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S1478aa,aaH...........................................by HEALTH AND WELFARE
LOCAL OPTION SWINE FACILITY SITING ACT - Adds to existing law to provide
the "Swine Facility Siting Act"; to provide a short title; to provide
legislative findings; to require site approval; to provide that site
approval is supplemental; to provide that participation is local option; to
provide that the director may make rules and contract with other agencies;
to provide location guidelines; to establish site review panels; to require
a siting application and to provide for fees; to require financial
assurance for closure and remediation; to provide duties of the director
relative to application and to provide that a director may request
additional information; and to provide for violations and enforcement.
02/18 Senate intro - 1st rdg - to printing
02/21 Rpt prt - to Health/Wel
02/25 Rpt out - to 14th Ord
03/01 Rpt out amen - to engros
03/02 Rpt engros - 1st rdg - to 2nd rdg as amen
03/03 2nd rdg - to 3rd rdg as amen
03/06 3rd rdg as amen - PASSED - 24-10-1
AYES--Andreason, Boatright, Bunderson, Cameron, Darrington, Dunklin,
Frasure, Geddes, Ingram, Ipsen, Keough, King-Barrutia, Lee,
McLaughlin, Noh, Richardson, Risch, Sandy, Schroeder, Sorensen,
Stegner, Stennett, Thorne, Wheeler
NAYS--Burtenshaw, Crow, Davis, Deide, Hawkins, Parry, Riggs, Walton,
Whitworth, Williams
Absent and excused--Danielson
Floor Sponsor - Darrington
Title apvd - to House
03/07 House intro - 1st rdg as amen - to Agric Aff
03/15 Rpt out - to Gen Ord
03/16 Rpt out amen - to 1st rdg as amen
03/17 1st rdg - to 2nd rdg as amen
03/20 2nd rdg - to 3rd rdg as amen
03/29 3rd rdg as amen - PASSED - 61-4-5
AYES -- Alltus, Barraclough, Barrett, Bell, Bieter, Black, Boe,
Bruneel, Callister, Campbell, Chase, Cheirrett, Clark, Deal,
Field(13), Field(20), Gagner, Geddes, Gould, Hadley, Hammond,
Hansen(23), Hansen(29), Henbest, Hornbeck, Jaquet, Jones, Judd,
Kellogg, Kempton, Kendell, Kunz, Lake, Marley, McKague, Meyer,
Montgomery, Mortensen, Moss, Pearce, Pischner, Pomeroy, Reynolds,
Ridinger, Ringo, Robison, Sali, Schaefer, Sellman, Shepherd, Smith,
Smylie, Stevenson, Stoicheff, Stone, Taylor, Tilman, Wheeler, Wood,
Zimmermann, Mr Speaker
NAYS -- Denney, Linford, Loertscher, Mader
Absent and excused -- Crow, Cuddy, Ellsworth, Moyle, Trail
Floor Sponsor - Kempton
Title apvd - to Senate
03/30 Senate concurred in House amens - to engros
Rpt engros - 1st rdg - to 2nd rdg as amen
03/31 2nd rdg - to 3rd rdg as amen
04/03 3rd rdg as amen - PASSED - 34-1-0
AYES--Andreason, Boatright, Bunderson, Burtenshaw, Cameron, Crow,
Danielson, Darrington, Davis, Deide, Dunklin, Frasure, Geddes,
Hawkins, Ingram, Ipsen, Keough, King-Barrutia, Lee, McLaughlin, Noh,
Parry, Richardson, Riggs, Risch, Sandy, Schroeder, Sorensen, Stegner,
Stennett, Thorne, Walton, Wheeler, Williams
NAYS--Whitworth
Absent and excused--None
Floor Sponsor - Darrington
Title apvd - to enrol
04/04 Rpt enrol - Pres signed
04/05 Sp signed - to Governor
04/12 Governor signed
Session Law Chapter 268
Effective: 04/12/00 with nomenclature provisions
S1478
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
IN THE SENATE
SENATE BILL NO. 1478, As Amended, As Amended in the House
BY HEALTH AND WELFARE COMMITTEE
1 AN ACT
2 RELATING TO SWINE FACILITIES; AMENDING TITLE 39, IDAHO CODE, BY THE ADDITION
3 OF A NEW CHAPTER 79, TITLE 39, IDAHO CODE, TO ESTABLISH THE LOCAL OPTION
4 SWINE FACILITIES SITING ACT, TO PROVIDE A SHORT TITLE, TO PROVIDE LEGISLA-
5 TIVE FINDINGS AND PURPOSES, TO PROVIDE DEFINITIONS, TO REQUIRE SITE
6 APPROVAL, TO PROVIDE THAT SITE APPROVAL IS SUPPLEMENTAL, TO PROVIDE THAT
7 PARTICIPATION IS A LOCAL OPTION, TO PROVIDE THAT LOCAL ACTION IS REQUIRED
8 FOR ACTION BY THE DEPARTMENT OF HEALTH AND WELFARE, TO PROVIDE APPLICA-
9 TION, TO PROVIDE THAT THE DIRECTOR MAY MAKE RULES AND CONTRACT WITH OTHER
10 AGENCIES, TO PROVIDE LOCATION GUIDELINES, TO ESTABLISH SITE REVIEW PANELS,
11 TO REQUIRE A SITING APPLICATION, CONTENTS OF THE APPLICATION AND FEES, TO
12 PROVIDE DUTIES OF THE DIRECTOR RELATIVE TO APPLICATIONS, TO REQUIRE FINAN-
13 CIAL ASSURANCE FOR CLOSURE AND REMEDIATION, TO PROVIDE THAT THE DIRECTOR
14 MAY REQUEST ADDITIONAL INFORMATION, TO PROVIDE FOR VIOLATIONS AND ENFORCE-
15 MENT, TO PROVIDE FOR CONFIDENTIALITY OF RECORDS, TO PROVIDE SEVERABILITY
16 AND TO PROVIDE FOR CONFLICTS; DECLARING AN EMERGENCY; AND PROVIDING FOR A
17 CHANGE IN NOMENCLATURE UPON THE OCCURRENCE OF CERTAIN EVENTS.
18 Be It Enacted by the Legislature of the State of Idaho:
19 SECTION 1. That Title 39, Idaho Code, be, and the same is hereby amended
20 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap-
21 ter 79, Title 39, Idaho Code, and to read as follows:
22 CHAPTER 79
23 LOCAL OPTION SWINE FACILITIES SITING ACT
24 39-7901. SHORT TITLE. This act shall be known as the "Local Option Swine
25 Facilities Siting Act."
26 39-7902. LEGISLATIVE FINDINGS AND PURPOSES. (1) The legislature finds
27 that:
