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House Amendment 8231

Amendment Text

PAG LIN
  1  1    Amend House File 2494 as follows:
  1  2    #1.  Page 37, by inserting after line 24 the
  1  3 following:
  1  4    "Sec.    .  Section 657.11, subsection 4, Code
  1  5 1997, is amended by striking the subsection.
  1  6    Sec.    .  NEW SECTION.  657.11A  CHRONIC
  1  7 VIOLATORS.
  1  8    1.  As used in this section, unless the context
  1  9 otherwise requires:
  1 10    a.  "Commission" means the environmental protection
  1 11 commission created in section 455A.6.
  1 12    b.  "Confinement feeding operation" means the same
  1 13 as defined in section 455B.161.
  1 14    c.  "Department" means the department of natural
  1 15 resources.
  1 16    d.  "Suspect site" means a confinement feeding
  1 17 operation or land where a confinement feeding
  1 18 operation could be constructed, if the site is subject
  1 19 to a suspect transaction.
  1 20    e.  "Suspect transaction" means a transaction in
  1 21 which a person classified as a chronic violator under
  1 22 this section does any of the following:
  1 23    (1)  Transfers a controlling interest in a suspect
  1 24 site to any of the following:
  1 25    (a)  An employee of the chronic violator or
  1 26 business in which the person holds a controlling
  1 27 interest.
  1 28    (b)  A person who holds an interest in a business,
  1 29 including a confinement feeding operation, in which
  1 30 the chronic violator holds a controlling interest.
  1 31    (c)  A person related to the chronic violator as
  1 32 spouse, parent, grandparent, lineal ascendant of a
  1 33 grandparent or spouse and any other lineal descendant
  1 34 of the grandparent or spouse, or a person acting in a
  1 35 fiduciary capacity for a related person.
  1 36    (2)  Provides financing for the construction or
  1 37 operation of a confinement feeding operation to any
  1 38 person, including by providing a contribution, loan to
  1 39 the person, or providing collateral for a contribution
  1 40 or loan made by a third person.
  1 41    2.  The rebuttable presumption provided in section
  1 42 657.11 does not apply to a person during any period
  1 43 that the person is classified as a chronic violator
  1 44 under this section as to any confinement feeding
  1 45 operation in which the person holds a controlling
  1 46 interest, as defined by rules adopted by the
  1 47 department of natural resources.  The rebuttable
  1 48 presumption shall apply to the person on and after the
  1 49 date that the person is removed from the
  1 50 classification of chronic violator.
  2  1    3.  A person shall be classified as a chronic
  2  2 violator if the person has committed three or more
  2  3 violations as described in this subsection prior to,
  2  4 on, or after July 1, 1996.  In addition, in relation
  2  5 to each violation, the person must have been subject
  2  6 to either of the following:
  2  7    a.  The assessment of a civil penalty by the
  2  8 department or the commission in an amount equal to
  2  9 three thousand dollars or more.
  2 10    b.  A court order or judgment for a legal action
  2 11 brought by the attorney general after referral by the
  2 12 department or commission.
  2 13    4.  Each violation must have occurred within five
  2 14 years prior to the date of the latest violation,
  2 15 counting any violation committed by a confinement
  2 16 feeding operation in which the person holds a
  2 17 controlling interest.  A violation occurs on the date
  2 18 the department issues an administrative order to the
  2 19 person assessing a civil penalty of three thousand
  2 20 dollars or more, or on the date the department
  2 21 notifies a person in writing that the department will
  2 22 recommend that the commission refer, or the commission
  2 23 refers the case to the attorney general for legal
  2 24 action, or the date of entry of the court order or
  2 25 judgment, whichever occurs first.  A violation under
  2 26 this subsection shall not be counted if the civil
  2 27 penalty ultimately imposed is less than three thousand
  2 28 dollars, the department or commission does not refer
  2 29 the action to the attorney general, the attorney
  2 30 general does not take legal action, or a court order
  2 31 or judgment is not entered against the person.  A
  2 32 person shall be removed from the classification of
  2 33 chronic violator on the date on which the person and
