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PAG LIN 1 1 Section 1. NEW SECTION. 7D.10A ALLOCATION TO MANURE 1 2 STORAGE INDEMNITY FUND. 1 3 If moneys are not sufficient to support the manure storage 1 4 indemnity fund as provided in chapter 204, the executive 1 5 council may allocate from moneys in the general fund of the 1 6 state, which are not otherwise obligated or encumbered, an 1 7 amount to the manure storage indemnity fund as provided under 1 8 section 204.2. However, not more than a total of one million 1 9 dollars shall be allocated to the manure storage indemnity 1 10 fund at any time. 1 11 Sec. 2. Section 204.1, subsections 4, 8, and 9, Code 1997, 1 12 are amended to read as follows: 1 13 4. "Department" means the department ofagriculture and1 14land stewardshipnatural resources. 1 15 8. "Manure storage structure" meansa structure used to1 16store manure as part of a confinement feeding operation1 17subject to a construction permit issued by the department of1 18natural resources pursuant to section 455B.173. A manure1 19storage structure includes, but is not limited to, an1 20anaerobic lagoon, formed manure storage structure, or earthen1 21manure storage basin,the same as defined in section455B.1611 22 455B.171. 1 23 9. "Permittee" means a person who, pursuant to section 1 24 455B.200A, obtains a permit for the construction of a manure 1 25 storage structure, or a confinement feeding operation, if a 1 26 manure storage structure is connected to the confinement 1 27 feeding operation. 1 28 Sec. 3. Section 204.2, subsections 2, 3, and 5, Code 1997, 1 29 are amended to read as follows: 1 30 2. The fund consists of moneys from indemnity fees 1 31 remitted by permittees to the departmentof natural resources1 32and transferred to the department of agriculture and land1 33stewardshipas provided in section 204.3; moneys from 1 34 indemnity fees remitted by persons required to submit manure 1 35 management plans to the department pursuant to section 204.3A; 2 1 sums collected on behalf of the fund by the department through 2 2 legal action or settlement; moneys required to be repaid to 2 3 the department by a county pursuant to this chapter; civil 2 4 penalties assessed and collected by the departmentof natural2 5resourcesor the attorney general pursuant to chapter 455B, 2 6 againstpermitteesanimal feeding operations; moneys paid as a 2 7 settlement involving an enforcement action for a civil penalty 2 8 subject to assessment and collection against permittees by the 2 9 departmentof natural resourcesor the attorney general 2 10 pursuant to chapter 455B; interest, property, and securities 2 11 acquired through the use of moneys in the fund; or moneys 2 12 contributed to the fund from other sources. 2 13 3. The moneys collected under this sectionandshall be 2 14 deposited in the fund and shall be appropriated to the 2 15 department for the exclusive purpose ofindemnifying a county2 16for expenses related to cleaning up the site of the2 17confinement feeding operation, including removing and2 18disposing of manure from a manure storage structureproviding 2 19 moneys for cleanup of abandoned facilities as provided in 2 20 section 204.4, and to pay the department for costs related to 2 21 administering the provisions of this chapter. For each fiscal 2 22 year, the department shall not use more than one percent of 2 23 the total amount which is available in the fund or ten 2 24 thousand dollars, whichever is less, to pay for the costs of 2 25 administration. Moneys in the fund shall not be subject to 2 26 appropriation or expenditure for any other purpose than 2 27 provided in this section. 2 28 5. The following shall apply to moneys in the fund: 2 29 a. On August 31 following the close of each fiscal year, 2 30 moneys in the fund which are not obligated or encumbered on 2 31 June 30 of the past fiscal year,lessnot counting the 2 32 department's estimate of the cost to the fund for pending or 2 33 unsettled claims and any amount required to be credited to the 2 34 general fund of the state under this subsection,and which are2 35 in excess ofonethree million dollars,shall be deposited in 3 1 the organic nutrient management fund as created in section 3 2 161C.5 for purposes of supporting the organic nutrient 3 3 management program. 3 4 b. The executive council may allocate moneys from the 3 5 general fund of the state as provided in section 7D.10A in an 3 6 amount necessary to support the fund, including payment of 3 7 claims as provided in section 204.4. However, an allocation 3 8 of moneys from the general fund of the state shall be made 3 9 only if the amount of moneys in the fund, which are not 3 10 obligated or encumbered, and not counting the department's 3 11 estimate of the cost to the fund for pending or unsettled 3 12 claims and any amount required to be credited to the general 3 13 fund of the state under this subsection, is less than one 3 14 million dollars. 3 15 c. The department shall credit an amount to the general 3 16 fund of the state which is equal to an amount allocated to the 3 17 fund by the executive council under paragraph "b". The 3 18 department shall credit the moneys to the general fund of the 3 19 state, if the moneys in the fund which are not obligated or 3 20 encumbered, and not counting the department's estimate of the 3 21 cost to the fund for pending or unsettled claims and any 3 22 amount required to be transferred to the general fund under 3 23 this paragraph, are in excess of two million five hundred 3 24 thousand dollars. The department is not required to credit 3 25 the total amount to the general fund of the state during any 3 26 one fiscal year. 3 27 Sec. 4. Section 204.3, Code 1997, is amended to read as 3 28 follows: 3 29 204.3 FEES. 3 30 An indemnity fee shall be assessed upon permittees which 3 31 shall be paid to and collected by the department of natural 3 32 resources, prior to issuing a permit for the construction of a 3 33 confinement feeding operation as provided in section455B.1733 34 455B.200A. The amount of the fees shall be based on the 3 35 following: 4 1 1. If the confinement feeding operation has an animal 4 2 weight capacity of less than six hundred twenty-five thousand 4 3 pounds, the following shall apply: 4 4 a. For all animals other than poultry, the amount of the 4 5 fee shall befiveten cents per animal unit of capacity for 4 6 confinement feeding operations. 4 7 b. For poultry, the amount of the fee shall betwofour 4 8 cents per animal unit of capacity for confinement feeding 4 9 operations. 4 10 2. If the confinement feeding operation has an animal 4 11 weight capacity of six hundred twenty-five thousand or more 4 12 pounds but less than one million two hundred fifty thousand 4 13 pounds, the following shall apply: 4 14 a. For all animals other than poultry, the amount of the 4 15 fee shall beseven and one-halffifteen cents per animal unit 4 16 of capacity for confinement feeding operations. 4 17 b. For poultry, the amount of the fee shall bethreesix 4 18 cents per animal unit of capacity for confinement feeding 4 19 operations. 4 20 3. If the confinement feeding operation has an animal 4 21 weight capacity of one million two hundred fifty thousand or 4 22 more pounds, the following shall apply: 4 23 a. For all animals other than poultry, the amount of the 4 24 fee shall betentwenty cents per animal unit of capacity for 4 25 confinement feeding operations. 4 26 b. For poultry, the amount of the fee shall befoureight 4 27 cents per animal unit of capacity for confinement feeding 4 28 operations. 4 29 The departmentof natural resourcesshall deposit moneys 4 30 collected from the fees into the fund according to procedures 4 31 adopted by the departmentof agriculture and land stewardship. 4 32 Sec. 5. NEW SECTION. 204.3A MANURE MANAGEMENT PLAN 4 33 INDEMNITY FEE REQUIRED. 4 34 An indemnity fee shall be assessed upon persons required to 4 35 submit a manure management plan as provided in chapter 455B, 5 1 but not required to obtain a construction permit pursuant to 5 2 section 455B.200A. The amount of the fees shall be ten cents 5 3 per animal unit of capacity for confinement feeding 5 4 operations. 5 5 Sec. 6. Section 204.4, subsection 1, Code 1997, is amended 5 6 to read as follows: 5 7 1. A county that has acquired real estate containing a 5 8 manure storage structure following nonpayment of taxes 5 9 pursuant to section 446.19, may make a claim against the fund 5 10 to paythe costs of cleaning up the site of the confinement5 11feeding operation, including the costs of removing and5 12disposing of the manure from a manure storage structure5 13 cleanup costs incurred by the county as provided in section 5 14 204.5. Each claim shall include a bid by a qualified person, 5 15 other than a governmental entity, to remove and dispose of the 5 16 manure for a fixed amount specified in the bid. 5 17 Sec. 7. NEW SECTION. 204.4A USE OF FUND FOR EMERGENCY 5 18 CLEANUP. 5 19 If the department provides cleanup of a condition caused by 5 20 a confinement feeding operation as provided in section 204.5, 5 21 the department may use moneys in the fund for purposes of 5 22 supporting the cleanup. The department shall reimburse the 5 23 fund from moneys recovered by the department as reimbursement 5 24 for the cleanup as provided in section 204.5. 5 25 Sec. 8. Section 204.5, Code 1997, is amended to read as 5 26 follows: 5 27 204.5SITECLEANUP. 5 28 1. a. A countywhichthat has acquired real estate 5 29containingon which there is located a confinement feeding 5 30 operationstructure, as defined in section 455B.161, following 5 31 the nonpayment of taxes pursuant to section 446.19, mayclean5 32up the siteprovide for cleanup, including removing and 5 33 disposing of manure at any time, remediating contamination 5 34 which originates from the confinement feeding operation, or 5 35 demolishing and disposing of structures relating to the 6 1 confinement feeding operation. The county may seek 6 2 reimbursement including by bringing an action for the costs of 6 3 theremoval and disposalcleanup from the person abandoning 6 4 the real estate. 