2005 Legislation
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HOUSE BILL NO. 175 – Beef Cattle Sustainability Act

HOUSE BILL NO. 175

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H0175...............................................by AGRICULTURAL AFFAIRS
BEEF CATTLE SUSTAINABILITY ACT - Adds to and amends existing law relating
to beef cattle to provide for the authority and duties of the Director of
the Department of Agriculture and the Department of Agriculture relating to
beef cattle operations; to revise nutrient management plan provisions
relating to beef cattle operations; to provide for livestock sustainable
management plans; to provide for inspections of beef cattle operations and
facility records to ensure compliance with state law; to provide that
certain records shall be confidential and exempt from public disclosure; to
provide that no beef cattle operation shall cause an unauthorized discharge
to waters of the state; and to provide that beef cattle operations
operating in compliance shall be immune from certain actions.
                                                                        
02/11    House intro - 1st rdg - to printing
02/14    Rpt prt - to Agric Aff

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 175
                                                                        
                             BY AGRICULTURAL AFFAIRS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO BEEF CATTLE; AMENDING THE HEADING FOR CHAPTER 49, TITLE 22,  IDAHO
  3        CODE;  AMENDING  SECTION  22-4901,  IDAHO CODE, TO REVISE THE SHORT TITLE;
  4        AMENDING SECTION 22-4902, IDAHO CODE, TO REVISE THE DECLARATION OF  POLICY
  5        AND  STATEMENT OF LEGISLATIVE INTENT RELATING TO THE BEEF CATTLE INDUSTRY;
  6        AMENDING SECTION 22-4903, IDAHO CODE, TO REVISE  TERMINOLOGY,  TO  PROVIDE
  7        FOR THE AUTHORITY AND DUTIES OF THE DIRECTOR OF THE DEPARTMENT OF AGRICUL-
  8        TURE  AND THE DEPARTMENT OF AGRICULTURE RELATING TO BEEF CATTLE OPERATIONS
  9        AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 22-4904, IDAHO  CODE,
 10        TO DEFINE TERMS AND TO REVISE DEFINITIONS; AMENDING SECTION 22-4905, IDAHO
 11        CODE,  TO  REVISE  TERMINOLOGY;  AMENDING  SECTION 22-4906, IDAHO CODE, TO
 12        REVISE TERMINOLOGY AND  TO  REVISE  NUTRIENT  MANAGEMENT  PLAN  PROVISIONS
 13        RELATING  TO  BEEF CATTLE OPERATIONS; AMENDING CHAPTER 49, TITLE 22, IDAHO
 14        CODE, BY THE ADDITION OF A NEW SECTION 22-4907, IDAHO CODE, TO PROVIDE FOR
 15        LIVESTOCK SUSTAINABLE MANAGEMENT PLANS; AMENDING  SECTION  22-4907,  IDAHO
 16        CODE,  TO REDESIGNATE THE SECTION, TO PROVIDE FOR INSPECTIONS OF BEEF CAT-
 17        TLE  OPERATIONS  AND FACILITY RECORDS TO ENSURE COMPLIANCE WITH STATE LAW,
 18        TO REVISE TERMINOLOGY AND TO PROVIDE THAT CERTAIN RECORDS SHALL BE  CONFI-
 19        DENTIAL AND EXEMPT FROM PUBLIC DISCLOSURE; AMENDING SECTION 22-4908, IDAHO
 20        CODE,   TO  REDESIGNATE THE SECTION, TO PROVIDE THAT NO BEEF CATTLE OPERA-
 21        TION SHALL CAUSE AN UNAUTHORIZED DISCHARGE TO WATERS OF THE STATE  AND  TO
 22        PROVIDE  CORRECT  TERMINOLOGY;  AMENDING  SECTION  22-4909, IDAHO CODE, TO
 23        REDESIGNATE THE SECTION, TO REVISE TERMINOLOGY AND TO PROVIDE CORRECT TER-
 24        MINOLOGY; AMENDING SECTION 22-4910, IDAHO CODE, TO  REDESIGNATE  THE  SEC-
 25        TION, TO PROVIDE THAT BEEF CATTLE OPERATIONS OPERATING IN COMPLIANCE SHALL
 26        BE  IMMUNE FROM CERTAIN ACTIONS AND TO PROVIDE CORRECT TERMINOLOGY; AMEND-
 27        ING SECTION 9-340D, IDAHO CODE, TO PROVIDE THAT CERTAIN  RECORDS  RELATING
 28        TO BEEF CATTLE OPERATIONS SHALL BE EXEMPT FROM PUBLIC DISCLOSURE; AMENDING
 29        SECTION 25-3801, IDAHO CODE, TO REVISE TERMINOLOGY; AND DECLARING AN EMER-
 30        GENCY.
                                                                        
 31    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 32        SECTION 1.  That the Heading for Chapter 49, Title 22, Idaho Code, be, and
 33    the same is hereby amended to read as follows:
                                                                        
 34                                      CHAPTER 49
 35                 BEEF CATTLE ENVIRONMENTAL CONTROL SUSTAINABILITY ACT
                                                                        
