Text: HF02262 Text: HF02264 Text: HF02200 - HF02299 Text: HF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 Section 1. NEW SECTION. 455A.6A CONFINEMENT FEEDING 1 2 OPERATION APPEAL BOARD. 1 3 1. A confinement feeding operation appeal board is 1 4 established within the department. The members shall be 1 5 electors of the state and have knowledge of confinement 1 6 feeding operations as provided in chapter 455B and relevant 1 7 regulations affecting confinement feeding operations. The 1 8 appointments shall be based upon the training, experience, and 1 9 capacity of the appointees, and not based upon political 1 10 considerations, other than as provided in section 69.16. The 1 11 board shall be composed of the following: 1 12 a. The chairperson of the environmental protection 1 13 commission. 1 14 b. Four persons appointed by the governor, subject to 1 15 confirmation by the senate, who shall include all of the 1 16 following: 1 17 (1) A person actively engaged in a confinement feeding 1 18 operation. 1 19 (2) A person actively engaged in an agricultural business. 1 20 (3) Two persons who are interested in animal agriculture 1 21 and its relationship with environmental quality. 1 22 2. The board shall be staffed by departmental personnel. 1 23 3. The members appointed by the governor shall serve 1 24 three-year terms beginning and ending as provided in section 1 25 69.19. However, the governor shall provide that initial 1 26 members serve for less than three years to ensure that members 1 27 serve staggered terms. A member is eligible for 1 28 reappointment. A vacancy on the board shall be filled for the 1 29 unexpired portion of the regular term in the same manner as 1 30 regular appointments are made. 1 31 4. The board shall meet on a regular basis and at the call 1 32 of the chairperson or upon the written request to the 1 33 chairperson of two or more members. 1 34 5. The members are entitled to receive compensation as 1 35 provided in section 7E.6. 2 1 6. Three members constitute a quorum and the affirmative 2 2 vote of a majority of the members present is necessary for any 2 3 substantive action to be taken by the board. The majority 2 4 shall not include any member who has a conflict of interest 2 5 and a statement by a member that the member has a conflict of 2 6 interest is conclusive for this purpose. A vacancy in the 2 7 membership does not impair the duties of the board. 2 8 7. The board shall consider appeals involving construction 2 9 permits regarding confinement feeding operations, including 2 10 related animal feeding operation structures, as provided in 2 11 section 455B.173A. 2 12 Sec. 2. Section 455B.171, Code Supplement 1995, is amended 2 13 by adding the following new subsections: 2 14 NEW SUBSECTION. 10A. "Local authority" means a county or 2 15 city. 2 16 NEW SUBSECTION. 10B. "Local review ordinance" means a 2 17 confinement feeding operation review ordinance adopted by a 2 18 county or city pursuant to section 455B.173A. 2 19 Sec. 3. Section 455B.173, subsection 13, Code Supplement 2 20 1995, is amended to read as follows: 2 21 13. a. Adopt, modify, or repeal rules relating to the 2 22 construction or operation of animal feeding operations. The 2 23 rules shall include, but are not limited to, minimum manure 2 24 control requirements, requirements for obtaining permits, and 2 25 departmental evaluations of animal feeding operations.TheA 2 26 person must obtain a construction permit for the construction 2 27 or expansion of a confinement feeding operation structure, 2 28 including a confinement building and a related animal feeding 2 29 operation structure. However, the department shall not 2 30 require that a person obtain a permit for the construction of 2 31 an animal feeding operation structure, if the structure is 2 32 part of a small animal feeding operation. 2 33 b. The department shall collect an indemnity fee as 2 34 provided in section 204.3 prior to the issuance of a 2 35 construction permit. The department shall deposit moneys 3 1 collected in indemnity fees in the manure storage indemnity 3 2 fund created in section 204.2. 3 3 c. The department shall not approve a permit for the 3 4 construction of three or more animal feeding operation 3 5 structures unless the applicant files a statement approved by 3 6 a professional engineer registered pursuant to chapter 542B 3 7 certifying that the construction of the animal feeding 3 8 operation structure will not impede the drainage through 3 9 established drainage tile lines which cross property boundary 3 10 lines unless measures are taken to reestablish the drainage 3 11 prior to completion of construction.The department shall3 12deposit moneys collected in indemnity fees in the manure3 13storage indemnity fund created in section 204.2.3 14 d. The department shall issue a permit for an animal 3 15 feeding operation, if an application is submitted according to 3 16 procedures required by the department according to this 3 17 section, and the application meets standards established by 3 18 the department, regardless of whether the animal feeding 3 19 operation is required to obtain such a permit. An applicant 3 20 for a construction permit shall not begin construction at the 3 21 location of a site planned for the construction of an animal 3 22 feeding operation structure, until the person has been granted 3 23 a permit for the construction of the structure by the 3 24 department. 3 25 e. The department shall make a determination regarding the 3 26 approval or denial of a permit within sixty days from the date 3 27 that the department receives a completed application forathe 3 28 approval of the permit, as provided in this paragraph. 