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S1400.................................................by HEALTH AND WELFARE
SWINE - Adds to existing law to enact the "Swine Facilities Act"; to
provide legislative intent; to provide for permits; to provide for local
option participation; to provide for regulated facilities; to provide a
site certification procedure and site review panels; to provide a siting
permit application and fees; to provide for duties of the director of the
Department of Health and Welfare; to provide standards for design,
operation and closure; to provide requirements for water quality
protection; to provide financial assurance for closure and corrective
action; to provide for permit conditions, modifications and transfers; to
provide for violations and enforcement; and to provide for confidentiality
of records.
02/11 Senate intro - 1st rdg - to printing
02/14 Rpt prt - to Health/Wel
S1400
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
IN THE SENATE
SENATE BILL NO. 1400
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 PROVIDE THE SWINE FACILITIES
4 ACT, TO PROVIDE A SHORT TITLE, TO PROVIDE LEGISLATIVE FINDINGS AND PUR-
5 POSES, TO PROVIDE THAT PERMIT IS REQUIRED AND IS SUPPLEMENTAL AND TO PRO-
6 VIDE THAT PARTICIPATION IS A LOCAL OPTION, TO PROVIDE REGULATED FACILI-
7 TIES, TO PROVIDE THAT THE DIRECTOR MAY MAKE RULES AND CONTRACT WITH OTHER
8 AGENCIES, TO PROVIDE DEFINITIONS, TO PROVIDE LOCATION GUIDELINES AND SITE
9 CERTIFICATION, TO PROVIDE A SITE CERTIFICATION PROCEDURE, TO PROVIDE SITE
10 REVIEW PANELS, TO PROVIDE A SITING PERMIT APPLICATION AND FEES, TO PROVIDE
11 DUTIES OF THE DIRECTOR RELATIVE TO APPLICATIONS, TO PROVIDE STANDARDS FOR
12 DESIGN, OPERATION AND CLOSURE, TO PROVIDE REQUIREMENTS FOR WATER QUALITY
13 PROTECTION, TO PROVIDE FINANCIAL ASSURANCE FOR CLOSURE AND REMEDIATION, TO
14 PROVIDE THAT A PERMIT IS VOIDABLE IF CONSTRUCTION IS NOT BEGUN IN TWO
15 YEARS, TO PROVIDE SITE SPECIFIC PERMIT CONDITIONS, TO PROVIDE PERMIT MODI-
16 FICATION AND MODIFICATION TO SITES, TO PROVIDE FOR TRANSFER OF PERMITS, TO
17 PROVIDE THAT THE DIRECTOR MAY REQUEST ADDITIONAL INFORMATION, TO PROVIDE
18 FOR VIOLATIONS AND ENFORCEMENT, TO PROVIDE FOR CONFIDENTIALITY OF RECORDS,
19 TO PROVIDE SEVERABILITY AND TO PROVIDE FOR CONFLICTS; AND DECLARING AN
20 EMERGENCY.
21 Be It Enacted by the Legislature of the State of Idaho:
22 SECTION 1. That Title 39, Idaho Code, be, and the same is hereby amended
23 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap-
24 ter 79, Title 39, Idaho Code, and to read as follows:
25 CHAPTER 79
26 SWINE FACILITIES ACT
27 39-7901. SHORT TITLE. This act shall be known as the "Swine Facilities
28 Act."
29 39-7902. LEGISLATIVE FINDINGS AND PURPOSES. (1) The legislature finds
30 that:
31 (a) The swine industry is experiencing rapid changes such as increased
32 sophistication of production technology, increased demand for capital to
33 maintain or expand operations, consolidation of production and packing
34 facilities and changing consumer demands and markets;
35 (b) Large swine facilities increase social and environmental impacts in
36 the areas where these facilities are located;
37 (c) Adverse public health and environmental impacts can result from the
38 improper siting of large swine facilities, therefore the need for estab-
39 lishing safe sites with an adequate supply of natural resources, such as
40 water, and an adequate capacity for the disposal of animal waste is a mat-
41 ter of statewide concern;
2
1 (d) Section 39-104A, Idaho Code, vests the department of health and wel-
2 fare with the responsibility to make rules regulating swine operations;
3 and section 39-105, Idaho Code, vests the department of health and welfare
4 with the responsibility for the general supervision of the promotion and
5 protection of the life, health and environment of the people of the state,
6 including regulation of air quality, water quality and disposal of solid
7 waste.
8 (2)(a) To facilitate swine siting decisions by boards of county commis-
9 sioners and governing bodies of cities, this chapter establishes a review
10 process within the department of health and welfare for construction or
11 expansion of large swine facilities of a certain size, and to require a
12 permit for siting, construction, expansion, operation and closure.
13 (b) The procedures and requirements established in this chapter are neces-
14 sary to facilitate the proper siting of large swine facilities, to effect
15 timely and responsible completion of statutory duties and to ensure pro-
16 tection of human health, natural resources, private property values and
17 the environment of the state.
18 (c) The permit required in this chapter is required in addition to any
19 other license, permit or approval required by law or rule.
20 39-7903. PERMIT REQUIRED -- PERMIT IS SUPPLEMENTAL -- LOCAL OPTION. (1)
21 No person may construct or expand a large swine facility regulated by this
22 chapter without first obtaining a permit to do so from the director as pro-
23 vided in this chapter.
24 (2) The permit required by this chapter for construction or expansion of
25 a large swine facility is required in addition to requirements of any rules of
26 the department of health and welfare. Further, the permit required by this
27 chapter must be obtained in addition to any other license, permit or approval
28 required by law or rule.