28 (a) The swine industry is experiencing rapid changes such as increased
29 sophistication of production technology, increased demand for capital to
30 maintain or expand operations, consolidation of production and packing
31 facilities and changing consumer demands and markets;
32 (b) Large swine facilities increase social and environmental impacts in
33 the areas where these facilities are located;
34 (c) Adverse public health and environmental impacts can result from the
35 improper siting of large swine facilities, therefore the need for estab-
36 lishing safe sites with an adequate supply of natural resources, such as
37 water, and an adequate capacity for the disposal of animal waste is a mat-
38 ter of statewide concern;
39 (d) Section 39-104A, Idaho Code, vests the department of health and wel-
40 fare with the responsibility to make rules regulating swine operations;
41 and section 39-105, Idaho Code, vests the department of health and welfare
2
1 with the responsibility for the general supervision of the promotion and
2 protection of the life, health and environment of the people of the state,
3 including regulation of air quality, water quality and disposal of solid
4 waste.
5 (2) (a) To facilitate swine facility siting decisions by boards of county
6 commissioners and governing bodies of cities, this chapter establishes a
7 review process within the department of health and welfare for construc-
8 tion or expansion of large swine facilities of a certain size, and to
9 require approval of sites.
10 (b) The procedures and requirements established in this chapter are nec-
11 essary to facilitate the proper siting of large swine facilities, to
12 effect timely and responsible completion of statutory duties and to ensure
13 protection of human health, natural resources, private property values and
14 the environment of the state.
15 (c) The site approval required in this chapter is required in addition to
16 any other license, permit or approval required by law or rule.
17 (3) It is the intent of the legislature that this chapter will be applied
18 only to swine facilities with a capacity of twenty thousand (20,000) animal
19 units or more and that this chapter will not be applied to any other confined
20 animal feeding operations.
21 39-7903. DEFINITIONS. As used in this chapter:
22 (1) "Active unit" means that part of a facility or unit that has received
23 or is receiving wastes and that has not been closed.
24 (2) "Animal unit" is a unit of measurement equaling two and one-half
25 (2 1/2) swine, each weighing over twenty-five (25) kilograms (approximately
26 fifty-five (55) pounds), or ten (10) weaned swine, each weighing under twenty-
27 five (25) kilograms. Total animal units are calculated by adding the number of
28 swine weighing over twenty-five (25) kilograms (approximately fifty-five 55
29 pounds) multiplied by four-tenths (.4), plus the number of weaned swine weigh-
30 ing under twenty-five (25) kilograms multiplied by one-tenth (.1).
31 (3) "Animal waste" means animal excrement, feed wastes, process wastewa-
32 ter or any other waste associated with the confinement of swine.
33 (4) "Animal waste management system" means any structure or system that
34 provides for the collection, treatment, disposal, distribution or storage of
35 animal waste.
36 (5) "Applicant" means the owner or the operator with the owner's written
37 consent.
38 (6) "Aquifer" means a geological formation, group of formations, or a
39 portion of a formation capable of yielding significant quantities of ground
40 water to wells or springs.
41 (7) "Certified planner" means a person who has completed the nutrient
42 management certification in accordance with the nutrient management standard.
43 (8) "County" means any county in the state of Idaho.
44 (9) "Department" means the Idaho department of health and welfare.
45 (10) "Director" means the director of the Idaho department of health and
46 welfare or his designee.
47 (11) "Existing facility" means a facility built and in operation one (1)
48 year or more before the original effective date of this chapter.
49 (12) "Expand" or "expanding facility" means a swine facility of less than
50 twenty thousand (20,000) animal units that increases its one-time animal unit
51 capacity to twenty thousand (20,000) or more animal units.
52 (13) "Facility" means any place, site or location or part thereof where
53 swine are kept, handled, housed, or otherwise maintained and includes, but is
54 not limited to, all buildings, lots, pens, animal waste management systems,
3
1 structures, and other appurtenances and improvements on the land.
2 (14) "Ground water" means water below the land surface in a zone of satu-
3 ration.
4 (15) "Holocene fault" means a fault characterized as a fracture or a zone
5 of fractures in any material along which strata on one (1) side have been dis-
6 placed with respect to that on the other side and holocene being the most
7 recent epoch of the quaternary period, extending from the end of the
8 pleistocene epoch to the present.
