 776

Filed, Biofuel; terminal–nonterminal storage
facility reports and records; purchase invoices
for motor fuel, special fuel and alcohol; electronic
data interchange or EDI technology; taxes
erroneously or illegally collected, amendments
to chs 67, 68 ARC 2103B 777

Filed, Vineyards and associated buildings
classified as agricultural real estate; delinquent
property taxes; disabled veteran’s homestead
property tax credit; military property tax
exemption for members of Coast Guard;
filing deadline—urban revitalization
property tax exemption, amendments to
chs 71, 75, 80 ARC 2102B 777

Filed, Deadline—filing of income and expense
data with local assessor; debt yield—25–year
Treasury bonds, 71.5(2)“c” and “d”
ARC 2104B 778

Notice, Keep Iowa beautiful program, ch 122
ARC 2090B 765

Notice 766

Notice, Efficient use of telephone numbering
resources, 22.24 ARC 2105B 766

Filed, Electric delivery reliability, 20.2(5)“c,”
20.5, 20.7, 20.18, 25.3, 25.4 ARC 2106B 778

CITATION of Administrative Rules

The Iowa Administrative Code shall be cited as (agency identification number) IAC
(chapter, rule, subrule, lettered paragraph, or numbered subparagraph).

441 IAC 79 (Chapter)

441 IAC 79.1(249A) (Rule)

441 IAC 79.1(1) (Subrule)

441 IAC 79.1(1)“a” (Paragraph)

441 IAC 79.1(1)“a”(1) (Subparagraph)

The Iowa Administrative Bulletin shall be cited as IAB (volume), (number), (publication
date), (page number), (ARC number).

IAB Vol. XII, No. 23 (5/16/90) p. 2050, ARC 872A

__________________________________

The Iowa Administrative Bulletin is published biweekly in pamphlet form pursuant to Iowa Code chapters 2B and 17A and contains Notices of Intended Action on rules, Filed and Filed Emergency rules by state agencies.
It also contains Proclamations and Executive Orders of the Governor which are general and permanent in nature; Economic Impact Statements to proposed rules and filed emergency rules; Objections filed by Administrative Rules Review Committee, Governor or the Attorney General; and Delay by the Committee of the effective date of filed rules; Regulatory Flexibility Analyses and Agenda for monthly Administrative Rules Review Committee meetings. Other “materials deemed fitting and proper by the Administrative Rules Review Committee” include summaries of Public Hearings, Attorney General Opinions and Supreme Court Decisions.
The Bulletin may also contain Public Funds Interest Rates [12C.6]; Workers’ Compensation Rate Filings [515A.6(7)]; Usury [535.2(3)“a”]; Agricultural Credit Corporation Maximum Loan Rates [535.12]; and Regional Banking—Notice of Application and Hearing [524.1905(2)].

PLEASE NOTE: Italics indicate new material added to existing rules; strike through letters indicate deleted material.

Subscriptions and Distribution Telephone: (515)242–5120

Fax: (515)242–5974

KATHLEEN K. BATES, Administrative Code Editor Telephone: (515)281–3355

STEPHANIE A. HOFF, Assistant Editor (515)281–8157

Fax: (515)281–4424

The Iowa Administrative Bulletin is sold as a separate publication and may be purchased by subscription or single copy. All subscriptions will expire on June 30 of each year. Subscriptions must be paid in advance and are prorated quarterly.

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The Iowa Administrative Code and Supplements are sold in complete sets and subscription basis only. All subscriptions for the Supplement (replacement pages) must be for the complete year and will expire on June 30 of each year.
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PLEASE NOTE:

Rules will not be accepted after 12 o’clock noon on the Friday filing deadline days unless prior approval has been received from the Administrative Rules Coordinator’s office.

If the filing deadline falls on a legal holiday, submissions made on the following Monday will be accepted.



***Note change of filing deadline

TO: Administrative Rules Coordinators and Text Processors of State Agencies
FROM: Kathleen K. Bates, Iowa Administrative Code Editor
SUBJECT: Publication of Rules in Iowa Administrative Bulletin

The Administrative Code Division uses Interleaf 6 to publish the Iowa Administrative Bulletin and can import documents directly from most other word processing systems, including Microsoft Word, Word for Windows (Word 7 or earlier), and WordPerfect.

1. To facilitate the publication of rule–making documents, we request that you send your document(s) as an attachment(s) to an E–mail message, addressed to both of the following:

bruce.carr@legis.state.ia.us and
kathleen.bates@legis.state.ia.us

2. Alternatively, you may send a PC–compatible diskette of the rule making. Please indicate on each diskette the following information: agency name, file name, format used for exporting, and chapter(s) amended. Diskettes may be delivered to the Administrative Code Division, First Floor South, Grimes State Office Building, or included with the documents submitted to the Governor’s Administrative Rules Coordinator.

Please note that changes made prior to publication of the rule–making documents are reflected on the hard copy returned to agencies by the Governor’s office, but not on the diskettes; diskettes are returned unchanged.

Your cooperation helps us print the Bulletin more quickly and cost–effectively than was previously possible and is greatly appreciated.

Containing: Iowa Administrative Code (updated through June 2002)
Iowa Administrative Bulletins (January through June 2002)
Iowa Court Rules (updated through June 2002)

For free brochures and order forms contact:

Legislative Service Bureau
Attn: Ms. Stephanie Cox
State Capitol
Des Moines, Iowa 50319
Telephone: (515)281–3566 Fax: (515)281–8027
lsbinfo@legis.state.ia.us

To All Agencies:
The Administrative Rules Review Committee voted to request that Agencies comply with Iowa Code section 17A.4(1)“b” by allowing the opportunity for oral presentation (hearing) to be held at least twenty days after publication of Notice in the Iowa Administrative Bulletin.

