Brief⁽¹⁾

Sub. for H.B. 2950 would make amendments to current law and establish new provisions relating to the regulation of confined animal feeding facilities. Most of the provisions would establish standards for swine feeding facilities.

The bill would amend the current definition of the term "habitable structure" so that the term would exclude those habitable structures owned by a person operating a confined feeding facility for swine.

Separation Distances

In addition, the bill would establish new separation distances for new construction or new expansion of confined feeding facilities for swine. The new separation distances would apply to distances to "habitable structures" and from any city, county, state, or federal park in existence when the application for a permit is submitted to the Kansas Department of Health and Environment (KDHE). (Sec. 1)

The bill would continue the current separation distance requirements of 1,320 feet for swine facilities with an animal unit capacity of 300 to 999 and of 4,000 feet for facilities with an animal unit capacity of 1,000 to 3,724. A separation distance of 4,000 feet would be required for the expansion of an existing swine facility to an animal unit capacity of 3,725 or more if the expansion is within the perimeter of facilities from which distances are determined under other provisions of the bill. Further, the bill would establish a new separation distance of 5,000 feet for construction of new swine facilities with more than 3,725 animal units or for expansion of existing facilities where the expanded animal unit capacity will be greater than 3,725 and the expansion extends outside the perimeter as established by the bill. The bill would establish new separation distances for new swine facilities from wildlife refuges. Under this provision the distance from a wildlife refuge would be 10,000 feet for a facility with a capacity of between 1,000 and 3,724 animal units and 16,000 feet for facilities with a capacity of 3,725 or more. (Sec. 1(h)(3))

The new separation distances for new facilities having a capacity of 3,725 animal units or more or those distances relative to wildlife refuges would not apply under two conditions. The first condition would be if there was an application for expansion of an existing facility and the application had been received before March 1, 1998. The second condition would be if there was an application for construction of a new facility and the application had been received before March 1, 1998. (Sec. 1(j)(3))

The bill would require that separation distances would be determined from the exterior perimeter of any buildings utilized for housing swine, any lots containing swine, any waste detention lagoons or ponds or other manure or wastewater storage structure, and any additional areas designed by the applicant for future expansion. The distances would not include offices, dwellings, or feed production facilities. (Sec. 1(k))

The bill also would modify current policy of allowing the Secretary of KDHE to reduce the separation distances under certain conditions. One of the current conditions is if the board of county commissioners of the county submits a written request to KDHE seeking a reduction of separation distances. Under provisions of the bill, the county commission would no longer be able to make this request for a reduction of the separation distances for expansion or construction of new swine facilities of more than 3,725 animal units. Separation distances for all sizes of swine facilities would be permitted to be modified if the Secretary of KDHE determines that technological improvements exist to justify the modification of the separation distance. The Secretary could continue to reduce separation distances when no substantial objection from owners of habitable structures is received in response to the notice which is given. (Sec. 1(i)(2)(B) and (C))

Notice to Owners of Habitable Structures

The bill would require that the applicant for a swine permit give notice, by certified mail, to all owners of habitable structures within the separation distances. The operator of the facility or of the proposed facility would submit to KDHE evidence that the notice has been given. (Sec. 1(l))

Review of Plans and Specifications

The current law which requires that all plans and specifications submitted to KDHE for new construction or new expansion of feeding facilities for any livestock may be, but are not required to be, prepared by a professional engineer or a consultant would be amended. The bill would amend this provision to require that the engineer or consultant be approved by KDHE. This provision would apply to all confined animal feeding facilities. (Sec. 1(m))

The bill would enact a number of new sections of law dealing specifically with the regulations of confined feeding facilities for swine. The following is a section by section description of the major provisions of the remaining provisions of the bill, all of which relate to confined feeding facilities for swine.

Definitions

New Sec. 2 would establish a number of new definitions including the following: "best management practices for swine," "swine facility," "swine waste retention lagoon or pond," "swine waste management system," and "significant water pollution potential," "existing swine facility," and "in existence." The term "significant water pollution potential" would be defined to mean any potential for pollution of groundwater or surface water and defined by rules and regulations adopted by the Secretary. In addition, the Secretary would be directed to issue rules and regulations with respect to what constitutes an "animal waste management system."

Section 2 would also establish a definition for the term "application." The term "application" would be defined to mean the application fee, all properly completed and executed documents furnished by the Department and any additional required documents or information necessary for obtaining a permit, including but not limited to a registration, construction plans, specifications, and any required manure management, nutrient utilization, emergency response, odor control, facility closure and dead swine handling plans; or registration with the Department before July 1, 1996, which has not been acted on by the Department before March 1, 1998.