9 (16) "Land application" means the spreading on or incorporation of animal
10 waste into the soil mantle primarily for beneficial purposes.
11 (17) "Natural resources conservation service" or "NRCS" means the United
12 States department of agriculture, natural resources conservation service.
13 (18) "Nutrient management plan" means a plan prepared in compliance with
14 the nutrient management standard or other equally protective standard approved
15 by the director for managing the amount, source, placement, form and timing of
16 the land application of nutrients and soil amendments for plant production and
17 to minimize the potential for environmental degradation, particularly of water
18 quality.
19 (19) "Nutrient management standard" means the standard of the United
20 States department of agriculture, natural resource conservation service code
21 590 or the Idaho agricultural pollution abatement plan, nutrient management
22 standard component practice.
23 (20) "One-time animal unit capacity" means the maximum number of animal
24 units that a facility is capable of housing at any given point in time.
25 (21) "Operate" means to confine, feed, propagate, house or otherwise sus-
26 tain swine.
27 (22) "Operator" means the person(s) responsible for the overall operation
28 of a facility or part of a facility.
29 (23) "Owner" means the person(s) who owns a facility or part of a facil-
30 ity.
31 (24) "Permit" when used as a noun means a permit issued by the director
32 pursuant to IDAPA 16.01.09.
33 (25) "Person" means an individual, association, firm, partnership, politi-
34 cal subdivision, public or private corporation, state or federal agency,
35 municipality, industry or any other legal entity whatsoever, and includes
36 owners and operators.
37 (26) "Plan of operation" or "operating plan" means the written plan devel-
38 oped by an owner or operator of a swine facility unit detailing how the facil-
39 ity is to be operated during its active life, during closure, and throughout
40 the postclosure period.
41 (27) "Process wastewater" means any water used in the facility that comes
42 into contact with any manure, litter, bedding, raw, intermediate, or final
43 material or product used in or resulting from the production of swine and any
44 products directly or indirectly used in the operation of a facility, such as
45 spillage or overflow from animal watering systems; washing, cleaning, or
46 flushing pens, barns, manure pits, or spray cooling of animals; and dust con-
47 trol and any precipitation which comes into contact with animals or animal
48 waste.
49 (28) "Qualified professional" means a licensed professional geologist or
50 licensed professional engineer, as appropriate, holding current professional
51 registration in compliance with applicable provisions of the Idaho Code.
52 (29) "Unauthorized discharge" means a release of animal waste to the envi-
53 ronment or waters of the state that is not authorized by the license or the
54 terms of a national pollutant discharge elimination system (NPDES) permit
55 issued by the federal environmental protection agency.
4
1 (30) "Water quality standard" means a standard set for maximum allowable
2 contamination in surface waters and ground water as set forth in the water
3 quality standards for waters for the state of Idaho, IDAPA 16.01.02 and
4 16.01.11.
5 (31) "Waters of the state" means all the accumulations of water, surface
6 and underground, natural and artificial, public and private, or parts thereof
7 which are wholly or partially within, which flow through or border upon the
8 state.
9 39-7904. SITE APPROVAL REQUIRED -- SITE APPROVAL IS SUPPLEMENTAL -- LOCAL
10 OPTION -- LOCAL ACTION REQUIRED FOR DEPARTMENT ACTION. (1) No person may con-
11 struct or expand a large swine facility regulated by this chapter without
12 first obtaining site approval from the director as provided in this chapter.
13 (2) The site approval required by this chapter for construction or expan-
14 sion of a large swine facility is required in addition to requirements of any
15 rules of the department. Further, the site approval required by this chapter
16 must be obtained in addition to any other license, permit or approval required
17 by law or rule.
18 (3) This chapter does not preempt the local regulation of swine facili-
19 ties. This chapter provides boards of county commissioners and governing bod-
20 ies of cities with an optional procedure for siting swine facilities. If
21 boards of county commissioners and governing bodies of cities do not exercise
22 their option to comply with this chapter, they are not subject to its provi-
23 sions and may exercise individual authority to accept, regulate or reject
24 swine facilities independently of this chapter.
25 (4) This chapter applies only if the board of county commissioners or
26 governing body of a city, whichever has jurisdiction over the site for a pro-
27 posed swine facility, chooses to comply with this chapter. If a board of
28 county commissioners or a governing body of a city with jurisdiction chooses
29 not to comply with this chapter, the department is not required to take any
30 action under this chapter.
31 (5) Boards of county commissioners and governing bodies of cities that
32 choose to comply with this chapter shall signify compliance by resolution or
33 ordinance communicated to the director in writing.
34 (6) If a board of county commissioners or a governing body of a city
35 chooses to comply with this chapter, the department does not have to issue a
36 determination or notice of environmental suitability of facility location pur-
37 suant to its rules for swine facilities, IDAPA 16.01.09.
38 39-7905. APPLICATION -- FACILITIES REGULATED. (1) The following swine
39 facilities must obtain site approval under this chapter:
40 (a) New swine facilities having a one-time animal unit capacity of twenty
41 thousand (20,000) or more animal units; and
42 (b) Existing swine facilities that expand their one-time animal unit
43 capacity to twenty thousand (20,000) animal units or more.