Due to reorganization of state government by 1986 Iowa Acts, chapter 1245, it was necessary to revise the agency identification numbering system, i.e., the bracketed number following the agency name.

“Umbrella” agencies and elected officials are set out below at the left–hand margin in CAPITAL letters.

Divisions (boards, commissions, etc.) are indented and set out in lowercase type under their statutory “umbrellas.”

Other autonomous agencies which were not included in the original reorganization legislation as “umbrella” agencies are included alphabetically in small capitals at the left–hand margin, e.g., BEEF INDUSTRY COUNCIL, IOWA[101].

The following list will be updated as changes occur:

AGRICULTURE AND LAND STEWARDSHIP DEPARTMENT[21]

Agricultural Development Authority[25]

Soil Conservation Division[27]

ATTORNEY GENERAL[61]

AUDITOR OF STATE[81]

CITIZENS’ AIDE[141]

CIVIL RIGHTS COMMISSION[161]

COMMERCE DEPARTMENT[181]

Alcoholic Beverages Division[185]

Banking Division[187]

Credit Union Division[189]

Insurance Division[191]

Professional Licensing and Regulation Division[193]

Accountancy Examining Board[193A]

Architectural Examining Board[193B]

Engineering and Land Surveying Examining Board[193C]

Landscape Architectural Examining Board[193D]

Real Estate Commission[193E]

Real Estate Appraiser Examining Board[193F]

Savings and Loan Division[197]

Utilities Division[199]

CORRECTIONS DEPARTMENT[201]

Parole Board[205]

CULTURAL AFFAIRS DEPARTMENT[221]

Arts Division[222]

Historical Division[223]

ECONOMIC DEVELOPMENT, IOWA DEPARTMENT OF[261]

City Development Board[263]

Iowa Finance Authority[265]

EDUCATION DEPARTMENT[281]

Educational Examiners Board[282]

College Student Aid Commission[283]

Higher Education Loan Authority[284]

Iowa Advance Funding Authority[285]

Libraries and Information Services Division[286]

Public Broadcasting Division[288]

School Budget Review Committee[289]

ELDER AFFAIRS DEPARTMENT[321]

EXECUTIVE COUNCIL[361]

GENERAL SERVICES DEPARTMENT[401]

HUMAN RIGHTS DEPARTMENT[421]

Community Action Agencies Division[427]

Criminal and Juvenile Justice Planning Division[428]

Deaf Services Division[429]

Persons With Disabilities Division[431]

Latino Affairs Division[433]

Status of African–Americans, Division on the[434]

Status of Women Division[435]

HUMAN SERVICES DEPARTMENT[441]

INFORMATION TECHNOLOGY DEPARTMENT[471]

INSPECTIONS AND APPEALS DEPARTMENT[481]

Employment Appeal Board[486]

Foster Care Review Board[489]

Racing and Gaming Commission[491]

State Public Defender[493]

LAW ENFORCEMENT ACADEMY[501]

MANAGEMENT DEPARTMENT[541]

Appeal Board, State[543]

City Finance Committee[545]

County Finance Committee[547]

NATURAL RESOURCES DEPARTMENT[561]

Energy and Geological Resources Division[565]

Environmental Protection Commission[567]

Natural Resource Commission[571]

Preserves, State Advisory Board for[575]

PERSONNEL DEPARTMENT[581]

PUBLIC DEFENSE DEPARTMENT[601]

Emergency Management Division[605]

Military Division[611]

PUBLIC EMPLOYMENT RELATIONS BOARD[621]

PUBLIC HEALTH DEPARTMENT[641]

Substance Abuse Commission[643]

Professional Licensure Division[645]

Dental Examiners Board[650]

Medical Examiners Board[653]

Nursing Board[655]

Pharmacy Examiners Board[657]

PUBLIC SAFETY DEPARTMENT[661]

REGENTS BOARD[681]

Archaeologist[685]

REVENUE AND FINANCE DEPARTMENT[701]

Lottery Division[705]

SECRETARY OF STATE[721]

TRANSPORTATION DEPARTMENT[761]

Railway Finance Authority[765]

TREASURER OF STATE[781]

WORKFORCE DEVELOPMENT DEPARTMENT[871]

Labor Services Division[875]

Workers’ Compensation Division[876]

Workforce Development Board and
Workforce Development Center Administration Division[877]

Pursuant to the authority of Iowa Code sections 261.3, 261.37(5), and 261B.3A, the College Student Aid Commission proposes to amend Chapter 21, “Approval of Postsecondary Schools,” Iowa Administrative Code.

The proposed amendment allows input from Iowa colleges and universities that are members of the Iowa Coordinating Council for Post–High School Education by requiring that applicant schools submit a description of a proposed program(s) to members of the Coordinating Council and respond to any inquiries or concerns.

Interested persons may submit comments orally or in writing to the Executive Director, College Student Aid Commission, 200 Tenth Street, Fourth Floor, Des Moines, Iowa 50309; telephone (515)242–3341, by 4:30 p.m. on December 3, 2002.

This amendment is intended to implement Iowa Code section 261B.3A.

The following amendment is proposed.

Amend rule 283—21.1(78GA,SF2248) as follows:

283—21.1(78GA,SF2248) Approval criteria. The college student aid commission shall approve applicant schools that:

1. Are accredited by an agency recognized by the United States Department of Education or its successor agency.

2. Are approved for operation by the appropriate state agencies in all other states in which the schools operate or maintain a presence.

