Text: H08358                            Text: H08360
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House Amendment 8359

Amendment Text

PAG LIN
  1  1    Amend the amendment, H-8177, to House File 2494 as
  1  2 follows:
  1  3    #1.  Page 2, by striking lines 21 through 39 and
  1  4 inserting the following:
  1  5    "Sec.    .  Section 657.11, subsection 4, Code
  1  6 1997, is amended by striking the subsection.
  1  7    Sec.    .  NEW SECTION.  657.11A  CHRONIC
  1  8 VIOLATORS.
  1  9    1.  As used in this section, unless the context
  1 10 otherwise requires:
  1 11    a.  "Commission" means the environmental protection
  1 12 commission created in section 455A.6.
  1 13    b.  "Confinement feeding operation" means the same
  1 14 as defined in section 455B.161.
  1 15    c.  "Department" means the department of natural
  1 16 resources.
  1 17    d.  "Suspect transaction" means a transaction in
  1 18 which a person classified as a chronic violator under
  1 19 this section does any of the following:
  1 20    (1)  Transfers a controlling interest in a
  1 21 confinement feeding operation to any of the following:
  1 22    (a)  An employee of the chronic violator or
  1 23 business in which the person holds a controlling
  1 24 interest.
  1 25    (b)  A person who holds an interest in a business,
  1 26 including a confinement feeding operation, in which
  1 27 the chronic violator holds a controlling interest.
  1 28    (c)  A person related to the chronic violator as
  1 29 spouse, parent, grandparent, lineal ascendant of a
  1 30 grandparent or spouse and any other lineal descendant
  1 31 of the grandparent or spouse, or a person acting in a
  1 32 fiduciary capacity for a related person.
  1 33    (2)  Provides financing for the construction or
  1 34 operation of a confinement feeding operation to any
  1 35 person, including by providing a contribution, loan to
  1 36 the person, or providing collateral for a contribution
  1 37 or loan made by a third person.
  1 38    2.  The rebuttable presumption provided in section
  1 39 657.11 does not apply to a person during any period
  1 40 that the person is classified as a chronic violator
  1 41 under this section as to any confinement feeding
  1 42 operation in which the person holds a controlling
  1 43 interest, as defined by rules adopted by the
  1 44 department of natural resources.  The rebuttable
  1 45 presumption shall apply to the person on and after the
  1 46 date that the person is removed from the
  1 47 classification of chronic violator.
  1 48    3.  A person shall be classified as a chronic
  1 49 violator if the person has committed three or more
  1 50 violations as described in this subsection prior to,
  2  1 on, or after July 1, 1996.  In addition, in relation
  2  2 to each violation, the person must have been subject
  2  3 to either of the following:
  2  4    a.  The assessment of a civil penalty by the
  2  5 department or the commission in an amount equal to
  2  6 three thousand dollars or more.
  2  7    b.  A court order or judgment for a legal action
  2  8 brought by the attorney general after referral by the
  2  9 department or commission.
  2 10    4.  Each violation must have occurred within five
  2 11 years prior to the date of the latest violation,
  2 12 counting any violation committed by a confinement
  2 13 feeding operation in which the person holds a
  2 14 controlling interest.  A violation occurs on the date
  2 15 the department issues an administrative order to the
  2 16 person assessing a civil penalty of three thousand
  2 17 dollars or more, or on the date the department
  2 18 notifies a person in writing that the department will
  2 19 recommend that the commission refer, or the commission
  2 20 refers the case to the attorney general for legal
  2 21 action, or the date of entry of the court order or
  2 22 judgment, whichever occurs first.  A violation under
  2 23 this subsection shall not be counted if the civil
  2 24 penalty ultimately imposed is less than three thousand
  2 25 dollars, the department or commission does not refer
  2 26 the action to the attorney general, the attorney
  2 27 general does not take legal action, or a court order
  2 28 or judgment is not entered against the person.  A
  2 29 person shall be removed from the classification of
  2 30 chronic violator on the date on which the person and
  2 31 all confinement feeding operations in which the person
  2 32 holds a controlling interest have committed less than
  2 33 three violations described in this subsection for the
  2 34 prior five years.
  2 35    5.  For purposes of counting violations, a
  2 36 continuing and uninterrupted violation shall be
  2 37 considered as one violation.  Different types of
  2 38 violations shall be counted as separate violations
  2 39 regardless of whether the violations were committed
  2 40 during the same period.  The violation must be a
  2 41 violation of a state statute, or a rule adopted by the
  2 42 department, which applies to a confinement feeding
  2 43 operation and any related animal feeding operation
  2 44 structure, including an anaerobic lagoon, earthen
  2 45 manure storage basin, formed manure storage structure,
  2 46 or egg washwater storage structure, or any related
  2 47 pollution control device or practice.  The structure,
  2 48 device, or practice must be part of the confinement
  2 49 feeding operation.  The violation must be one of the
  2 50 following:
  3  1    a.  Constructing or operating a related animal
  3  2 feeding operation structure or installing or using a
  3  3 related pollution control device or practice, for
  3  4 which the person must obtain a permit, in violation of
  3  5 statute or rules adopted by the department, including
  3  6 the terms or conditions of the permit.
  3  7    b.  Intentionally making a false statement or
  3  8 misrepresenting information to the department as part
  3  9 of an application for a construction permit for the
  3 10 related animal feeding operation structure, or the
  3 11 installation of the related pollution control device
  3 12 or practice, for which the person must obtain a
  3 13 construction permit from the department.
  3 14    c.  Failing to obtain a permit or approval by the
  3 15 department for a permit to construct or operate a
  3 16 confinement feeding operation or use a related animal
  3 17 feeding operation structure or pollution control
  3 18 device or practice, for which the person must obtain a
  3 19 permit from the department.
  3 20    d.  Operating a confinement feeding operation,
  3 21 including a related animal feeding operation structure
  3 22 or pollution control device or practice, which causes
  3 23 pollution to the waters of the state, if the pollution
  3 24 was caused intentionally, or caused by a failure to
  3 25 take measures required to abate the pollution which
  3 26 resulted from an act of God.
  3 27    e.  Failing to submit a manure management plan as
  3 28 required, or operating a confinement feeding operation
  3 29 required to have a manure management plan without
  3 30 having submitted the manure management plan.
  3 31    6.  A suspect transaction shall be presumed to be
  3 32 made in order to avoid a cause of action for nuisance
  3 33 brought against the person classified as a chronic
  3 34 violator.  The person receiving control of the
  3 35 operation pursuant to the suspect transaction shall be
  3 36 deemed to be an agent of the chronic violator, unless
  3 37 the chronic violator and the person receiving the
  3 38 controlling interest in the confinement feeding
  3 39 operation because of the suspect transaction, prove by
  3 40 clear and convincing evidence all of the following:
  3 41    a.  That the suspect transaction was for a
  3 42 legitimate business purpose made by parties exercising
  3 43 independent and reasonable judgment.
  3 44    b.  That the chronic violator does not exercise a
  3 45 controlling influence over the business affairs of the
  3 46 confinement feeding operation."
  3 47    #2.  By renumbering as necessary.  
  3 48 
  3 49 
  3 50                               
  4  1 WISE of Lee 
  4  2 HF 2494.323 77
  4  3 da/cf/28
     

Text: H08358                            Text: H08360
Text: H08300 - H08399                   Text: H Index
Bills and Amendments: General Index     Bill History: General Index

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