44 (2) Two (2) or more swine facilities under common owners, operators or
45 those with whom the owners or operators contract or are located within the
46 same county or within five (5) miles of each other shall be considered, for
47 purposes of licensing, to be a single facility regulated under this chapter,
48 even though separately their capacity is less than twenty thousand (20,000)
49 animal units. In each case, the director shall determine whether one (1) or
50 multiple site approvals are required.
51 (3) (a) Existing swine facilities with a one-time animal unit capacity
52 of twenty thousand (20,000) animal units built and in operation one (1)
53 year or more before the original effective date of this chapter are exempt
5
1 from the requirement to obtain a site approval pursuant to this chapter
2 unless they expand as provided in this section. However, such facilities
3 shall register with the director within three (3) months after the origi-
4 nal effective date of this chapter. The director shall determine the
5 information that must be submitted as part of their registration.
6 (b) Existing swine facilities required in this subsection to register
7 with the director shall submit a nutrient management plan and closure plan
8 to the director for approval within two (2) years of the original effec-
9 tive date of this chapter in accordance with rules of the department. An
10 application fee shall not be required unless the facility is expanding.
11 39-7906. DIRECTOR MAY MAKE RULES AND CONTRACT WITH OTHER AGENCIES. (1)
12 The director may adopt administrative rules he deems necessary or helpful to
13 carry out the purposes of this chapter.
14 (2) The director may enter into contracts, agreements, memorandums and
15 other arrangements with federal, state and local agencies to carry out the
16 purposes of this chapter.
17 39-7907. LOCATION GUIDELINES. This section provides location guidelines
18 for swine facilities regulated by this chapter. Where the location guidelines
19 provide a specific setback distance, that distance is the maximum setback dis-
20 tance that may be imposed. Lesser setback distances may be imposed as circum-
21 stances permit.
22 (1) A swine facility regulated by this chapter shall not:
23 (a) Locate its closest waste facility within two (2) miles of any occu-
24 pied residence not owned or leased by the owner or operator of the swine
25 facility;
26 (b) Land apply liquid animal waste within one (1) mile of the nearest
27 corner of an occupied residence not owned or leased by the owner or opera-
28 tor of the swine facility.
29 (2) The setback distances provided in subsection (1) of this section do
30 not apply if the affected property owner executes a written waiver with the
31 owner or operator of the swine facility, under terms and conditions that the
32 parties may negotiate. The written waiver is effective when recorded in the
33 offices of the recorder of deeds in the county in which the property is
34 located. The recorded waiver shall preclude enforcement of the setback dis-
35 tances contained in subsection (1) of this section. A change in ownership of
36 the applicable property or change in ownership of the swine facility does not
37 affect the validity of the waiver.
38 (3) All distances between occupied residences and swine facilities shall
39 be measured from the closest corner of the walls of the occupied residence to
40 the closest point of the nearest waste structure or waste facility, as defined
41 by the director.
42 (4) No liquid animal waste may be land applied within one hundred (100)
43 feet of an existing public or private drinking water well.
44 (5) The minimum distance from a waste structure or waste facility to a
45 domestic well, public well or public water source shall be one (1) mile.
46 (6) Further, swine facilities shall not be located:
47 (a) In areas designated by the United States fish and wildlife service or
48 the Idaho department of fish and game as critical habitat for endangered
49 or threatened species of plants, fish or wildlife;
50 (b) So as to be at variance with any locally adopted land use plan or
51 zoning requirement unless otherwise provided by local law or ordinance.
52 If no land use plan has been adopted by the local government which would
53 have land use jurisdiction pursuant to chapter 65, title 67, Idaho Code,
6
1 the recommendations of the panel approving a site shall contain an analy-
2 sis of the requirements and guidelines provided in this chapter. The
3 analysis shall be accompanied by findings and conclusions, entered by the
4 local government with jurisdiction after the local government has held a
5 public hearing in accord with section 67-6509, Idaho Code, that the public
6 interest would be served by locating a swine facility on the site for
7 which approval is sought;
8 (c) Within one (1) mile of any local, state or national park, or land
9 reserved or withdrawn for scenic or natural use; and
10 (d) Within two (2) miles of a school, church, hospital or community cen-
11 ter.
12 (7) A swine facility active unit shall not be located:
13 (a) Within a one hundred (100) year flood plain;
14 (b) Within five hundred (500) feet upstream of a perennial stream or
15 river;
16 (c) Within one thousand (1,000) feet of any perennial lake or pond;
17 (d) So as to cause any measurable impact on water quality limited
18 streams;
19 (e) Within a wetland;
20 (f) Within two hundred (200) feet to the property line of adjacent land;
21 (g) Within two hundred (200) feet of a holocene fault or adjacent to geo-
22 logic features which could compromise the structural integrity of a swine
23 facility active unit unless the owner or operator demonstrates to the
24 director that an alternative setback distance of less than two hundred
25 (200) feet will prevent damage to the structural integrity of the swine
26 facility unit and will be protective of human health and the environment.
27 For the purposes of this subsection:
28 (i) "Fault" means a fracture or a zone of fractures in any material
29 along which strata on one (1) side have been displaced with respect
30 to that on the other side;
31 (ii) "Displacement" means the relative movement of any two (2) sides
32 of a fault measured in any direction;
33 (iii) "Holocene" means the most recent epoch of the quaternary
34 period, extending from the end of the pleistocene epoch to the pres-
35 ent.