29 (3) This chapter provides boards of county commissioners and governing
30 bodies of cities with an optional procedure for siting swine facilities. If
31 boards of county commissioners and governing bodies of cities do not exercise
32 their option to comply with this chapter, they are not subject to its provi-
33 sions and therefore may exercise individual authority to accept, reject and
34 regulate swine facilities independently of this chapter.
35 (4) Boards of county commissioners and governing bodies of cities that
36 choose to comply with this chapter shall signify compliance by resolution or
37 ordinance communicated to the director in writing.
38 (5) This chapter does not preempt the local regulation of swine facili-
39 ties. Local governments retain authority to accept, reject and regulate swine
40 facilities and may impose more and stricter requirements for siting swine
41 facilities than are imposed in this chapter.
42 39-7904. FACILITIES REGULATED. (1) The following swine facilities must
43 have a permit under this chapter:
44 (a) New swine facilities having a one-time animal unit capacity of twenty
45 thousand (20,000) or more animal units; and
46 (b) Existing swine facilities that expand their one-time animal unit
47 capacity to twenty thousand (20,000) animal units or more.
48 (2) Two (2) or more swine facilities under common owners, operators or
49 those with whom the owners or operators contract or are located within the
50 same county or within five (5) miles of each other shall be considered, for
51 purposes of permitting, to be a single facility regulated under this chapter,
52 even though separately their capacity is less than twenty thousand (20,000)
53 animal units. In each case, the director shall determine whether one (1) or
3
1 multiple permits are required.
2 (3) (a) Existing swine facilities with a one-time animal unit capacity of
3 twenty thousand (20,000) animal units built and in operation one (1) year
4 or more before the original effective date of this chapter are exempt from
5 the requirement to obtain a permit pursuant to this chapter unless they
6 expand as provided in this section. However, such facilities shall regis-
7 ter with the director within three (3) months after the original effective
8 date of this chapter. The director shall determine the information that
9 must be submitted as part of their registration.
10 (b) Existing swine facilities required in this subsection to register
11 with the director shall submit a nutrient management plan and closure plan
12 to the director for approval within two (2) years of the original effec-
13 tive date of this chapter in accordance with rules of the department. An
14 application fee shall not be required unless the facility is expanding.
15 39-7905. DIRECTOR MAY MAKE RULES AND CONTRACT WITH OTHER AGENCIES. (1)
16 The director of the department of health and welfare may adopt administrative
17 rules he deems necessary or helpful to carry out the purposes of this chapter.
18 (2) The director may enter into contracts, agreements, memorandums and
19 other arrangements with federal, state and local agencies to carry out the
20 purposes of this chapter.
21 39-7906. 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" means two and one-half (2 1/2) swine, each weighing
25 over twenty-five (25) kilograms (approximately fifty-five (55) pounds), or ten
26 (10) weaned swine, each weighing under twenty-five (25) kilograms. Total ani-
27 mal units are calculated by adding the number of swine weighing over twenty-
28 five (25) kilograms (approximately 55 pounds) multiplied by four-tenths (.4),
29 plus the number of weaned swine weighing under twenty-five (25) kilograms mul-
30 tiplied 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
4
1 not limited to, all buildings, lots, pens, animal waste management systems,
2 structures, and other appurtenances and improvements on the land.
3 (14) "Ground water" means water below the land surface in a zone of satu-
4 ration.
5 (15) "Health district" or "district" means one (1) of the seven (7) dis-
6 trict health departments of the state of Idaho.
7 (16) "Holocene fault" means a fault characterized as a fracture or a zone
8 of fractures in any material along which strata on one (1) side have been dis-
9 placed with respect to that on the other side and holocene being the most
10 recent epoch of the quaternary period, extending from the end of the
11 pleistocene epoch to the present.
12 (17) "Land application" means the spreading on or incorporation of animal
13 waste into the soil mantle primarily for beneficial purposes.
14 (18) "Permit" means a written authorization by the director to construct
15 or expand a swine facility pursuant to section 39-7903(2) and (3), Idaho Code.
16 (19) "Permittee" means the person in whose name a permit is issued.
17 (20) "Natural resources conservation service" or "NRCS" means the United
18 States department of agriculture, natural resources conservation service.
19 (21) "Nutrient management plan" means a plan prepared in compliance with
20 the nutrient management standard of the United States department of agricul-
21 ture, natural resource conservation service code 590; the Idaho agricultural
22 pollution abatement plan, nutrient management standard component practice; or
23 other equally protective standard approved by the director for managing the
24 amount, source, placement, form, and timing of the land application of nutri-
25 ents and soil amendments for plant production and to minimize the potential
26 for environmental degradation, particularly impairment of water quality.
27 (22) "Nutrient management standard" means the standard of the United
28 States department of agriculture, natural resource conservation service code
29 590 or the Idaho agricultural pollution abatement plan, nutrient management
30 standard component practice.
31 (23) "One-time animal unit capacity" means the maximum number of animal
32 units that a facility is capable of housing at any given point in time.
33 (24) "Operate" means to confine, feed, propagate, house or otherwise sus-
34 tain swine.
35 (25) "Operator" means the person(s) responsible for the overall operation
36 of a facility or part of a facility.
37 (26) "Owner" means the person(s) who owns a facility or part of a facil-
38 ity.
39 (27) "Permit" means a written authorization by the director to construct,
40 operate or expand a swine facility.
41 (28) "Person" means an individual, association, firm, partnership, politi-
42 cal subdivision, public or private corporation, state or federal agency,
43 municipality, industry or any other legal entity whatsoever, and includes
44 owners and operators.
45 (29) "Plan of operation" or "operating plan" means the written plan devel-
46 oped by an owner or operator of a swine facility unit detailing how the facil-
47 ity is to be operated during its active life, during closure, and throughout
48 the postclosure period.