 36        SECTION  2.  That  Section 22-4901, Idaho Code, be, and the same is hereby
 37    amended to read as follows:
                                                                        
 38        22-4901.  SHORT TITLE. This chapter shall be known and cited as the  "Beef
 39    Cattle Environmental Control Sustainability Act."
                                                                        
 40        SECTION  3.  That  Section 22-4902, Idaho Code, be, and the same is hereby
                                                                        
                                           2
                                                                        
  1    amended to read as follows:
                                                                        
  2        22-4902.  DECLARATION OF POLICY AND STATEMENT OF LEGISLATIVE  INTENT.  (1)
  3    The   legislature  recognizes  the  importance  of  protecting  state  natural
  4    resources. including, surface water and ground water. It is the intent of  the
  5    legislature  to protect the quality of these natural resources while maintain-
  6    ing an ecologically sound, economically viable, and socially responsible  beef
  7    cattle  industry  in  the state. To achieve these sustainable objectives, tThe
  8    beef cattle industry shall:
  9        (a)  produces Manage manure and process wastewater  which,  when  properly
 10        used,  supplies valuable nutrients and organic matter to soils and is pro-
 11        tective of the environment, but may, when improperly stored  and  managed,
 12        create adverse impacts on generated from beef cattle operations to reason-
 13        ably protect state natural resources, including waters of the state; and
 14        (b)  Manage  beef  cattle  operations  to  minimize fugitive dust and odor
 15        emissions through the use of reasonable precautions.
 16    This chapter is intended to ensure that manure and process wastewater  associ-
 17    ated  with  beef  cattle operations are handled in a manner which protects the
 18    natural resources of the state while supporting a sustainable  Idaho  agricul-
 19    tural industry.
 20        (2)  Further,  the legislature recognizes that the beef cattle industry is
 21    potentially subject to various state and  federal  laws  designed  to  protect
 22    state natural resources and that the Idaho department of agriculture is in the
 23    best  position to administer and implement these various laws. It is therefore
 24    the intent of the legislature that the  administration  of  this  law  by  the
 25    department  of  agriculture fully meets the goals and requirements of the fed-
 26    eral clean water act and other applicable state and federal laws, designed  to
 27    further  protect state waters and that regulations or permits. The administra-
 28    tion of this chapter by the department of agriculture shall not be more strin-
 29    gent than or broader in scope than the requirements of the clean water act and
 30    other applicable state and federal laws. The department shall  have  authority
 31    to  administer all laws to protect the quality of water within the confines of
 32    a beef cattle animal feeding operation, regulations or  permits.  In  carrying
 33    out  this  chapter the department shall prioritize its resources on operations
 34    which have the greatest potential to significantly impact the environment  and
 35    ensure that any requirements imposed under this chapter upon operators of beef
 36    cattle  animal feeding operations are cost-effective and environmentally, eco-
 37    nomically, environmentally and technologically feasible sound.
 38        (3)  Successful implementation of certain provisions of  this  chapter  is
 39    dependent  upon the department receiving adequate funding from the legislature
 40    and is dependent upon the department executing a memorandum of agreement  with
 41    the  United  States  environmental  protection agency, the Idaho department of
 42    environmental quality and the Idaho cattle  association  which  sets  forth  a
 43    working  arrangement between the agencies to ensure compliance with this chap-
 44    ter. and applicable state and federal laws, including the federal clean  water
 45    act.  Moreover,  the legislature recognizes that it is important for the state
 46    to obtain a delegated national pollutant discharge elimination system  (NPDES)
 47    permit program from the EPA under the clean water act.
                                                                        
 48        SECTION  4.  That  Section 22-4903, Idaho Code, be, and the same is hereby
 49    amended to read as follows:
                                                                        
 50        22-4903.  AUTHORITY AND DUTIES OF DIRECTOR CONCERNING BEEF  CATTLE  ANIMAL
 51    FEEDING  OPERATIONS. (1) The director of the department of agriculture through
 52    the division of animal industries is authorized to regulate beef cattle animal
                                                                        
                                           3
                                                                        
  1    feeding operations to protect state natural resources, including surface water
  2    and ground water.
  3        (2)  In order to carry out its duties under this chapter,  the  department
  4    shall be the responsible state department to prevent any ground water contami-
  5    nation  from  beef  cattle animal feeding operations as provided under section
  6    39-120, Idaho Code administer and implement the laws, regulations and  permits
  7    that  apply  to  beef  cattle  operations  to reasonably protect state natural
  8    resources.
  9        (3)  The director shall have the authority to exercise any other  authori-
 10    ties  as  delegated by the director of the department of environmental quality
 11    regarding the protection of ground water, surface water, air quality and other
 12    natural resources associated with confined animal feeding beef  cattle  opera-
 13    tions,  and  this shall be the authority for the director of the department of
 14    environmental quality to so delegate.
 15        (4)  The director of the department of environmental quality shall consult
 16    with the director of the department  of  agriculture  before  certifying  dis-
 17    charges from beef cattle animal feeding operations as provided under 33 U.S.C.
 18    section 1341.
                                                                        