6 5 b. If the confinement feeding operation has caused a 6 6 clear, present, and impending danger to the public health or 6 7 the environment, the department may clean up the confinement 6 8 feeding operation and remediate contamination which originates 6 9 from the confinement feeding operation, pursuant to sections 6 10 455B.381 through 455B.399. The department may seek 6 11 reimbursement including by bringing an action for the costs of 6 12 the cleanup from a person liable for causing the condition. 6 13 2. A person cleaning up asiteconfinement feeding 6 14 operation located on real estate acquired by a county may 6 15 demolish or dispose of any building or equipmentused inof 6 16 the confinement feeding operation located on the land 6 17 according to rules adopted by the departmentof natural6 18resourcespursuant to chapter 17A, which apply to the disposal 6 19 of farm buildings or equipment by an individual or business 6 20 organization. 6 21 Sec. 9. NEW SECTION. 331.304A LIMITATIONS ON COUNTY 6 22 LEGISLATION. 6 23 1. As used in this section: 6 24 a. "Agricultural operation" means a condition or activity 6 25 which occurs on land used for the production of agricultural 6 26 commodities, including but not limited to the raising, 6 27 harvesting, handling, drying, or storage of crops for feed, 6 28 food, seed, or fiber; the care or feeding of livestock; the 6 29 handling or transportation of crops or livestock; the storage, 6 30 treatment, or disposal of livestock manure; and the 6 31 application of fertilizers, soil conditioners, pesticides, and 6 32 herbicides on crops. 6 33 b. "County legislation" means any ordinance, motion, 6 34 resolution, or amendment adopted by a county pursuant to 6 35 section 331.302. 7 1 2. A county shall not adopt or enforce county legislation 7 2 regulating an agricultural operation unless expressly 7 3 authorized by state law. County legislation adopted in 7 4 violation of this section is void and unenforceable and any 7 5 enforcement activity conducted in violation of this section is 7 6 void. 7 7 Sec. 10. Section 455B.104, Code 1997, is amended to read 7 8 as follows: 7 9 455B.104 DEPARTMENTAL DUTIES PERMITS REQUIREMENTS 7 10 AND ASSISTANCE. 7 11 1. The department shall either approve or deny a permit to 7 12 a person applying for a permit under this chapter, within six 7 13 months from the date that the department receives a completed 7 14 application for the permit. An application which is not 7 15 approved or denied within the six-month period shall be 7 16 approved by default. The department shall issue a permit to 7 17 the applicant within ten days following the date of default 7 18 approval. However, thissectionsubsection shall not apply to 7 19 applications for permits which are issued under division II, 7 20 or division IV, parts 2 through 7. 7 21 2. The department shall not issue a permit to a person 7 22 under this chapter for five years after the date of the last 7 23 violation committed by the person or by a confinement feeding 7 24 operation in which the person holds a controlling interest 7 25 during which the person or operation was classified as a 7 26 habitual violator under section 455B.191. 7 27 3. The department shall assist persons applying for 7 28 assistance to establish and operate renewable fuel production 7 29 facilities pursuant to the value-added agricultural products 7 30 and processes financial assistance program established in 7 31 section 15E.111. 7 32 Sec. 11. Section 455B.161, Code 1997, is amended by adding 7 33 the following new subsections: 7 34 NEW SUBSECTION. 0A. "Aerobic structure" means an animal 7 35 feeding operation structure other than an egg washwater 8 1 storage structure which employs bacterial action which is 8 2 maintained by the utilization of air or oxygen and which 8 3 includes aeration equipment. 8 4 NEW SUBSECTION. 21. "Unformed manure storage structure" 8 5 means a covered or uncovered animal feeding operation 8 6 structure, other than a formed manure storage structure, which 8 7 is an anaerobic lagoon, aerobic structure, or earthen manure 8 8 storage basin. 8 9 Sec. 12. NEW SECTION. 455B.161A CONFINEMENT FEEDING 8 10 OPERATIONS CALCULATING ADJACENCY. 8 11 For purposes of this part, two or more confinement feeding 8 12 operations are adjacent, if any of the following apply: 8 13 1. The confinement feeding operations are separated at 8 14 their closest points by a distance of one thousand two hundred 8 15 fifty feet or less. 8 16 2. All of the following apply: 8 17 a. The confinement feeding operations are separated at 8 18 their closest points by two thousand five hundred feet or 8 19 less. 8 20 b. The confinement feeding operations have a combined 8 21 animal weight capacity of six hundred twenty-five thousand 8 22 pounds or more for animals other than bovine or one million 8 23 six hundred thousand pounds or more for bovine. 8 24 Sec. 13. Section 455B.162, unnumbered paragraph 1, Code 8 25 1997, is amended to read as follows: 8 26 The following shall apply to animal feeding operation 8 27 structures: 8 28 1. Except as provided in subsection 2, and sections 8 29 455B.163 and 455B.165, this subsection applies to animal 8 30 feeding operation structures constructed on or after May 31, 8 31 1995, but prior to the effective date of this Act; to the 8 32 expansion of structures constructed on or after May 31, 1995;8 33or, except as provided in section 455B.163, but prior to the 8 34 effective date of this Act; and to the expansion of structures 8 35 constructed prior to May 31, 1995:. 9 1 Sec. 14. Section 455B.162, subsection 1, Code 1997, is 9 2 amended to read as follows: 9 31. Except as provided in subsection 2, the following table9 4shall apply to animal feeding operation structures:9 5a.The following table represents the minimum separation 9 6 distance in feet required between an animal feeding operation 9 7 structure and a residence not owned by the owner of the animal 9 8 feeding operation, or a commercial enterprise, bona fide 9 9 religious institution, or an educational institution: 9 10 Minimum 9 11 separation 9 12 distance in 9 13 feet for 9 14 operations 9 15 Minimum having an 9 16 separation animal Minimum 9 17 distance in weight separation 9 18 feet for capacity of distance in 9 19 operations 625,000 or feet for 9 20 having an more pounds operations 9 21 animal but less than having an 9 22 weight 1,250,000 animal 9 23 capacity of pounds for weight 9 24 less than animals other capacity of 9 25 625,000 than bovine, 1,250,000 or 9 26 pounds for or 1,600,000 more pounds 9 27 animals other or more for animals 9 28 than bovine, pounds but other than 9 29 or less than less than bovine, or 9 30 1,600,000 4,000,000 4,000,000 or 9 31 pounds for pounds for more pounds 9 32 Type of structure bovine bovine for bovine 9 33 Anaerobic 9 34 lagoon 1,250 1,875 2,500 9 35 Uncovered earthen 10 1 manure storage 10 2 basin 1,250 1,875 2,500 10 3 Uncovered formed 10 4 manure storage 10 5 structure 1,000 1,500 2,000 10 6 Covered earthen 10 7 manure storage 10 8 basin 750 1,000 1,500 10 9 Covered formed 10 10 manure storage 10 11 structure 750 1,000 1,500 10 12 Confinement 10 13 building 750 1,000 1,500 10 14 Egg washwater 10 15 storage structure 750 1,000 1,500 10 16 1A. Except as provided in subsection 2, and sections 10 17 455B.163 and 455B.165, this subsection applies to animal 10 18 feeding operation structures constructed on or after the 10 19 effective date of this Act and to the expansion of structures 10 20 constructed on or after the effective date of this Act. The 10 21 following table represents the minimum separation distance in 10 22 feet required between an animal feeding operation structure 10 23 and a residence not owned by the owner of the animal feeding 10 24 operation, or a commercial enterprise, bona fide religious 10 25 institution, or an educational institution: 10 26 10 27 Minimum 10 28 separation 10 29 distance in 10 30 feet for 10 31 operations 10 32 Minimum having an 10 33 separation animal Minimum 10 34 distance in weight separation 10 35 feet for capacity of distance in 11 1 operations 625,000 or feet for 11 2 having an more pounds operations 11 3 animal but less than having an 11 4 weight 1,250,000 animal 11 5 capacity of pounds for weight 11 6 less than animals other capacity of 11 7 625,000 than bovine, 1,250,000 or 11 8 pounds for or 1,600,000 more pounds 11 9 animals other or more for animals 11 10 than bovine, pounds but other than 11 11 or less than less than bovine, or 11 12 1,600,000 4,000,000 4,000,000 or 11 13 pounds for pounds for more pounds 11 14 Type of structure bovine bovine for bovine 11 15 Anaerobic 11 16 lagoon 1,250 1,875 2,500 11 17 Uncovered earthen 11 18 manure storage 11 19 basin 1,250 1,875 2,500 11 20 Uncovered formed 11 21 manure storage 11 22 structure 1,250 1,500 2,000 11 23 Covered earthen 11 24 manure storage 11 25 basin 1,250 1,500 1,875 11 26 Covered formed 11 27 manure storage 11 28 structure 1,250 1,500 1,875 11 29 Confinement 11 30 building 1,250 1,500 1,875 11 31 Egg washwater 11 32 storage 11 33 structure 1,250 1,500 1,875 11 34b.1B. Except as provided in subsection 2, and sections 11 35 455B.163 and 455B.165, this subsection applies to animal 12 1 feeding operation structures constructed on or after May 31, 12 2 1995; to the expansion of structures constructed on or after 12 3 May 31, 1995; and to the expansion of structures constructed 12 4 prior to May 31, 1995. The following table represents the 12 5 minimum separation distance in feet required between animal 12 6 feeding operation structures and a public use area or a 12 7 residence not owned by the owner of the animal feeding 12 8 operation, a commercial enterprise, a bona fide religious 12 9 institution, or an educational institution located within the 12 10 corporate limits of a city: 12 11 Minimum 12 12 separation 12 13 distance in 12 14 feet for 12 15 operations 12 16 Minimum having an 12 17 separation animal Minimum 12 18 distance in weight separation 12 19 feet for capacity of distance in 12 20 operations 625,000 or feet for 12 21 having an more pounds operations 12 22 animal but less than having an 12 23 weight 1,250,000 animal 12 24 capacity of pounds for weight 12 25 less than animals other capacity of 12 26 625,000 than bovine, 1,250,000 or 12 27 pounds for or 1,600,000 more pounds 12 28 animals other or more for animals 12 29 than bovine, pounds but other than 12 30 or less than less than bovine, or 12 31 1,600,000 4,000,000 4,000,000 or 12 32 pounds for pounds for more pounds 12 33 Type of structure bovine bovine for bovine 12 34 Animal feeding 12 35 operation 13 1 structure 1,250 1,875 2,500 13 2 1C. On and after the effective date of this Act an animal 13 3 feeding operation structure shall not be constructed or 13 4 expanded within two hundred fifty feet from a road, street, 13 5 bridge, or thoroughfare which is constructed or maintained by 13 6 the state or a political subdivision. However, a county where 13 7 the road is located may reduce the number of feet required 13 8 pursuant to this subsection by county legislation as provided 13 9 in section 331.302. 