49 (30) "Process wastewater" means any water used in the facility that comes
50 into contact with any manure, litter, bedding, raw, intermediate, or final
51 material or product used in or resulting from the production of swine or poul-
52 try and any products directly or indirectly used in the operation of a facil-
53 ity, such as spillage or overflow from animal watering systems; washing,
54 cleaning, or flushing pens, barns, manure pits, or spray cooling of animals;
55 and dust control and any precipitation which comes into contact with animals
5
1 or animal waste.
2 (31) "Qualified professional" means a licensed professional geologist or
3 licensed professional engineer, as appropriate, holding current professional
4 registration in compliance with applicable provisions of the Idaho Code.
5 (32) "Unauthorized discharge" means a release of animal waste to the envi-
6 ronment or waters of the state that is not authorized by the permit or the
7 terms of a nonpoint source discharge elimination system (NPDES) permit issued
8 by the federal environmental protection agency.
9 (33) "Water quality standard" means a standard set for maximum allowable
10 contamination in surface waters and ground water as set forth in the water
11 quality standards for waters for the state of Idaho (IDAPA 16.01.02).
12 (34) "Waters of the state" means all the accumulations of water, surface
13 and underground, natural and artificial, public and private, or parts thereof
14 which are wholly or partially within, which flow through or border upon the
15 state.
16 Undefined terms shall be given their usual and ordinary meaning within the
17 context of the provisions of this chapter.
18 39-7907. LOCATION GUIDELINES -- SITE CERTIFICATION. This section provides
19 location guidelines for swine facilities regulated by this chapter. Where the
20 location guidelines provide a specific setback distance, that distance is the
21 maximum setback distance that may be imposed. Lesser setback distances may be
22 imposed as circumstances permit.
23 (1) A swine facility regulated by this chapter shall not:
24 (a) Locate its closest waste facility within two (2) miles of any occu-
25 pied residence not owned or leased by the owner or operator of the swine
26 facility;
27 (b) Land apply liquid animal waste within one (1) mile of the nearest
28 corner of an occupied residence not owned or leased by the owner or opera-
29 tor of the swine facility;
30 (c) Be located within five (5) miles of ten (10) or more residences which
31 are occupied at the time a new swine facility is built or an existing
32 swine facility is expanded as provided in this chapter.
33 (2) The setback distances provided in subsection (1) of this section do
34 not apply if the affected property owner executes a written waiver with the
35 owner or operator of the swine facility, under terms and conditions that the
36 parties may negotiate. The written waiver is effective when recorded in the
37 offices of the recorder of deeds in the county in which the property is
38 located. The recorded waiver shall preclude enforcement of the setback dis-
39 tances contained in subsection (1) of this section. A change in ownership of
40 the applicable property or change in ownership of the swine facility does not
41 affect the validity of the waiver.
42 (3) All distances between occupied residences and swine facilities shall
43 be measured from the closest corner of the walls of the occupied residence to
44 the closest point of the nearest waste structure or waste facility, as defined
45 by the director.
46 (4) No liquid animal waste may be land applied within one hundred (100)
47 feet of an existing public or private drinking water well.
48 (5) The minimum distance from a waste structure or waste facility to a
49 domestic well, public well or public water source shall be one (1) mile.
50 (6) Further, swine facilities shall not be located:
51 (a) In areas designated by the United States fish and wildlife service or
52 the Idaho department of fish and game as critical habitat for endangered
53 or threatened species of plants, fish or wildlife, or designated as criti-
54 cal migratory routes for protectively managed species;
6
1 (b) So as to be at variance with any locally adopted land use plan or
2 zoning requirement unless otherwise provided by local law or ordinance,
3 provided that if no land use plan has been adopted by the local government
4 which would have land use jurisdiction pursuant to chapter 65, title 67,
5 Idaho Code, the site certification shall contain an analysis of the fac-
6 tors outlined in section 67-6508, Idaho Code, accompanied by findings and
7 conclusions, setting forth the reasons therefore, entered by the local
8 government with jurisdiction after a public hearing in accord with provi-
9 sions of section 67-6509, Idaho Code, that the public interest would be
10 served by locating a swine facility on the site for which certification is
11 sought; and
12 (c) Within one (1) mile of any local, state or national park, or land
13 reserved or withdrawn for scenic or natural use;
14 (d) Within two (2) miles of a school, church, hospital or community cen-
15 ter;
16 (7) A swine facility active unit shall not be located:
17 (a) Within a one hundred (100) year flood plain;
18 (b) Within five hundred (500) feet upstream of a perennial stream or
19 river;
20 (c) Within one thousand (1,000) feet of any perennial lake or pond;
21 (d) So as to cause any measurable impact on water quality limited
22 streams;
23 (e) Within a wetland;
24 (f) Within two hundred (200) feet to the property line of adjacent land;
25 (g) Within two hundred (200) feet of a holocene fault or adjacent to geo-
26 logic features which could compromise the structural integrity of a swine
27 facility active unit unless the owner or operator demonstrates to the
28 director that an alternative setback distance of less than two hundred
29 (200) feet will prevent damage to the structural integrity of the swine
30 facility unit and will be protective of human health and the environment.
31 For the purposes of this subsection:
32 (i) "Fault" means a fracture or a zone of fractures in any material
33 along which strata on one (1) side have been displaced with respect
34 to that on the other side;
35 (ii) "Displacement" means the relative movement of any two (2) sides
36 of a fault measured in any direction;
37 (iii) "Holocene" means the most recent epoch of the quaternary
38 period, extending from the end of the pleistocene epoch to the pres-
39 ent.