 19        SECTION  5.  That  Section 22-4904, Idaho Code, be, and the same is hereby
 20    amended to read as follows:
                                                                        
 21        22-4904.  DEFINITIONS. When used in this chapter:
 22        (1)  "Administrator" means the administrator, or  his  designee,  for  the
 23    animal industries division of the Idaho department of agriculture.
 24        (2)  "Accepted  agricultural  practices"  means those management practices
 25    normally associated with agriculture in Idaho including, but not  limited  to,
 26    those practices identified in this chapter which include best management prac-
 27    tices  to  manage  manure  and process wastewater generated from a beef cattle
 28    operation and those to minimize fugitive dust and odor emissions from  a  beef
 29    cattle operation.
 30        (3)  "Beef cattle" means slaughter and feeder cattle or dairy heifers that
 31    are  kept on or contiguous to the animal feeding beef cattle operation and are
 32    owned or controlled by the animal feeding beef cattle operation.
 33        (34)  "Beef cattle animal feeding operation" means an animal feeding oper-
 34    ation which confines slaughter and feeder cattle or dairy heifers  as  defined
 35    in 40 CFR 122.23(b)(1), (b)(2), (b)(4), (b)(6) or (b)(9).
 36        (45)  "Best  management practices" means practices, techniques or measures
 37    which are determined to be reasonable precautions, and  are  a  cost-effective
 38    and practicable means of:
 39        (a)  Ppreventing  or  reducing  pollutants  from point sources or nonpoint
 40        sources to a level compatible with environmental  goals,  including  water
 41        quality goals and standards for waters of the state; and
 42        (b)  Minimizing fugitive dust and odor emissions from a beef cattle opera-
 43        tion.
 44    Best  management  practices for water quality shall be adopted pursuant to the
 45    state water quality management plan, the Idaho ground water  quality  plan  or
 46    this chapter. Best management practices to minimize fugitive emissions of odor
 47    and dust shall be adopted through the department rulemaking process.
 48        (56)  "Department" means the Idaho department of agriculture.
 49        (67)  "Director" means the director of the Idaho department of agriculture
 50    or his designee.
 51        (8)  "Fugitive  emissions" means emissions which could not reasonably pass
 52    through a stack, chimney,  vent,  or  other  functionally  equivalent  opening
 53    including, but not limited to, dust and odor.
                                                                        
                                           4
                                                                        
  1        (9)  "Livestock  sustainable  management  plan" means a site specific plan
  2    approved by the director to prudently manage a beef cattle operation to  mini-
  3    mize fugitive dust and odor emissions.
  4        (710) "Manure"  means  animal  excrement  that  may  also contain bedding,
  5    spilled feed, water or soil.
  6        (811) "Modification" or "modified" means structural  changes  and  altera-
  7    tions  to  the  wastewater  storage  containment  facility which would require
  8    increased storage or containment capacity or such changes  which  would  alter
  9    the function of the wastewater storage containment facility.
 10        (912) "Noncompliance"  means  a practice or condition that causes an unau-
 11    thorized discharge, or a practice or condition, that if left uncorrected, will
 12    cause an unauthorized discharge.
 13        (103) "National pollutant discharge elimination system (NPDES)" means  the
 14    point  source  permitting  program  established pursuant to section 402 of the
 15    federal clean water act.
 16        (114) "Nutrient management plan" means a plan prepared in conformance with
 17    the nutrient management standard, provisions required by 40 CFR  122.42(e)(1),
 18    or  other equally protective standard for managing the amount, placement, form
 19    and timing of the land application of nutrients and soil amendments.
 20        (125) "Nutrient management standard" means the  1999  publication  by  the
 21    United  States  department of agriculture, natural resources conservation ser-
 22    vice, conservation practice standard, nutrient management code  590  or  other
 23    equally protective standard approved by the director.
 24        (136) "Person" means any individual, association, partnership, firm, joint
 25    stock  company, joint venture, trust, estate, political subdivision, public or
 26    private corporation, state  or  federal  governmental  department,  agency  or
 27    instrumentality,  or  any legal entity, which is recognized by law as the sub-
 28    ject of rights and duties.
 29        (147) "Process wastewater" means liquid  containing  beef  cattle  manure,
 30    process  generated  wastewater  and  any precipitation which comes into direct
 31    contact with livestock manure and facility products or byproducts.
 32        (18) "Reasonable precautions" means the implementation of  accepted  agri-
 33    cultural  practices  through  the  utilization of best management practices to
 34    minimize fugitive dust and odor emissions.
 35        (159) "Unauthorized discharge" means a discharge of process wastewater  or
 36    livestock  manure  to  state surface waters that is not authorized by an NPDES
 37    permit or the release of process wastewater or livestock manure to  waters  of
 38    the state that does not meet the requirements of this chapter or water quality
 39    standards.
 40        (1620) "Wastewater  storage  and containment facilities" means the portion
 41    of an animal feeding a beef cattle operation where manure or process  wastewa-
 42    ter  is  stored  or  collected. This may include corrals, feeding areas, waste
 43    collection systems, waste  conveyance  systems,  waste  storage  ponds,  waste
 44    treatment lagoons and evaporative ponds.
 45        (1721) "Waters of the state" means all accumulations of water, surface and
 46    underground,  natural  and  artificial,  public  and private, or parts thereof
 47    which are wholly or partially within, which flow through or  border  upon  the
 48    state.
                                                                        