3 29 However, the sixty-day requirement shall not apply to an 3 30 application, if the applicant is not required to obtain a 3 31 permit in order to construct an animal feeding operation 3 32 structure or to operate an animal feeding operation. The 3 33 department shall deliver a copy or require the applicant to 3 34 deliver a copy of the application for a construction permit to 3 35 thecounty board of supervisorslocal authority in thecounty4 1 jurisdiction where the confinement feeding operation or 4 2confinementrelated animal feeding operation structure subject 4 3 to the permit is to be located.TheUpon receipt of an 4 4 application for departmental approval under this section, the 4 5 department shall determine if the application complies with 4 6 all permit requirements. The process of approving or 4 7 disapproving a permit shall be as follows: 4 8 (1) If a county or city has not adopted a local review 4 9 ordinance, the department shall not approve the application or 4 10 issue a construction permit until thirty days following 4 11 delivery of the application to the county board of supervisors 4 12 or the city council where the animal feeding operation 4 13 structure is located. The department shall consider comments 4 14 from the county board of supervisors or city council, 4 15 regarding compliance by the applicant with the legal 4 16 requirements for the construction of the confinement feeding 4 17 operation structure as provided in this chapter, and rules 4 18 adopted by the department pursuant to this chapter, if the 4 19 comments are delivered to the department within fourteen days 4 20 after receipt of the application by the county board of 4 21 supervisors or city council. 4 22 (2) If a local authority has adopted a local review 4 23 ordinance, the department shall not approve the application 4 24 until the department receives the application's approval from 4 25 the local authority pursuant to the ordinance or from the 4 26 confinement feeding operation appeal board as provided in 4 27 section 455B.173B. 4 28 f. Prior to granting a permit to a person for the 4 29 construction of an animal feeding operation, the department 4 30 may require the installation and operation of a hydrological 4 31 monitoring system for an exclusively earthen manure storage 4 32 structure, if, after an on-site inspection, the department 4 33 determines that the site presents an extraordinary potential 4 34 for groundwater pollution. 4 35 g. A person shall not obtain a permit for the construction 5 1 of a confinement feeding operation, unless the person develops 5 2 a manure management plan as provided in section 455B.203. 5 3 h. The department shall not issue a permit to a person 5 4 under this subsection if an enforcement action by the 5 5 department, relating to a violation of this chapter concerning 5 6 a confinement feeding operation in which the person has an 5 7 interest, is pending. The department shall not issue a permit 5 8 to a person under this subsection for five years after the 5 9 date of the last violation committed by a person or 5 10 confinement feeding operation in which the person holds a 5 11 controlling interest during which the person or operation was 5 12 classified as a habitual violator under section 455B.191. The 5 13 department shall conduct an annual review of each confinement 5 14 feeding operation which is a habitual violator and each 5 15 confinement feeding operation in which a habitual violator 5 16 holds a controlling interest. The department shall notify 5 17 persons classified as habitual violators of their 5 18 classification, additional restrictions imposed upon the 5 19 persons pursuant to the classification, and special civil 5 20 penalties that may be imposed upon the persons. The notice 5 21 shall be sent to the persons by certified mail. 5 22 Sec. 4. NEW SECTION. 455B.173A CONFINEMENT FEEDING 5 23 OPERATION REVIEW ORDINANCE. 5 24 1. A local authority may adopt a confinement feeding 5 25 operation review ordinance. A city ordinance shall be adopted 5 26 pursuant to chapter 380 and a county ordinance adopted 5 27 pursuant to section 331.302. The ordinance shall require that 5 28 an application for the construction of an animal feeding 5 29 operation structure which is part of a confinement feeding 5 30 operation be reviewed by a city, if the land subject to the 5 31 permit is located within the corporate limits of a city, or by 5 32 a county, if the land subject to the permit is located outside 5 33 the corporate limits of a city. 5 34 2. The local authority shall receive an application 5 35 required to be approved by the department pursuant to section 6 1 455B.173, from the applicant or the department as required by 6 2 the department. The application shall be filed in a manner 6 3 prescribed by the local authority. The local authority may 6 4 require the applicant to submit a filing fee. 6 5 3. Within sixty days from the filing of the application, 6 6 the local authority shall either approve or disapprove the 6 7 permit application; endorse its approval or disapproval on the 6 8 application; and forward the application to the department, as 6 9 required by the department. An application which is not 6 10 received by the department in a timely manner shall be deemed 6 11 to be approved by the local authority. A disapproval must be 6 12 based on requirements or standards adopted pursuant to this 6 13 chapter or rules adopted by the department pursuant to this 6 14 chapter which regulate confinement feeding operations. If the 6 15 local authority disapproves an application, the application 6 16 forwarded to the department shall include a written 6 17 explanation justifying all grounds for the disapproval. A 6 18 local authority may approve or disapprove any number of 6 19 applications. 