13 10 Sec. 15. Section 455B.162, subsection 2, paragraph a, Code 13 11 1997, is amended to read as follows: 13 12 a. As used in this subsection, a "qualified confinement 13 13 feeding operation" means a confinement feeding operation 13 14 having an animal weight capacity of two million or more pounds 13 15 for animals other than animals kept in a swine farrow-to- 13 16 finish operation or bovine kept in a confinement feeding 13 17 operation; a swine farrow-to-finish operation having an animal 13 18 weight capacity of two million five hundred thousand or more 13 19 pounds; or a confinement feeding operation having an animal 13 20 weight capacity ofsixeight million or more pounds for 13 21 bovine. 13 22 Sec. 16. Section 455B.163, Code 1997, is amended to read 13 23 as follows: 13 24 455B.163 SEPARATION DISTANCE REQUIREMENTS FOR ANIMAL 13 25 FEEDING OPERATIONS EXPANSION OF PRIOR CONSTRUCTED 13 26 STRUCTURESCONSTRUCTED PRIOR TO MAY 31, 1995. 13 27 An animal feeding operation constructed prior to the date 13 28 that a distance requirement became effective under section 13 29 455B.162 and which does not comply with the section's distance 13 30requirements of section 455B.162 on May 31, 1995,requirements 13 31 may continue to operate regardless ofthose separation13 32distancesthe distance requirements. The animal feeding 13 33 operation may be expandedon or after May 31, 1995, regardless13 34of those separation distances,if either of the following 13 35 applies: 14 1 1. The animal feeding operation structure as constructed 14 2 or expanded complies with the current distancerequirements14 3 requirement of section 455B.162. 14 4 2. All of the following apply to the expansion of the 14 5 animal feeding operation: 14 6 a. No portion of the animal feeding operation after 14 7 expansion is closer than before expansion to a location or 14 8 object for which separation is currently required under 14 9 section 455B.162. 14 10 b. The animal weight capacity of the animal feeding 14 11 operation as expanded is not more than the lesser of the 14 12 following: 14 13 (1) Double its capacity on May 31, 1995, for an animal 14 14 feeding operation constructed prior to May 31, 1995, or on the 14 15 effective date of this Act, for an animal feeding operation 14 16 constructed after May 31, 1995, and before the effective date 14 17 of this Act. 14 18 (2) Either of the following: 14 19 (a) Six hundred twenty-five thousand pounds animal weight 14 20 capacity for animals other than bovine. 14 21 (b) One million six hundred thousand pounds animal weight 14 22 capacity for bovine. 14 23 Sec. 17. Section 455B.164, Code 1997, is amended to read 14 24 as follows: 14 25 455B.164 DISTANCE MEASUREMENTS. 14 26 All distances between locations or objects provided in this 14 27 part shall be measured from their closest points, as provided 14 28 by rules adopted by the department. However, a distance from 14 29 a road, street, or thoroughfare shall be measured from the 14 30 portion of the right-of-way which is furthest from the road, 14 31 street, or thoroughfare. 14 32 Sec. 18. Section 455B.165, subsection 5, Code 1997, is 14 33 amended to read as follows: 14 34 5. An animal feeding operation structure which islocated14 35 constructed or expanded within any distance from a residence, 15 1 educational institution, commercial enterprise, bona fide 15 2 religious institution, city, or public use area, if the 15 3 residence, educational institution, commercial enterprise, or 15 4 bona fide religious institution was constructed or expanded, 15 5 or the boundaries of the city or public use area were 15 6 expanded, after the date that the animal feeding operation was 15 7 established. The date the animal feeding operation was 15 8 established is the date on which the animal feeding operation 15 9 commenced operating. A change in ownership or expansion of 15 10 the animal feeding operation shall not change the established 15 11 date of operation. 15 12 Sec. 19. Section 455B.171, Code Supplement 1997, is 15 13 amended by adding the following new subsections: 15 14 NEW SUBSECTION. 0A. "Aerobic structure" means the same as 15 15 defined in section 455B.161. 15 16 NEW SUBSECTION. 1A. "Anaerobic lagoon" means the same as 15 17 defined in section 455B.161. 15 18 NEW SUBSECTION. 2A. "Animal feeding operation structure" 15 19 means the same as defined in section 455B.161. 15 20 NEW SUBSECTION. 3A. "Commercial manure applicator" means 15 21 a person who engages in the business and charges a fee for 15 22 applying manure on the land of another person. 15 23 NEW SUBSECTION. 7A. "Earthen manure storage basin" means 15 24 the same as defined in section 455B.161. 15 25 NEW SUBSECTION. 12A. "Manure storage structure" means an 15 26 animal feeding operation structure used to store manure as 15 27 part of a confinement feeding operation, including but not 15 28 limited to a formed or unformed manure storage structure. 15 29 NEW SUBSECTION. 23A. "Restricted spray irrigation 15 30 equipment" means spray irrigation equipment which disperses 15 31 manure through an orifice at a rate of eighty pounds per 15 32 square inch or more. 15 33 NEW SUBSECTION. 31A. "Spray irrigation equipment" means 15 34 mechanical equipment used for the aerial application of 15 35 manure, if the equipment receives manure from a manure storage 16 1 structure during application via a pipe or hose connected to 16 2 the structure, and includes a type of equipment customarily 16 3 used for the aerial application of water to aid the growing of 16 4 general farm crops. 16 5 NEW SUBSECTION. 32A. "Unformed manure storage structure" 16 6 means the same as defined in section 455B.161. 16 7 NEW SUBSECTION. 38. "Watercourse" means the same as 16 8 defined in section 455B.261. 16 9 Sec. 20. Section 455B.173, subsection 13, Code 1997, is 16 10 amended by striking the subsection and inserting in lieu 16 11 thereof the following: 16 12 13. Adopt, modify, or repeal rules relating to the 16 13 construction or operation of animal feeding operations, as 16 14 provided in sections relating to animal feeding operations 16 15 provided in this part. 16 16 Sec. 21. Section 455B.191, subsection 7, unnumbered 16 17 paragraph 2, Code 1997, is amended to read as follows: 16 18 This subsection shall not apply unless the department of 16 19 natural resources has previously notified the person of the 16 20 person's classification as a habitual violatoras provided in16 21section 455B.173. The department shall notify persons 16 22 classified as habitual violators of their classification, 16 23 additional restrictions imposed upon the persons pursuant to 16 24 the classification, and special civil penalties that may be 16 25 imposed upon the persons. The notice shall be sent to the 16 26 persons by certified mail. 16 27 Sec. 22. NEW SECTION. 455B.200 GENERAL. 16 28 The commission shall establish by rule adopted pursuant to 16 29 chapter 17A, requirements relating to the construction, 16 30 including expansion, or operation of animal feeding 16 31 operations, including related animal feeding operation 16 32 structures. The requirements shall include but are not 16 33 limited to minimum manure control, the issuance of permits, 16 34 and departmental investigations, inspections, and testing. 16 35 Sec. 23. NEW SECTION. 455B.200A PERMIT REQUIREMENTS. 17 1 1. The department shall issue permits for the construction 17 2 of animal feeding operation structures, including structures 17 3 which are part of confinement feeding operations, as provided 17 4 by rules adopted pursuant to section 455B.200. The department 17 5 shall issue a permit to an animal feeding operation if an 17 6 application is submitted according to procedures required by 17 7 the department and the application meets standards established 17 8 by the department, regardless of whether the animal feeding 17 9 operation is required to obtain such a permit. The department 17 10 shall not require that a person obtain a permit for the 17 11 construction of an animal feeding operation structure if the 17 12 structure is part of a small animal feeding operation. For 17 13 purposes of this section, an animal feeding operation 17 14 structure includes a manure storage structure. 17 15 2. The department shall not issue a permit for the 17 16 construction of an animal feeding operation structure which is 17 17 part of a confinement feeding operation unless the person 17 18 submits all of the following: 17 19 a. An indemnity fee as provided in section 204.3 which the 17 20 department shall deposit into the manure storage indemnity 17 21 fund created in section 204.2. 17 22 b. A manure management plan as provided in section 17 23 455B.203. 17 24 3. The department shall not issue a permit for the 17 25 construction of three or more animal feeding operation 17 26 structures unless the applicant files a statement approved by 17 27 a professional engineer registered pursuant to chapter 542B 17 28 certifying that the construction of the animal feeding 17 29 operation structures will not impede the drainage through 17 30 established drainage tile lines which cross property boundary 17 31 lines unless measures are taken to reestablish the drainage 17 32 prior to completion of construction. 