  2 34 all confinement feeding operations in which the person
  2 35 holds a controlling interest have committed less than
  2 36 three violations described in this subsection for the
  2 37 prior five years.
  2 38    5.  For purposes of counting violations, a
  2 39 continuing and uninterrupted violation shall be
  2 40 considered as one violation.  Different types of
  2 41 violations shall be counted as separate violations
  2 42 regardless of whether the violations were committed
  2 43 during the same period.  The violation must be a
  2 44 violation of a state statute, or a rule adopted by the
  2 45 department, which applies to a confinement feeding
  2 46 operation and any related animal feeding operation
  2 47 structure, including an anaerobic lagoon, earthen
  2 48 manure storage basin, formed manure storage structure,
  2 49 or egg washwater storage structure, or any related
  2 50 pollution control device or practice.  The structure,
  3  1 device, or practice must be part of the confinement
  3  2 feeding operation.  The violation must be one of the
  3  3 following:
  3  4    a.  Constructing or operating a related animal
  3  5 feeding operation structure or installing or using a
  3  6 related pollution control device or practice, for
  3  7 which the person must obtain a permit, in violation of
  3  8 statute or rules adopted by the department, including
  3  9 the terms or conditions of the permit.
  3 10    b.  Intentionally making a false statement or
  3 11 misrepresenting information to the department as part
  3 12 of an application for a construction permit for the
  3 13 related animal feeding operation structure, or the
  3 14 installation of the related pollution control device
  3 15 or practice, for which the person must obtain a
  3 16 construction permit from the department.
  3 17    c.  Failing to obtain a permit or approval by the
  3 18 department for a permit to construct or operate a
  3 19 confinement feeding operation or use a related animal
  3 20 feeding operation structure or pollution control
  3 21 device or practice, for which the person must obtain a
  3 22 permit from the department.
  3 23    d.  Operating a confinement feeding operation,
  3 24 including a related animal feeding operation structure
  3 25 or pollution control device or practice, which causes
  3 26 pollution to the waters of the state, if the pollution
  3 27 was caused intentionally, or caused by a failure to
  3 28 take measures required to abate the pollution which
  3 29 resulted from an act of God.
  3 30    e.  Failing to submit a manure management plan as
  3 31 required, or operating a confinement feeding operation
  3 32 required to have a manure management plan without
  3 33 having submitted the manure management plan.
  3 34    6.  A suspect transaction shall be presumed to be
  3 35 made in order to avoid a cause of action for nuisance
  3 36 brought against the person classified as a chronic
  3 37 violator.  The person receiving control of the
  3 38 operation pursuant to the suspect transaction shall be
  3 39 deemed to be an agent of the chronic violator, unless
  3 40 the chronic violator and the person receiving the
  3 41 controlling interest in the confinement feeding
  3 42 operation because of the suspect transaction, prove by
  3 43 clear and convincing evidence all of the following:
  3 44    a.  That the suspect transaction was for a
  3 45 legitimate business purpose made by parties exercising
  3 46 independent and reasonable judgment.
  3 47    b.  That the chronic violator does not exercise a
  3 48 controlling influence over the business affairs of the
  3 49 confinement feeding operation.
  3 50    7.  If the person receiving control of a suspect
  4  1 site is deemed to be an agent of a chronic violator,
  4  2 the presumption that the confinement feeding operation
  4  3 is not a public or private nuisance as provided in
  4  4 section 657.11 shall not apply for as long as the
  4  5 chronic violator, including the agent, or the
  4  6 confinement feeding operation is classified as a
  4  7 chronic violator."
  4  8    #2.  By renumbering as necessary.  
  4  9 
  4 10 
  4 11                               
  4 12 WEIGEL of Chickasaw 
  4 13 HF 2494.307 77
  4 14 da/cf/28
     

Text: H08230                            Text: H08232
Text: H08200 - H08299                   Text: H Index
Bills and Amendments: General Index     Bill History: General Index

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