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