Introduced Version
HOUSE BILL No. 1308
_____
DIGEST OF INTRODUCED BILL
Citations Affected: IC 13-18-10.
Synopsis: Local review of confined feeding operations. Allows the
department of environmental management to approve the construction
after December 31, 2008, of a confined feeding operation only if the
construction has been approved by the local health department and the
local zoning authority. Establishes the procedure for local approval,
including an appeal to the county executive of an approval or denial.
Provides for administrative guidance and rulemaking.
Effective: July 1, 2007.
Cheatham
January 16, 2007, read first time and referred to Committee on Agriculture and Rural
Development.
Introduced
First Regular Session 115th General Assembly (2007)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
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HOUSE BILL No. 1308
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; (07)IN1308.1.1. -->
SECTION 1. IC 13-18-10-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 1. (a)
Subject to
subsection (b), a person may not start construction of a confined
feeding operation without obtaining the prior approval of the
department.
(b) A person may not start construction of a confined feeding
operation after December 31, 2008, without obtaining the prior
approval of:
(1) the local health department or health and hospital
corporation that has jurisdiction where the operation is to be
located;
(2) the local zoning authority that has jurisdiction where the
operation is to be located, or the county executive if the
operation is to be located in a county that does not zone under
IC 36-7-4; and
(3) the department.
(b) (c) Obtaining an NPDES permit for a CAFO meets the
requirements of:
(1) subsection (a);
(2) subsection (b)(3); and
(3) 327 IAC 16;
to obtain an approval.
SOURCE: IC 13-18-10-1.2; (07)IN1308.1.2. -->
SECTION 2. IC 13-18-10-1.2 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2007]: Sec. 1.2. (a) A person that submits
applications under section 1(b) of this chapter for approval of the
construction after December 31, 2008, of a confined feeding
operation to:
(1) the local health department or health and hospital
corporation that has jurisdiction where the operation is to be
located; and
(2) the local zoning authority that has jurisdiction where the
operation is to be located, or the county executive if the
operation is to be located in a county that does not zone under
IC 36-7-4;
must submit the applications on forms provided by the
department.
(b) Subject to section 2(b) of this chapter, an applicant described
in subsection (a) must submit to each of the entities referred to in
subsection (a)(1) and (a)(2) an identical application form
containing all of the information required in an application under
section 2(a)(1) through 2(a)(4) of this chapter.
(c) Either or both of the entities referred to in subsection (a)(1)
and (a)(2) may suspend the processing of an application if the
entity or entities:
(1) determine not more than thirty (30) days after receipt of
the application that the application is deficient; and
(2) mail to the applicant a notice of deficiency that specifies
the parts of the application that:
(A) do not contain adequate information for processing of
the application; or
(B) are not consistent with applicable law.
SOURCE: IC 13-18-10-1.3; (07)IN1308.1.3. -->
SECTION 3. IC 13-18-10-1.3 IS ADDED TO THE INDIANA
CODE AS A
NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2007]:
Sec. 1.3. (a) The entities to which
applications are submitted by an applicant under section 1.2 of this
chapter:
(1) subject to section 1.2(c) of this chapter, shall publish notice
under IC 5-3-1 of a joint public hearing on the applications,
which must be held not later than forty-five (45) days after the
date of the later of the two (2) complete application
submissions under section 1.2(a) of this chapter;
(2) shall hold the joint public hearing, taking testimony from
the applicant and the public on the applications;
(3) shall conduct any inquiry or investigation, consistent with
the entities' duties under this chapter, that the entities
consider necessary before making a determination; and
(4) may approve the applications only if the entities determine
that the construction and operation of the proposed confined
feeding operation are consistent with the public health, safety,
and welfare.
(b) After the public hearing and any inquiry or investigation
under subsection (a), each of the entities to which applications are
submitted by an applicant under section 1.2 of this chapter shall:
(1) make a separate written determination on the application
submitted to the entity, either approving or denying the
application;
(2) give notice of the determination to:
(A) the applicant; and
(B) the department;
not later than forty-five (45) days after the date of the public
hearing, unless the entity and the applicant agree to a longer
time; and
(3) if the entity approves the application, publish notice of the
approval under IC 5-3-1 not later than thirty (30) days after
the date of the entity's determination.