40 (h) Within seismic impact zones, unless the owner or operator demon-
41 strates to the director that all swine facility active units and surface
42 water control systems, are designed to resist the maximum horizontal
43 acceleration in lithified earth material for the site. The owner or opera-
44 tor must place the demonstration in the operating record and notify the
45 director that it has been placed in the operating record. For the pur-
46 poses of this section:
47 (i) "Seismic impact zone" means an area with a ten percent (10%) or
48 greater probability that the maximum horizontal acceleration in
49 lithified earth material, expressed as a percentage of the earth's
50 gravitational pull (g), will exceed one tenth (0.10g) in two hundred
51 fifty (250) years;
52 (ii) "Maximum horizontal acceleration in lithified earth material"
53 means the maximum expected horizontal acceleration depicted on a
54 seismic hazard map, with a ninety percent (90%) or greater probabil-
55 ity that the acceleration will not be exceeded in two hundred fifty
7
1 (250) years, or the maximum expected horizontal acceleration based
2 on a site-specific seismic risk assessment;
3 (iii) "Lithified earth material" means all rock, including all natu-
4 rally occurring and naturally formed aggregates or masses of minerals
5 or small particles of older rock that formed by crystallization of
6 magma or by induration of loose sediments. This term does not include
7 man-made materials, such as fill, concrete and asphalt, or unconsoli-
8 dated earth materials, soil, or regolith lying at or near the earth's
9 surface; and
10 (i) On any site whose natural state would be considered unstable in that
11 its undisturbed character would not permit establishment of a swine facil-
12 ity without unduly threatening the integrity of the design due to inherent
13 site instability;
14 (j) Where the integrity of the site would be compromised by the presence
15 of ground water which would interfere with construction or operation of
16 the active unit.
17 39-7908. SITE CERTIFICATION PROCEDURE. (1) Each applicant shall obtain
18 site certification from the director. The site certification process is hereby
19 established to ascertain compliance with the location restrictions of section
20 39-7907, Idaho Code, and other requirements adopted by the director.
21 (2) The site certification procedure shall be administered in the follow-
22 ing manner:
23 (a) Before submitting the application, the applicant may conduct a site
24 tour for the director, health district, and the county and all other pub-
25 lic agencies with jurisdiction, to familiarize the agencies with charac-
26 teristics of the site and site surroundings.
27 (b) The applicant may then submit an application to the director. The
28 application shall address each of the location restrictions set forth in
29 section 39-7907, Idaho Code, and other requirements adopted by the direc-
30 tor, explaining the technical findings regarding each, and any other
31 information required by this chapter or the director.
32 (c) Wherever technical evaluation of relevant information is required, a
33 qualified professional, as appropriate, shall certify compliance with the
34 requisite criteria.
35 (d) When the application is submitted to the director, the applicant
36 shall publish legal notice of submittal of the application in the news-
37 paper published in the county as determined by the criteria in section
38 31-819, Idaho Code, and shall make the application available for public
39 inspection and copying. The date of publication of such notice shall begin
40 a twenty-eight (28) day comment period during which written comments con-
41 cerning the application may be submitted to the director.
42 (e) The director shall act upon the application within twenty-one (21)
43 days of the end of the comment period set forth above and shall enter a
44 decision either certifying the site or rejecting the application. The
45 director shall review the site certification application, not contravening
46 the opinion of the applicant's qualified professional(s) without reliable
47 empirical evidence that the affirmations in the application are erroneous.
48 Upon finding that the criteria of section 39-7907, Idaho Code, have been
49 affirmed by qualified professionals, the director shall certify the site.
50 Any rejection of a site certification application shall be accompanied by
51 findings in writing expressly stating the criteria insufficiently docu-
52 mented and/or violated and the evidence relied upon in making such deter-
53 mination. Failure of the director to act within twenty-one (21) days shall
54 constitute site certification. An applicant shall be provided an opportu-
8
1 nity to appeal any denial of certification.
2 (f) Site certification is transferable with ownership of the site.
3 (g) Within ten (10) working days of receipt of certification from the
4 director, the applicant shall publish notice in the newspaper provided for
5 in subsection (d) of this section, informing the public that certification
6 of the site has been approved.
7 39-7909. SITE REVIEW PANELS -- MEMBERS, CHAIRMAN, QUORUM, MEETINGS,
8 STAFF. (1) A site review panel shall be established to ensure public input in
9 the permitting process, to recommend to the director conditions which should
10 be included in a permit and to recommend to the director whether a particular
11 facility should or should not be constructed or expanded.
12 (2) A panel shall consist of eight (8) members to be appointed as fol-
13 lows:
14 (a) Three (3) members shall be the administrator of the division of envi-
15 ronmental quality or his designee, the director of the department of water
16 resources or his designee, and the director of the department of agricul-
17 ture or his designee.
18 (b) One (1) member shall be a public member appointed by the governor.
19 The public member shall be an environmental professional, shall serve as
20 chairman of the panel and shall be a voting member. A member who is a pub-
21 lic member shall be appointed to serve on site review panels only until
22 the particular permit application subject to their review is approved, or
23 until the application is rejected and is no longer subject to their
24 review.
25 (c) Two (2) members shall be appointed by the city council of the city
26 located closest to, or in which, the swine facility is proposed to be
27 located or expanded, provided the governing body of the city has signified
28 compliance with this chapter as provided in section 39-7903, Idaho Code.
29 At least one (1) shall be a resident of the city. However, if two (2) cit-
30 ies are equidistant from the proposed or expanding swine facility, plus or
31 minus five (5) miles, the city council of each city shall appoint one (1)
32 member each to the site review panel, each of whom shall be a resident of
33 the city appointing them. The members serving pursuant to this subsection
34 shall serve until the particular permit application subject to their
35 review is approved or it is rejected and is no longer subject to their
36 review.
37 (d) Two (2) members shall be appointed by the county commission and be
38 residents of the county where the swine facility is proposed to be located
39 or expanded, provided the board of county commissioners has signified com-
40 pliance with this chapter as provided in section 39-7903, Idaho Code. The
41 members serving pursuant to this subsection shall serve until the particu-
42 lar permit application subject to their review is approved, or until the
43 application is rejected and is no longer subject to their review.