Notice and Publication Requirements

New Sec. 3 would require KDHE to publish in the Kansas Register a notice of receipt of the application for a new swine facility or the expansion of an existing facility which would include, but not be limited to: the names and addresses of the operators and the owners of the property where the facility is located and notice of the availability of more detailed information regarding the facility. After the receipt of an application for a permit or for expansion of an existing facility, KDHE would be required to provide the additional documentation on the Internet and provide additional access to this information at the KDHE district office. The additional documentation would contain all the requirements with which the swine facility must comply and a fact sheet containing information relating to the location of the facility, maps showing water wells located on the facility's property, and a description of the facility including the exterior perimeter of structures and lagoons which would include information of the facility's waste management system. Also required would be a nutrient application plan, including base-line soil tests, and a statement that the applicant will consult with the county extension agent, qualified agronomist, or individual trained in crop protection, in order to ensure correct agronomic rates of application are used and records of those consultations will be maintained. (New Sec. 3(a))

The bill also would require there to be established by rules and regulations of the Secretary of KDHE the form of public notice for a new swine facility or the expansion of an existing facility. The bill would require the notice to be by publication in a newspaper of general circulation in the county where the facility is or will be located, to residents in the vicinity, and to local government officials. The bill would require specific information to be provided in the public notification. (New Sec. 3(b) and (c))

The bill would permit KDHE to hold a public meeting or hearing within 60 days after the conclusion of a required 30-day comment period. KDHE would be required to hold a public hearing if a hearing is requested by any owner of a habitable structure within the appropriate separation distance. KDHE would not be permitted to make a determination to approve a permit until the completion of the procedures of this section. In addition, the public hearings would be conducted only for the purpose of issues over which the Secretary of KDHE has authority. The bill also would provide that KDHE could disapprove, at any time, the issuance of a permit without completing the procedures as outlined in the bill. Further, the bill would require that KDHE make a determination to approve or disapprove the issuance of a permit not later than 180 days after the completed application is filed with KDHE. (New Sec. 3 (d), (e), (f), and (g))

The bill would require that an operator of a swine facility submit a registration or application to KDHE before initiating construction or operation of either a swine facility or a swine waste management system. When KDHE finds that no permit is required, construction or operation of the swine facility may be initiated upon issuance of a certification by KDHE. The bill would require that when KDHE determines a permit or permit modification is required, construction may be started upon approval of the application, construction plans, specifications, and swine waste management plan. The bill would prohibit the operation and stocking of a swine facility where a permit is required until KDHE issues a permit. Operations of a permitted swine facility would be prohibited from increasing the number of swine beyond that authorized by the permit until KDHE has issued the modified permit. (New Sec. 3(g))

Separation Distances From Various

Water Sources

New Sec. 4 of the bill would prohibit KDHE from approving a permit for the new construction or expansion of a swine facility unless the waste management system is located in the following manner:

• in a place to prevent the impairment of surface water and groundwater;



• outside any 100-year floodplain unless precautions are taken to flood-proof the facility;



• the system is not less than 500 feet from any surface water if the swine facility has an animal unit capacity of 3,725 or more; the system is not less than 250 feet from any surface water if the facility has an animal unit capacity of 1,000 to 3,724; or if the system is not less than 100 feet from any surface water if the facility has a capacity of under 1,000;



• the system is not less than 250 feet from any private drinking water well (this requirement would not apply if the well is located within the perimeter from which separation distances are determined, but if the facility has a capacity of more than 3,725 animal units, the facility operator would be required to test the waters from the well annually and report the results to KDHE); and



• the system is not less than 1,000 feet from any publicly-owned drinking water well that is in active use. (New Sec. 4)






The bill would provide that the distances from the waste management system outlined above would not apply in certain circumstances such as if the facility holds a valid permit, if the facility permit has been received on the effective date of the bill, or if an application for the expansion of the facility has been received on the effective date of the bill. (New Sec. 4(b))





The separation distances outlined above relating to surface waters also would not apply to any freshwater reservoir or farm pond that is privately owned if complete ownership of land bordering the reservoir or pond is under common private ownership. The separation distances would apply if there are any waters that flow from the reservoir or pond. The Secretary of KDHE would continue to have authority to protect these reservoirs or ponds under current authority to protect the public health, the soils, or waters of the state and its wildlife. (New Sec. 4(c))







Manure Management Plans





The bill would require each applicant for a permit for construction or expansion of a swine facility with 1,000 or more animal units to submit with the application for a permit a manure management plan. In addition, each existing swine facility having a capacity of 1,000 animal units or more would be required to have a manure management plan submitted to KDHE within 12 months after the rules and regulations implementing this act are adopted and comply with that plan as soon as practicable. The bill would require these facilities to also have a nutrient utilization plan if the methods of disposal of the manure or wastewater include land application. The bill would require that the manure management plan be maintained so that it is accessible to inspection by representatives of KDHE. (New Sec. 5(a), (b), (c), and (f))