 49        SECTION  6.  That  Section 22-4905, Idaho Code, be, and the same is hereby
 50    amended to read as follows:
                                                                        
 51        22-4905.  DESIGN AND CONSTRUCTION. Each new  beef  cattle  animal  feeding
 52    operation  and each modified beef cattle animal feeding operation shall design
 53    and construct all new and modified wastewater storage and containment  facili-
                                                                        
                                           5
                                                                        
  1    ties  in accordance with the engineering standards and specifications provided
  2    by the natural resource conservation service or the American society of  agri-
  3    cultural engineers (ASAE) or other equally protective standard approved by the
  4    director.  The  department's  review  and approval of plans under this section
  5    shall supersede the Idaho department of environmental quality's implementation
  6    of plan and specification review and approval provided under  section  39-118,
  7    Idaho Code. Such design and construction shall be considered a best management
  8    practice.
                                                                        
  9        SECTION  7.  That  Section 22-4906, Idaho Code, be, and the same is hereby
 10    amended to read as follows:
                                                                        
 11        22-4906.  NUTRIENT MANAGEMENT PLAN. Each beef cattle animal feeding opera-
 12    tion shall submit a nutrient management plan to  the  director  for  approval.
 13    Beef  cattle animal feeding operations that are operating on or before July 1,
 14    2000, shall submit a nutrient management plan to the director for approval  no
 15    later than January 1, 2005. Any new operation commencing operations after July
 16    1, 2000, shall not operate prior to the director's approval of a nutrient man-
 17    agement  plan.  An  approved nutrient management plan shall be implemented and
 18    considered  a  best  management  practice.  Following  department  review  and
 19    approval, the plan, and all copies of the plan, shall be returned to the oper-
 20    ation and maintained on site. Such plans shall be available to the administra-
 21    tor on request director or his designee  during  inspections  conducted  under
 22    this  chapter.  Plans  may  be  submitted to the director under the "Idaho One
 23    Plan" pursuant to section 22-2718, Idaho Code.
                                                                        
 24        SECTION 8.  That Chapter 49, Title 22, Idaho Code, be,  and  the  same  is
 25    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
 26    ignated as Section 22-4907, Idaho Code, and to read as follows:
                                                                        
 27        22-4907.  LIVESTOCK SUSTAINABLE MANAGEMENT PLAN. (1)  Requests,  voluntary
 28    submissions  and approved plans. If requested by the department, each existing
 29    beef cattle operation shall submit a livestock sustainable management plan  to
 30    the  director  for  approval.  Beef cattle operations that are operating on or
 31    before July 1, 2005, if requested by the department to  submit  a  sustainable
 32    management  plan,  shall submit a livestock sustainable management plan to the
 33    director for approval no later than January 1, 2006. Any  new  operation  com-
 34    mencing  operations after July 1, 2005, if requested by the department to sub-
 35    mit a sustainable management plan, shall not operate prior to  the  director's
 36    approval  of a sustainable management plan. Any existing beef cattle operation
 37    may voluntarily submit a sustainable  management  plan  to  the  director  for
 38    approval.  An  approved  sustainable  management plan shall be implemented and
 39    considered  a  best  management  practice.  Following  department  review  and
 40    approval, the plan, and all copies of the plan, shall be returned to the oper-
 41    ation and maintained on site. Such plans shall be available to the director or
 42    his designee during inspections conducted under this  chapter.  Plans  may  be
 43    submitted  to  the  director  under  the  "Idaho One Plan" pursuant to section
 44    22-2718, Idaho Code.
 45        (2)  Development, approval and review. A sustainable management plan shall
 46    be submitted to the director in writing. Upon approval by  the  director,  the
 47    director  and  either the owner or operator of the beef cattle operation shall
 48    sign the sustainable management plan.
 49        (a)  Sustainable management plan development. Within sixty  (60)  days  of
 50        receiving  a  request by the department to submit a sustainable management
 51        plan, the owner or operator of the beef  cattle  operation  receiving  the
                                                                        