6 20 4. Upon receipt of an application having been disapproved 6 21 by the local authority, the department shall notify the 6 22 applicant that the applicant may appeal the disapproval of the 6 23 application to the confinement feeding operation appeal board. 6 24 The applicant shall be notified by certified mail. 6 25 Sec. 5. NEW SECTION. 455B.173B APPEAL OF APPLICATIONS 6 26 FOR CONFINEMENT FEEDING OPERATIONS. 6 27 1. The confinement feeding operation appeal board shall 6 28 hear appeals involving applications which have been 6 29 disapproved by a local authority as provided in section 6 30 455B.173A. The board shall consider an appeal if an applicant 6 31 submits a petition to the board on forms and according to 6 32 procedures required by the department. 6 33 2. a. Upon receipt of a petition by the applicant, the 6 34 board shall consider the appeal. The board shall make an 6 35 investigation as the board deems necessary to determine if the 7 1 application complies with all requirements of this chapter and 7 2 rules adopted by the department. The board may require the 7 3 applicant to appear in order to be examined under oath. If 7 4 the board requires the applicant to appear and to testify 7 5 under oath, a transcript shall be made of the testimony. 7 6 b. The board may appoint a member of the department or may 7 7 request an administrative law judge to receive evidence which 7 8 may include testimony under oath, and to issue a proposed 7 9 decision to approve or disapprove an application for a permit. 7 10 The board may affirm, reverse, or modify the proposed decision 7 11 to approve or disapprove the application for the permit. 7 12 3. The board or a person appointed by the board to 7 13 consider the appeal shall compile a record of the appeal which 7 14 shall include any evidence received or considered; the 7 15 application endorsed with the local authority's disapproval, 7 16 and the local authority's explanation of grounds for 7 17 disapproving the application; records or transcripts of 7 18 testimony; all submissions and findings of fact; a decision by 7 19 the board or a person appointed by the board; and any decision 7 20 of the board affirming, reversing, or modifying a proposed 7 21 decision by a person appointed by the board. Findings of fact 7 22 shall be based solely on the evidence in the record and on 7 23 matters officially noticed in the record. Upon final action 7 24 of the appeal by the board, the record shall be forwarded to 7 25 the department, and the applicant shall be notified of the 7 26 decision by certified mail. The notice shall include the 7 27 decision and any decision of the board affirming, reversing, 7 28 or modifying a proposed decision by a person appointed by the 7 29 board. If the application is approved by the board, the 7 30 department shall approve or disapprove the application as 7 31 provided in section 455B.173. A proceeding under this chapter 7 32 is not a contested case proceeding as provided in chapter 17A. 7 33 If the board affirms the local authority's disapproval, the 7 34 board's decision shall be considered final agency action 7 35 pursuant to chapter 17A. 8 1 4. The applicant or the local authority may seek judicial 8 2 review of the action of the board in accordance with the terms 8 3 of chapter 17A. Notwithstanding chapter 17A, petitions for 8 4 judicial review may be filed in the district court of the 8 5 county where the land subject to the permit is located. 8 6 EXPLANATION 8 7 This bill provides for the issuance of construction permits 8 8 regarding confinement feeding operations. The bill requires a 8 9 person to obtain a construction permit for the construction or 8 10 expansion of a confinement feeding operation structure, 8 11 including a confinement building, and a related manure storage 8 12 structure, unless the confinement feeding operation is a small 8 13 animal feeding operation. 8 14 The bill provides that a local authority that is a city or 8 15 a county may adopt a confinement feeding operation review 8 16 ordinance. The ordinance requires that an application for a 8 17 confinement feeding operation structure, including a 8 18 confinement building or related manure storage structure, be 8 19 reviewed by a city, if the land subject to the permit is 8 20 located within the corporate limits of a city, or by a county, 8 21 if the land subject to the permit is located outside the 8 22 corporate limits of a city. Within 60 days from the filing of 8 23 the application, the local authority must either approve or 8 24 disapprove the permit application. If the application is 8 25 approved, it must be approved by the department. If the 8 26 application is disapproved, it cannot be approved by the 8 27 department, unless the applicant appeals to the confinement 8 28 feeding operation appeal board established within the 8 29 department. 8 30 The board is composed of the chairperson of the 8 31 environmental protection commission and four persons appointed 8 32 by the governor, subject to confirmation by the senate. If 8 33 the board approves the application, the application must still 8 34 be approved by the department. If the board disapproves the 8 35 application, the applicant may appeal to a district court. 9 1 LSB 3937HH 76 9 2 da/sc/14.1
Text: HF02262 Text: HF02264 Text: HF02200 - HF02299 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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