36 (h) Within seismic impact zones, unless the owner or operator demon-
37 strates to the director that all swine facility active units and surface
38 water control systems, are designed to resist the maximum horizontal
39 acceleration in lithified earth material for the site. The owner or opera-
40 tor must place the demonstration in the operating record and notify the
41 director that it has been placed in the operating record. For the purposes
42 of this section:
43 (i) "Seismic impact zone" means an area with a ten percent (10%) or
44 greater probability that the maximum horizontal acceleration in
45 lithified earth material, expressed as a percentage of the earth's
46 gravitational pull (g), will exceed one-tenth (0.10g) in two hundred
47 fifty (250) years;
48 (ii) "Maximum horizontal acceleration in lithified earth material"
49 means the maximum expected horizontal acceleration depicted on a
50 seismic hazard map, with a ninety percent (90%) or greater probabil-
51 ity that the acceleration will not be exceeded in two hundred fifty
52 (250) years, or the maximum expected horizontal acceleration based
53 on a site-specific seismic risk assessment;
54 (iii) "Lithified earth material" means all rock, including all natu-
55 rally occurring and naturally formed aggregates or masses of minerals
7
1 or small particles of older rock that formed by crystallization of
2 magma or by induration of loose sediments. This term does not include
3 man-made materials, such as fill, concrete and asphalt, or unconsoli-
4 dated earth materials, soil, or regolith lying at or near the earth's
5 surface.
6 (i) On any site whose natural state would be considered unstable in that
7 its undisturbed character would not permit establishment of a swine facil-
8 ity without unduly threatening the integrity of the design due to inherent
9 site instability;
10 (j) Where the integrity of the site would be compromised by the presence
11 of ground water which would interfere with construction or operation of
12 the active unit.
13 39-7908. SITE REVIEW PANELS ESTABLISHED. (1) A site review panel shall be
14 established to ensure public input in the siting process and to recommend to
15 the director site approval, approval with conditions or rejection.
16 (2) A panel shall consist of eight (8) members to be appointed as fol-
17 lows:
18 (a) Three (3) members shall be the administrator of the division of envi-
19 ronmental quality or his designee, the director of the department of water
20 resources or his designee, and the director of the department of agricul-
21 ture or his designee.
22 (b) One (1) member shall be a public member appointed by the governor.
23 The public member shall be an environmental professional, shall serve as
24 chairman of the panel and shall be a voting member. A member who is a pub-
25 lic member shall be appointed to serve on site review panels only until
26 the particular site application subject to their review is approved, or
27 until the application is rejected and is no longer subject to their
28 review.
29 (c) Two (2) members shall be appointed by the city council of the city
30 located closest to, or in which the swine facility is proposed to be
31 located or expanded, provided the governing body of the city has signified
32 compliance with this chapter as provided in section 39-7903, Idaho Code.
33 At least one (1) shall be a resident of the city. However, if two (2) cit-
34 ies are equidistant from the proposed or expanding swine facility, plus or
35 minus five (5) miles, the city council of each city shall appoint one (1)
36 member each to the site review panel, each of whom shall be a resident of
37 the city appointing them. The members serving pursuant to this subsection
38 shall serve until the particular site application subject to their review
39 is approved or it is rejected and is no longer subject to their review.
40 (d) Two (2) members shall be appointed by the county commission and be
41 residents of the county where the swine facility is proposed to be located
42 or expanded, provided the board of county commissioners has signified com-
43 pliance with this chapter as provided in section 39-7903, Idaho Code. The
44 members serving pursuant to this subsection shall serve until the particu-
45 lar site application subject to their review is approved, or until the
46 application is rejected and is no longer subject to their review.
47 (e) A person nominated to represent a city or county shall not have a
48 conflict of interest, as that term is defined in section 59-703, Idaho
49 Code, or derive any economic gain as that term is defined in section
50 59-703, Idaho Code, from the location of the proposed or expanding swine
51 facility.
52 (3) The director shall notify the city council of the nearest city, or
53 cities if two (2) cities are within five (5) miles of the site of the proposed
54 facility, and the board of county commissioners in which the site is located,
8
1 of a site application filed with the department and shall instruct the city or
2 cities and county to appoint the necessary members to a panel.
3 (4) A majority of members of the panel shall constitute a quorum for the
4 transaction of business of the panel and the concurrence of a majority of the
5 panel shall constitute a legal action of the panel, provided that no meeting
6 of the panel shall occur unless there are at least as many members present
7 representing the city and county as there are representing the state and the
8 public as appointed pursuant to subsections (2)(a) and (b) of this section.
9 All meetings of the panel shall be conducted pursuant to the state open meet-
10 ing law.
11 (5) The director shall make staff available to assist the panel in carry-
12 ing out its responsibilities.
13 (6) Members of the panel who are not state employees shall be entitled to
14 receive compensation as provided in section 59-509(b), Idaho Code.
15 39-7909. SITING APPLICATION -- FEE -- RULES. (1) A site application shall
16 include, in a format set forth by the director and when determined applicable
17 by the director, the following information:
18 (a) Name, mailing address and phone number of the facility owner;
19 (b) Name, mailing address and phone number of the facility operator;
20 (c) Name and mailing address of the facility;
21 (d) Legal description of the facility location;
22 (e) The legal structure of the entity owning the facility, including the
23 names and addresses of all directors, officers, registered agents and
24 partners;
25 (f) The names and locations of all swine facilities owned and/or operated
26 by the applicant within the last ten (10) years;
27 (g) The one-time animal unit capacity of the facility;
28 (h) The type of animals to be confined at the facility;
29 (i) Evidence that a valid water right exists to supply adequate water for
30 the proposed facility or a copy of either an application for a permit to
31 appropriate water or an application to change the point of diversion,
32 place, period and nature of use of an existing water right that has been
33 filed with the Idaho department of water resources which, if approved,
34 will supply adequate water for the proposed operation;
35 (j) The facility's biosecurity and sanitary standards.