3. Are not subject to a limitation, suspension or termination order issued by the United States Department of Education or its successor agency.

4. Are free of sanctions from the schools’ accrediting agencies and appropriate state agencies in all other states in which the schools operate or maintain a presence.

5. Enroll students who attend classes in Iowa and employ at least one full–time Iowa faculty member or program coordinator with graduate degrees, special training, experience, creative production or other accomplishments or distinctions that qualify them for their specific assignments.

6. Comply with Iowa Code section 261B.7 limiting the use of references to the secretary of state, state of Iowa, or college student aid commission in promotional material.

7. Comply with the requirements of Iowa Code section 261.9(1)“e” to “h.”

8. File annual reports that the commission requires from all Iowa colleges and universities.

This rule is intended to implement Iowa Code chapter 261B.

Pursuant to the authority of Iowa Code section 147.76, the Board of Dental Examiners hereby gives Notice of Intended Action to amend Chapter 20, “Dental Assistants,” Iowa Administrative Code.

These amendments clarify the expiration date for dental assistant trainee status. In addition, the amendments allow a person enrolled in a cooperative education or work–study program through an Iowa high school to apply for dental assistant trainee status. The Board has received several written and oral comments requesting that high school students in a work study program be allowed to work as dental assistant trainees.

These amendments are subject to waiver at the sole discretion of the Board in accordance with 650—Chapter 7.

Any interested person may make written comments or suggestions on the proposed amendments on or before December 3, 2002. Such written comments should be directed to Jennifer Hart, Executive Officer, Board of Dental Examiners, 400 S.W. 8th Street, Suite D, Des Moines, Iowa 50309– 4687. E–mail may also be sent to jhart@bon.state.ia.us.

Also, there will be a public hearing on December 3, 2002, beginning at 2 p.m. in the Conference Room, 400 S.W. 8th Street, Suite D, Des Moines, Iowa. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the amendments. Any person who plans to attend the public hearing and who may have special requirements, such as hearing or mobility impairments, should contact the Board and advise of specific needs.

These amendments were approved at the October 17, 2002, regular meeting of the Board of Dental Examiners.

These amendments are intended to implement Iowa Code chapter 153.

The following amendments are proposed.

ITEM 1. Amend subrules 20.4(1) and 20.4(2) as follows:

20.4(1) Dental assistant trainee. Dental assistant trainees are all individuals who have received no prior training or experience in dental assisting, but are engaging in on–the–job training to meet the requirements for registration and who will learn are learning the necessary skills under the personal supervision of a licensed dentist. Trainees may also engage in on–the–job training in dental radiography pursuant to 650—22.3(136C,153). The dental assistant trainee shall meet the following requirements:

a. Within six months of employment, the dental assistant trainee shall successfully complete a course of study and examination in the areas of infection control, hazardous waste materials, and jurisprudence. The course of study shall be prior approved by the board and sponsored by a board–approved postsecondary school.

b. Immediately after Prior to satisfactorily completing six months of work as a dental assistant within the previous 12–month period, the trainee or dentist must apply to the board for the trainee to be reclassified as a registered dental assistant.

20.4(2) Registered dental assistant. A registered dental assistant may perform under general supervision all extraoral duties in the dental office or dental clinic that are assigned by the dentist that are consistent with these rules. During intra–oral procedures, the registered dental assistant may, under direct supervision, assist the dentist in performing duties assigned by the dentist that are consistent with these rules. The registered dental assistant may take radiographs if certified qualified pursuant to 650—Chapter 22.

ITEM 2. Amend subrules 20.6(1) and 20.6(2) as follows:

20.6(1) Dental assistant trainee.

a. The employer of a dental assistant trainee must notify the board in writing of such employment within seven days of the time the dental assistant begins work.

b. Applications for registration as a dental assistant trainee must be filed on official board forms and include the following:

(1) The fee as specified in 650—Chapter 15.

(2) Evidence of high school graduation.

(3) Evidence the applicant is 18 years of age or older.

(4) Any additional information required by the board relating to the character and experience of the applicant as may be necessary to evaluate the applicant’s qualifications.

c. Within six months of employment, the dental assistant trainee is required to successfully complete a board–approved course of study and examination in the areas of infection control, hazardous materials, and jurisprudence. The course of study may be taken at a board–approved postsecondary school or on the job using curriculum approved by the board for such purpose. Evidence of meeting this requirement shall be submitted within six months by the employer dentist.

20.6(2) Registered dental assistant.

a. To meet this qualification, a person must:

(1) Work in a dental office for six months as a dental assistant trainee; or

(2) Have had at least six consecutive months of prior dental assisting experience under a licensed dentist within the past two years; or

(3) Be a graduate of a postsecondary dental assisting program. ; and

b. Applications for registration as a registered dental assistant must be filed on official board forms and include the following:

(1) The fee as specified in 650—Chapter 15.

(2) Evidence of meeting one of the requirements specified in 20.6(2)“a.”

(3) Evidence of successful completion of a course of study approved by the board and sponsored by a board–approved postsecondary school in the areas of infection control, hazardous materials, and jurisprudence. The course of study may be taken at a board–approved postsecondary school or on the job using curriculum approved by the board for such purpose.

(4) Evidence of successful completion of a board–approved examination in the areas of infection control, hazardous materials, and jurisprudence.

(5 7) Evidence of meeting the qualifications of 650— Chapter 22 if engaging in dental radiography.

(6 8) Evidence of current certification in cardiopulmo–nary resuscitation sponsored by a nationally recognized provider.

(7 9) Any additional information required by the board relating to the character, education and experience of the applicant as may be necessary to evaluate the applicant’s qualifications.