17 33 4. The department shall cooperate with the natural 17 34 resources conservation service of the United States department 17 35 of agriculture. To the extent allowed by the service, the 18 1 department shall consult with the service regarding the 18 2 proposed site of an animal feeding operation structure which 18 3 is part of a confinement feeding operation and may require 18 4 that an applicant submit an evaluation of the proposed site 18 5 prepared by the service. 18 6 The department may adopt a recommendation by the service 18 7 that an unformed manure storage structure be constructed with 18 8 a secondary containment barrier, unless the department 18 9 determines that the recommendation is unsupportable by any 18 10 scientific or engineering evidence. The department shall 18 11 require that a secondary containment barrier be constructed 18 12 with materials and according to specifications required by the 18 13 department. 18 14 5. An applicant for a construction permit shall not begin 18 15 construction at the location of a site planned for the 18 16 construction of an animal feeding operation structure until 18 17 the person has been granted a permit for the construction of 18 18 the structure by the department. 18 19 6. The department shall make a determination regarding the 18 20 approval or denial of a permit within sixty days from the date 18 21 that the department receives a completed application for a 18 22 permit. However, the sixty-day requirement shall not apply to 18 23 an application if the applicant is not required to obtain a 18 24 permit in order to construct an animal feeding operation 18 25 structure or to operate an animal feeding operation. 18 26 7. The department shall deliver a copy or require the 18 27 applicant to deliver a copy of the application for a 18 28 construction permit and the applicant's manure management plan 18 29 to the county board of supervisors in the county where the 18 30 confinement feeding operation or related animal feeding 18 31 operation structure subject to the permit is to be located. 18 32 a. The department shall not approve the application until 18 33 thirty days following delivery of the application to the 18 34 county board of supervisors. 18 35 b. The county board of supervisors may hold a public 19 1 hearing to receive public comments regarding the application. 19 2 The county board of supervisors may submit comments by the 19 3 board and the public to the department as provided in this 19 4 section. The comments may include, but are not limited to, 19 5 any of the following: 19 6 (1) The existence of a structure or area not included in 19 7 the permit application which benefits from a separation 19 8 distance requirement as provided in section 455B.162 or 19 9 455B.204. 19 10 (2) The suitability of soils and the hydrology of the site 19 11 where construction is proposed. 19 12 (3) The availability of land for the application of manure 19 13 originating from the confinement feeding operation. 19 14 (4) The impact of construction upon established drainage 19 15 tile lines which cross the property boundaries of the site 19 16 where the construction is proposed. 19 17 c. The department shall consider and respond to comments 19 18 submitted by the county board of supervisors regarding 19 19 compliance by the applicant with the legal requirements for 19 20 approving the construction permit as provided in this chapter, 19 21 including rules adopted by the commission pursuant to this 19 22 chapter, if the comments are delivered to the department 19 23 within thirty days after receipt of the application by the 19 24 county board of supervisors. 19 25 d. The department shall notify the county board of 19 26 supervisors three days prior to conducting an inspection of 19 27 the site where the construction is proposed. 19 28 e. The department shall notify the county board of 19 29 supervisors of the department's decision to approve or 19 30 disapprove an application for a construction permit within 19 31 three days following the department's decision. The county 19 32 board of supervisors may contest the decision as provided by 19 33 rules adopted by the commission in conformance with chapter 19 34 17A. In contesting the decision, the county shall submit a 19 35 statement to the department, providing all reasons why the 20 1 application should be approved or disapproved according to 20 2 legal requirements provided in this chapter. The statement 20 3 shall include an evaluation of the construction permit 20 4 application by the field office of the natural resources and 20 5 conservation service of the United States department of 20 6 agriculture serving the county, to the extent that the natural 20 7 resources and conservation service agrees to assist the county 20 8 in preparing an evaluation. 20 9 (1) The county board of supervisors must contest the 20 10 decision within fourteen days following receipt of the 20 11 department's notice to approve or disapprove the application. 20 12 (2) The contested case shall be heard by an administrative 20 13 law judge who shall develop an expertise regarding legal 20 14 requirements necessary in order to approve an application and 20 15 issue a permit for the construction of an animal feeding 20 16 operation structure. The proposed decision of the 20 17 administrative law judge may be appealed to the commission for 20 18 final agency action. 20 19 8. Prior to issuing a permit to a person for the 20 20 construction of an animal feeding operation, the department 20 21 may require the installation and operation of a hydrological 20 22 monitoring system for an exclusively earthen manure storage 20 23 structure according to rules which shall be adopted by the 20 24 department. 20 25 9. a. The department shall not issue a permit to a person 20 26 under this section if an enforcement action by the department, 20 27 relating to a violation of this chapter concerning a 20 28 confinement feeding operation in which the person has an 20 29 interest, is pending. 20 30 b. The department shall not issue a permit to a person 20 31 under this section for five years after the date of the last 20 32 violation committed by a person or confinement feeding 20 33 operation in which the person holds a controlling interest 20 34 during which the person or operation was classified as a 20 35 habitual violator under section 455B.191. 21 1 Sec. 24. NEW SECTION. 455B.200B CONFINEMENT FEEDING 21 2 OPERATIONS CALCULATING ADJACENCY. 21 3 For purposes of this part, two or more confinement feeding 21 4 operations are adjacent if any of the following apply: 21 5 1. The confinement feeding operations are separated at 21 6 their closest points by a distance of one thousand two hundred 21 7 fifty feet or less. 21 8 2. All of the following apply: 21 9 a. The confinement feeding operations are separated at 21 10 their closest points by two thousand five hundred feet or 21 11 less. 21 12 b. The confinement feeding operations have a combined 21 13 animal weight capacity of six hundred twenty-five thousand 21 14 pounds or more for animals other than bovine or one million 21 15 six hundred thousand pounds or more for bovine. 21 16 Sec. 25. Section 455B.201, subsection 4, Code 1997, is 21 17 amended by striking the subsection. 21 18 Sec. 26. Section 455B.202, Code Supplement 1997, is 21 19 amended to read as follows: 21 20 455B.202 CONFINEMENT FEEDING OPERATIONS PENDING ACTIONS 21 21 AND HABITUAL VIOLATORS. 21 22 1. As used in this section,"construction"unless the 21 23 context otherwise requires: 21 24 a. "Chronic violator" means the same as defined in section 21 25 657.11A. 21 26 b. "Construction" means the same as defined by rules 21 27 adopted by the department applicable to the construction of 21 28 animal feeding operation structures as provided in this part. 21 29 c. "Habitual violator" means a person classified as a 21 30 habitual violator pursuant to section 455B.191. 21 31 d. "Suspect site" means a confinement feeding operation or 21 32 land where a confinement feeding operation could be 21 33 constructed, if the site is subject to a suspect transaction. 21 34 e. "Suspect transaction" means a transaction in which a 21 35 habitual violator or chronic violator does any of the 22 1 following: 22 2 (1) Transfers a controlling interest in a suspect site to 22 3 any of the following: 22 4 (a) An employee of the habitual violator or chronic 22 5 violator or business in which the person holds a controlling 22 6 interest. 22 7 (b) A person who holds an interest in a business, 22 8 including a confinement feeding operation, in which the 22 9 habitual violator or chronic violator holds a controlling 22 10 interest. 22 11 (c) A person related to the habitual violator or chronic 22 12 violator as spouse, parent, grandparent, lineal ascendant of a 22 13 grandparent or spouse and any other lineal descendant of the 22 14 grandparent or spouse, or a person acting in a fiduciary 22 15 capacity for a related person. 22 16 (2) Provides financing for the construction or operation 22 17 of a confinement feeding operation to any person, by providing 22 18 a contribution or loan to the person, or providing cash or 22 19 other tangible collateral for a contribution or loan made by a 22 20 third person. 22 21 2. a. A person shall not construct or expand an animal 22 22 feeding operation structure which is part of a confinement 22 23 feeding operation, if the person isaany of the following: 22 24 (1) A party to a pending action for a violation of this 22 25 chapter concerning a confinement feeding operation in which 22 26 the person has a controlling interest and the action is 22 27 commenced in district court by the attorney general. 22 28 (2) A habitual violator or a chronic violator. 22 29 b. A person shall not construct or expand an animal 22 30 feeding operation structure which is part of a confinement 22 31 feeding operation for five years after the date of the last 22 32 violation committed by a person or confinement feeding 22 33 operation in which the person holds a controlling interest 22 34 during which the person or operation was classified as a 22 35 habitual violatorunder section 455B.191. 