The bill would require that if the operator of the facility does not own the swine at the facility, the operator would be required to execute with the owner of the swine a contract that specifies the responsibility for the management of the manure or wastewater. (New Sec. 5(g))





The bill also would require that whenever manure or wastewater generated at the facility is sold or given to a person who is not employed by the facility and is to be disposed of by means other than land application on the areas covered by the nutrient utilization plan, then the operators of the facility are to maintain a log of each person to whom the manure or wastewater are sold or given, the hauler, and the date and volume of removal. (New Sec. 5(h))







Liner Requirements for Certain Facilities





The bill, further, would establish new requirements for the construction of any new waste retention lagoon or pond where the groundwater is 25 feet or less from the underneath side of the liner of the lagoon or pond and is utilized by a facility with an animal unit capacity of 3,725 or more. Under these conditions, the bill would require the sides and bottom of the lagoon or pond to be lined with an impermeable liner on top of a compacted soil liner with a minimum depth of one foot and maximum seepage rate of 1/4 inch per day or be constructed with a compacted soil liner with a minimum depth of one foot and a maximum seepage rate of 1/8 inch per day. Groundwater monitoring would be required in this situation. (New Sec. 5(i))





If a swine retention lagoon or pond is utilized by a swine facility with an animal unit capacity of 3,725 or more and is located where groundwater is more than 25 feet from the underneath side of the liner, the sides and bottom would have to be lined with a compacted soil liner with a minimum depth of one foot and maximum seepage rate of 1/8 inch per day or by an impermeable liner on top of a compacted soil liner with a minimum depth of one foot and maximum seepage rate of 1/4 inch per day. If these facilities cannot meet the compacted soil liner requirements under this provision, then the bill would require that the facility be lined with an impermeable liner and a soil liner compacted to the extent possible. When this condition exists, the bill would require the operator to install at least one upstream and two downstream groundwater monitoring wells for the primary lagoon or pond, or employ equivalent technology as provided by rules and regulations of the Secretary of KDHE if the depth to groundwater is 150 feet or less.





In the case where retention lagoons or ponds exist on the effective date of the bill, facilities with a capacity of 3,725 or more animal units would not be required to install this kind of liner or meet the seepage rates but, where the groundwater is at a depth of 150 feet or less, would be required to install one upstream and two downstream groundwater monitoring wells around the primary lagoon or pond or employ equivalent technology by January 1, 2000. The requirement for monitoring wells under this provision would not be required if the groundwater is at a depth of 25-150 feet and the operator submits to KDHE engineering or field data that prove compliance with the requirements relating to a having a compacted soil liner with a 1/8 inch per day seepage rate or an impermeable liner with a compacted soil liner with a 1/4 inch per day seepage rate. (New Sec. 5(i)(4))





After January 1, 2000, if the Secretary determines, on a scientific basis, that the standards for waste retention lagoons and ponds for facilities with 3,725 animal units or more provide sufficient protection of the groundwater, the bill would permit the Secretary to increase the animal unit capacity at these facilities. (New Sec. 5(i)(5))







Specific Authority to Install

Monitoring Wells





In addition, the bill would give authority to the Secretary to require the installation of groundwater monitoring wells and sampling therefrom in the vicinity of any swine lagoon or pond regardless of the facility capacity. (New Sec. 5(j))







Vegetative Screening





Further, the bill would give authority to the Secretary to require the planting of trees to provide vegetative screening to control odor and the adoption of any other rules and regulations concerning the location and construction of waste retention lagoons and ponds for swine facilities to protect the waters and the soils of the state and the public health if the facility has 1,000 animal units of swine or more. (New Sec. 5(k) and (l))







Lagoon or Ponds Located Close

to Unplugged Wells





The bill would require that before the issuance of a permit or approval of plans for a swine facility that KDHE make a determination that there is no unplugged oil or gas well at the planned location of a lagoon or pond. This determination would be made after consultation with the Kansas Corporation Commission (KCC). In addition, the bill would require that if an unplugged well is discovered at the location of the lagoon or pond, the facility owner and operator would have the duty to report the discovery to KDHE. (New Sec. 5(m))







Nutrient Utilization Plans





Sec. 6 of the bill would prescribe the conditions under which manure or wastewater from permitted swine facilities could be applied to land. The section would require the development of a nutrient utilization plan for facilities with 1,000 or more swine animal units if the manure management plan contains provisions for the land application of manure or wastewater. Existing facilities would be required to submit their nutrient utilization plans within 12 months after the rules and regulations implementing this act are adopted. The bill would prescribe the contents of any nutrient utilization plan, which must be approved by the Secretary of Agriculture. Among other things, the bill would require that these plans contain a site map of land application areas, crop rotations, records of soil tests, frequency and timing of applications, the amounts of nitrogen and phosphorus applied, precipitation records, and names of employees and contractors whom the operator of the facility has identified to supervise the transfer of manure or wastewater to land application, and records of training of all personnel who supervise and conduct land application of manure or wastewater. Each swine facility required to have a nutrient utilization plan would be required to file the plan with KDHE and KDHE would forward a copy of it to the Secretary of the Kansas Department of Agriculture for approval or disapproval. (New Sec. 6(a)(b))





