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PAG LIN
1 1 Section 1. NEW SECTION. 455B.202A SUBSEQUENT VIOLATIONS
1 2 BY HABITUAL VIOLATORS – CLOSING OPERATIONS.
1 3 1. This section applies to a violation of any provision of
1 4 this division involving a condition or requirement of a permit
1 5 required for a confinement feeding operation pursuant to
1 6 section 455B.200A, a provision of this part, or a rule or
1 7 order issued by the department under this division, if the
1 8 violation is committed by a confinement feeding operation
1 9 which is classified as a habitual violator pursuant to section
1 10 455B.191 or a person classified as a habitual violator who
1 11 holds a controlling interest in the confinement feeding
1 12 operation.
1 13 2. The department shall order that the owner of the
1 14 confinement feeding operation transfer the ownership to a
1 15 person approved by the department, not later than sixty days
1 16 from the issuance of departmental order.
1 17 3. Until the confinement feeding operation is transferred,
1 18 a person shall not transport animals, or viable eggs or semen
1 19 into the confinement feeding operation.
1 20 4. If the confinement feeding operation or a person who
1 21 holds a controlling interest in the confinement feeding
1 22 operation owes the state moneys for the payment of civil
1 23 penalties, criminal fines, or the reimbursement of
1 24 departmental expenses, a departmental official shall be
1 25 present during the transportation of the animals to slaughter.
1 26 The payment received for the sale of the animals shall be made
1 27 by joint check payable to the confinement feeding operation
1 28 and the department.
1 29 5. In order to access the confinement feeding operation, a
1 30 departmental official must comply with standard disease
1 31 control restrictions customarily required by the operation.
1 32 The department shall comply with section 455B.103, subsection
1 33 4, in entering the premises of the confinement feeding
1 34 operation.
1 35 6. The department shall assess, and the confinement
2 1 feeding operation shall pay, the actual costs of providing the
2 2 oversight to assure compliance with this section.
2 3 Sec. 2. NEW SECTION. 455B.202B SUBSEQUENT VIOLATIONS BY
2 4 HABITUAL VIOLATORS – ENHANCED PENALTIES.
2 5 This section applies to a violation of any provision of
2 6 this division involving a condition or requirement of a permit
2 7 required for a confinement feeding operation pursuant to
2 8 section 455B.200A, a provision of this part, or a rule or
2 9 order issued by the department under this division, if the
2 10 violation is committed by a person who is classified as a
2 11 habitual violator.
2 12 1. For each violation committed subsequent to the
2 13 violation which results in the person being classified as a
2 14 habitual violator, one of the following shall apply:
2 15 a. If the violation is knowingly committed, the person is
2 16 guilty of an aggravated misdemeanor. A conviction for a
2 17 violation is punishable by a fine of not more than twenty-five
2 18 thousand dollars for each day of violation or by imprisonment
2 19 for not more than two years, or both.
2 20 b. The person is subject to a civil penalty not to exceed
2 21 twenty-five thousand dollars for each day the violation
2 22 continues.
2 23 2. For a second violation involving a confinement feeding
2 24 operation which is committed subsequent to the violation which
2 25 results in classifying the person as a habitual violator, the
2 26 confinement feeding operation shall be forfeited to the state
2 27 pursuant to section 455B.202C. If a person holding a
2 28 controlling interest in the forfeited confinement feeding
2 29 operation holds a controlling interest in another confinement
2 30 feeding operation, all confinement feeding operations in which
2 31 the person holds a controlling interest shall be forfeited to
2 32 the state as provided in section 455B.202C.
2 33 Sec. 3. NEW SECTION. 455B.202C HABITUAL VIOLATORS –
2 34 FORFEITURE AND RECEIVERSHIP – PROCEEDINGS.
2 35 1. If a confinement feeding operation is subject to
3 1 forfeiture, the forfeiture shall proceed as provided in
3 2 chapter 809A. The attorney general shall serve as the
3 3 prosecuting attorney and the department shall serve as the
3 4 seizing agency.