23 13.c. Thissectionsubsection shall not prohibit a person 23 2 from completing the construction or expansion of an animal 23 3 feeding operation structure, if any of the following apply: 23 4a.(1) The person has an unexpired permit for the 23 5 construction or expansion of the animal feeding operation 23 6 structure. 23 7b.(2) The person is not required to obtain a permit for 23 8 the construction or expansion of the animal feeding operation 23 9 structure. 23 10 3. A suspect transaction shall be presumed to be made in 23 11 order to avoid conditions and enhanced penalties imposed upon 23 12 a habitual violator or chronic violator pursuant to this 23 13 chapter. A person receiving control of a suspect site 23 14 pursuant to a suspect transaction shall be deemed to be an 23 15 agent of the habitual violator or chronic violator, unless the 23 16 habitual violator or chronic violator and the person receiving 23 17 the controlling interest in the a suspect site because of the 23 18 suspect transaction, both prove by clear and convincing 23 19 evidence all of the following: 23 20 a. That the suspect transaction was for a legitimate 23 21 business purpose made by parties exercising independent and 23 22 reasonable judgment. 23 23 b. That the habitual violator or chronic violator does not 23 24 exercise a controlling influence over the business affairs of 23 25 the confinement feeding operation. 23 26 If the person receiving control of a suspect site is deemed 23 27 to be an agent of a habitual violator or chronic violator, the 23 28 person shall not construct or expand an animal feeding 23 29 operation structure which is part of a confinement feeding 23 30 operation, for as long as the habitual violator or chronic 23 31 violator, including the agent, or the confinement feeding 23 32 operation is classified as a habitual violator or chronic 23 33 violator. 23 34 4. The department shall conduct an annual review of each 23 35 confinement feeding operation which is a habitual violator or 24 1 chronic violator and each confinement feeding operation in 24 2 which a habitual violator or chronic violator holds a 24 3 controlling interest. 24 4 Sec. 27. Section 455B.203, subsection 1, Code 1997, is 24 5 amended to read as follows: 24 6 1.In order to receiveThe following persons shall submit 24 7 a manure management plan to the department: 24 8 a. The owner of a confinement feeding operation other than 24 9 a small animal feeding operation. A person shall not remove 24 10 manure from a manure storage structure which is part of a 24 11 confinement feeding operation unless the department approves a 24 12 manure management plan submitted by the owner of the 24 13 confinement feeding operation as provided by the department. 24 14 The department may adopt rules allowing a person to remove 24 15 manure from a manure storage structure until the manure 24 16 management plan is approved or disapproved by the department 24 17 according to terms and conditions required by the department. 24 18 The department shall not issue a permit for the construction 24 19 of a confinement feeding operation or a related animal feeding 24 20 operation structure unless the applicant submits a manure 24 21 management plan together with an application as provided in 24 22 section455B.173, a person shall submit a manure management24 23plan to the department together with the application for a24 24construction permit455B.200A. 24 25 b. A person who owns a confinement feeding operation, 24 26 other than a small animal feeding operation, in another state 24 27 if the manure is applied on land located in this state. 24 28 Sec. 28. Section 455B.203, subsection 2, unnumbered 24 29 paragraph 1, Code 1997, is amended to read as follows: 24 30 A manure management plan shall conform with the 24 31 requirements of section 455B.203B. The plan shall include all 24 32 of the following: 24 33 Sec. 29. Section 455B.203, subsection 3, Code 1997, is 24 34 amended to read as follows: 24 35 3. a. A person classified as a habitual violator or a 25 1 confinement feeding operation in which a habitual violator 25 2 owns a controlling interest, as provided in section 455B.191, 25 3 shall submit a manure management plan to the department on an 25 4 annual basis, which must be approved by the department for the 25 5 following year of operation. 25 6 b. A person receiving a controlling interest in a 25 7 confinement feeding operation pursuant to a suspect 25 8 transaction as provided in section 455B.202 must submit a 25 9 manure management plan to the department prior to taking 25 10 control of the confinement feeding operation. The department 25 11 shall not approve the manure management plan, if any of the 25 12 following applies: 25 13 (1) The person taking control of the confinement feeding 25 14 operation exercised managerial authority over a confinement 25 15 feeding operation and one of the following applies: 25 16 (a) The confinement feeding operation is classified as a 25 17 habitual violator or chronic violator. 25 18 (b) The person owning a controlling interest in the 25 19 confinement feeding operation is classified as a habitual 25 20 violator or chronic violator. 25 21 (2) The confinement feeding operation is subject to a 25 22 pending action for a violation of this chapter and the action 25 23 is commenced in district court by the attorney general. 25 24 (3) The department finds that the person is unwilling or 25 25 incapable of instituting changes necessary in order to ensure 25 26 that manure originating from the confinement feeding operation 25 27 is managed in a manner consistent with this chapter, including 25 28 rules adopted by the department. The person shall have the 25 29 burden of demonstrating by clear and convincing evidence that 25 30 the person is willing and capable of instituting the necessary 25 31 changes. The department shall consider the person's 25 32 experience and past history of controlling confinement feeding 25 33 operations. 25 34 Sec. 30. NEW SECTION. 455B.203A MANURE APPLICATORS 25 35 CERTIFICATION. 26 1 1. As used in this section, unless the context otherwise 26 2 requires: 26 3 a. "Commercial manure applicator" means the same as 26 4 defined in section 455B.171. 26 5 b. "Confinement site" means a site where there is located 26 6 a manure storage structure which is part of a confinement 26 7 feeding operation, other than a small animal feeding 26 8 operation. 26 9 c. "Confinement site manure applicator" means a person who 26 10 applies manure stored at a confinement site. 26 11 2. a. A commercial manure applicator shall not apply 26 12 manure to land, unless the person is certified pursuant this 26 13 section. 26 14 b. A confinement site manure applicator shall not apply 26 15 manure to land, unless the person is certified pursuant to 26 16 this section. 26 17 3. A person required to be certified under this section 26 18 shall choose between a one-year certification for which the 26 19 person shall pay a thirty dollar fee or a three-year 26 20 certification for which the person shall pay a seventy-five 26 21 dollar fee. 26 22 4. To be initially certified a person must complete an 26 23 educational program which shall consist of an examination 26 24 required to be passed by the person. After initial 26 25 certification, the person must renew the certification by 26 26 completing the educational program which shall consist of 26 27 either an examination or continuing instructional courses. 26 28 The person must pass the examination each third year following 26 29 initial certification or may elect to attend two hours of 26 30 continuing instructional courses each year. 26 31 5. The department shall adopt, by rule, requirements for 26 32 the certification, including educational program requirements. 26 33 The department may establish different educational programs 26 34 designed for commercial manure applicators and confinement 26 35 site manure applicators. The department shall adopt rules 27 1 necessary to administer this section, including establishing 27 2 certification standards, which shall at least include 27 3 standards for the handling, application, and storage of 27 4 manure, the potential effects of manure upon surface water and 27 5 groundwater, and procedures to remediate the potential effects 27 6 on surface water or groundwater. 27 7 a. The department shall adopt by rule criteria for 27 8 allowing a person required to be certified to complete either 27 9 a written or oral examination. 27 10 b. The department shall administer the continuing 27 11 instructional courses, by either teaching the courses or 27 12 selecting persons to teach the courses, according to criteria 27 13 as provided by rules adopted by the department. The 27 14 department shall, to the extent possible, select persons to 27 15 teach the continuing instructional courses. The department is 27 16 not required to compensate persons to teach the continuing 27 17 instructional courses. In selecting persons, the department 27 18 shall consult with organizations interested in the application 27 19 of manure, including associations representing manure 27 20 applicators and associations representing agricultural 27 21 producers. The Iowa cooperative extension service in 27 22 agriculture and home economics of Iowa state university of 27 23 science and technology shall cooperate with the department in 27 24 administering the continuing instructional courses. The Iowa 27 25 cooperative extension service may teach continuing 27 26 instructional courses, train persons selected to teach 27 27 courses, or distribute informational materials to persons 27 28 teaching the courses. 27 29 c. The department, in administering the certification 27 30 program under this section, shall cooperate with the 27 31 department of agriculture and land stewardship in 27 32 administering the certification program for pesticide 27 33 applicators pursuant to section 206.5. 