A provision of the bill also would require that each manure management plan contain certain provisions for the testing of the soil for nitrogen, phosphate, chloride, copper, and zinc on land to which manure or wastewater are to be applied. (New Sec. 6(c))





The bill would mandate that operators of swine facilities conduct soil tests and manure nutrient analyses to calculate needed fertility and application rates. If the soil tests demonstrate that phosphorus levels exceed or are projected to exceed within five years the phosphorus holding capacity of the soil, then the manure or wastewater must be applied with the agronomic phosphorus needs of the crops or pasture where applied. If the holding capacity for any soils in the facility's land application areas is expected to exceed the phosphorus holding capacity within five years, then the operator of the facility would be required to initiate the process of obtaining access to additional land application areas as needed. (New Sec. 6(c), (d), and (e))





The bill would prohibit a swine facility which has a nutrient utilization plan from applying manure or wastewater, other than by incorporation into the soil during the same day, within 1,000 feet of any habitable structure; city, county, state, or federal park; or wildlife refuge. The bill would provide exceptions to this prohibition, including when the manure or wastewater has been subjected to physical or biological treatment for odor reduction approved by KDHE; the manure or wastewater is applied with innovative treatment or the application of best management practices, best available technology, or other technology approved by KDHE; or the owner of the habitable structure has provided a written waiver. (New Sec. 6(f))





The setback requirements described above for application of manure or wastewater would not apply to any structure constructed or park designated after the effective date of the bill, for swine facilities in existence on the effective date of the bill, or to any habitable structure constructed (or city, state, federal, or county park) after submission of an application for a permit for a new swine facility or expansion of an existing facility. (New Sec. 6(f)(2))





The bill would prohibit the application of swine manure or wastewater to lands classified on highly erodible land according to the conservation compliance provisions of the federal Food Security Act of 1985, and classified as highly erodible on the basis of erosion resulting from water runoff; during rain storms except under special conditions; or to frozen or saturated soil except under special conditions. (New Sec. 6(f)(3))





This section also would establish the requirements for the application of manure or wastewater from swine facilities which are required to have a nutrient utilization plan through an irrigation system. The bill would require that irrigation occur only when measures are employed which reasonably prevent surface runoff and use reasonable procedures and precautions to avoid spray drift from the land to which the manure or wastewater is applied. The bill would require that equipment used in any land application process be properly maintained and calibrated so that any malfunction is detected. (New Sec. 6(f))





Provisions of the bill would require that the operator of each permitted swine facility that applies manure or wastewater identify, train and keep current the training of each employee and contractor who supervises the transfer of manure or wastewater to land application equipment and the conducting of land application activities. (New Sec. 6(f))





The bill would require that the Secretary of Agriculture make a determination to approve or disapprove a nutrient utilization plan not later than 45 days after the plan is received from KDHE. (New Sec. 6(h))







Training of Operators of Waste

Management Systems





The bill would require the Secretary of KDHE to adopt rules and regulations with respect to standards for training and certifying, and for periodic continuing education or recertification of operators of facilities maintaining or supervising the waste management system of a permitted swine facility with 1,000 animal units or more. The Secretary also would be required to adopt procedures for notifying KDHE of any failure of a waste retention lagoon or pond or any unplanned release of animal waste. (New Sec. 7)







Emergency Response Plans





Sec. 8 of the bill would require KDHE to promulgate rules and regulations with respect to permitted swine facilities that require the establishment of emergency response plans. Emergency response plans would have to be kept in a readily accessible location and would require that employees be trained to be responsible for implementing the emergency response plan. The bill would require the plan be amended whenever warranted by changes in the facility or other condition impacting the facility. (New Sec. 8)







Recordkeeping





Sec. 9 would require the operator of the permitted facility to keep all records and plans required by the bill at the facility's office in an accessible place. The records would be subject to inspection by authorized representatives of KDHE. The bill would require that the records be kept for three years. (New Sec. 9)







Swine Facility Operator Certification





The bill would require the operator of a facility with 1,000 or more animal units to be certified by KDHE or by a third party approved by KDHE. The certified operator would be knowledgeable in management of manure or wastewater, nutrient utilization planning and implementation, emergency response planning and implementation, and other requirements of the bill, including the training of employees in land application and in emergency response. The bill would allow KDHE to approve a facility without the operator certificate under certain conditions and would require that the operator obtain the certification within six months. The operators of each of these swine facilities would be responsible for the training of employees or contractors for supervision of land application of manure or wastewater, the persons who actually conduct the land application, and for the persons who are responsible for implementing the emergency response plan. (New Sec. 10)