36 (2) A facility plan. Plans and specifications for the facility's animal
37 waste management system that include the following information:
38 (a) Vicinity map(s) prepared on one (1) or more seven and one-half minute
39 (7.5') USGS topographic quadrangle maps or a high quality reproduction(s)
40 that includes the following:
41 (i) Layout of the facility, including buildings and animal waste
42 management system;
43 (ii) The one hundred (100) year FEMA flood zones or other appropri-
44 ate flood data for the facility site and land application sites owned
45 or leased by the applicant;
46 (iii) The location of occupied dwellings, public and private gather-
47 ing places, such as schools, churches and parks, and incorporated
48 municipalities which are within a two (2) mile radius of the facil-
49 ity; and
50 (iv) Private and community domestic water wells, irrigation wells,
51 irrigation conveyance and drainage structures, monitoring wells, wet-
52 lands, streams, springs, and reservoirs which are within a one (1)
53 mile radius of the facility.
54 (b) Facility specifications including:
9
1 (i) A site plan showing:
2 1. Building locations;
3 2. Waste facilities;
4 3. All waste conveyance systems; and
5 4. All irrigation systems used for land application, including
6 details of approved water supply protection devices.
7 (ii) Building plans showing:
8 1. All wastewater collection systems in housed units;
9 2. All freshwater supply systems, including details of approved
10 water supply protection devices;
11 3. Detailed drawings of wastewater collection and conveyance
12 systems and containment construction; and
13 4. Detailed construction and installation procedures.
14 (3) Site characterization. A characterization of the facility and any
15 land application site(s) owned or operated by the applicant, prepared by a
16 registered professional geologist, a registered professional engineer or a
17 qualified ground water hydrologist, that includes the following information:
18 (a) A description of monitoring methods, frequency and reporting compo-
19 nents related to either leak detection systems and/or ground water moni-
20 toring wells;
21 (b) The climatic, hydrogeologic and soil characteristics;
22 (c) The depth to water and a potentiometric map for the uppermost and
23 regional aquifer;
24 (d) The vertical and horizontal conductivity, gradient and ground water
25 flow direction and velocity;
26 (e) Estimates of recharge to the uppermost aquifer;
27 (f) Information which characterizes the relationship between the ground
28 water and adjacent surface waters; and
29 (g) A summary of local ground water quality data.
30 (4) A nutrient management plan. A plan prepared by a certified planner
31 demonstrating compliance with the nutrient management standard for land appli-
32 cation.
33 (5) A plan for meeting standards for heavy metals as those provided in 40
34 CFR section 503, subchapter O.
35 (6) A plan for disposal of dead animal carcasses.
36 (7) An air quality management plan.
37 (8) A closure plan. A plan describing the procedures for final closure of
38 a facility that ensures no adverse impacts to the environment and waters of
39 the state and that includes:
40 (a) The estimated length of operation of the facility;
41 (b) A description of the procedures, methods and schedule to be imple-
42 mented at the facility for final disposal, handling, management and/or
43 treatment of all animal waste;
44 (c) A plan for permanent disposal of residual solid waste.
45 (9) Other information. An applicant shall provide any other information
46 relative to this section and deemed necessary by the director to assess pro-
47 tection of human health and the environment, including information showing
48 that:
49 (a) The harm to scenic, public health, environmental, private property,
50 historic, cultural or recreational values is not substantial or can be
51 mitigated;
52 (b) The risk and impact of accident during transportation of animal waste
53 or animal carcasses is not substantial or can be mitigated. Dead animals
54 shall be removed from the facility for rendering, cremation, burial,
55 composting or other disposal in accordance with IDAPA 02.04.03, "Rules of
10
1 Department of Agriculture Governing Animal Industry," section 050, "Dead
2 Animals, Movement, Disposal";
3 (c) The impact on local government is not adverse regarding health,
4 safety, cost and consistency with local planning and existing development
5 or can be mitigated;
6 (d) The facility or operations associated with the facility do not create
7 a public health hazard or nuisance conditions including odors;
8 (e) The applicant has the financial ability to construct, operate and
9 close the facility.
10 (10) Within thirty (30) days after receipt of the application, the direc-
11 tor shall determine whether it is complete. If it is not complete, the direc-
12 tor shall notify the applicant and state the areas of deficiency.
13 (11) The application shall be accompanied by a fee. The director shall
14 establish by rule the scale for determining the application fee. The fee shall
15 be based on the cost to the site review panel of reviewing the application.
16 The scale shall be based on characteristics including the site size, projected
17 waste volume, and hydrogeological and atmospheric characteristics surrounding
18 the site. Fees received pursuant to this section may be expended by the direc-
19 tor to pay the actual, reasonable and necessary costs incurred by the depart-
20 ment in acting upon an application.
21 39-7910. DUTIES OF THE DIRECTOR RELATIVE TO APPLICATIONS. (1) Upon deter-
22 mination that a siting application is complete, the director shall:
23 (a) Notify the permanent panel members, the city and/or county in which
24 the swine facility site is located, the director of the department of fish
25 and game, the director of the department of law enforcement, and other
26 state agencies as deemed appropriate by the director.