44 (e) A person nominated to represent a city or county shall not have a
45 conflict of interest, as that term is defined in section 59-703, Idaho
46 Code, or derive any economic gain as that term is defined in section
47 59-703, Idaho Code, from the location of the proposed or expanding swine
48 facility.
49 (3) The director shall notify the city council of the nearest city, or
50 cities if two (2) cities are within five (5) miles of the proposed facility,
51 and the board of county commissioners, of a permit application filed with the
52 department and shall instruct the city or cities and county to appoint the
53 necessary members to a panel.
54 (4) A majority of members of the panel shall constitute a quorum for the
9
1 transaction of business of the panel and the concurrence of a majority of the
2 panel shall constitute a legal action of the panel, provided that no meeting
3 of the panel shall occur unless there are at least as many members present
4 representing the city and county as there are representing the state and the
5 public as appointed pursuant to subsections (2)(a) and (b) of this section.
6 All meetings of the panel shall be conducted pursuant to the state open meet-
7 ing law.
8 (5) The director shall make staff available to assist the panel in carry-
9 ing out its responsibilities.
10 (6) Members of the panel who are not state employees shall be entitled to
11 receive compensation as provided in section 59-509(b), Idaho Code.
12 39-7910. SITING PERMIT APPLICATION -- FEE -- RULES. (1) An application
13 for a siting permit shall include, in a format set forth by the director and
14 when determined applicable by the director, the following information:
15 (a) Name, mailing address and phone number of the facility owner;
16 (b) Name, mailing address and phone number of the facility operator;
17 (c) Name and mailing address of the facility;
18 (d) Legal description of the facility location;
19 (e) The legal structure of the entity owning the facility, including the
20 names and addresses of all directors, officers, registered agents and
21 partners;
22 (f) The names and locations of all swine facilities owned and/or operated
23 by the applicant within the last ten (10) years;
24 (g) The one-time animal unit capacity of the facility;
25 (h) The type of animals to be confined at the facility;
26 (i) Evidence that a valid water right exists to supply adequate water for
27 the proposed facility or a copy of either an application for permit to
28 appropriate water or an application to change the point of diversion,
29 place, period and nature of use of an existing water right that has been
30 filed with the Idaho department of water resources which, if approved,
31 will supply adequate water for the proposed operation;
32 (j) Proof of financial capability to meet the conditions of an approved
33 closure plan for a facility and remediation;
34 (k) The facility's biosecurity and sanitary standards.
35 (2) A construction plan. Plans and specifications for the facility's ani-
36 mal waste management system that include the following information:
37 (a) Vicinity map(s) prepared on one (1) or more seven and one-half minute
38 (7.5') USGS topographic quadrangle maps or a high quality reproduction(s)
39 that includes the following:
40 (i) Layout of the facility, including buildings and animal waste
41 management system;
42 (ii) The one hundred (100) year FEMA flood zones or other appropri-
43 ate flood data for the facility site and land application sites owned
44 or leased by the applicant;
45 (iii) The location of occupied dwellings, public and private gather-
46 ing places, such as schools, churches and parks, and incorporated
47 municipalities which are within a two (2) mile radius of the facil-
48 ity; and
49 (iv) Private and community domestic water wells, irrigation wells,
50 irrigation conveyance and drainage structures, monitoring wells, wet-
51 lands, streams, springs, and reservoirs which are within a one (1)
52 mile radius of the facility.
53 (b) Facility construction specifications including:
54 (i) A site plan showing:
10
1 1. Building locations;
2 2. Waste facilities;
3 3. All waste conveyance systems; and
4 4. All irrigation systems used for land application, including
5 details of approved water supply protection devices.
6 (ii) Building plans showing:
7 1. All wastewater collection systems in housed units;
8 2. All freshwater supply systems, including details of approved
9 water supply protection devices;
10 3. Detailed drawings of wastewater collection and conveyance
11 systems and containment construction; and
12 4. Detailed construction and installation procedures.
13 (3) Site characterization. A characterization of the facility and any
14 land application site(s) owned or operated by the applicant, prepared by a
15 registered professional geologist, a registered professional engineer or a
16 qualified ground water hydrologist, that includes the following information:
17 (a) A description of monitoring methods, frequency, and reporting compo-
18 nents related to either leak detection systems and/or ground water moni-
19 toring wells;
20 (b) The climatic, hydrogeologic and soil characteristics;
21 (c) The depth to water and a potentiometric map for the uppermost and
22 regional aquifer;
23 (d) The vertical and horizontal conductivity, gradient and ground water
24 flow direction and velocity;
25 (e) Estimates of recharge to the uppermost aquifer;
26 (f) Information which characterizes the relationship between the ground
27 water and adjacent surface waters; and
28 (g) A summary of local ground water quality data.
29 (4) A nutrient management plan. A plan prepared by a certified planner
30 demonstrating compliance with the nutrient management standard for land appli-
31 cation.
32 (5) A plan for meeting standards for heavy metals as those provided in 40
33 CFR section 503, subchapter O.
34 (6) A plan for disposal of dead animal carcasses.
35 (7) An air quality management plan.
36 (8) A closure plan. A plan describing the procedures for final closure of
37 a facility that ensures no adverse impacts to the environment and waters of
38 the state and that includes:
39 (a) The estimated length of operation of the facility;
40 (b) A description of the procedures, methods and schedule to be imple-
41 mented at the facility for final disposal, handling, management and/or
42 treatment of all animal waste. The facility shall not dispose of any mate-
43 rial not approved for disposal under the permit into the animal waste man-
44 agement system including, but not limited to, human waste;
45 (c) Evidence that the facility will not require expenditures of public
46 funds for remediation of adverse impacts to the environment; and
47 (d) A plan for permanent disposal of residual solid waste.