Pursuant to the authority of Iowa Code sections 17A.3 and 455A.6, the Environmental Protection Commission hereby gives Notice of Intended Action to amend Chapter 2, “Public Records and Fair Information Practices,” Iowa Administrative Code.

The purpose of this rule making is to define “emission data” and “effluent data” for purposes of confidential treatment by the Department.

Any interested persons may make written suggestions or comments regarding the proposed amendment on or before December 3, 2002. Written comments should be directed to Anne Preziosi, Department of Natural Resources, Air Quality Bureau, 7900 Hickman, Urbandale, Iowa 50322; telephone (515)281–6243; fax (515)242–5094. Requests for a public hearing regarding this rule making must be submitted in writing to the above address by that date.

This amendment is intended to implement Iowa Code sections 22.11, 455B.137 and 455B.179.

The following amendment is proposed.

Amend rule 567—2.1(17A,22) as follows:

567—2.1(17A,22) Adoption by reference. The commission adopts by reference 561—Chapter 2, Iowa Administrative Code, with the addition of the following new subrule.

These rules are intended to implement Iowa Code section sections 22.11, 455B.137 and 455B.179.

Pursuant to the authority of Iowa Code sections 17A.3 and 455A.6, the Environmental Protection Commission hereby gives Notice of Intended Action to amend Chapter 7, “Rules of Practice in Contested Cases,” Iowa Administrative Code.

The proposed amendment is to adopt by reference the currently proposed amendments to 561—Chapter 7, Rules of Practice in Contested Cases. Notice of Intended Action proposing amendments to 561—Chapter 7 is published herein as ARC 2095B. The purpose of the rule making in ARC 2095B is to amend the Department’s procedural rules to conform to Iowa Code chapter 17A, to update the titles of Department officials mentioned within the rules, and to correct an error in the rules.

Any interested persons may make written suggestions or comments regarding the proposed amendment on or before December 3, 2002. Written comments should be directed to Anne Preziosi, Department of Natural Resources, Air Quality Bureau, 7900 Hickman, Urbandale, Iowa 50322; telephone (515)281–6243; fax (515)242–5094. Requests for a public hearing regarding this amendment must be submitted in writing to the above address by December 3, 2002.

This amendment is intended to implement Iowa Code section 455A.4.

The following amendment is proposed.

Amend rule 567—7.1(17A) as follows:

567—7.1(17A) Adoption by reference. The commission adopts by reference 561—Chapter 7, Iowa Administrative Code, as amended on [date to be inserted].

Pursuant to the authority of Iowa Code section 455B.200, the Environmental Protection Commission hereby gives Notice of Intended Action to amend Chapter 65, “Animal Feeding Operations,” Iowa Administrative Code.

In accordance with 2002 Iowa Acts, Senate File 2293, the proposed amendments revise minimum separation distances for both the land application of manure and construction of confinement feeding operation structures; include a methodology for the collection of an annual compliance fee; require the submission of annual manure management plan updates; modify the site inspection and construction permit application review process; amend Table 6 and delete Table 7; and incorporate the master matrix into Chapter 65.

Any interested person may make written suggestions or comments on the proposed amendments on or before December 6, 2002. Written comments should be directed to Robin Pruisner, Iowa Department of Natural Resources, Wallace State Office Building, 502 E. 9th Street, Des Moines, Iowa 50319–0034; fax (515)281–8895.

In addition to written comments, there will be a public hearing on December 5, 2002, from 1 to 4 p.m. via the ICN network at:

• Spencer High School, 800 E. 3rd Street, Spencer, Iowa;

• North Iowa Area Community College, 500 College Drive, Careers Building, Rooms 128–129, Mason City, Iowa;

• North Fayette High School, North Pine Street, West Union, Iowa;

• Maquoketa High School, 600 Washington, Alternative High School Building, Maquoketa, Iowa;

• Fairfield High School, Room 16, 605 E. Broadway, Fairfield, Iowa;

• Kuemper High School, Room 175, 109 S. Clark Street, Carroll, Iowa;

• Osceola Public Library, 300 S. Filmore Street,Osceola, Iowa;

• Southwestern Community College, Room 116 (Red Oak Center Room), 2300 4th Street, Highway 34, Red Oak, Iowa;

• Department of Economic Development, 200 East Grand Avenue, Des Moines, Iowa;

• Sioux Center Public Library, 327 1st Avenue NE, Sioux Center, Iowa;

• Clear Creek–Amana High School, 311 W. Marengo Road, Tiffin, Iowa;

• Iowa Falls High School, Room S217, 1903 North Taylor, Iowa Falls, Iowa;

• Independence Community High School, Room 123, 514 5th Avenue SE, Independence, Iowa;

• Humboldt Public Library, 30 6th Street North, Humboldt, Iowa;

• Adair–Casey High School, ICN classroom, 3384 Indigo Avenue, Adair, Iowa;

• Woodbury Central High School, Interactive Video Room, 408 S. 4th Street, Moville, Iowa;

• Eddyville–Blakesburg Jr.–Sr. High School, Room 44, 1301 Berdan Street, Eddyville, Iowa.

At the hearing, persons may present their views either orally or in writing; people will be asked to give their names and addresses for the record and to confine their remarks to the subject of these proposed amendments.

The Department welcomes public comment on all the proposed amendments, but specifically requests public comment on several facets of this rule–making package. The master matrix was created based upon a recommendation by a committee of ten individuals representing different organizations, as directed by 2002 Iowa Acts, Senate File 2293. The committee did not reach a consensus on the inclusion or exclusion of two possible mitigating factors: (1) awarding points for not using antibiotics for nontherapeutic purposes, and (2) awarding points for demonstrated community support. The Department asks the public to comment on whether these two mitigating factors should be included in the matrix and, if so, how many points should be awarded and under what circumstances.