27 (b) Publish a notice that the application has been received, as provided
28 in section 60-109, Idaho Code, in a newspaper having major circulation in
29 the county and the immediate vicinity of the site. The notice shall con-
30 tain a map indicating the location of the site, a description of the pro-
31 posed action and the location where the application may be reviewed. The
32 notice shall describe the procedure by which the siting approval under
33 this chapter may be granted.
34 (2) Upon notification by the director, the chairman shall immediately
35 notify the representatives of the state to the panel and the public members.
36 The chairman shall also notify the applicable county and city for their
37 appointment of members as provided in subsection (2) of section 39-7908, Idaho
38 Code. Within thirty (30) days after the notification, the board of commission-
39 ers of the county and the city council shall select the members to serve on
40 the panel. The panel shall be created at that time and notification of the
41 creation of the panel shall be made to the chairman.
42 (3) Within thirty (30) days after appointment of panel members, the panel
43 shall meet to review and establish a timetable for the consideration of the
44 draft site approval.
45 (4) The panel shall:
46 (a) Set a date and arrange for publication of notice of a public hearing
47 in a newspaper having major circulation in the vicinity of the proposed
48 site, at its first meeting. The public notice shall:
49 (i) Contain a map indicating the location of the site and proposed
50 facility, a description of the proposed action, and the location
51 where the application for a siting approval may be reviewed and where
52 copies may be obtained;
53 (ii) Identify the time, place and location for the public hearing
54 held to receive public comment and input on the application for a
11
1 siting approval;
2 (b) Publish the notice not less than thirty (30) days before the date of
3 the public hearing and the notice shall be, at a minimum, a twenty (20)
4 days' notice as provided in section 60-109, Idaho Code.
5 (5) Comment and input on the proposed siting of the swine facility may be
6 presented orally or in writing at the public hearing, and shall continue to be
7 accepted in writing by the panel for thirty (30) days after the public hearing
8 date. The public hearing shall be held in the same county as the proposed
9 site. If the proposed site is adjacent to a city or populated area in a neigh-
10 boring county, it is recommended that public hearings also be held in the
11 neighboring county.
12 (6) The panel shall consider, but not be limited to, the following:
13 (a) The risk of the spread of disease or impact upon public health from
14 improper treatment, storage or incineration methods;
15 (b) The impact on local units of government where the proposed swine
16 facility is to be located in terms of health, safety, cost and consistency
17 with local planning and existing development;
18 (c) The nature of the probable environmental and public health impact;
19 (d) The financial capability of the applicant to construct, operate and
20 close the swine facility.
21 (e) Impact on adjacent property values.
22 (7) The panel shall consider the concerns and objections submitted by the
23 public. The panel shall facilitate efforts to provide that the concerns and
24 objections are mitigated by proposing additional conditions regarding the con-
25 struction of the swine facility. The panel may propose conditions which inte-
26 grate the provisions of the city or county ordinances, permits or require-
27 ments.
28 (8) Within one hundred eighty (180) days after creation, the panel shall
29 issue an approval letter, approval letter with conditions, or rejection. If
30 the panel recommends conditions, a clear statement of the need for a condition
31 must be submitted to the director. If the panel recommends rejection, a clear
32 statement of the reasons for the rejection must be submitted to the director.
33 (9) The director shall not issue a permit to operate under IDAPA
34 16.01.09, unless a site has been approved by the site review panel. Approval
35 of a site by the panel does not require the director to issue a permit to
36 operate under IDAPA 16.01.09.
37 39-7911. FINANCIAL ASSURANCE FOR CLOSURE AND REMEDIATION. (1) All swine
38 facilities regulated by section 39-104A, Idaho Code, and this chapter shall
39 provide financial assurances demonstrating financial capability to meet
40 requirements for closure of the facilities and remediation. Requirements for
41 financial assurances shall be determined by the agency as set forth in rule.
42 Financial assurances may include any mechanism or combination of mechanisms
43 meeting the requirements established by agency rule including, but not limited
44 to, surety bonds, trust funds, irrevocable letters of credit, insurance and
45 corporate guarantees. The mechanism(s) used to demonstrate financial capabil-
46 ity must be legally valid, binding and enforceable under applicable law and
47 must ensure that the funds necessary to meet the costs of closure and
48 remediation will be available whenever the funds are needed. The director may
49 retain financial assurances for up to five (5) years after closure of a facil-
50 ity to ensure proper closure and remediation, as defined by rule.
51 (2) Nothing in this section prohibits the boards of county commissioners
52 of any county or the governing body of any city from adopting regulations that
53 are more stringent or that require greater financial assurances than those
54 imposed by the division of environmental quality.
12
1 39-7912. DIRECTOR MAY REQUEST ADDITIONAL INFORMATION. The applicant shall
2 provide the director with additional information the director deems necessary
3 to process an application, within thirty (30) days of the director's request.
4 The time period within which the director must act with regard to an applica-
5 tion shall be stayed until the information requested is provided. If an appli-
6 cant fails to provide the information within this time period, unless a longer
7 time period is allowed by the director, the director may stop the application
8 process and require the applicant to submit a new application.
9 39-7913. VIOLATIONS AND ENFORCEMENT. (1) The following acts are unlawful:
10 (a) Failure to comply with this chapter and any rules of the department
11 regulating swine facilities, and conditions of site approval granted pur-
12 suant to this chapter;
13 (b) Knowingly making a false statement, representation, or certification
14 in any application report, document, or record developed, maintained, or
15 submitted pursuant to this chapter, rules or conditions of a site
16 approval.
