2000 Legislation
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SENATE BILL NO. 1478, As Amended, As Amended in the House – Local Option Swine Facility Siting

SENATE BILL NO. 1478, As Amended, As Amended in the House

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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
      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

Bill Text

  ||||              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
 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
 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
  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,
  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.
  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.
 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
  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.
 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,
  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
  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,
  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:
  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
  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
  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.
 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.
  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
  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.


  ||||              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 / Fiscal Impact

                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. 
     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