Text: HF00728 Text: HF00730 Text: HF00700 - HF00799 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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.
1 11 2. The department shall order that the owner of the
1 12 confinement feeding operation transfer the ownership to a
1 13 person approved by the department, not later than sixty days
1 14 from the issuance of the departmental order.
1 15 3. Until the confinement feeding operation is transferred,
1 16 a person shall not transport animals, or viable eggs or semen
1 17 into the confinement feeding operation.
1 18 4. If the confinement feeding operation or a person who
1 19 holds a controlling interest in the confinement feeding
1 20 operation owes the state moneys for the payment of civil
1 21 penalties, criminal fines, or the reimbursement of
1 22 departmental expenses, a departmental official shall be
1 23 present during the transportation of the animals to slaughter.
1 24 The payment received for the sale of the animals shall be made
1 25 by joint check payable to the confinement feeding operation
1 26 and the department.
1 27 5. In order to access the confinement feeding operation, a
1 28 departmental official must comply with standard disease
1 29 control restrictions customarily required by the operation.
1 30 The department shall comply with section 455B.103, subsection
1 31 4, in entering the premises of the confinement feeding
1 32 operation.
1 33 6. The department shall assess, and the confinement
1 34 feeding operation shall pay, the actual costs of providing the
1 35 oversight to assure compliance with this section.
2 1 Sec. 2. NEW SECTION. 455B.202B SUBSEQUENT VIOLATIONS BY
2 2 HABITUAL VIOLATORS – ENHANCED PENALTIES.
2 3 This section applies to a violation of any provision of
2 4 this division involving a condition or requirement of a permit
2 5 required for a confinement feeding operation pursuant to
2 6 section 455B.200A, a provision of this part, or a rule or
2 7 order issued by the department under this division, if the
2 8 violation is committed by a person who is classified as a
2 9 habitual violator.
2 10 1. For each violation committed subsequent to the
2 11 violation which results in the person being classified as a
2 12 habitual violator, one of the following shall apply:
2 13 a. If the violation is knowingly committed, the person is
2 14 guilty of an aggravated misdemeanor. A conviction for a
2 15 violation is punishable by a fine of not more than twenty-five
2 16 thousand dollars for each day of violation.
2 17 b. The person is subject to a civil penalty not to exceed
2 18 twenty-five thousand dollars for each day the violation
2 19 continues.
2 20 2. For a second violation involving a confinement feeding
2 21 operation which is committed subsequent to the violation which
2 22 results in classifying the person as a habitual violator, the
2 23 attorney general may proceed in an action to forfeit all
2 24 confinement feeding operations in which the person holds a
2 25 controlling interest as provided in section 455B.202. The
2 26 forfeiture shall proceed in lieu of any transfer of ownership
2 27 otherwise required by section 455B.202A. However, if the
2 28 attorney general does not bring a proceeding as provided in
2 29 section 455B.202C within ninety days following a final
2 30 administrative or judicial determination that the second
2 31 violation was committed, the department shall order that the
2 32 owner of the confinement feeding operation transfer the
2 33 ownership of each confinement feeding operation in which the
2 34 habitual violator holds a controlling interest as provided in
2 35 section 455B.202A. A confinement feeding operation which is
3 1 transferred and a person who has transferred a controlling
3 2 interest in the confinement feeding operation shall be subject
3 3 to the same conditions and enhanced penalties as applied to
3 4 the habitual violator at the time of the transfer.
3 5 Sec. 3. NEW SECTION. 455B.202C HABITUAL VIOLATORS –
3 6 FORFEITURE AND RECEIVERSHIP – PROCEEDINGS.
3 7 1. If a confinement feeding operation is subject to
3 8 forfeiture, the forfeiture shall proceed as provided in
3 9 chapter 809A. The attorney general shall serve as the
3 10 prosecuting attorney and the department shall serve as the
3 11 seizing agency.
3 12 2. Upon petition, the court hearing the case shall appoint
3 13 the department as receiver. Upon the filing of the petition
3 14 the court shall issue ex parte such temporary orders as may be
3 15 necessary to preserve or protect the assets in receivership,
3 16 or the assets' value, and the rights of creditors until a plan
3 17 of disposition is approved.