17 (2) Any person violating this chapter or any site approval or order under
18 this chapter is liable for a civil or criminal penalty in accordance with
19 chapter 1, title 39, Idaho Code. The director may apply the provisions of
20 chapter 1, title 39, Idaho Code, to ensure compliance.
21 (3) The director may revoke a site approval:
22 (a) For material violation of any condition of a site approval, final
23 agency order or order or judgment of a court secured by any state or fed-
24 eral agency and relating to the operation of a swine facility;
25 (b) If an approval was obtained by misrepresentation or failure to dis-
26 close all relevant facts;
27 (c) If approval for adequate water rights cannot be obtained from the
28 Idaho department of water resources;
29 (d) The site or facility does not meet the requirements of this chapter.
30 (4) A private right of action on behalf of any person who has been
31 injured or damaged by any approval authorized in this chapter or violation of
32 the terms of any approval or rule authorized in this chapter may be maintained
33 in accordance with the provisions of this chapter and/or the provisions of
34 chapter 52, title 67, Idaho Code, as applicable.
35 39-7914. CONFIDENTIALITY OF RECORDS. Information obtained by a public
36 agency pursuant to this chapter or its associated rules is subject to public
37 disclosure pursuant to the provisions of chapter 3, title 9, Idaho Code.
38 Information submitted under a trade secret claim may be entitled to confiden-
39 tial treatment as provided in section 9-342A, Idaho Code, and IDAPA 16.01.21,
40 "Rules Governing the Protection and Disclosure of Records in the Possession of
41 the Idaho Division of Environmental Quality."
42 39-7915. SEVERABILITY CLAUSE. If any provision of this chapter or its
43 application to any person or circumstance is held invalid, the invalidity does
44 not affect other provisions or applications of this chapter which can be given
45 effect without the invalid provision or application, and to this end the pro-
46 visions of this chapter are severable.
47 39-7916. CONFLICTS CLAUSE. If a conflict arises between this chapter and
48 rules of the department regulating swine facilities, the most restrictive pro-
49 vision shall apply.
50 SECTION 2. An emergency existing therefor, which emergency is hereby
13
1 declared to exist, this act shall be in full force and effect on and after its
2 passage and approval.
3 SECTION 3. If the Division of Environmental Quality is by law designated
4 an individual department of the state of Idaho: the rights and duties provided
5 in this act to the Department of Health and Welfare and the Division of Envi-
6 ronmental Quality shall be transferred to the Department of Environmental
7 Quality; references to "director" shall mean the director of the Department of
8 Environmental Quality; references to "department" shall mean the Department of
9 Environmental Quality; references to "division" or "Division of Environmental
10 Quality" shall mean the Department of Environmental Quality; and references to
11 the "Department of Health and Welfare" shall mean the Department of Environ-
12 mental Quality.
AS1478
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
Moved by Darrington
Seconded by King-Barrutia
IN THE SENATE
SENATE AMENDMENT TO S.B. NO. 1478
1 AMENDMENTS TO SECTION 1
2 On page 3 of the printed bill, in line 50, delete "nonpoint source" and
3 insert: "national pollutant"; in line 54, following "IDAPA 16.01.02" insert:
4 "and 16.01.11".
5 On page 5, in line 25, delete ";" and insert: "."; and delete lines 26, 27
6 and 28.
7 On page 11, in line 26, delete "commercial solid waste" and insert:
8 "swine".
Moved by Kempton
Seconded by
IN THE HOUSE OF REPRESENTATIVES
HOUSE AMENDMENT TO S.B. NO. 1478, As Amended
9 AMENDMENTS TO SECTION 1
10 On page 2 of the engrossed bill, following line 16, insert:
11 "(3) It is the intent of the legislature that this chapter will be
12 applied only to swine facilities with a capacity of twenty thousand (20,000)
13 animal units or more and that this chapter will not be applied to any other
14 confined animal feeding operations.".
15 On page 4, in line 20, delete ", and may impose more and", delete lines 21
16 and 22 and insert: ".".
17 On page 5, in line 47, delete ", or designated as criti-", delete line 48
18 and insert: ";".
19 On page 7, in line 29, following "which" delete ","; and in line 52, fol-
20 lowing "cities" delete ",".
STATEMENT OF PURPOSE
RS 10092
This proposal is a "siting act" for proposed industrial hog farms exceeding 20,000 animal
units. The proposal is optional for counties that may opt in the provisions of this chapter
or regulate the siting of facilities independently of this chapter. This act does not conflict
with applicable environmental rules by agencies of state government.
The "siting act" calls for a panel consisting of members appointed by the county
commissioners, city council, three state agencies, and a chair appointed by the governor.
The act provides procedures by which the siting panel shall hold hearings and
recommend to the Director of the Department of Health and Welfare that a site permit be
issued or denied.
This proposal includes provisions for a fee, rule making, discretionary setback
requirements, and provisions for closure and remediation.
FISCAL IMPACT
None to the state general fund or counties. Cost of the siting panel is covered by the
siting fee.
CONTACT:
Senator Denton Darrington
Phone 332-1317
Representative Jim Kempton
Phone 332-1250
Speaker Bruce Newcomb
Phone 332-1234
STATEMENT OF PURPOSE/FISCAL IMPACT S 1479