48 (9) Other information. An applicant shall provide any other information
49 relative to this section and deemed necessary by the director to assess pro-
50 tection of human health and the environment, including information showing
51 that:
52 (a) The harm to scenic, public health, environmental, private property,
53 historic, cultural or recreational values is not substantial or can be
54 mitigated;
55 (b) The risk and impact of accident during transportation of animal waste
11
1 or animal carcasses is not substantial or can be mitigated. Dead animals
2 shall be removed from the facility for rendering, cremation, burial,
3 composting or other disposal in accordance with IDAPA 02.04.03, "Rules of
4 Department of Agriculture Governing Animal Industry," section 050, "Dead
5 Animals, Movement, Disposal";
6 (c) The impact on local government is not adverse regarding health,
7 safety, cost and consistency with local planning and existing development
8 or can be mitigated;
9 (d) The facility or operations associated with the facility do not create
10 a public health hazard or nuisance conditions including odors;
11 (e) The applicant has the financial ability to construct, operate and
12 close the facility.
13 (10) Within thirty (30) days after receipt of the application, the direc-
14 tor shall determine whether it is complete. If it is not complete, the direc-
15 tor shall notify the applicant and state the areas of deficiency.
16 (11) The application shall be accompanied by a permit fee. The director
17 shall establish by rule the scale for determining the permit application fee.
18 The fee shall be based on the cost to the department of reviewing the permit
19 application. The scale shall be based on characteristics including the site
20 size, projected waste volume, and hydrogeological and atmospheric characteris-
21 tics surrounding the site. Fees received pursuant to this section may be
22 expended by the director to pay the actual, reasonable and necessary costs
23 incurred by the department in acting upon a permit application.
24 39-7911. DUTIES OF THE DIRECTOR RELATIVE TO APPLICATIONS. (1) Upon deter-
25 mination that a permit application is complete, the director shall:
26 (a) Notify the permanent panel members, the city and/or county in which
27 the swine facility is located or proposed to be located, the director of
28 the department of fish and game, the director of the department of law
29 enforcement, and other state agencies as deemed appropriate by the direc-
30 tor.
31 (b) Publish a notice that the application has been received, as provided
32 in section 60-109, Idaho Code, in a newspaper having major circulation in
33 the county and the immediate vicinity of the proposed or expanding swine
34 facility. The notice shall contain a map indicating the location of the
35 proposed or expanding swine facility, a description of the proposed action
36 and the location where the application may be reviewed. The notice shall
37 describe the procedure by which the permit under this chapter may be
38 granted.
39 (2) Upon notification by the director, the chairman shall immediately
40 notify the representatives of the state to the panel and the public members.
41 The chairman shall also notify the applicable county and city for their
42 appointment of members as provided in subsection (2) of section 39-7909, Idaho
43 Code. Within thirty (30) days after the notification, the board of commission-
44 ers of the county and the city council shall select the members to serve on
45 the panel. The panel shall be created at that time and notification of the
46 creation of the panel shall be made to the chairman.
47 (3) Within thirty (30) days after appointment of panel members, the panel
48 shall meet to review and establish a timetable for the consideration of the
49 draft site license.
50 (4) The panel shall:
51 (a) Set a date and arrange for publication of notice of a public hearing
52 in a newspaper having major circulation in the vicinity of the proposed
53 site, at its first meeting. The public notice shall:
54 (i) Contain a map indicating the location of the proposed commercial
12
1 solid waste facility, a description of the proposed action, and the
2 location where the application for a siting license may be reviewed
3 and where copies may be obtained;
4 (ii) Identify the time, place and location for the public hearing
5 held to receive public comment and input on the application for a
6 siting license;
7 (b) Publish the notice not less than thirty (30) days before the date of
8 the public hearing and the notice shall be, at a minimum, a twenty (20)
9 days' notice as provided in section 60-109, Idaho Code.
10 (5) Comment and input on the proposed swine facility may be presented
11 orally or in writing at the public hearing, and shall continue to be accepted
12 in writing by the panel for thirty (30) days after the public hearing date.
13 The public hearing shall be held in the same county as the proposed site. If
14 the proposed site is adjacent to a city or populated area in a neighboring
15 county, it is recommended that public hearings also be held in the neighboring
16 county.
17 (6) The panel shall consider, but not be limited to, the following:
18 (a) The risk of the spread of disease or impact upon public health from
19 improper treatment, storage or incineration methods;
20 (b) The impact on local units of government where the proposed swine
21 facility is to be located in terms of health, safety, cost and consistency
22 with local planning and existing development;
23 (c) The nature of the probable environmental and public health impact;
24 (d) The financial capability of the applicant to construct, operate and
25 close the swine facility.
26 (7) The panel shall consider the concerns and objections submitted by the
27 public. The panel shall facilitate efforts to provide that the concerns and
28 objections are mitigated by proposing additional conditions regarding the con-
29 struction of the commercial solid waste facility. The panel may propose condi-
30 tions which integrate the provisions of the city or county ordinances, permits
31 or requirements.
32 (8) Within one hundred eighty (180) days after creation, the panel shall
33 recommend to the director that the license be issued, issued with conditions,
34 or rejected. The director shall act on a license application within sixty (60)
35 days after receipt of the panel's recommendation. If the panel recommends con-
36 ditions, a clear statement of the need for a condition must be submitted to
37 the director. If the panel recommends rejection, a clear statement of the rea-
38 sons for the denial must be submitted to the director.
39 (9) The director shall issue, issue with conditions or reject a siting
40 license only as recommended by the siting panel. The director may reconvene a
41 siting panel and request reconsideration of its original recommendation prior
42 to the director's final action.