Secondly, the committee could not reach consensus on the use of subcategory scoring on the master matrix. The Department specifically requests public comment on the feasibility of requiring minimum threshold passing scores in the three subcategories of “air,” “water,” and “community impacts” as well as an overall minimum passing score.

Thirdly, the committee did not provide the Department with a recommended minimum threshold passing score on the master matrix. In light of this, the Department has set forth proposed minimum threshold scores which require that the applicant (1) attain a minimum of 50 percent of the points available in the overall score column; and (2) attain a minimum of 30 percent of the points possible in each of the subcategories of “air,” “water,” and “community impacts.” The Department specifically requests public comment on the achievability of these scores. The Department is interested in what the public feels is a fair minimum passing score(s).

Fourthly, regarding proposed amendments to 65.10(3), the Environmental Protection Commission proposes that a county board of supervisors continue to be allowed to designate a county employee to accompany the Department on site inspections of proposed confinement feeding structures, whether or not that county has adopted a construction evaluation resolution. 2002 Iowa Acts, Senate File 2293, section 35 (new Iowa Code section 455B.200E(6)), appears to require that the county board of supervisors must have adopted a construction evaluation resolution in order to have a county employee accompany the Department during site inspec–tions. The Department requests public comment on this issue.

Finally, the Department requests public input on the mitigating factors listed in the master matrix. Does the general public believe that all the listed factors belong in the master matrix? Does the general public feel that the mitigating factors have been assigned reasonable scores? Are there mitigating factors that should be listed in the master matrix but are not currently listed? If so, how many points should be awarded and under what circumstances?

Any persons who intend to attend a public hearing and have special requirements such as those related to hearing or mobility impairments should contact the Department of Natural Resources and advise of specific needs.

These amendments are intended to implement 2002 Iowa Acts, Senate File 2293.

The following amendments are proposed.

ITEM 1. Amend rule 567—65.1(455B) as follows:

Amend the following definitions:

“Abandoned animal confinement feeding operation structure” means the animal confinement feeding operation structure has been razed, removed from the site of a confinement feeding operation, filled in with earth, or converted to uses other than an animal a confinement feeding operation structure so that it cannot be put back into service used as a confinement feeding operation structure without significant construction activity reconstruction.

“Anaerobic lagoon” means an impoundment used in conjunction with an animal feeding operation unformed manure storage structure, if the primary function of the impoundment structure is to store and stabilize organic wastes manure, the impoundment structure is designed to receive wastes manure on a regular basis, and the impoundment’s structure’s design waste loading rates provide that the predominant biological activity is anaerobic. An anaerobic lagoon does not include any of the following:

1. A confinement feeding operation structure.

2. A runoff control basin which collects and stores only precipitation–induced runoff from an animal feeding operation in which animals are confined to areas which are unroofed or partially roofed and in which no crop, vegetation, or forage growth or residue cover is maintained during the period in which animals are confined in the operation.

3 2. An anaerobic treatment system which that includes collection and treatment facilities for all off gases.

“Animal” means a domesticated animal belonging to the bovine, porcine, ovine, caprine, equine, or avian species classified as cattle, swine, horses, sheep, chickens or turkeys.

“Animal feeding operation” means a lot, yard, corral, building, or other area in which animals are confined and fed and maintained for 45 days or more in any 12–month period, and all structures used for the storage of manure from animals in the operation. An animal feeding operation does not include a livestock market. Open feedlots and confinement feeding operations are considered to be separate animal feeding operations.

1. For purposes of water quality regulation, Iowa Code section 455B.171 455B.200B as amended by 2002 Iowa Acts, Senate File 2293, section 31, provides that two or more animal feeding operations under common ownership or management are deemed to be a single animal feeding operation if they are adjacent or utilize a common area or system for manure disposal. For purposes of the separation distances in Iowa Code section 455B.162, Iowa Code section 455B.161 455B.161A as amended by 2002 Iowa Acts, Senate File 2293, section 9, provides that two or more animal feeding operations under common ownership or management are deemed to be a single animal feeding operation if they are adjacent or utilize a common system for manure storage. The distinction is due to regulation of animal feeding operations for water quality purposes under the federal Clean Water Act. The Code of Federal Regulations at 40 CFR §122.23 (1995) sets out the requirements for an animal feeding operation and requires that two or more animal feeding operations under common ownership be considered a single operation if they adjoin each other or if they use a common area or system for manure disposal. However, this federal regulation does not control regulation of animal feeding operations for the purposes of the separation distances in Iowa Code section 455B.162, and therefore the definition is not required by federal law to include common areas for manure disposal.

2. No change.

“Animal feeding operation structure” means an anaerobic lagoon, formed manure storage structure, egg washwater storage structure, earthen manure storage basin, or a confinement building, manure storage structure, or egg washwater storage structure.

“Animal unit” means a unit of measurement used to determine the animal capacity of an animal feeding operation, based upon the product of multiplying the number of animals in of each species category by the following a special equivalency factor, as follows:

1. Slaughter and feeder cattle 1.000

2 3. Mature dairy cattle 1.400

3 4. Butcher and or breeding swine, over
weighing more than 55 pounds 0.400

4 5. Swine between weighing 15 and pounds or
more but not more than 55 pounds 0.100

5 6. Sheep or lambs 0.100

6 7. Horses 2.000

7 8. Turkeys 0.018

8 9. Broiler or layer chickens 0.010

“Confinement feeding operation building” or “confinement building” means a building used in conjunction with a confinement feeding operation to house animals.