                                           6
                                                                        
  1        request  shall  submit  to  the director a sustainable management plan for
  2        approval.
  3        (b)  Interim measures. The department shall work with the owner or  opera-
  4        tor  of a beef cattle operation that has received a request by the depart-
  5        ment to submit a sustainable management plan, to identify interim measures
  6        that can be implemented in a timely manner to begin the process of  imple-
  7        menting  reasonable precautions to reduce fugitive dust and odor emissions
  8        while the sustainable management plan is being developed.
  9        (c)  Department approval. The director shall approve,  reject  or  request
 10        additional  information within thirty (30) days of receiving a sustainable
 11        management plan from the owner or operator of a beef cattle operation. The
 12        approval, rejection or request for additional information  shall  be  pro-
 13        vided to the owner or operator of the beef cattle operation in writing.
 14             (i)   If  the  director  rejects  a  sustainable  management  plan or
 15             requests additional information, the owner or operator  of  the  beef
 16             cattle operation shall submit to the director the additional informa-
 17             tion  or  a  rewritten sustainable management plan that addresses the
 18             reasons for the rejection within thirty (30) days of receiving  writ-
 19             ten notification from the director.
 20             (ii)  Within  fifteen  (15) days of receiving the additional informa-
 21             tion or a rewritten sustainable management plan, the  director  shall
 22             approve or reject the sustainable management plan. If the sustainable
 23             management  plan  is  rejected, the safe harbor provisions of section
 24             22-4911, Idaho Code, shall not apply.
 25             (iii) The director may, on a case by case basis, grant extensions  to
 26             the deadlines contained in this section.
 27        (d)  Implementation.  Sustainable management plans shall be implemented as
 28        approved by the director.
 29        (e)  Review of sustainable management plan. The  department  shall  review
 30        sustainable  management  plans  no  less than annually for three (3) years
 31        after the director  approves  the  sustainable  management  plan.  If  the
 32        department  determines  an  approved  sustainable  management plan has not
 33        reduced fugitive dust and  odor  emissions  to  a  level  associated  with
 34        accepted  agricultural  practices  after  a  reasonable period of time, as
 35        determined by the department, the department shall review the  sustainable
 36        management  plan  with  the owner or operator of the beef cattle operation
 37        and adjust the sustainable management plan to meet the goals of  the  beef
 38        cattle sustainability act.
                                                                        
 39        SECTION  9.  That Section 22-4907, Idaho Code,  be, and the same is hereby
 40    amended to read as follows:
                                                                        
 41        22-49078.  INSPECTIONS. (1) The director or his designee in  the  division
 42    of animal industries is authorized to enter and inspect any beef cattle animal
 43    feeding  operation and have access to or copy any facility records deemed nec-
 44    essary to ensure compliance with this chapter. and  the  federal  clean  water
 45    act.  The director shall comply with the biosecurity protocol of the operation
 46    so long as the protocol does not inhibit reasonable access to:
 47        (a)  Enter and inspect at reasonable times the premises or  land  applica-
 48        tion site(s) of a beef cattle animal feeding operation;
 49        (b)  Review  and/or  copy,  at  reasonable times, any records that must be
 50        kept under conditions of this chapter;
 51        (c)  Sample or monitor  at  reasonable  times,  substances  or  parameters
 52        directly related to compliance with an NPDES permit or this chapter.
 53        (2)  All  inspections  and investigations conducted under the authority of
                                                                        
                                           7
                                                                        
  1    this chapter shall be performed in conformity with section 17,  article  I  of
  2    the constitution of the state of Idaho. The state shall not, under the author-
  3    ity  granted by this chapter, conduct warrantless searches of private property
  4    in the absence of either consent from the property owner or  other  authorized
  5    person.
  6        (3)  All  records  copied or obtained by the director or his designee as a
  7    result of an inspection pursuant to this section shall be confidential private
  8    records and shall be exempt from disclosure under chapter 3,  title  9,  Idaho
  9    Code, except:
 10        (a)  Records otherwise deemed to be public records not exempt from disclo-
 11        sure pursuant to chapter 3, title 9, Idaho Code; and
 12        (b)  Inspection reports, determinations of compliance or noncompliance and
 13        all other records created by the director or his designee pursuant to this
 14        section.
                                                                        
 15        SECTION 10.  That Section 22-4908, Idaho Code,  be, and the same is hereby
 16    amended to read as follows:
                                                                        
 17        22-49089.  DISCHARGES. No animal feeding beef cattle operation shall cause
 18    an  unauthorized discharge to waters of the state. Noncompliance with the pro-
 19    visions of this act chapter or unauthorized discharges may subject a  facility
 20    to enforcement as provided in this act chapter.
                                                                        
 21        SECTION  11.  That Section 22-4909, Idaho Code, be, and the same is hereby
 22    amended to read as follows:
                                                                        
 23        22-490910.  ENFORCEMENT. (1) Informal administrative resolution of noncom-
 24    pliance. When the director identifies items of noncompliance at a beef  cattle
 25    animal  feeding operation, the deficiencies will be noted and appropriate cor-
 26    rective actions will be identified and scheduled informally.  When  corrective
 27    actions  cannot  be  commenced  within thirty (30) days and completed within a
 28    reasonable time, the director may negotiate a compliance order as specified in
 29    subsection (2)(b) of this section.
 30        (2)  (a) Administrative enforcement. Any beef cattle animal feeding opera-
 31        tion not complying with the provisions of this act chapter may be assessed
 32        a civil penalty by the director or his duly authorized agent in an  admin-
 33        istrative enforcement action by the issuance of a notice of noncompliance.
 34        The  notice  of  noncompliance  shall identify  the alleged violation with
 35        specificity, shall specify each provision of the  act  chapter  or  permit
 36        which  has  been violated, and shall state the amount of any civil penalty
 37        claimed for each violation and identify appropriate corrective action.
 38        (b)  The notice of noncompliance shall inform the person  to  whom  it  is
 39        directed  of  an opportunity to confer with the director or the director's
 40        designee in a compliance conference concerning the  alleged  violation.  A
 41        compliance  schedule must be requested within fifteen (15) days of receipt
 42        of the notice of noncompliance. The compliance conference shall provide an
 43        opportunity for the recipient of a notice of noncompliance to explain  the
 44        circumstances  of the alleged violation and, where appropriate, to present
 45        a proposal for remedying damage caused by the alleged violation and assur-
 46        ing future compliance. If the recipient and the director agree on  a  plan
 47        to  remedy damage caused by the alleged noncompliance and to assure future
 48        compliance, they may enter  into  a  compliance  order  formalizing  their
 49        agreement.  The  compliance  order may include a schedule to correct defi-
 50        ciencies and a provision providing for payment of any  agreed  civil  pen-
 51        alty.
                                                                        