43 (10) An applicant or any person aggrieved by a decision of the director
44 pursuant to this chapter may within sixty (60) days of the director's deci-
45 sion, and, after all remedies have been exhausted under the provisions of this
46 chapter, seek judicial review under the procedures provided in chapter 52,
47 title 67, Idaho Code.
48 39-7912. STANDARDS FOR DESIGN, OPERATIONS AND CLOSURE. Unless otherwise
49 provided in this chapter, standards for design, operations and closure of
50 swine facilities regulated by this chapter shall be the standards expressed in
51 this chapter or adopted by the director and applied in rules of the department
52 of health and welfare regulating swine facilities.
53 39-7913. REQUIREMENTS FOR WATER QUALITY PROTECTION. The minimum design
13
1 and performance standards provided in this section are intended as a baseline
2 for protection of public health and the waters of the state. These standards
3 shall apply to all facilities regulated by this chapter and be reflected in
4 the permit unless the director approves, based on an applicant's site specific
5 information, that compliance with a specific standard is not required to pro-
6 tect water quality and the public health. Other conditions, as determined by
7 the director to be necessary to protect water quality, may be included in a
8 permit.
9 (1) Animal waste management system design criteria. A facility's animal
10 waste management system shall be designed and constructed in accordance with
11 the NRCS and the American society of agricultural engineers standards, which-
12 ever is most stringent and shall:
13 (a) Contain the maximum expected operating water balance and the twenty-
14 five (25) year, twenty-four (24) hour rainfall event and the one (1) in
15 five (5) year winter runoff.
16 (b) Provide capacity to store the peak volume of process wastewater that
17 will be generated during a six (6) month period.
18 (c) Provide a one (1) foot freeboard in addition to the storage require-
19 ments specified in this subsection.
20 (d) Impoundments, other than for emergency runoff, containing or designed
21 to contain process wastewater shall be designed for efficient leak detec-
22 tion and shall not be located in the one-hundred (100) year floodplain.
23 (e) Seepage rates for impoundments shall be no greater than 1x10-7
24 cm/sec.
25 (2) Water quality monitoring. Ground water and/or leak detection monitor-
26 ing shall be conducted for every facility with a liquid storage impoundment
27 and shall be designed to give the earliest possible detection of an unautho-
28 rized discharge to ground water.
29 (3) Discharges. Facilities shall be constructed, operated and maintained
30 to not cause unauthorized discharges.
31 (4) Spill contingency plan. Facilities shall prepare a discharge response
32 strategy that describes procedures and methods to be implemented for the
33 abatement and cleanup of any pollutant.
34 (5) Stockpile areas. Animal waste stockpile areas, including compost
35 areas, shall be constructed to ensure that all water and precipitation, which
36 come into contact with the stockpiles, do not enter waters of the state.
37 39-7914. FINANCIAL ASSURANCE FOR CLOSURE AND REMEDIATION. (1) All swine
38 facilities regulated by this chapter shall provide financial assurances demon-
39 strating financial capability to meet requirements for closure of the facili-
40 ties and remediation. Requirements for financial assurances shall be deter-
41 mined by the agency as set forth in rule. Financial assurances may include any
42 mechanism or combination of mechanisms meeting the requirements established by
43 agency rule including, but not limited to, surety bonds, trust funds, irrevo-
44 cable letters of credit, insurance and corporate guarantees. The mechanism(s)
45 used to demonstrate financial capability must be legally valid, binding and
46 enforceable under applicable law and must ensure that the funds necessary to
47 meet the costs of closure and remediation will be available whenever the funds
48 are needed. The director may retain financial assurances for up to five (5)
49 years after closure of a facility to ensure proper closure and remediation, as
50 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.
14
1 39-7915. PERMIT VOIDABLE IF CONSTRUCTION NOT BEGUN IN TWO YEARS. If a
2 permittee fails to begin construction or expansion of a facility within two
3 (2) years of the effective date of a permit, the director may void the permit
4 and require a new application.
5 39-7916. SITE SPECIFIC PERMIT CONDITIONS. (1) Conditions necessary for the
6 protection of human health, natural resources, private property values and the
7 environment of the state may differ from facility to facility because of vary-
8 ing environmental conditions and animal waste compositions. The director may
9 establish, on a case-by-case basis, specific permit conditions. Specific con-
10 ditions shall be established in consideration of characteristics specific to a
11 facility and inherent hazards of those characteristics. Such characteristics
12 include, but are not limited to, the following:
13 (a) Chemical, biological, physical and volumetric characteristics of the
14 process wastewater;
15 (b) Geological and climatic nature of the facility site;
16 (c) Size of the site and its proximity to population centers and to
17 ground and surface water;
18 (d) Legal considerations relative to land use, private property rights
19 and water rights;
20 (e) Techniques used in process wastewater distribution and the disposi-
21 tion of that vegetation exposed to process wastewaters; and
22 (f) The need for monitoring and recordkeeping to determine if the facil-
23 ity is being operated in conformance with its design and if its design is
24 adequate to protect the environment and the public health.
25 (2) Conditions of the permit may specify or limit:
26 (a) Process wastewater composition;
27 (b) Method, manner and frequency of process wastewater treatment;
28 (c) Physical, chemical and biological characteristics of a facility;
29 (d) An odor management plan; and
30 (e) Any other condition the director finds necessary to protect public
31 health or the environment.
32 (3) The director may establish a compliance schedule for facilities as
33 part of the permit conditions including:
34 (a) Specific steps or actions to be taken by the permittee to achieve
35 compliance with applicable requirements or permit conditions; and
36 (b) Dates by which those steps or actions are to be taken.
37 (4) Monitoring requirements. Any facility may be subject to monitoring
38 requirements including, but not limited to, the following:
39 (a) The type, installation, use and maintenance of monitoring equipment;
40 (b) Monitoring or sampling methodology, frequency and locations;
41 (c) Monitored substances or parameters;
42 (d) Testing and analytical procedures; and
43 (e) Reporting requirements including both frequency and form.
44 39-7917. PERMIT MODIFICATION -- MODIFICATION TO SITES APPROVED UNDER THIS
45 CHAPTER. (1) Minor permit modifications are those which do not have a poten-
46 tial affect on the environment or the public health. Such modifications shall
47 be made by the director. Minor permit modifications are generally limited to:
48 (a) The correction of typographical errors;
49 (b) Transfer of ownership or operational control in accordance with this
50 chapter; or
51 (c) Certain minor changes in monitoring or operational conditions.
52 (2) All permit modifications not considered minor are considered to be
53 major modifications.
15
1 (3) Major modifications to the permit require that an owner or operator
2 amend the approved design plan, operations plan or water quality protection
3 plan. Major modifications include, but are not limited to:
4 (a) Lateral expansion outside an approved waste management unit boundary
5 design;
6 (b) Unpredictable change affecting any environmental monitoring program;
7 (c) Change of liner design; or
8 (d) A modification of the design or operation due to initiation of
9 remediation.
10 (4) The scope of new investigations and plan amendment shall be defined
11 by the owner, operator, director and health district before any modification
12 is begun. Only those stages of the applicable approval process affected by the
13 request for modification shall be required.
14 39-7918. TRANSFER OF PERMITS. (1) Permits may be transferred only upon
15 approval of the director. A new or proposed owner or operator of a facility
16 shall submit to the director an application to transfer a permit issued pursu-
17 ant to this chapter. The transfer application shall include at least the fol-
18 lowing:
19 (a) Relevant information required by the director; and
20 (b) Any change of conditions at the facility resulting from the transfer
21 of ownership or operation.
22 (2) The director shall review the transfer application and within sixty
23 (60) days of its receipt either approve or deny the transfer.
24 (3) The transfer of a permit by itself is not a major change requiring
25 modification of the permit. However, the circumstances of individual trans-
26 fers may involve major changes of conditions at a facility requiring modifica-
27 tion of the permit. Major changes are subject to this chapter.
28 (4) If the director denies the transfer of a permit, notice of the denial
29 shall be provided to the applicant. The notice of denial shall set forth the
30 reasons for the denial, steps necessary to meet the requirements for a permit
31 transfer and the opportunity for the applicant to request a hearing.
32 (5) The person to whom a permit is transferred assumes all rights and
33 responsibilities of the transferred permit.
34 39-7919. DIRECTOR MAY REQUEST ADDITIONAL INFORMATION. At any time during
35 the application process an applicant shall provide the director with addi-
36 tional information the director deems necessary to process a permit, within
37 thirty (30) days of the director's request. The time period within which the
38 director must act with regard to the permit shall be stayed until the informa-
39 tion requested is provided. If an applicant fails to provide the information
40 within this time period, unless a longer time period is allowed by the direc-
41 tor, the director may cease the application process and require the applicant
42 to submit a new application.
43 39-7920. VIOLATIONS AND ENFORCEMENT. (1) The following acts are unlawful:
44 (a) Failure to comply with this chapter and any rules of the department
45 regulating swine facilities, and conditions of permit approval granted
46 pursuant to this chapter;
47 (b) Knowingly making a false statement, representation, or certification
48 in any application report, document, or record developed, maintained, or
49 submitted pursuant to this chapter, rules or conditions of a permit.
50 (2) Any person violating this chapter or any permit or order under this
51 chapter is liable for a civil or criminal penalty in accordance with chapter
52 1, title 39, Idaho Code. The director may apply the provisions of chapter 1,
16
1 title 39, Idaho Code, to insure compliance.
2 (3) The director may revoke a permit:
3 (a) For material violation of any condition of a permit, final agency
4 order or order or judgment of a court secured by any state or federal
5 agency and relating to the operation of a swine facility;
6 (b) If an approval or permit was obtained by misrepresentation or failure
7 to disclose all relevant facts;
8 (c) If approval for adequate water rights cannot be obtained from the
9 Idaho department of water resources;
10 (d) The facility does not meet the requirements of this chapter.
11 (4) A private right of action in behalf of any person who has been
12 injured or damaged by any approval authorized in this chapter or violation of
13 the terms of any approval or rule authorized in this chapter may be maintained
14 in accordance with the provisions of this chapter and/or the provisions of
15 chapter 52, title 67, Idaho Code, as applicable.
16 39-7921. CONFIDENTIALITY OF RECORDS. Information obtained by a public
17 agency pursuant to this chapter or its associated rules is subject to public
18 disclosure pursuant to the provisions of chapter 3, title 9, Idaho Code.
19 Information submitted under a trade secret claim may be entitled to confiden-
20 tial treatment as provided in section 9-342A, Idaho Code, and IDAPA 16.01.21,
21 "Rules Governing the Protection and Disclosure of Records in the Possession of
22 the Idaho Division of Environmental Quality."
23 39-7922. SEVERABILITY CLAUSE. If any provision of this chapter or its
24 application to any person or circumstance is held invalid, the invalidity does
25 not affect other provisions or applications of this chapter which can be given
26 effect without the invalid provision or application, and to this end the pro-
27 visions of this chapter are severable.
28 39-7923. CONFLICTS CLAUSE. If a conflict arises between this chapter and
29 rules of the department regulating swine facilities, the most restrictive pro-
30 vision shall apply.
31 SECTION 2. An emergency existing therefor, which emergency is hereby
32 declared to exist, this act shall be in full force and effect on and after its
33 passage and approval.
STATEMENT OF PURPOSE
RS 09872
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 1400