SOURCE: IC 13-18-10-1.4; (07)IN1308.1.4. -->
SECTION 4. IC 13-18-10-1.4 IS ADDED TO THE INDIANA
CODE AS A
NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2007]:
Sec. 1.4. (a) If an application is denied
under section 1.3 of this chapter by an entity other than the county
executive, the applicant may appeal the denial by filing an
objection petition with the county executive not more than ten (10)
days after the date of the notice under section 1.3(b)(2) of this
chapter. The objection petition must specifically identify the
reasons for the applicant's objections.
(b) Subject to subsection (c), if an applicant files an objection
petition with a county executive under subsection (a) the county
executive shall do the following:
(1) Publish notice under IC 5-3-1 of a public hearing on the
application denial. The public hearing must be held not later
than forty-five (45) days after the date of filing of the
objection petition under subsection (a).
(2) Hold the public hearing, taking testimony from the
applicant and the public on the application denial.
(3) Conduct any inquiry or investigation, consistent with the
county executive's duties under this chapter, that the county
executive considers necessary before making a determination.
(c) A county executive may overturn the denial of an application
under this section only if the county executive determines that the
construction and operation of the proposed confined feeding
operation are consistent with the public health, safety, and welfare.
(d) After the public hearing and any inquiry or investigation
under subsection (b), a county executive with whom an applicant
has filed an objection petition under this section shall:
(1) make a written determination on the objection petition;
and
(2) give notice of the determination to:
(A) the applicant; and
(B) the department;
not later than thirty (30) days after the date of the public
hearing, unless the county executive and the applicant agree
to a longer time.
(e) If both of the entities referred to in section 1.2(a)(1) and
1.2(a)(2) of this chapter have denied the applications submitted by
an applicant under section 1.2 of this chapter, and if the applicant
has appealed the denial of the applications under this section, the
county executive may consolidate the public hearings under
subsection (b) on the entities' denial of the applications.
SOURCE: IC 13-18-10-1.5; (07)IN1308.1.5. -->
SECTION 5. IC 13-18-10-1.5 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2007]: Sec. 1.5. (a) If one (1) or both of the
applications for the construction after December 31, 2008, of a
confined feeding operation are approved under section 1.3 of this
chapter, ten (10) or more residents of the county where the
confined feeding operation is to be located may object to the
approval by filing an objection petition with the county executive
not more than ten (10) days after the last date of publication of the
approval under section 1.3(b)(3) of this chapter. An objection
petition filed under this subsection must specifically set forth the
reasons for the residents' objections.
(b) Subject to subsection (c), if an objection petition is filed with
a county executive under subsection (a) the county executive shall
do the following:
(1) Publish notice under IC 5-3-1 of a public hearing on the
application approval to which the objection petition relates.
The public hearing must be held not later than forty-five (45)
days after the date of the objection petition under subsection
(a).
(2) Hold the public hearing, taking testimony from the
applicant and the public on the application approval.
(3) Conduct any inquiry or investigation, consistent with the
county executive's duties under this chapter, that the county
executive considers necessary before making a determination.
(c) A county executive may uphold the application approval to
which an objection petition relates only if the county executive
determines that the construction and operation of the proposed
confined feeding operation are consistent with the public health,
safety, and welfare.
(d) After the public hearing and any inquiry or investigation
under subsection (b), a county executive with which an objection
petition is filed under this section shall:
(1) make a written determination on the objection petition;
and
(2) give notice of the determination to:
(A) the applicant;
(B) the first ten (10) residents whose names appear on the
objection petition; and
(C) the department;
not later than thirty (30) days after the date of the public
hearing, unless the county executive and the first ten (10)
residents whose names appear on the objection petition agree
to a longer time.
(e) If both of the entities referred to in section 1.2(a)(1) and
1.2(a)(2) of this chapter approve the applications submitted by an
applicant under section 1.2 of this chapter, and if ten (10) or more
residents of the county where the confined feeding operation is to
be located file an objection petition with the county executive
under this section, the county executive may consolidate the public
hearings under subsection (b) on the entities' approval of the
applications.
SOURCE: IC 13-18-10-2; (07)IN1308.1.6. -->
SECTION 6. IC 13-18-10-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 2. (a) Application
to
the department for approval of the construction of a confined feeding
operation must be made on a form provided by the department. An
applicant must submit the completed application form to the
department together with the following:
(1) Plans and specifications for the design and operation of
manure treatment and control facilities.
(2) A manure management plan that outlines procedures for the
following:
(A) Soil testing.
(B) Manure testing.
(3) Maps of manure application areas.
(4) Supplemental information that the department requires,
including the following:
(A) General features of topography.
(B) Soil types.
(C) Drainage course.
(D) Identification of nearest streams, ditches, and lakes.
(E) Location of field tiles.
(F) Location of land application areas.
(G) Location of manure treatment facilities.
(H) Farmstead plan, including the location of water wells on
the site.
(5) A fee of one hundred dollars ($100). The department shall
refund the fee if the department does not make a determination in
accordance with the time period established under section 2.1 of
this chapter.
(b) An applicant who that applies to the department or to the
entities referred to in section 1.2(a)(1) and 1.2(a)(2) of this chapter
for approval to construct a confined feeding operation on land that is
undeveloped or for which a valid existing approval has not been issued
shall make a reasonable effort to provide notice:
(1) to:
(A) each person who owns land that adjoins the land on which
the confined feeding operation is to be located; or
(B) if a person who owns land that adjoins the land on which
the confined feeding operation is to be located does not occupy
the land, all occupants of the land; and
(2) to the county executive of the county in which the confined
feeding operation is to be located;
not more than ten (10) working days after submitting an application.
The notice must be sent by mail, be in writing, include the date on
which the application was submitted to the department or an entity
referred to in section 1.2(a)(1) or 1.2(a)(2) of this chapter, and
include a brief description of the subject of the application. The
applicant shall pay the cost of complying with this subsection. The
applicant shall submit an affidavit to the department or the entities
referred to in section 1.2(a)(1) and 1.2(a)(2) of this chapter that
certifies that the applicant has complied with this subsection. The
applicant may combine in a single mailing the information
required by this subsection relating to applications to both of the
entities referred to in section 1.2(a)(1) and 1.2(a)(2) of this chapter.
(c) Plans and specifications for manure treatment or control
facilities for a confined feeding operation must secure the approval of
the department. The department shall approve the construction and
operation of the manure management system of the confined feeding
operation if the commissioner determines that the applicant meets the
requirements of:
(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.
SOURCE: IC 13-18-10-2.1; (07)IN1308.1.7. -->
SECTION 7. IC 13-18-10-2.1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 2.1. (a)
Subject to
subsection (f), 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.
(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:
(1) determines within thirty (30) days after the department
receives the application that the application is incomplete; and
(2) has mailed a notice of deficiency to the applicant that specifies
the parts of the application that:
(1) (A) do not contain adequate information for the department
to process the application; or
(2) (B) 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.
(f) With respect to the construction of a confined feeding
operation for which construction is to begin after December 31,
2008, the department may approve the application only if an
application for approval of the construction has been approved
under sections 1.2 through 1.5 of this chapter.
SOURCE: IC 13-18-10-2.2; (07)IN1308.1.8. -->
SECTION 8. IC 13-18-10-2.2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 2.2. (a) If an applicant
receives an approval under section 2.1 of this chapter and completes
construction, not more than thirty (30) days after the date the applicant
completes the construction the applicant shall execute and send to the
department an affidavit that affirms under penalties of perjury that the
confined feeding operation:
(1) was constructed; and
(2) will be operated;
in accordance with the requirements of the department's approval.
(b) Construction of an approved confined feeding operation must:
(1) begin not later than two (2) years; and
(2) be completed not later than four (4) years;
after the date the department approves the construction of the confined
feeding operation or the date all appeals brought under IC 4-21.5
concerning the construction of the confined feeding operation have
been completed, whichever is later.
SOURCE: IC 13-18-10-4; (07)IN1308.1.9. -->
SECTION 9. IC 13-18-10-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 4. (a) The board may
adopt rules under IC 4-22-2 and IC 13-14-9 and the department may
adopt policies or statements under IC 13-14-1-11.5 that are necessary
for the proper administration of this chapter. The rules, policies, or
statements may concern construction and operation of confined feeding
operations and may include
the following:
(1) Uniform standards for:
(1) (A) construction and manure containment that are
appropriate for a specific site; and
(2) (B) manure application and handling
that are consistent
with best management practices
that are:
(A) (i) designed to reduce the potential for manure to be
conveyed off a site by runoff or soil erosion; and
(B) (ii) that are appropriate for a specific site.
(2) Guidance and standards for the determinations required
under sections 1.3 through 1.5 of this chapter.
(b) Standards adopted in a rule, policy, or statement under
subsection (a) must:
(1) consider confined feeding standards that are consistent with
standards found in publications from:
(A) the United States Department of Agriculture;
(B) the Natural Resources Conservation Service of the United
States Department of Agriculture;
(C) the Midwest Plan Service; and
(D) university extension bulletins; and
(2) be developed through technical review by the department,
university specialists, and other animal industry specialists.