“Confinement feeding operation structure” means a formed manure storage an animal feeding operation structure, egg washwater storage structure, earthen manure storage basin, or confinement building. A confinement feeding operation structure does not include an anaerobic lagoon that is part of a confinement feeding operation.

“Designated area” means a known sinkhole, or a cistern, abandoned well, unplugged agricultural drainage well, agricultural drainage well surface tile inlet, drinking water well, designated wetland, lake, or a farm pond or privately owned lake as defined in Iowa Code section 462A.2 water source. A designated area does not include a terrace tile inlet or surface tile inlet other than an agricultural drainage well surface tile inlet.

“Formed manure storage structure” means a structure, either covered or uncovered, impoundment used to store manure from a confinement an animal feeding operation, which has walls and a floor constructed of concrete, concrete block, wood, steel, or similar materials. Similar materials may include, but are not limited to, plastic, rubber, fiberglass, or other synthetic materials. Materials used in a formed manure storage structure shall have the structural integrity to withstand expected internal and external load pressures.

“Major water source” means a water source that is a lake, reservoir, river or stream located within the territorial limits of the state, or any marginal river area adjacent to the state, which can support if the water source is capable of supporting a floating vessel capable of carrying one or more persons during a total of a six–month period in one out of ten years, excluding periods of flooding. Major water sources in the state are listed in Table 1 and Table 2 at the end of this chapter.

“Manure storage structure” means an aerobic structure, anaerobic lagoon, earthen manure storage basin, or a formed manure storage structure used to store manure as a part of a confinement feeding operation or an unformed manure storage structure. Manure A manure storage structure does not include an egg washwater storage structure.

“Qualified confinement feeding operation” means a confinement feeding operation constructed or expanded under a construction permit issued on or after May 31, 1995, and which has an animal weight unit capacity of:

1. 2,000,000 5,333 or more pounds for animals other than animals kept in a swine as part of a farrowing and gestating operation or farrow–to–finish operation or bovine cattle kept in a confinement feeding as part of a cattle operation;

3. 5,400 or more for a swine farrow–to–finish operation having an animal weight capacity of 2,500,000 or more pounds; or a confinement feeding operation having an animal weight capacity of 8,000,000 or more pounds for bovine. ;

“Small animal feeding operation” means an animal feeding operation which has an animal weight unit capacity of 200,000 pounds or less for animals other than bovine, or 400,000 pounds 500 or less for bovine fewer animal units.

“Unformed manure storage structure” means a covered or uncovered animal feeding operation structure in which impoundment used to store manure is stored, other than a formed manure storage structure or egg washwater storage structure, which is includes an anaerobic lagoon, earthen aerobic structure or earthen manure storage basin.

Insert the following new definitions in alphabetical order:

“Animal unit capacity” means a measurement used to determine the maximum number of animal units that may be maintained as part of an animal feeding operation at any one time, including as provided in Iowa Code sections 455B.161A as amended by 2002 Iowa Acts, Senate File 2293, section 9, and 455B.200B as amended by 2002 Iowa Acts, Senate File 2293, sections 30 to 32.

“Document” means any form required to be processed by the department under this chapter regulating animal feeding operations, including but not limited to applications or related materials for permits as provided in Iowa Code section 455B.200A as amended by 2002 Iowa Acts, Senate File 2293, sections 28 and 29, manure management plans as provided in Iowa Code section 455B.203 as amended by 2002 Iowa Acts, Senate File 2293, sections 38 to 41, comment or evaluation by a county board of supervisors considering an application for a construction permit, the department’s analysis of the application including using and responding to a master matrix pursuant to 2002 Iowa Acts, Senate File 2293, section 35, and notices required under those sections.

“Internet” means the federated international system that is composed of allied electronic communication networks linked by telecommunication channels that uses standardized protocols, and that facilitates electronic communication services, including but not limited to use of the World Wide Web; the transmission of electronic mail or messages; the transfer of files and data or other electronic information; and the transmission of voice, image, and video.

“Karst terrain” means land having karst formations that exhibit surface and subterranean features of a type produced by the dissolution of limestone, dolomite, or other soluble rock and characterized by closed depressions, sinkholes, or caves. If a 25–foot vertical separation distance can be maintained between the bottom of an unformed manure storage structure and limestone, dolomite, or other soluble rock, then the structure is not considered to be in karst terrain.

“Professional engineer” means a person engaged in the practice of engineering as defined in Iowa Code section 542B.2 who is issued a certificate of licensure as a professional engineer pursuant to Iowa Code section 542B.17.

“Public thoroughfare” means a road, street, or bridge that is constructed or maintained by the state or a political subdivision.

“Water of the state” means any stream, lake, pond, marsh, watercourse, waterway, well, spring, reservoir, aquifer, irrigation system, drainage system, and any other body or accumulation of water, surface or underground, natural or artificial, public or private, which are contained within, flow through or border upon the state or any portion thereof.

“Water source” means a lake, river, reservoir, creek, stream, ditch, or other body of water or channel having definite banks and a bed with water flow, except lakes or ponds without outlet to which only one landowner is riparian.

ITEM 2. Amend subrule 65.3(3), paragraph “g,” as follows:

g. Designated areas. A person shall not apply manure on cropland land within 200 feet from a designated area, or in the case of a high quality water resource, within 800 feet, unless one of the following applies:

(1) The manure is land–applied by injection or by surface application with incorporation occurring within 24 hoursafter application on the same date as the manure was land–applied.

(2) An area of permanent vegetation cover, including filter strips and riparian forest buffers, exists for 50 feet surrounding the designated area other than an unplugged agricultural drainage well or surface intake to an unplugged agricultural drainage well, and that the area of permanent vegetation cover is not subject to manure application.