27 34 6. This section shall not require a person to be certified 27 35 as a commercial manure applicator because the person is any of 28 1 the following: 28 2 a. Actively engaged in farming who trades work with 28 3 another such person. 28 4 b. Employed by a person actively engaged in farming not 28 5 solely as a manure applicator who applies manure as an 28 6 incidental part of the person's general duties. 28 7 c. Engaged in applying manure as an incidental part of a 28 8 custom farming operation. 28 9 d. Engaged in applying manure as an incidental part of a 28 10 person's duties as provided by rules adopted by the department 28 11 providing for an exemption. 28 12 7. A person is not required to be certified as a 28 13 commercial manure applicator to apply manure for a period of 28 14 thirty days from the date of initial employment as a 28 15 commercial manure applicator if the person applying the manure 28 16 is acting under the instructions and control of a certified 28 17 commercial manure applicator who is in sight or hearing 28 18 distance of the supervised person. 28 19 Sec. 31. NEW SECTION. 455B.203B APPLICATION 28 20 REQUIREMENTS. 28 21 1. The department of natural resources shall adopt rules 28 22 governing the application of manure originating from an 28 23 anaerobic lagoon or aerobic structure which is part of a 28 24 confinement feeding operation. The rules shall establish 28 25 application rates and practices to minimize groundwater or 28 26 surface water pollution resulting from application, including 28 27 pollution caused by runoff or other manure flow resulting from 28 28 precipitation events. The rules shall establish different 28 29 application rates and practices based on the water holding 28 30 capacity of the soil at the time of application. 28 31 2. A person shall not apply manure by spray irrigation 28 32 equipment, except as provided by rules adopted by the 28 33 department pursuant to chapter 17A. However, a person shall 28 34 not use restricted spray irrigation equipment to apply manure 28 35 originating from a confinement feeding operation, unless the 29 1 manure has been diluted as provided by rules adopted by the 29 2 department, including diluted by use of an anaerobic lagoon. 29 3 Sec. 32. Section 455B.204, subsection 1, unnumbered 29 4 paragraph 1, Code 1997, is amended to read as follows: 29 5 a.AnExcept as provided in paragraph "b", an animal 29 6 feeding operation structure shall not belocated at least five29 7 constructed or expanded closer than the following: 29 8 (1) Less than five hundred feet away fromthe surface29 9intakea wellhead or cistern of an agricultural drainage well 29 10 or known sinkhole, and at least. 29 11 (2) Less than two hundred feet away from a watercourse. 29 12 However, an animal feeding operation structure shall not be 29 13 constructed or expanded closer than five hundred feet away 29 14 from a lake, river, or stream located within the territorial 29 15 limits of the state, any marginal river area adjacent to the 29 16 state, which can support a floating vessel capable of carrying 29 17 one or more persons during a total of a six-month period in 29 18 one out of ten years, excluding periods of flooding. 29 19 b.However, noNo distance separation is required between 29 20 a location or object and a farm pond or privately owned lake, 29 21 as defined in section 462A.2. 29 22 Sec. 33. Section 455B.204, Code 1997, is amended by adding 29 23 the following new subsection: 29 24 NEW SUBSECTION. 3. A person shall not construct or expand 29 25 an unformed manure storage structure within an agricultural 29 26 drainage well area as provided in section 455I.5. 29 27 Sec. 34. NEW SECTION. 455B.205 MANURE STORAGE STRUCTURES 29 28 CONSTRUCTION STANDARDS INSPECTIONS. 29 29 1. The department shall establish by rule engineering 29 30 standards for the construction of manure storage structures. 29 31 2. The design standards for unformed manure storage 29 32 structures established by the department shall account for 29 33 special design characteristics of animal feeding operations, 29 34 including all of the following: 29 35 a. The lining of the structure shall be constructed with 30 1 materials deemed suitable by the department in order to 30 2 minimize seepage loss through the lining's seal. 30 3 b. The structure shall be constructed with materials 30 4 deemed suitable by the department in order to control erosion 30 5 on the structure's berm, side slopes, and base. 30 6 c. The structure shall be constructed to minimize seepage 30 7 into near-surface water sources. 30 8 d. The top of the floor of the structure's liner must be 30 9 above the groundwater table as determined by the department. 30 10 If the groundwater table is less than two feet below the top 30 11 of the liner's floor, the structure shall be installed with a 30 12 synthetic liner. If the department allows an unformed manure 30 13 storage structure to be located at a site by permanently 30 14 lowering the groundwater table, the department shall confirm 30 15 that the proposed system meets standards necessary to ensure 30 16 that the structure does not pollute groundwater sources. If 30 17 the department allows drain tile installed to lower a 30 18 groundwater table to remain where located, the department 30 19 shall require that a device be installed to allow monitoring 30 20 of the water in the drain tile line. The department shall 30 21 also require the installation of a device to allow shutoff of 30 22 the drain tile lines, if the drain tile lines do not have a 30 23 surface outlet accessible on the property where the structure 30 24 is located. 30 25 2. The department shall to every extent practical 30 26 cooperate with the state office and field offices of the 30 27 natural resources conservation service of the United States 30 28 department of agriculture in adopting construction standards 30 29 for anaerobic lagoons. 30 30 3. The department shall inspect each unformed manure 30 31 storage structure at least once each year. An inspection 30 32 conducted pursuant to this subsection shall be limited to a 30 33 visual inspection of the site where the unformed manure 30 34 storage structure is located. The department shall inspect 30 35 the site at a reasonable time after providing at least twenty- 31 1 four hours' notice to the person owning or managing the 31 2 confinement feeding operation. However, in order to inspect 31 3 the premises the departmental inspector must comply with 31 4 standard biosecurity requirements customarily required by the 31 5 operation. The visual inspection shall include, but not be 31 6 limited to, determining whether any of the following exists: 31 7 a. An adequate freeboard level. 31 8 b. The seepage of manure from the unformed manure storage 31 9 structure. 31 10 c. Erosion. 31 11 d. Inadequate vegetation cover. 31 12 e. The presence of an opening allowing manure to drain 31 13 from the unformed manure storage structure. 31 14 Sec. 35. NEW SECTION. 455B.206 CONSTRUCTION OF EARTHEN 31 15 MANURE STORAGE BASIN MORATORIUM. 31 16 1. A person shall not construct or expand an earthen 31 17 manure storage basin on or after July 1, 1998. 31 18 2. This section is repealed on July 1, 2001. 31 19 Sec. 36. Section 657.11, subsection 4, Code 1997, is 31 20 amended by striking the subsection. 31 21 Sec. 37. NEW SECTION. 657.11A CHRONIC VIOLATORS. 31 22 1. As used in this section, unless the context otherwise 31 23 requires: 31 24 a. "Commission" means the environmental protection 31 25 commission created in section 455A.6. 31 26 b. "Confinement feeding operation" means the same as 31 27 defined in section 455B.161. 31 28 c. "Department" means the department of natural resources. 31 29 d. "Suspect site" means a confinement feeding operation or 31 30 land where a confinement feeding operation could be 31 31 constructed, if the site is subject to a suspect transaction. 31 32 e. "Suspect transaction" means a transaction in which a 31 33 person classified as a chronic violator under this section 31 34 does any of the following: 31 35 (1) Transfers a controlling interest in a suspect site to 32 1 any of the following: 32 2 (a) An employee of the chronic violator or business in 32 3 which the person holds a controlling interest. 32 4 (b) A person who holds an interest in a business, 32 5 including a confinement feeding operation, in which the 32 6 chronic violator holds a controlling interest. 32 7 (c) A person related to the chronic violator as spouse, 32 8 parent, grandparent, lineal ascendant of a grandparent or 32 9 spouse and any other lineal descendant of the grandparent or 32 10 spouse, or a person acting in a fiduciary capacity for a 32 11 related person. 32 12 (2) Provides financing for the construction or operation 32 13 of a confinement feeding operation to any person, including by 32 14 providing a contribution, loan to the person, or providing 32 15 collateral for a contribution or loan made by a third person. 32 16 2. The rebuttable presumption provided in section 657.11 32 17 does not apply to a person during any period that the person 32 18 is classified as a chronic violator under this section as to 32 19 any confinement feeding operation in which the person holds a 32 20 controlling interest, as defined by rules adopted by the 32 21 department of natural resources. The rebuttable presumption 32 22 shall apply to the person on and after the date that the 32 23 person is removed from the classification of chronic violator. 32 24 3. A person shall be classified as a chronic violator if 32 25 the person has committed three or more violations as described 32 26 in this subsection prior to, on, or after July 1, 1996. In 32 27 addition, in relation to each violation, the person must have 32 28 been subject to either of the following: 32 29 a. The assessment of a civil penalty by the department or 32 30 the commission in an amount equal to three thousand dollars or 32 31 more. 32 32 b. A court order or judgment for a legal action brought by 32 33 the attorney general after referral by the department or 32 34 commission. 32 35 4. Each violation must have occurred within five years 33 1 prior to the date of the latest violation, counting any 33 2 violation committed by a confinement feeding operation in 33 3 which the person holds a controlling interest. A violation 33 4 occurs on the date the department issues an administrative 33 5 order to the person assessing a civil penalty of three 33 6 thousand dollars or more, or on the date the department 33 7 notifies a person in writing that the department will 33 8 recommend that the commission refer, or the commission refers 33 9 the case to the attorney general for legal action, or the date 33 10 of entry of the court order or judgment, whichever occurs 33 11 first. A violation under this subsection shall not be counted 33 12 if the civil penalty ultimately imposed is less than three 33 13 thousand dollars, the department or commission does not refer 33 14 the action to the attorney general, the attorney general does 33 15 not take legal action, or a court order or judgment is not 33 16 entered against the person. A person shall be removed from 33 17 the classification of chronic violator on the date on which 33 18 the person and all confinement feeding operations in which the 33 19 person holds a controlling interest have committed less than 33 20 three violations described in this subsection for the prior 33 21 five years. 33 22 5. For purposes of counting violations, a continuing and 33 23 uninterrupted violation shall be considered as one violation. 33 24 Different types of violations shall be counted as separate 33 25 violations regardless of whether the violations were committed 33 26 during the same period. The violation must be a violation of 33 27 a state statute, or a rule adopted by the department, which 33 28 applies to a confinement feeding operation and any related 33 29 animal feeding operation structure, including an anaerobic 33 30 lagoon, earthen manure storage basin, formed manure storage 33 31 structure, or egg washwater storage structure, or any related 33 32 pollution control device or practice. The structure, device, 33 33 or practice must be part of the confinement feeding operation. 33 34 The violation must be one of the following: 33 35 a. Constructing or operating a related animal feeding 34 1 operation structure or installing or using a related pollution 34 2 control device or practice, for which the person must obtain a 34 3 permit, in violation of statute or rules adopted by the 34 4 department, including the terms or conditions of the permit. 34 5 b. Intentionally making a false statement or 34 6 misrepresenting information to the department as part of an 34 7 application for a construction permit for the related animal 34 8 feeding operation structure, or the installation of the 34 9 related pollution control device or practice, for which the 34 10 person must obtain a construction permit from the department. 34 11 c. Failing to obtain a permit or approval by the 34 12 department for a permit to construct or operate a confinement 34 13 feeding operation or use a related animal feeding operation 34 14 structure or pollution control device or practice, for which 34 15 the person must obtain a permit from the department. 34 16 d. Operating a confinement feeding operation, including a 34 17 related animal feeding operation structure or pollution 34 18 control device or practice, which causes pollution to the 34 19 waters of the state, if the pollution was caused 34 20 intentionally, or caused by a failure to take measures 34 21 required to abate the pollution which resulted from an act of 34 22 God. 34 23 e. Failing to submit a manure management plan as required, 34 24 or operating a confinement feeding operation required to have 34 25 a manure management plan without having submitted the manure 34 26 management plan. 34 27 6. A suspect transaction shall be presumed to be made in 34 28 order to avoid a cause of action for nuisance brought against 34 29 the person classified as a chronic violator. The person 34 30 receiving control of the operation pursuant to the suspect 34 31 transaction shall be deemed to be an agent of the chronic 34 32 violator, unless the chronic violator and the person receiving 34 33 the controlling interest in the confinement feeding operation 34 34 because of the suspect transaction, prove by clear and 34 35 convincing evidence all of the following: 35 1 a. That the suspect transaction was for a legitimate 35 2 business purpose made by parties exercising independent and 35 3 reasonable judgment. 35 4 b. That the chronic violator does not exercise a 35 5 controlling influence over the business affairs of the 35 6 confinement feeding operation. 35 7 7. If the person receiving control of a suspect site is 35 8 deemed to be an agent of a chronic violator, the presumption 35 9 that the confinement feeding operation is not a public or 35 10 private nuisance as provided in section 657.11 shall not apply 35 11 for as long as the chronic violator, including the agent, or 35 12 the confinement feeding operation is classified as a chronic 35 13 violator. 35 14 Sec. 38. 1995 Iowa Acts, chapter 195, section 38, is 35 15 amended to read as follows: 35 16 SEC. 38. INDEMNITY FEES PRIOR PERMITTEES. 35 17 1. The indemnity fee imposed upon permittees pursuant to 35 18 section 204.3, as enacted in this Act, shall be imposed upon 35 19 all persons who have received a permit by the department of 35 20 natural resources for the construction of a confinement 35 21 feeding operation with a manure storage structure as defined 35 22 in section455B.161204.1, as enacted in this Act, prior to 35 23 the effective date of this Act. However, an indemnity fee 35 24 shall not be imposed upona personthe following persons: 35 25 a. A person who has received a construction permit more 35 26 than ten years prior to the effective date of this Act. 35 27 b. A person who has received a construction permit within 35 28 ten years prior to May 31, 1995, if the confinement feeding 35 29 operation was not constructed under the permit and the permit 35 30 has expired. 35 31 2. To every extent possible, the department of natural 35 32 resources shall notify all persons required to pay the fee. 35 33 The notice shall be in writing. The department shall 35 34 establish a date when the fees must be paid to the department, 35 35 which shall be not less than three months after the delivery 36 1 of the notice. If a person is delinquent in paying the 36 2 indemnity fee when due, or if upon examination, an 36 3 underpayment of the fee is found by the department, the person 36 4 is subject to a penalty of ten dollars or an amount equal to 36 5 the amount of deficiency for each day of the delinquency, 36 6 whichever is less.After the date required for payment, the36 7department shall transfer all outstanding claims to the36 8department of agriculture and land stewardship.36 9 3. The department of natural resources shalldeliver to36 10 receive from the department of agriculture and land 36 11 stewardship the most current available information regarding 36 12 the persons required to pay the fee and any delinquency 36 13 penalty, including the names and addresses of the persons, and36 14the capacity of the confinement feeding operations subject to36 15the permit. The department ofagriculture and land36 16stewardshipnatural resources, in cooperation with the 36 17 attorney general, may bring a court action in order to collect 36 18 indemnity fees and delinquency penalties required to be paid 36 19 under this section. 36 20 Sec. 39. AMNESTY PERIOD. Notwithstanding 1995 Iowa Acts, 36 21 chapter 195, section 38, a person who has not paid an 36 22 indemnity fee as required by that Act, as amended by this Act, 36 23 shall not be subject to a delinquency penalty as provided in 36 24 that Act, if the person pays the full amount of the indemnity 36 25 fee to the department of agriculture and land stewardship on 36 26 or before June 30, 1998, as required by the department. 36 27 Sec. 40. EFFECT OF THIS ACT REFUND. Nothing in this 36 28 Act requires the department of natural resources or the 36 29 department of agriculture and land stewardship to refund an 36 30 indemnity fee or delinquency penalty payment paid by 36 31 permittees pursuant to 1995 Iowa Acts, chapter 195, section 36 32 38. 36 33 Sec. 41. INDEMNITY FEES PRIOR MANURE MANAGEMENT PLAN 36 34 SUBMITTEES. 36 35 1. The indemnity fee imposed upon persons required to 37 1 submit a manure management plan pursuant to section 204.3A, as 37 2 enacted in this Act, shall be imposed upon all persons who 37 3 were required to submit a manure management plan to the 37 4 department of natural resources pursuant to 567 IAC section 37 5 65.18(455B). 37 6 2. To every extent possible, the department shall notify 37 7 all persons required to pay the fee. The notice shall be in 37 8 writing. The department shall establish a date when the fees 37 9 must be paid to the department, which shall be not less than 37 10 three months after the delivery of the notice. If a person is 37 11 delinquent in paying the indemnity fee when due, or if upon 37 12 examination, an underpayment of the fee is found by the 37 13 department, the person is subject to a penalty of ten dollars 37 14 or an amount equal to the amount of deficiency for each day of 37 15 the delinquency, whichever is less. 37 16 Sec. 42. INDEMNITY FEES PRIOR CONSTRUCTION PERMITTEES. 37 17 The department of agriculture and land stewardship shall 37 18 deliver to the department of natural resources the most 37 19 current available information regarding persons required to 37 20 pay the indemnity fee imposed pursuant to 1995 Iowa Acts, 37 21 chapter 195, section 38. The department of natural resources, 37 22 in cooperation with the attorney general, may bring a court 37 23 action in order to collect indemnity fees and delinquency 37 24 penalties as provided in that Act for deposit into the manure 37 25 storage indemnity fund as created in section 204.2. 37 26 Sec. 43. MANURE MANAGEMENT PLAN SUBMISSIONS. All persons 37 27 required to submit a manure management plan pursuant to 37 28 section 455B.203 as amended by this Act shall submit a manure 37 29 management plan according to the same requirements, as 37 30 provided in that section or rules adopted by the department 37 31 pursuant to that section. Persons who have submitted a manure 37 32 management plan that complies with those requirements are not 37 33 required to submit a new manure management plan. Persons who 37 34 have not submitted a manure management plan that complies with 37 35 those requirements shall not be required to submit a new 38 1 manure management plan until July 1, 1999. 38 2 Sec. 44. ANIMAL AGRICULTURE CONSULTING ORGANIZATION. The 38 3 members of the animal agriculture consulting organization 38 4 shall consult with the department of natural resources 38 5 regarding this Act, rules adopted pursuant to this Act, and 38 6 the Act's implementation, to the same extent and in the same 38 7 manner as required in 1995 Iowa Acts, chapter 195, section 37. 38 8 Sec. 45. DIRECTION TO THE DEPARTMENT OF NATURAL RESOURCES 38 9 RULEMAKING. The department of natural resources is 38 10 required to adopt rules under this Act, including adopting new 38 11 rules or amending existing rules, only to the extent that 38 12 rules must be adopted in order to comply with the requirements 38 13 of this Act. This section shall not be construed to limit the 38 14 authority of the department to adopt rules under this Act or 38 15 other statutory authority which the department determines is 38 16 necessary or advisable. 38 17 Sec. 46. DIRECTIONS TO IOWA CODE EDITOR. 38 18 1. The Iowa Code editor is directed to transfer chapter 38 19 204, as amended by this Act, to a chapter determined 38 20 appropriate by the Iowa Code editor. The Iowa Code editor 38 21 shall correct internal references as necessary. 38 22 2. The Iowa Code editor is directed to transfer section 38 23 159.27 to or near section 455B.204A. 38 24 Sec. 47. TRANSFER OF PROVISIONS. The transfer of 38 25 provisions from one section to another section does not affect 38 26 the effect or applicability of rules adopted by the department 38 27 of natural resources, except as required by the provisions of 38 28 this Act. 38 29 Sec. 48. Sections 38 through 40 of this Act, being deemed 38 30 of immediate importance, takes effect upon enactment. 38 31 EXPLANATION 38 32 This bill amends a number of provisions which apply to the 38 33 regulation of animal feeding operations. The bill does all of 38 34 the following: 38 35 The bill amends provisions relating to the manure storage 39 1 indemnity fund which was established in order to reimburse 39 2 counties for expenses incurred by counties in cleaning up 39 3 manure storage structures on a site that the county received 39 4 due to nonpayment of back taxes. The fund is supported by 39 5 fees paid by persons obtaining construction permits from the 39 6 department of natural resources for confinement feeding 39 7 operations. The bill provides that if moneys are not 39 8 sufficient to support the fund, the executive council may 39 9 allocate up to $3 million from the general fund in order to 39 10 help satisfy claims by counties. The bill also doubles the 39 11 fees paid by permittees. 39 12 The bill prohibits a county from adopting or enforcing 39 13 county legislation regulating an agricultural operation, 39 14 unless expressly authorized by state law. 39 15 The bill amends a number of provisions in Code chapter 455 39 16 which regulates animal feeding operations. The bill provides 39 17 for determining when adjacent confinement feeding operations 39 18 are considered as a single operation. 39 19 The bill amends separation distance requirements between 39 20 animal feeding operation structures and homes, schools, 39 21 businesses, and churches, by increasing several of those 39 22 separation distance requirements. 39 23 The bill amends Code section 455B.173, subsection 13, 39 24 providing for the issuance of permits by the department for 39 25 animal feeding operations. The bill transfers that section 39 26 for purposes of enhancing readability, and amends several of 39 27 its provisions. 39 28 The bill provides that a county board of supervisors may 39 29 hold a public hearing to receive public comments regarding an 39 30 application for a construction permit for an animal feeding 39 31 operation. The county board of supervisors may submit 39 32 comments by the board and the public to the department. The 39 33 bill provides that a county board of supervisors may contest 39 34 the decision as provided by rules adopted by the environmental 39 35 protection commission in conformance with Code chapter 17A. 40 1 The bill requires the owner of a confinement feeding 40 2 operation, other than a small animal feeding operation, to 40 3 submit a manure management plan, regardless of whether a 40 4 permit is required for the operation. The bill also provides 40 5 that an out-of-state owner must submit a manure management 40 6 plan if the manure is applied in this state. 40 7 The bill provides for the certification of commercial 40 8 manure applicators and persons who apply manure which 40 9 originates from a confinement feeding operation other than a 40 10 small animal feeding operation. The bill provides that a 40 11 manure applicator is prohibited from applying manure unless 40 12 the person is certified by the department. The requirements 40 13 involve passing an examination and taking continuing 40 14 instructional courses. The requirements are similar to 40 15 requirements imposed upon commercial pesticide applicators. 40 16 The bill assesses fees for certification. 40 17 The bill requires the department of natural resources to 40 18 adopt rules governing the application of manure originating 40 19 from an anaerobic lagoon or aerobic structure which is part of 40 20 a confinement feeding operation. The rules must establish 40 21 application rates and practices to minimize groundwater or 40 22 surface water pollution resulting from application, including 40 23 pollution caused by runoff or other manure flow resulting from 40 24 precipitation events. The rules shall establish different 40 25 application rates and practices based on the water holding 40 26 capacity of the soil at the time of application. The bill 40 27 restricts the use of spray irrigation equipment used to apply 40 28 manure with a large dispersal rate. 40 29 The bill requires the department to establish engineering 40 30 standards for the construction of formed manure storage 40 31 structures. The bill provides special requirements for 40 32 unformed structures. The rules adopted by the department 40 33 shall account for special design characteristics of animal 40 34 feeding operations. The department must to every extent 40 35 practical cooperate with the state office and field offices of 41 1 the natural resources conservation service of the United 41 2 States department of agriculture in adopting construction 41 3 standards for anaerobic lagoons. 41 4 The bill provides separation distances between animal 41 5 feeding operation structures and watercourses, including 41 6 increasing the distance required between an animal feeding 41 7 operation structure and a lake, river, or stream located 41 8 within the territorial limits of the state, or a marginal 41 9 river area adjacent to the state. 41 10 The bill imposes a moratorium on the construction or 41 11 expansion of earthen manure storage basins. 41 12 The bill amends a provision of law which currently 41 13 prohibits a habitual violator from obtaining a permit by the 41 14 department of natural resources for the construction or 41 15 operation of another animal feeding operation. This bill 41 16 extends that prohibition to apply to all environmental permits 41 17 issued by the department under Code chapter 455B. 41 18 The bill provides that a transaction involving a habitual 41 19 violator or a chronic violator may be considered suspect, if 41 20 the transaction involves (1) transferring a controlling 41 21 interest in the operation or land where an operation may be 41 22 constructed to a person who is financially close or family 41 23 related or (2) financing the construction or operation of a 41 24 confinement feeding operation. The bill provides that a 41 25 suspect transaction is not recognized for purposes of 41 26 enforcing environmental laws or claiming nuisance suit 41 27 protection, unless the violator and the person receiving a 41 28 controlling interest in a confinement feeding operation prove 41 29 by clear and convincing evidence that the transaction was for 41 30 a legitimate business purpose made by parties exercising 41 31 independent and reasonable judgment, and the chronic violator 41 32 does not exercise a controlling influence over the business 41 33 affairs of the confinement feeding operation. This bill 41 34 provides that the indemnity fee is not assessable if the 41 35 confinement feeding operation was not constructed under a 42 1 construction permit and the permit has expired. The bill also 42 2 provides that a person who has not paid an indemnity fee is 42 3 not subject to a delinquency penalty if the person pays the 42 4 full amount of the indemnity fee to the department of 42 5 agriculture and land stewardship on or before June 30, 1998, 42 6 as required by the department. 42 7 The bill requires that the department consult with members 42 8 of organizations representing various interests known as the 42 9 animal agriculture consulting organization. 42 10 This bill provides that the indemnity fee is not assessable 42 11 if the confinement feeding operation was not constructed under 42 12 a construction permit and the permit has expired. The bill 42 13 also provides that a person who has not paid an indemnity fee 42 14 is not subject to a delinquency penalty if the person pays the 42 15 full amount of the indemnity fee to the department of natural 42 16 resources on or before June 30, 1998, as required by the 42 17 department. 42 18 LSB 4186YC 77 42 19 da/jw/5.4
Text: HSB00660 Text: HSB00662 Text: HSB00600 - HSB00699 Text: HSB Index Bills and Amendments: General Index Bill History: General Index
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