3 18 a. A petition filed by the department shall be accompanied
3 19 by the department's plan for disposition of the assets of the
3 20 confinement feeding operation. The plan shall provide for the
3 21 sale of the assets, including animals, for the benefit of
3 22 creditors, or as may be necessary, as the department in its
3 23 discretion determines to be necessary to minimize losses. The
3 24 plan shall provide for reimbursing expenses of the department
3 25 in administering the receivership, including expenses incurred
3 26 in appointing a receiver.
3 27 b. When a petition for receivership is filed by the
3 28 department, the clerk of the district court shall set a date
3 29 for hearing on the department's proposed plan of disposition
3 30 at a time not less than ten nor more than fifteen days after
3 31 the date the petition is filed. When appointed as a receiver
3 32 under this section, the department shall cause notification of
3 33 the appointment to be published once each week for two
3 34 consecutive weeks in a newspaper of general circulation in
3 35 each of the counties in which the confinement feeding
4 1 operation is located.
4 2 c. The actions of the department in connection with
4 3 petitioning for appointment as a receiver, and all actions
4 4 pursuant to such appointment, shall not be subject to the
4 5 provisions of chapter 17A.
4 6 d. The department may appoint a person to act as receiver.
4 7 A person appointed by the department and carrying out the
4 8 duties of the department in acting as receiver under this
4 9 section shall be deemed to be an employee of the state as
4 10 defined in section 669.2. Chapter 669 is applicable to any
4 11 claim as defined in section 669.2 against the person carrying
4 12 out the duties of the department in acting as receiver.
4 13 Sec. 4. EFFECTIVE DATE. This Act, being deemed of
4 14 immediate importance, takes effect upon enactment.
4 15 EXPLANATION
4 16 This bill amends Code chapter 455B, which provides for
4 17 environmental protection as administered by the department of
4 18 natural resources. Specifically, the bill imposes increased
4 19 penalties upon persons classified as habitual violators of
4 20 regulations relating to confinement feeding operations. Under
4 21 current law, a habitual violator is a person who commits three
4 22 or more violations concerning specific regulations involving
4 23 confinement feeding operations. The violations relate to
4 24 completing a false application for a construction permit,
4 25 failing to obtain a construction permit prior to construction,
4 26 causing pollution to the waters of the state, or failing to
4 27 submit a manure management plan.
4 28 The bill imposes special penalties upon habitual violators
4 29 who commit a subsequent violation of provisions in Code
4 30 chapter 455B, including departmental rules. First, the
4 31 department must order the owner of the confinement feeding
4 32 operation to transfer ownership of the confinement feeding
4 33 operation to a person approved by the department. The bill
4 34 places restrictions upon the management of the confinement
4 35 feeding operation, which may involve direct departmental
5 1 oversight of the confinement feeding operation. In addition,
5 2 the bill imposes enhanced penalties upon habitual violators
5 3 who commit a subsequent violation. A habitual violator
5 4 knowingly committing a subsequent offense is guilty of an
5 5 aggravated misdemeanor punishable by a $25,000 per day
5 6 criminal fine. In addition, a civil penalty of up to $25,000
5 7 per day may be assessed. The bill provides that for another
5 8 subsequent violation, committed by a person holding a
5 9 controlling interest in a confinement feeding operation, all
5 10 confinement feeding operations in which the person holds a
5 11 controlling interest is forfeited to the state. The bill
5 12 provides for the management of the forfeited confinement
5 13 feeding operation, including the appointment of the department
5 14 as a receiver. If the attorney general does not proceed in a
5 15 forfeiture action, the habitual violator must transfer
5 16 ownership of all confinement feeding operations in which the
5 17 person holds a controlling interest. A confinement feeding
5 18 operation which is transferred and the person who transferred
5 19 the controlling interest is classified as a habitual violator.
5 20 The bill takes effect upon enactment.
5 21 LSB 2348HV 78
5 22 da/jw/5
Text: HF00728 Text: HF00730 Text: HF00700 - HF00799 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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