Odor Control Plans





The bill would require as a condition of the issuance of a permit the submission of a plan for odor control. This requirement would apply to:




1. a permit for construction or expansion of a swine facility that has an animal unit capacity of 1,000 or more;



2. a permit for expansion of a swine facility that would have a capacity of 1,000 or more; or



3. renewal of a permit for a swine facility that has a capacity of 1,000 or more. (New Sec. 11(a))






The bill would require that, when a permitted facility is required to have an odor control plan, the plan would be amended whenever warranted by changes in the facility or in other conditions affecting the facility. (New Sec. 11(b))







Swine Facility Closure





Sec. 12 of the bill would require a closure plan for any swine facility which has or will have more than 3,725 animal units. The operator of a swine facility with more than 3,725 animal units would be required to demonstrate annually to KDHE that the operation has financial ability to cover the cost of closure of the facility. The bill would require amendment of the closure plan whenever warranted by changes in the facility or in other conditions affecting the facility. (New Sec. 12(a), (b), and (c))







Swine Lagoon or Pond Closure





The bill would establish the conditions under which KDHE would certify that a swine retention lagoon or pond has fully complied with closure procedures when the facility has an animal unit capacity of 3,725 or more. The bill would require the Secretary of KDHE to establish rules and regulations for demolition of any waste retention lagoon or pond, or conversion of the lagoon or pond to another use for facilities with an animal unit capacity of 3,725 or more. Rules and regulations would establish standard maximum periods for completion of all closure activities from the date of cessation of operation to the date of compliance with all closure requirements. (New Sec. 13)







Swine Facility Inspection





The bill also would require that on and after July 1, 2000, each swine facility that has a capacity of 3,725 animal units or more and that has waste retention lagoons or ponds demonstrate annually to KDHE evidence of financial ability to cover the cost of closure of the lagoons or ponds. (New Sec. 13)





The bill would require periodic inspections of the facilities and review of their records. The inspection and review would occur:




1. every 12 months for swine facilities with a capacity of 3,725 or more animal units;



2. every 24 months for swine facilities with a capacity of 1,000 to 3,724 animal units;



3. at the discretion of KDHE for swine facilities with a capacity of 300 to 999 animal units; and



4. every six months for permitted swine facilities regardless of size, if identified as having a specific water pollution problem. (New Sec. 14(a))






Operators would be required to grant access to facilities, with appropriate safeguards for the protection of the health of the animals. Costs associated with the inspection would not be assessed to the facility except in an emergency that results in the discharge of manure or wastewater to surface water or groundwater or if the operator engages in a course of conduct that results in repeated, material violations of the bill. (New Sec. 14(b) and (d))





The bill would allow the Secretary to contract with persons or entities to conduct inspections and review of records as required by the bill. (New Sec. 14(e))







Nuisance Provisions





The bill would provide that the setbacks do not apply to new habitable structures or city, county, state, or federal parks that are established after existing swine facilities. Also the bill would establish the presumption that owners of the habitable structure or parks know that they will be subject to agricultural sights, sounds, odors, or other farm characteristics. (New Sec. 15)







"Bad Actor" Provisions





The bill would permit the Secretary of KDHE to deny an application for any permit or suspend or revoke any permit for a swine facility, if the applicant, or any officer, director, partner, or resident manager of the applicant has intentionally misrepresented a material fact; habitually or intentionally violated environmental laws of this or any other state or the United States where the violation has caused significant and material environmental damage; or had any permit revoked under the environmental laws of this or any other state or of the United States. Before suspension or revocation the Secretary would have to give notice and opportunity for hearing in accordance with the Kansas Administrative Procedures Act. Failure of the operator of a swine confined feeding facility to implement any required manure management, emergency response, odor control, facility closure, or dead swine handling plan may render the operator liable for certain civil penalties and subject to suspension of the facility permit with notice and opportunity for a hearing. (New Sec. 16)







Dead Swine Plans





The bill would require that every swine facility with a capacity of 1,000 or more animal units file with KDHE a plan for handling of dead swine. The Secretary would adopt rules and regulations establishing minimum standards, with the requirements that no dead animal would be left where visible from roads or habitable structures and that the carcasses would be picked up within 48 hours under normal circumstances, and that before disposal of all dead swine would be kept within the perimeter from which separation distances are determined, unless otherwise approved by the Department. The bill would require that each facility required to have a plan for handling dead swine would be amended whenever warranted by changes in the facility or other conditions affecting the facility. (New Sec. 17)