ITEM 3. Amend subrule 65.9(1) by rescinding paragraph “n.”

ITEM 4. Amend rule 567—65.10(455B) as follows:

65.10(1) Delivery of application to county. The applicant for a construction permit for a confinement feeding operation or related animal feeding operation structure shall deliver in person or by certified mail a copy of the permit application and manure management plan to the county board of supervisors of the county where the confinement feeding operation or related animal feeding operation structure is proposed to be constructed. Receipt of the application and manure management plan by the county auditor or other county officer designated by the county board of supervisors is deemed receipt of the application and manure management plan by the county board of supervisors. Documentation of the delivery or mailing of the permit application and manure management plan shall be forwarded to the department.

65.10(2) County Public notice and county comment. The county board of supervisors may submit comments by the board and the public regarding compliance of the construction permit application and manure management plan with the requirements in this chapter and Iowa Code chapter 455B for obtaining a construction permit.

a. The department shall consider and respond to comments submitted by the county board of supervisors regarding compliance by the applicant with the legal requirements for approving a construction permit as provided in this chapter, including rules adopted by the department pursuant to Iowa Code section 455B.200. The comments shall be delivered to the department within 30 days after receipt of the application by the county board of supervisors in order to be considered in the permit review process. Public notice. The county board of supervisors shall publish a notice that the board has received the construction permit application in a newspaper having general circulation in the county. The county board shall publish the notice as soon as possible but no later than 14 days after receiving the permit application. The notice shall include all of the following:

b. County comment. Regardless of whether the county board of supervisors has adopted a construction evaluation resolution, the board may submit to the department comments by the board and the public regarding compliance of the construction permit application and manure management plan with the requirements in this chapter and Iowa Code chapter 455B for obtaining a construction permit. Comments may include, but are not limited to, the following:

(1) The existence of an object or location not included in the construction permit application which benefits from a separation distance requirement as provided in Iowa Code section 455B.162 or 455B.204.

(2) The suitability of soils and the hydrology of the site where construction or expansion of a confinement feeding operation or related animal feeding operation structure is proposed.

(3) The availability of land for the application of manure originating from the confinement feeding operation.

(4) Whether the construction or expansion of a proposed animal feeding operation structure will impede drainage through established tile lines, laterals, or other improvements which are constructed to facilitate the drainage of land not owned by the person applying for the construction permit.

65.10(3) Inspection of proposed construction site. The department may conduct an inspection of the site on which construction of the confinement feeding operation is proposed after providing a minimum of 24 hours’ notice to the construction permit applicant or sooner with the consent of the applicant. The department shall notify the county board of supervisors or county designee at least three days prior to conducting an inspection of the site where construction of the confinement feeding operation is proposed in the permit application. The county board of supervisors may designate a county employee to accompany a departmental official during the site inspection. The county designee shall have the same right to access to the site’s real estate on which construction of the confinement feeding operation is proposed as the departmental official conducting the inspection during the period that the county designee accompanies the departmental official. The departmental official and the county designee shall comply with standard biosecurity requirements customarily required by the owner of the confinement feeding operation that are necessary in order to control the spread of disease among an animal population.

65.10(4) Waiting period. The department shall not approve or disapprove the application until 30 days following delivery of the application to the county board of supervisors. Preliminary determination by the department. The department must receive the county board of supervisors’ comments or evaluation for approval or disapproval of an application for a construction permit not later than 30 days following the applicant’s delivery of the application to the department. Regardless of whether the department receives comments or an evaluation by a county board of supervisors, the department must render a preliminary determination to approve or disapprove an application for a construction permit within 60 days following the applicant’s delivery of a complete application to the department. However, the applicant may deliver a notice requesting a continuance. Upon receipt of a notice, the time required for the county or department to act upon the application shall be suspended for the period provided in the notice, but for not more than 30 days after the department’s receipt of the notice. The applicant may submit more than one notice. However, the department may terminate an application if no action is required by the department for one year following delivery of the application to the board. The department may also provide for a continuance when it considers the application. The department shall provide notice to the applicant and the board of the continuance. The time required for the department to act upon the application shall be suspended for the period provided in the notice, but for not more than 30 days. However, the department shall not provide for more than one continuance. The department will preliminarily approve or disapprove an application as follows:

65.10(5) Departmental notification of preliminary permit application decision. Within three days following the department’s preliminary decision to approve or disapprove the application for a construction permit, the department shall deliver a notice of the decision to the county board of supervisors applicant. If the county board of supervisors has submitted to the department an adopted recommendation for the approval or disapproval of a construction permit application, the department shall notify the board of the department’s preliminary decision to approve or disapprove the application at the same time. For a preliminary decision to approve an approved application, the notice shall consist of a copy of the draft construction permit as issued. For a disapproved preliminary decision to disapprove an application, the notice shall consist of a copy of the department’s letter of preliminary denial. The preliminary decision to approve or disapprove an application becomes final without further proceedings if neither the county board of supervisors nor the applicant demands a hearing before the commission pursuant to 65.10(6) and 65.10(7). However, the applicant may appeal a permit or letter of denial as provided in 65.10(7)“b.”