                                           8
                                                                        
  1        (c)  A  compliance  order  shall  be effective immediately upon signing by
  2        both parties and shall preclude any civil enforcement action for the  same
  3        alleged  noncompliance.  If  a party does not comply with the terms of the
  4        compliance order, the director may seek and  obtain,  in  any  appropriate
  5        district  court,  specific  performance  of  the compliance order and such
  6        other relief as authorized in this act chapter.
  7        (d)  If the parties cannot reach agreement on a  compliance  order  within
  8        sixty  (60)  days  after the receipt of the notice of noncompliance, or if
  9        the recipient does not timely request a compliance conference  under  this
 10        section,  the  director  may  commence  and  prosecute a civil enforcement
 11        action in district court, in accordance with subsection (3) of  this  sec-
 12        tion.
 13        (3)  Civil  enforcement.  The  director  may  initiate a civil enforcement
 14    action through the attorney general. Civil enforcement actions shall  be  com-
 15    menced and prosecuted in the district court in and for the county in which the
 16    alleged  violation  occurred,  and  may  be  brought against any person who is
 17    alleged to have violated any provision of this act chapter or  any  permit  or
 18    order which has become effective pursuant to this act chapter. Such action may
 19    be brought to compel compliance with any provision of this act chapter or with
 20    any  permit  or  order  promulgated  hereunder  and for any relief or remedies
 21    authorized in this act chapter. No civil or administrative proceeding  may  be
 22    brought  to  recover for a violation of any provision of this act chapter or a
 23    violation of any permit or order issued pursuant to  this  act  chapter,  more
 24    than  two  (2)  years  after the director had knowledge or ought reasonably to
 25    have had knowledge of the violation.
 26        (4)  Civil penalty. Any person determined in a civil enforcement action to
 27    have violated any provision of this act chapter or any permit or order promul-
 28    gated  pursuant to this act chapter shall be liable for a civil penalty not to
 29    exceed ten thousand dollars ($10,000) per violation or  one  thousand  dollars
 30    ($1,000)  for  each  day  of a continuing violation. The method of recovery of
 31    said penalty shall be by a civil enforcement action in the district  court  in
 32    and  for  the county where the violation occurred. Moneys collected for viola-
 33    tions of this section or rules promulgated thereunder shall  be  deposited  in
 34    the state treasury and credited to the state school building fund. The imposi-
 35    tion or computation of monetary penalties shall take into account the serious-
 36    ness of the violation, good faith efforts to comply with the law, the economic
 37    impact  of  the  penalty on the violator, the economic benefit, if any, of the
 38    violation and such other matters as justice requires.
                                                                        
 39        SECTION 12.  That Section 22-4910, Idaho Code,  be, and the same is hereby
 40    amended to read as follows:
                                                                        
 41        22-49101.  SAFE HARBOR. All beef cattle animal feeding operations  operat-
 42    ing in compliance with this act chapter and approved best management practices
 43    shall not constitute a private or public nuisance, constitute a trespass or be
 44    subject  to  state  enforcement  action  due to violations of applicable state
 45    laws, regulations or permits including, but not limited to, air quality  stan-
 46    dards,  water quality standards or state ground water quality standards except
 47    in the event of imminent and substantial danger  as  provided  in  chapter  1,
 48    title  39,  Idaho Code. However, the department shall evaluate and modify such
 49    best management practices as necessary.
                                                                        
 50        SECTION 13.  That Section 9-340D, Idaho Code, be, and the same  is  hereby
 51    amended to read as follows:
                                                                        
                                           9
                                                                        
  1        9-340D.  RECORDS  EXEMPT  FROM  DISCLOSURE  --  TRADE  SECRETS, PRODUCTION
  2    RECORDS, APPRAISALS, BIDS, PROPRIETARY INFORMATION. The following records  are
  3    exempt from disclosure:
  4        (1)  Trade  secrets including those contained in response to public agency
  5    or independent public  body  corporate  and  politic  requests  for  proposal,
  6    requests  for  clarification,  requests  for information and similar requests.
  7    "Trade secrets" as used in this section means information,  including  a  for-
  8    mula,  pattern,  compilation, program, computer program, device, method, tech-
  9    nique, process, or unpublished or in progress research that:
 10        (a)  Derives independent economic value, actual  or  potential,  from  not
 11        being  generally  known  to, and not being readily ascertainable by proper
 12        means by other persons who can obtain economic value from  its  disclosure
 13        or use; and
 14        (b)  Is the subject of efforts that are reasonable under the circumstances
 15        to maintain its secrecy.
 16        (2)  Production records, housing production, rental and financing records,
 17    sale or purchase records, catch records, mortgage portfolio loan documents, or
 18    similar business records of a private concern or enterprise required by law to
 19    be  submitted  to or inspected by a public agency or submitted to or otherwise
 20    obtained by an independent public body corporate and politic. Nothing in  this
 21    subsection shall limit the use which can be made of such information for regu-
 22    latory purposes or its admissibility in any enforcement proceeding.
 23        (3)  Records relating to the appraisal of real property, timber or mineral
 24    rights  prior to its acquisition, sale or lease by a public agency or indepen-
 25    dent public body corporate and politic.
 26        (4)  Any estimate prepared by a public agency or independent  public  body
 27    corporate  and  politic  that  details the cost of a public project until such
 28    time as disclosed or bids are opened, or upon award of the contract  for  con-
 29    struction of the public project.
 30        (5)  Examination,  operating or condition reports and all documents relat-
 31    ing thereto, prepared by or supplied to any public agency or independent  pub-
 32    lic  body  corporate and politic responsible for the regulation or supervision
 33    of financial institutions including, but not limited to,  banks,  savings  and
 34    loan associations, regulated lenders, business and industrial development cor-
 35    porations,  credit  unions,  and insurance companies, or for the regulation or
 36    supervision of the issuance of securities.
 37        (6)  Records gathered by a local agency or the Idaho  department  of  com-
 38    merce, as described in chapter 47, title 67, Idaho Code, for the specific pur-
 39    pose  of assisting a person to locate, maintain, invest in, or expand business
 40    operations in the state of Idaho.
 41        (7)  Shipping and marketing records of commodity commissions used to eval-
 42    uate marketing and advertising strategies and the names and addresses of grow-
 43    ers and shippers maintained by commodity commissions.
 44        (8)  Financial statements and business information and  reports  submitted
 45    by  a legal entity to a port district organized under title 70, Idaho Code, in
 46    connection with a business agreement, or with a development proposal or with a
 47    financing application for any industrial,  manufacturing,  or  other  business
 48    activity within a port district.
 49        (9)  Names  and  addresses of seed companies, seed crop growers, seed crop
 50    consignees, locations of seed crop fields, variety name and acreage  by  vari-
 51    ety.  Upon  the request of the owner of the proprietary variety, this informa-
 52    tion shall be released to the owner. Provided however, that if a seed crop has
 53    been identified as diseased or has been  otherwise  identified  by  the  Idaho
 54    department  of  agriculture,  other  state  departments of agriculture, or the
 55    United States department of agriculture to represent a threat to that particu-
                                                                        
                                           10
                                                                        
  1    lar seed or commercial crop industry or to individual growers, information  as
  2    to  test results, location, acreage involved and disease symptoms of that par-
  3    ticular seed crop, for that growing season,  shall  be  available  for  public
  4    inspection  and  copying. This exemption shall not supersede the provisions of
  5    section 22-436, Idaho Code.
  6        (10) Information obtained from books, records  and  accounts  required  in
  7    chapter  47,  title  22,  Idaho Code, to be maintained by the Idaho canola and
  8    rapeseed commission and pertaining to the individual production records of ca-
  9    nola or rapeseed growers.
 10        (11) Records of any risk retention or self-insurance program  prepared  in
 11    anticipation  of  litigation  or for analysis of or settlement of potential or
 12    actual money damage claims against  a  public  entity  and  its  employees  or
 13    against the industrial special indemnity fund except as otherwise discoverable
 14    under  the  Idaho  or  federal  rules  of civil procedure. These records shall
 15    include, but are not limited to, claims  evaluations,  investigatory  records,
 16    computerized  reports  of losses, case reserves, internal documents and corre-
 17    spondence relating thereto. At the time any claim is concluded, only statisti-
 18    cal data and actual amounts paid in settlement shall be deemed a public record
 19    unless otherwise ordered to be sealed by a court  of  competent  jurisdiction.
 20    Provided however, nothing in this subsection is intended to limit the attorney
 21    client privilege or attorney work product privilege otherwise available to any
 22    public agency or independent public body corporate and politic.
 23        (12) Records  of  laboratory  test  results provided by or retained by the
 24    Idaho food quality assurance laboratory.  Nothing  in  this  subsection  shall
 25    limit  the use which can be made, or availability of such information if used,
 26    for regulatory purposes or its admissibility in any enforcement proceeding.
 27        (13) Reports required to be filed under chapter 13, title 62, Idaho  Code,
 28    identifying  electrical  or  natural  or manufactured gas consumption data for
 29    an individual customer or account.
 30        (14) Voluntarily prepared environmental audits, and voluntary  disclosures
 31    of  information  submitted on or before December 31, 1997, to an environmental
 32    agency as defined in section 9-803, Idaho Code, which are claimed to be confi-
 33    dential business information.
 34        (15) Computer programs developed or purchased by or for any public  agency
 35    or  independent  public body corporate and politic for its own use. As used in
 36    this subsection, "computer program" means a series of instructions  or  state-
 37    ments  which  permit the functioning of a computer system in a manner designed
 38    to provide storage, retrieval and manipulation of data from the computer  sys-
 39    tem,  and any associated documentation and source material that explain how to
 40    operate the computer program. Computer program does not include:
 41        (a)  The original data including,  but  not  limited  to,  numbers,  text,
 42        voice, graphics and images;
 43        (b)  Analysis,  compilation  and  other  manipulated forms of the original
 44        data produced by use of the program; or
 45        (c)  The mathematical or statistical formulas that would be  used  if  the
 46        manipulated forms of the original data were to be produced manually.
 47        (16) Active  investigative records and trademark usage audits of the Idaho
 48    potato commission specifically relating to  the  enforcement  of  chapter  12,
 49    title 22, Idaho Code, until the commencement of formal proceedings as provided
 50    by  rules  of  the commission; purchase and sales information submitted to the
 51    Idaho potato commission during a trademark usage audit, and  investigation  or
 52    enforcement  proceedings.  Inactive  investigatory  records shall be disclosed
 53    unless the disclosure would violate the standards  set  forth  in  subsections
 54    (1)(a)  through  (f)  of section 9-335, Idaho Code. Nothing in this subsection
 55    shall limit the use which can be made, or availability of such information  if
                                                                        
                                           11
                                                                        
  1    used, for regulatory purposes or its admissibility in any enforcement proceed-
  2    ing.
  3        (17) All  records  copied or obtained by the director of the department of
  4    agriculture or his designee as a result of an inspection pursuant  to  section
  5    25-3806, Idaho Code, except:
  6        (a)  Records otherwise deemed to be public records not exempt from disclo-
  7        sure pursuant to this chapter; and
  8        (b)  Inspection reports, determinations of compliance or noncompliance and
  9        all other records created by the director or his designee pursuant to sec-
 10        tion 25-3806, Idaho Code.
 11        (18) All  data  and information collected by the division of animal indus-
 12    tries or the state brand board pursuant to the provisions of section  25-207B,
 13    Idaho Code, or rules promulgated thereunder.
 14        (189) Records  disclosed  to a county official by the state tax commission
 15    pursuant to subsection (4)(c) of section 63-3029B, Idaho Code.
 16        (20)  All records copied or obtained by the director of the department  of
 17    agriculture  or  his designee as a result of an inspection pursuant to section
 18    22-4908, Idaho Code, except:
 19        (a)  Records otherwise deemed to be public records not exempt from disclo-
 20        sure pursuant to this chapter; and
 21        (b)  Inspection reports, determinations of compliance or noncompliance and
 22        all other records created by the director or his designee pursuant to sec-
 23        tion 22-4908, Idaho Code.
                                                                        
 24        SECTION 14.  That Section 25-3801, Idaho Code, be, and the same is  hereby
 25    amended to read as follows:
                                                                        
 26        25-3801.  DECLARATION  OF  POLICY AND STATEMENT OF LEGISLATIVE INTENT. (1)
 27    The agriculture industry is a vital component of Idaho's  economy  and  during
 28    the  normal  course  of producing the food and fiber required by Idaho and our
 29    nation, odors are generated. It is the intent of  the  legislature  to  manage
 30    these  odors  when they are generated at a level in excess of those odors nor-
 31    mally associated with accepted agricultural practices in Idaho.
 32        (2)  Large swine and poultry operations  are  addressing  odor  management
 33    through  chapter  1, title 39, Idaho Code, and the department of environmental
 34    quality's rules regulating large swine and poultry operations,  and  the  beef
 35    cattle  industry will address odor management as needed through implementation
 36    of the beef cattle environmental control sustainability act as provided for in
 37    chapter 49, title 22, Idaho Code, and rules promulgated thereunder.
 38        (3)  The Idaho department of agriculture is hereby authorized as the  lead
 39    agency to administer and implement the provisions of this chapter. In carrying
 40    out  the  provisions  of  this  chapter,  the  department will make reasonable
 41    efforts to ensure that any requirements imposed upon  agricultural  operations
 42    are  cost-effective and economically, environmentally and technologically fea-
 43    sible.
                                                                        
 44        SECTION 15.  An emergency existing therefor,  which  emergency  is  hereby
 45    declared to exist, this act shall be in full force and effect on and after its
 46    passage and approval.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE

                             RS 14925

The purpose of this proposed legislation is to provide the
framework through which beef cattle operations can manage
fugitive emissions of dust and odor.  Amendments to the current
environmental regulatory structure will simply add provisions for
Livestock Sustainable Management Plans that will be voluntary for
beef cattle operations, unless otherwise requested by the Idaho
State Department of Agriculture.  Livestock Sustainable
Management Plans will be reviewed annually for at least three
years, and will be considered best management practices with
reasonable precautions for the management of fugitive emissions
of dust and odor.


                           FISCAL NOTE

No fiscal impact to the General Fund.



Contact
Name:  Lloyd Knight, Idaho Cattle Association 
Phone: 208-343-1615
       Stan Boyd
       208-344-2271


STATEMENT OF PURPOSE/FISCAL NOTE                    H 175