Certain "Qualified Swine Facility" Treatment





The bill would permit a "qualified swine facility" (see tax credit provision for definition under Section 28) which expands to an animal unit capacity of 3,725 or more to be subject to the provisions of the bill as if the facility has an animal unit capacity of 1,000 to 3,724 if:




1. KDHE determines that the swine waste management system of the facility has the capacity to accommodate the expanded capacity;



2. the expansion is located within the perimeter from which separation distances are determined; and



3. the expansion does not exceed the lesser of an animal unit capacity than is more than one-third greater than the capacity of the facility on the effective date of the bill or an animal unit capacity of 4,499. (New Sec. 18)






Best Available Technology and

Best Management Practices





The bill would require Kansas State University (KSU), to cooperate with KDHE, other agencies and owners, and operators of swine facilities to determine best available technology and best management practices. Best management practices for swine facilities would be defined to mean those schedules of activities, maintenance procedures, and other management practices of a swine facility that are designed to minimize or prevent pollution of the air, water, or soil or to control odor, flies, rodents, or other pests as determined by KDHE in consultation with KSU, owners and operators of permitted swine facilities, and other appropriate persons, entities, and state and federal agencies. (New Secs. 2 and 19)







University Studies





The bill also would require KSU, within the limitations therefor, to conduct nutrient management testing of land where swine waste is applied, including deep soil sampling. This testing would be in conjunction with KSU's current lagoon study and would be for the purpose of identifying potential risk of groundwater contamination. The bill would require annual reporting of the University's findings to the House and Senate Agriculture Committees, to the House Environment Committee, to the Senate Energy and Natural Resources Committee, and to the Governor. (New Sec. 19)







Secretary of KDHE Authority





The bill would stipulate that the Secretary of KDHE could establish standards and requirements for swine facilities that are in addition to or more stringent than those contained in the bill and that those standards and requirements could apply to existing facilities.





The bill would provide that the provisions of the bill which are applicable to new construction or expansion of swine facilities would apply to all facilities for which an application for a permit has been received by KDHE on or after March 1, 1998. These facilities would be required to comply with the standards imposed by the bill at the time the permit for the construction or expansion is granted or, if rules and regulations must be adopted in order to implement the standards, then the new or expanding facilities must comply within 180 days after the adoption of the rules and regulations. (New Sec. 20)







Advisory Committee





The bill would require that the Secretary of KDHE appoint an advisory committee to consult with and advise the Secretary on the implementation and administration of the new provisions of the bill dealing with swine facilities. The advisory committee would consist of five members who represent persons knowledgeable and experienced in areas related to regulation of swine facilities. (Sec. 21)







KDHE Rulemaking Requirements and

Reporting to the Legislature





The bill would require that the Secretary of KDHE adopt the rules and regulations necessary to implement, administer, or enforce the provisions of the bill before January 1, 1999.





The bill also would require that on or before the first day of the 1999 and 2000 Legislative Sessions that the Secretary of KDHE submit a report regarding the implementation of the provisions of the bill to the House and Senate Agriculture Committees, the Senate Energy and Natural Resources Committee, and to the House Committee on Environment. (New Sec. 22)







Kansas Chemigation Law Amendments





The bill would add new definitions to the Kansas Chemigation Act with respect to "agronomic application rates" and "chemicals." "Agronomic application rates" would mean the method and amount of swine waste that, in the Secretary of Agriculture's discretion, best protects the environment, including consideration of the crops or soil to which swine waste may be applied and the economic impact associated with the application of swine waste. (New Sec. 23)





The bill would require that regardless of whether irrigation water is added or not, that whenever swine waste is applied to crops or land, the Secretary of Agriculture would be authorized to investigate, inspect, or conduct examinations or reviews of the application of the waste. No swine waste would be applied to crops or land in excess of agronomic application rates. The Secretary of Agriculture would be required to review and approve all nutrient utilization plans for the application of swine waste to crops or land. The bill would require approval or disapproval within 45 days. The Secretary of Agriculture would notify the Secretary of KDHE when a nutrient utilization plan has been approved. Soil testing would be paid for by the swine facility. The bill would stipulate that failure of the operator of a swine confined feeding facility to implement a nutrient utilization plan approved by the Secretary of Agriculture would be considered a violation of the Kansas Chemigation Safety Law for which the Secretary of Agriculture may suspend a permit or impose a civil penalty, or both. (New Sec. 24)





The bill would amend the Kansas Chemigation Act to allow the Secretary of Agriculture to adopt criteria which follows the latest scientific knowledge and technology which is designed to protect groundwater and surface water of the state. This criteria would be used to regulate the functional anti-pollution devices used in the chemigation process to protect water sources from pollution. (Sec. 25)





This section would give authority to the Secretary of Agriculture to enter premises to enforce the provisions of this bill relating to the application of swine waste under the Kansas Chemigation Act. (Sec. 26)







Composting of Dead Swine





Sec. 27 of the bill would allow there to be an additional means to dispose of dead animals which would be in accordance with rules and regulations of the Secretary of KDHE. New Sec. 37 of the bill would allow the Secretary of KDHE to adopt rules and regulations establishing standards and procedures for composting livestock, including chickens and turkeys.