65.10(6) County demand for hearing. The A county board of supervisors that has submitted an adopted recommendation to the department may contest the department’s preliminary decision to approve or disapprove an application by filing a written demand for a hearing before the commission. Due to the need for expedited scheduling, the county board of supervisors shall, as soon as possible but not later than 14 days following receipt of the department’s notice of preliminary decision, notify the chief of the department’s water quality bureau by facsimile transmission to (515)281–8895 that it the board intends to file a demand for hearing. The demand for hearing shall be mailed to Director, Department of Natural Resources, Henry A. Wallace Building, 502 East Ninth Street, Des Moines, Iowa 50319, and must be postmarked within 14 days following receipt of the department’s notice of preliminary decision. The demand shall include a statement providing all reasons why the application should be approved or disapproved according to legal requirements in this chapter and Iowa Code chapter 455B; legal briefs and any other documents to be considered by the commission or a statement indicating that no other documents will be submitted for consideration by the commission; and a statement indicating whether oral argument before the commission is desired.

65.10(7) (8) Decision by the commission. The director shall schedule the matter for consideration at the next regular meeting of the commission and notify the county board of supervisors and the applicant of the time and place. However, if the next regular meeting of the commission will take place more than 35 days after receipt of the demand for hearing, the director shall schedule a special in–person meeting or an electronic meeting of the commission pursuant to Iowa Code section 21.8. The director shall provide the applicant with copies of all documents submitted by the county board of supervisors and a copy of the department’s file on the permit application within three days after receipt of the county board of supervisors’ comments. The applicant may submit responses or other documents for consideration by the commission postmarked or hand–delivered at least 14 days prior to the date of consideration by the commission. Consideration by the commission is not a contested case and, unless otherwise determined by the commission, oral participation before the commission will be limited to argument by one representative each from the county board of supervisors, the applicant and the department. The decision by the commission shall be stated on the record and shall be final agency action pursuant to Iowa Code chapter 17A for all who contested the department’s preliminary decision. The decision by the commission is not final agency action for an applicant who merely defends the department’s preliminary decision as part of the commission’s consideration of a board of supervisors’ demand for hearing. If the commission reverses or modifies the department’s decision, the department shall issue the appropriate superseding permit or letter of denial to the applicant. The letter of decision shall contain the reasons for the action regarding the permit.

65.10(8) (9) Complaints of violations of Iowa Code chapter 455B and this rule, which are received by the department or are forwarded to the department by a county, following a county board of supervisor’s supervisors’ determination that a complainant’s allegation constitutes a violation, shall be investigated by the department if it is determined that the complaint is legally sufficient and an investigation is justified.

a. to i. No change.

ITEM 5. Amend subrule 65.11(2) as follows:

65.11(2) Separation from surface intakes, wellheads or cisterns of agricultural drainage wells, known sinkholes, major water sources and watercourses major water sources shall be as specified in Iowa Code section 455B.204 and summarized in Table 6 and Table 7 at the end of this chapter.

ITEM 6. Amend subrule 65.16(1) as follows:

65.16(1) In accordance with Iowa Code section 455B.202 455B.203 as amended by 2002 Iowa Acts, Senate File 2293, section 38, the following persons are required to submit manure management plans to the department, including an original manure management plan and an updated manure management plan, as required by this rule:

a. No change.

b. The owners owner of a confinement feeding operations operation, other than a small animal feeding operation, if the one of the following applies:

(1) The confinement feeding operation was constructed or expanded after May 31, 1985, and regardless of whether the confinement feeding operation structure was required to have a construction permit. Owners of confinement feeding operations which submitted a manure management plan are not required to submit a new plan if the plan meets the requirements of Iowa Code section 455B.200 which are summarized in 65.17(455B). Persons who have previously submitted manure management plans which do not meet the current plan requirements, and persons who have not previously submitted a manure management plan but are now required to do so, have until July 1, 1999, to submit a manure management plan which meets the requirements.

c. and d. No change.

ITEM 7. Amend rule 567—65.16(455B) by adding the following new subrule 65.16(3) and by renumbering existing subrules 65.16(3) through 65.16(6) as 65.16(4) through 65.16(7):

65.16(3) Scope of manure management plan; updated plans; annual compliance fee.

a. Each confinement feeding operation required to submit a manure management plan shall be covered by a separate manure management plan.

b. The owner of a confinement feeding operation who is required to submit a manure management plan under this rule shall submit an updated manure management plan on an annual basis to the department. The updated plan must reflect all amendments made during the period of time since the previous manure management plan submission. The owner of the animal feeding operation shall also submit the updated manure management plan on an annual basis to the board of supervisors of each county where the confinement feeding operation is located and to the board of supervisors of each county where manure from the confinement feeding operation is land–applied. If the owner of the animal feeding operation has not previously submitted a manure management plan to the board of supervisors of each county where the confinement feeding operation is located and each county where manure is land–applied, the owner must submit a complete manure management plan to each required county. The county auditor or other county officer designated by the county board of supervisors may accept the updated plan on behalf of the board. Documentation that the county board of supervisors or other designated county officer received the manure management plan update is required by the department. The department will stagger the dates by which the updated manure management plans are due and will notify each confinement feeding operation owner of the date on which the updated manure management plan is due. To satisfy the requirements of an updated manure management plan, an owner of a confinement feeding operation must submit one of the following:

(1) A complete manure management plan;

(2) A department–approved document stating that the manure management plan submitted in the prior year has not changed; or

(3) A department–approved document listing all the changes made since the previous manure management plan was submitted and approved.

c. An annual compliance fee of $0.15 per animal unit at the animal feeding operation shall accompany an annual manure management plan update submitted to the department for approval. The annual compliance fee is based on the animal unit capacity of the confinement feeding operation stated in the updated annual manure management plan submission. If the person submitting the manure management plan is a contract producer, as provided in Iowa Code chapter 202, the active contractor shall pay the annual compliance fee.

ITEM 8. Amend 567—Chapter 65 by rescinding Appendix C and inserting the following new appendix in lieu thereof: