House Bill 1197

Reprinted

February 21, 2007

HOUSE BILL No. 1197

_____

DIGEST OF HB 1197 (Updated February 20, 2007 8:03 pm - DI 52)

Citations Affected: IC 13-11; IC 13-18; IC 15-3; noncode.

Synopsis: Regulation of confined feeding operations. Prohibits construction of a new confined feeding operation (CFO) within one mile of a licensed child care center, a public school, a licensed health facility, or a municipality. Excepts from the prohibition: (1) new construction within one mile from those entities if they located within one mile of a CFO; and (2) expansion of an existing CFO. Provides that the exception applies only if the person proposing the construction or expansion has not committed an environmental violation. Allows a person that would be restricted by the one mile limitation to appeal to the local zoning authority or county executive for an exemption. Requires the department of environmental management (IDEM) to establish civil penalty matrices for various categories of violations relating to CFOs. Requires IDEM to inspect each CFO at least one time each year. Applies an annual inspection fee on CFO's that is deposited in a confined feeding fund and used to fund IDEM CFO inspections. Requires the state chemist to: (1) establish a training program for CFO manure applicators and haulers; and (2) report to the general assembly concerning the training program. In certain court actions brought against a CFO owner or operator, allows the prevailing party to recover costs and attorney fees. Requires IDEM to revoke the CFO approval or permit of a person on the third occurrence of: (1) an environmental conviction: or (2) the imposition of certain environmental civil penalties. In a county that does not have an ordinance in effect regulating CFO location, construction, or operation, allows the county legislative body before January 1, 2008, to retroactively regulate by adopting an ordinance within ninety days of the CFO approval date.

Effective: Upon passage; July 1, 2007.

    January 11, 2007, read first time and referred to Committee on Agriculture and Rural Development.
    February 15, 2007, amended, reported _ Do Pass.
    February 20, 2007, read second time, amended, ordered engrossed.

Reprinted

February 21, 2007

First Regular Session 115th General Assembly (2007)

PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in ~~this~~ ~~style~~ ~~type.~~
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or ~~this~~ ~~style~~ ~~type~~ reconciles conflicts between statutes enacted by the 2006 Regular Session of the General Assembly.

HOUSE BILL No. 1197

A BILL FOR AN ACT to amend the Indiana Code concerning environmental law.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 13-18-10-1.5; (07)HB1197.2.2. -->     SECTION 2. IC 13-18-10-1.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 1.5. (a) Except as provided in subsection (b), and subject to subsection (c), a new confined feeding operation, including a CAFO, may not be constructed if any part of the facility would be less than one (1) mile from the boundary of any of the following:
        (1) A parcel of land on which either of the following is located:
            (A) A public school.
            (B) A health facility licensed under IC 16-28.
        (2) A municipality.
     (b) Subsection (a) does not apply to construction that:

        (1) is:
            (A) an expansion of an existing confined feeding operation or CAFO; or
            (B) construction of a new confined feeding operation or CAFO proposed to be located within one (1) mile of a boundary referred to in subsection (a) of an entity described in subsection (a)(1) or (a)(2) that located within one (1) mile of a confined feeding operation or CAFO that:
                (i) existed; or
                (ii) was under construction;
            on March 1, 2007; and
        (2) is proposed by a person that has not committed a violation of:
            (A) environmental management laws; or
            (B) a rule adopted by the board;
        as determined by the department.
    (c) A person that proposes construction as described in subsection (a) may appeal to:
        (1) the local zoning authority that has jurisdiction where the facility is to be located; or
        (2) the county executive if the facility is to be located in a county that does not zone under IC 36-7-4;
for an exemption from the one (1) mile limitation under subsection (a). The person must specify in the appeal petition the reasons that justify the exemption.
    (d) A local zoning authority or county executive that receives an appeal petition under subsection (c) shall do the following:
        (1) Publish notice under IC 5-3-1 of a public hearing on the appeal. The public hearing must be held not later than forty-five (45) days after the date of filing of the appeal petition under subsection (c).
        (2) Hold the public hearing, taking testimony from the appellant and the public on the appeal.
        (3) Conduct any inquiry or investigation that the local zoning authority or county executive considers necessary before making a determination.
    (e) A local zoning authority or county executive may grant an appeal under subsection (c) for exemption from the one (1) mile limitation under subsection (a) only if the local zoning authority or county executive determines that granting the appeal is consistent with the public health, safety, and welfare.
    (f) After a public hearing held under subsection (d), the local

zoning authority or county executive shall:
        (1) make a written determination on the appeal petition; and
        (2) give notice of the determination to:
            (A) the appellant; and
            (B) the department;
        not later than thirty (30) days after the date of the public hearing, unless the local zoning authority or county executive and the appellant agree to a longer time.

SOURCE: IC 13-18-10-2.1; (07)HB1197.2.3. -->     SECTION 3. IC 13-18-10-2.1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 2.1. (a) The department:
        (1) shall make a determination on an application not later than ninety (90) days after the date the department receives the completed application, including all required supplemental information, unless the department and the applicant agree to a longer time; ~~and~~
        (2) may conduct any inquiry or investigation, consistent with the department's duties under this chapter, the department considers necessary before making a determination; and
        (3) may not approve the application if:
            (A) the limitation in section 1.5(a) of this chapter applies to; or
            (B) an appeal is pending under section 1.5(c) of this chapter with respect to;
        the facility that is the subject of the application.
    (b) If the department fails to make a determination on an application not later than ninety (90) days after the date the department receives the completed application, the applicant may request and receive a refund of an approval application fee paid by the applicant, and the commissioner shall:
        (1) continue to review the application;
        (2) approve or deny the application as soon as practicable; and
        (3) refund the applicant's application fee not later than twenty-five (25) working days after the receipt of the applicant's request.
    (c) The commissioner may suspend the processing of an application and the ninety (90) day period described under this section if the department determines within thirty (30) days after the department receives the application that the application is incomplete and has mailed a notice of deficiency to the applicant that specifies the parts of the application that:
        (1) do not contain adequate information for the department to process the application; or

        (2) are not consistent with applicable law.
    (d) The department may establish requirements in an approval regarding that part of the confined feeding operation that concerns manure handling and application to assure compliance with:
        (1) this chapter;
        (2) rules adopted under this chapter;
        (3) the water pollution control laws;
        (4) rules adopted under the water pollution control laws; and
        (5) policies and statements adopted under IC 13-14-1-11.5 relative to confined feeding operations.
    (e) The department may amend an approval or revoke an approval:
        (1) for failure to comply with:
            (A) this chapter;
            (B) rules adopted under this chapter;
            (C) the water pollution control laws; or
            (D) rules adopted under the water pollution control laws; and
        (2) as needed to prevent discharges of manure into the environment that pollute or threaten to pollute the waters of the state.

SOURCE: IC 13-18-10-7; (07)HB1197.2.5. -->     SECTION 5. IC 13-18-10-7 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 7. (a) The department shall establish civil penalty matrices for the following categories:
        (1) First time violations.
        (2) Repeat violations.
        (3) Intentional violators.
    (b) The civil penalty matrices established in this section must include the following factors to determine each penalty:
        (1) The magnitude of the violation.
        (2) The gravity of the effect of the violation.
        (3) The preventability of the violation.
        (4) The actions taken to prevent or correct the violation.
     (c) The range of the penalties for each category of the civil

penalty matrix is as follows:
        (1) First time violations, one hundred dollars ($100) to twenty-five thousand dollars ($25,000) for each day of violation.
        (2) Repeat violations, five hundred dollars ($500) to fifty thousand dollars ($50,000) for each day of violation.
        (3) Intentional violators, ten thousand dollars ($10,000) to one hundred thousand dollars ($100,000) for each day of violation.

SOURCE: IC 13-18-10-10; (07)HB1197.2.8. -->     SECTION 8. IC 13-18-10-10 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 10. (a) The confined feeding operation inspection fund is established to permit the department to inspect confined feeding operations, including CAFOs, to determine compliance with this title.
    (b) The department shall administer the fund. Money in the fund is annually appropriated to the department for purposes of this chapter.
    (c) The expenses of administering the fund shall be paid from money in the fund.
    (d) The treasurer of state shall invest the money in the fund not currently needed to meet the obligations of the fund in the same manner as other public funds may be invested.
    (e) Money in the fund at the end of a fiscal year does not revert to the state general fund.

SOURCE: IC 13-18-10-11; (07)HB1197.2.9. --> SECTION 9. IC 13-18-10-11 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 11. If:
(1) a court action is brought against an owner or operator of

a confined feeding operation, including a CAFO, by a person other than a political subdivision or a state agency; and
(2) the action includes a complaint against any aspect of the construction or operation of the confined feeding operation or CAFO;
the party prevailing in the action is entitled to recover the costs of the action, including reasonable attorney's fees as determined by the court.

SOURCE: IC 15-3-3-18; (07)HB1197.2.12. -->     SECTION 12. IC 15-3-3-18 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 18. (a) The state chemist shall adopt rules to establish a training and educational program for manure haulers and applicators concerning the application to land of manure generated from a confined feeding operation (as defined by IC 13-11-2-40), including concentrated animal feeding operations (as defined by IC 13-11-2-38.3).
    (b) The program established under subsection (a) must include the following topics concerning manure hauling and application:
        (1) Manure testing.
        (2) Soil testing.
        (3) Transportation.
        (4) Manure application and handling.
        (5) Any other topics determined by the state chemist.

SOURCE: ; (07)HB1197.2.14. -->     SECTION 14. [EFFECTIVE UPON PASSAGE] (a) As used in this SECTION, "facility" means either of the following:
        (1) A new concentrated animal feeding operation as defined in IC 13-11-2-38.3.
         (2) A new confined feeding operation as defined in IC 13-11-2-40.
     (b) As used in this SECTION, "facility approval date" refers to either of the following:
        (1) The date the department of environmental management approves a facility under IC 13-18-10-1.
         (2) With respect to a facility to which subdivision (1) does not apply, either of the following:
            (A) The date the department of environmental management approves a NPDES permit for the facility under 327 IAC 5.
            (B) The date a notice of intent is filed for general NPDES permit coverage for the facility under 327 IAC 15.
     (c) As used in this SECTION, "facility ordinance" refers to an ordinance that regulates any of the following with respect to a facility:
        (1) Location.
        (2) Construction.
        (3) Operation.
    (d) As used in this SECTION, "legislative body" has the meaning set forth in IC 36-1-2-9.
    (e) A facility ordinance may retroactively regulate a facility only if:
        (1) the legislative body of the county adopts the facility ordinance:
            (A) after the effective date of this SECTION;
            (B) before January 1, 2008; and
            (C) not later than ninety (90) days after the facility approval date; and
        (2) on the date the legislative body adopts the facility ordinance under subdivision (1) the county does not have a facility ordinance is in effect.
    (f) This SECTION expires January 1, 2008.