"Qualified Swine Facility" Tax Credit





The bill would permit a tax credit against the tax liability of a taxpayer under the Kansas Income Tax Act in an amount equal to not more than 50 percent of the costs incurred by the taxpayer for required improvements to a "qualified swine facility." The bill would define "required improvements to a qualified swine facility" to mean capital improvements that the Secretary of KDHE certifies to the Director of Taxation that are required to comply with the standards and requirements established by the bill but not required because of expansion. The term "qualified swine facility" would mean a swine facility that is owned and operated by a sole proprietorship or partnership or by a family farm corporation, authorized farm corporation, limited liability agricultural company, family farm limited liability agricultural company, limited agricultural partnership, family trust, authorized trust, or testamentary trust as defined by K.S.A. 17-5903 and was utilizing its swine waste management system on January 1, 1998. The bill would require that, on or before the first day of the 1999, 2000, and 2001 Legislative Sessions, the Secretary of Revenue report to the Senate Committee on Energy and Natural Resources, the House Committee on Environment, the Senate Committee on Assessment and Taxation, and the House Committee on Taxation with respect to the number of taxpayers claiming the credit allowed under this section and the total amount of credits claimed by all taxpayers. (New Sec. 28)





The bill would prevent a taxpayer from claiming the tax credit and also deducting the expenses in computing taxable income. (Sec. 29)





Certain provisions of the bill would expire upon the enactment of any law during the 1998 Legislative Session prohibiting the Secretary from issuing any permit for a new swine breeding, farrowing, feeding, or finishing facility, or any combination thereof, regardless of size. (New Sec. 30)





Secs. 31 through 36 and Section 46 of the bill would restore amended provisions of current law to their existing status if a bill is passed during the 1998 Legislative Session which prohibits the Secretary of KDHE from issuing any permit for a new swine breeding, farrowing, feeding, or finishing facility, or any combination thereof.





New Sec. 38 of the bill would allow the board of county commissioners, in any county which has conducted an advisory election on the question of rescinding a resolution allowing swine production facilities under the Kansas Corporate Farming Law, to adopt a resolution rescinding a resolution adopted under the Corporate Farming Law. The resolution would be submitted to the qualified electors of the county at the next state or county-wide regular or special election which occurs more than 60 days after the adoption of the resolution. If the majority of the voters vote in favor of the resolution, the county election officer would be required to send a copy of the results to the Secretary of State. The bill would require the Secretary of State to publish the results in the Kansas Register and swine production facilities would not be allowed to be established in that county. The bill would allow a petition to put the issue on the ballot with respect to rescinding the resolution. The bill would sunset this section on December 31, 1998. In addition, Sec. 39 would amend a section of the county home rule law to prohibit counties from exercising their home-rule powers to exempt themselves from the other provisions of the bill. (Sec. 38 and 39)





Secs. 40 through 43 would prohibit the Secretary of Commerce and Housing from using any funds in the Kansas Industrial Training Program or the Kansas Industrial Retraining Program for the training or retraining of employees who are employed by a "swine production facility" on "agricultural land" which is owned, acquired, obtained, or leased by a "corporation," "limited liability company," "limited partnership," "corporate partnership," or "trust," as defined by the Kansas Corporate Farming Law. The bill also would prohibit the Kansas Development Finance Authority from issuing bonds for swine production facilities on agricultural land owned, acquired, obtained, or leased by a corporation, limited liability company, limited partnership, corporate partnership, or trust.







Effective Date





The last provision of the bill is the effective date which is upon publication in the Kansas Register. (Sec. 47)







Background





The House Committee of the Whole amended the bill to:




• provide for a moratorium on swine facilities of 3,800 or more animal units in counties which have voted against swine production facilities;



• require that KDHE consult with the KCC regarding the possibility of there being unplugged oil or gas wells in the vicinity of the planned location of a swine lagoon or pond and to require notice to KDHE if a well is discovered during construction of a swine retention lagoon or pond;



• require a county vote when a board of county commissioners adopts a resolution allowing swine production facilities into a county and to permit the proposition of allowing swine production facilities in a county every two years if a petition is submitted to the board of county commissioners;



• prohibit the use of Kansas Industrial Training funds or Kansas Industrial Retraining Programs for "swine production facilities" as defined by the Kansas Corporate Farming Law and to prohibit the Kansas Development Finance Authority from issuing any bonds that would be used for "swine production facilities"; and



• require that any costs for implementing the provisions of the bill, including additional state employees, be paid for with moneys from the state Economic Development Initiatives Fund.