3 5 2. Upon petition, the court hearing the case shall appoint
3 6 the department as receiver. Upon the filing of the petition
3 7 the court shall issue ex parte such temporary orders as may be
3 8 necessary to preserve or protect the assets in receivership,
3 9 or the assets' value, and the rights of creditors until a plan
3 10 of disposition is approved.
3 11 a. A petition filed by the department shall be accompanied
3 12 by the department's plan for disposition of the assets of the
3 13 confinement feeding operation. The plan shall provide for the
3 14 sale of the assets, including animals, for the benefit of
3 15 creditors, or as may be necessary, as the department in its
3 16 discretion determines to be necessary to minimize losses. The
3 17 plan shall provide for reimbursing expenses of the department
3 18 in administering the receivership, including expenses incurred
3 19 in appointing a receiver.
3 20 b. When a petition for receivership is filed by the
3 21 department, the clerk of the district court shall set a date
3 22 for hearing on the department's proposed plan of disposition
3 23 at a time not less than ten nor more than fifteen days after
3 24 the date the petition is filed. When appointed as a receiver
3 25 under this section, the department shall cause notification of
3 26 the appointment to be published once each week for two
3 27 consecutive weeks in a newspaper of general circulation in
3 28 each of the counties in which the confinement feeding
3 29 operation is located.
3 30 c. The actions of the department in connection with
3 31 petitioning for appointment as a receiver, and all actions
3 32 pursuant to such appointment, shall not be subject to the
3 33 provisions of chapter 17A.
3 34 d. The department may appoint a person to act as receiver.
3 35 A person appointed by the department and carrying out the
4 1 duties of the department in acting as receiver under this
4 2 section shall be deemed to be an employee of the state as
4 3 defined in section 669.2. Chapter 669 is applicable to any
4 4 claim as defined in section 669.2 against the person carrying
4 5 out the duties of the department in acting as receiver.
4 6 Sec. 4. EFFECTIVE DATE. This Act, being deemed of
4 7 immediate importance, takes effect upon enactment.
4 8 EXPLANATION
4 9 This bill amends Code chapter 455B, which provides for
4 10 environmental protection as administered by the department of
4 11 natural resources. Specifically, the bill imposes increased
4 12 penalties upon persons classified as habitual violators of
4 13 regulations relating to confinement feeding operations. Under
4 14 current law, a habitual violator is a person who commits three
4 15 or more violations concerning specific regulations involving
4 16 the construction or operation of a confinement feeding
4 17 operation. The violations relate to completing a false
4 18 application for a construction permit, failing to obtain a
4 19 construction permit prior to construction, causing pollution
4 20 to the waters of the state, or failing to submit a manure
4 21 management plan.
4 22 The bill imposes special penalties upon habitual violators
4 23 who commit a subsequent violation of provisions in Code
4 24 chapter 455B, including departmental rules. First, the
4 25 department must order the owner of the confinement feeding
4 26 operation to transfer ownership of the confinement feeding
4 27 operation to a person approved by the department. The bill
4 28 places restrictions upon the management of the confinement
4 29 feeding operation, which may involve direct departmental
4 30 oversight of the confinement feeding operation. In addition,
4 31 the bill imposes enhanced penalties upon habitual violators
4 32 who commit a subsequent violation. A habitual violator
4 33 knowingly committing a subsequent offense is guilty of an
4 34 aggravated misdemeanor punishable by up to two years
4 35 imprisonment and a $25,000 per day criminal fine, or both. In
5 1 addition, a civil penalty of up to $25,000 per day may be
5 2 assessed. The bill provides that for another subsequent
5 3 violation, the confinement feeding operation is forfeited to
5 4 the state. The bill provides for the management of the
5 5 forfeited confinement feeding operation, including the
5 6 appointment of the department as a receiver.
5 7 The bill takes effect upon enactment.
5 8 LSB 2348YH 78
5 9 da/jw/5.1
Text: HF00509 Text: HF00511 Text: HF00500 - HF00599 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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