The Senate Committee on Energy and Natural Resources amended the bill to:




1. clarify that the bill does not require a permit of all swine facilities with a capacity of 300-999 animal units;



2. clarify the types of liners required for facilities with an animal unit capacity of 3,725 or more;



3. clarify that the provision requiring KDHE to consult with the KCC regarding unplugged wells would be applicable to those in the location of the lagoon or pond rather than in the "vicinity" or the lagoon or pond;



4. eliminate provisions of the bill which would have provided for a moratorium on swine facilities of 3,800 or more animal units in counties which have voted against swine production facilities;



5. eliminate a provision of the bill which would have required a county vote when a board of county commissioners adopts a resolution allowing swine production facilities into a county and to permit the proposition of allowing swine production facilities in a county every two years if a petition is submitted to the board of county commissioners;



6. return to current law with respect to the preparation of plans and specifications for confined feeding facilities, with the addition that if the plan and specifications are prepared by an engineer or consultant that these individuals must be approved by KDHE;



7. clarify that swine waste or manure may be applied to certain soil types even if they are considered to be highly erodible by wind;



8. specify that the provisions of the bill relating to the certification of operators of swine facilities or operators monitoring or supervising a waste management system only applies to those swine facilities having 1,000 animal units or more;



9. clarify that emergency response plans would be required of all "permitted" facilities rather than to all swine facilities;



10. eliminate a provision which had provided that if a swine facility was in compliance with all applicable requirements of the bill and any other environmental law that the facility would have been presumed not to be a nuisance under K.S.A. 2-3202 (the right-to-farm legislation);



11. clarify that if a swine facility with a capacity of 3,725 or more in existence on the effective date of the bill and located where it is less than 150 feet, but more than 25 feet, to groundwater that monitoring wells would not be required if the operator submits to KDHE engineering or field data that prove compliance with the requirements to have a compacted soil liner with a 1/8 inch per day seepage rate or with an impermeable liner with a compacted soil liner with a 1/4 inch per day seepage rate;



12. clarify those who applicants would consult with to ensure that correct agronomic rates of manure or wastewater are applied (county extension agents, qualified agronomists, and individuals trained in crop protection);



13. extend to 60 days the time in which KDHE may conduct a public hearing after the conclusion of the 30-day comment period;



14. require inspection of swine facilities every 24 months for facilities with a capacity of 1,000 to 3,724 and allow KDHE to inspect facilities of between 300 and 999 at its discretion;



15. clarify that notice of a new swine facility or an expansion would occur in the Kansas Register, but that more detailed information about the new facility or the facility to be expanded would be available on the Internet and at the district office of KDHE in the area of the facility;



16. clarify that with regard to the application of manure or wastewater that measures be employed to irrigate under conditions which reasonably prevent surface runoff and that reasonable procedures and precautions be used to avoid spray drift from the lands to which the manure or wastewater is applied;



17. eliminate a provision which relates to the promulgation of rules and regulations by the Secretary of KDHE with respect to other species of livestock other than swine;



18. provide that all applicable new standards and requirements for swine facilities that are imposed pursuant to the bill would apply to any swine facility for which an application for new construction or expansion is received by KDHE on or after March 1, 1998 (certain plans for existing facilities are required within 12 months after the effective date of rules and regulations); and



1. allow boards of county commissioners in those counties which have had an advisory election on the issue of whether to allow "swine production facilities," to adopt a resolution rescinding a resolution which had permitted swine production facilities and for voters to petition the county commission to place a resolution on the ballot (the resolution would be submitted at the next county-wide election and if voted on favorably then "swine production facilities" would not be allowed in that county).






The Senate Committee of the Whole amended the bill to:




1. require that the Secretary of KDHE adopt the rules and regulations necessary to implement, administer, and enforce the provisions of the bill before January 1, 1999;



2. increase the separation distances from wildlife refuges for new swine facilities to 10,000 feet (prior versions of the bill had been 5,000 feet) for facilities of between 1,000 and 3,724 animal units and to 16,000 feet (prior versions of the bill had been 6,000 feet) for facilities with more than 3,725 animal units; and



3. clarify the implementation of the provisions of the bill by requiring that if rules and regulations are required to implement any standards or requirements in the bill that new facilities or expanding facilities would be required to comply within 180 days after the adoption of those rules and regulations.






Other amendments by the Senate Committee of the Whole were technical in nature.

1. *Supplemental notes are prepared by the Legislative Research Department and do not express legislative intent. The supplemental note and fiscal note for this bill may be accessed on the Internet at http://www.ink.org/public/legislative/fulltext-bill.html.