February 18, 2009
HOUSE BILL No. 1074
_____
DIGEST OF HB 1074
(Updated February 17, 2009 11:45 am - DI 77)
Citations Affected: IC 13-11; IC 13-18.
Synopsis: Confined feeding operations. Establishes good character
disclosure requirements for confined feeding operations and
concentrated animal feeding operations (operations). Requires
operators to maintain liability insurance. Allows the department of
environmental management (IDEM) to review and act on disclosed
good character information. Provides that: (1) IDEM approval of
operations applies to both original construction and modifications; (2)
the requirement for notice to owners and occupants of neighboring land
applies to all operations; and (3) notice be published after a application
or notice of intent is filed.
Effective: January 1, 2010.
Cheatham
, Pflum
, Saunders
January 7, 2009, read first time and referred to Committee on Agriculture and Rural
Development.
February 17, 2009, amended, reported _ Do Pass.
February 18, 2009
First Regular Session 116th General Assembly (2009)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
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HOUSE BILL No. 1074
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 13-11-2-8; (09)HB1074.1.1. -->
SECTION 1. IC 13-11-2-8, AS AMENDED BY P.L.154-2005,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JANUARY 1, 2010]: Sec. 8. (a) "Applicant", for purposes of
IC 13-18-10, refers to a person (as defined in section 158(b) of this
chapter) that submits an application to the department under
IC 13-18-10-2.
(a) (b) "Applicant", for purposes of IC 13-19-4, means an
individual, a corporation, a limited liability company, a partnership, or
a business association that:
(1) receives, for commercial purposes, solid or hazardous waste
generated offsite for storage, treatment, processing, or disposal;
and
(2) applies for the issuance, transfer, or major modification of a
permit described in IC 13-15-1-3 other than a postclosure permit
or an emergency permit.
For purposes of this subsection, an application for the issuance of a
permit does not include an application for renewal of a permit.
(b) (c) "Applicant", for purposes of IC 13-20-2, means an
individual, a corporation, a limited liability company, a partnership, or
a business association that applies for an original permit for the
construction or operation of a landfill.
(c) (d) For purposes of subsection (a), (b), "applicant" does not
include an individual, a corporation, a limited liability company, a
partnership, or a business association that:
(1) generates solid or hazardous waste; and
(2) stores, treats, processes, or disposes of the solid or hazardous
waste at a site that is:
(A) owned by the individual, corporation, partnership, or
business association; and
(B) limited to the storage, treatment, processing, or disposal of
solid or hazardous waste generated by that individual,
corporation, limited liability company, partnership, or business
association.
SOURCE: IC 13-11-2-71; (09)HB1074.1.2. -->
SECTION 2. IC 13-11-2-71, AS AMENDED BY P.L.137-2007,
SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JANUARY 1, 2010]: Sec. 71. "Environmental management laws"
refers to the following:
(1) IC 13-12-2 and IC 13-12-3.
(2) IC 13-13.
(3) IC 13-14.
(4) IC 13-15.
(5) IC 13-16.
(6) IC 13-17-3-15, IC 13-17-8-10, IC 13-17-10, and IC 13-17-11.
(7) IC 13-18-10, IC 13-18-12, IC 13-18-13-31, and IC 13-18-15
through IC 13-18-20.
(8) IC 13-19-1, IC 13-19-4, and IC 13-19-5-17.
(9) IC 13-20-1, IC 13-20-2, IC 13-20-4 through IC 13-20-15,
IC 13-20-17.7, IC 13-20-19 through IC 13-20-21, and
IC 13-20-22-21.
(10) IC 13-22.
(11) IC 13-23.
(12) IC 13-24.
(13) IC 13-25-1 through IC 13-25-5.
(14) IC 13-27-8.
(15) IC 13-30, except IC 13-30-1.
SOURCE: IC 13-11-2-129.9; (09)HB1074.1.3. -->
SECTION 3. IC 13-11-2-129.9 IS ADDED TO THE INDIANA
CODE AS A
NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JANUARY 1, 2010]:
Sec. 129.9. "Modification", for
purposes of IC 13-18-10, refers to an expansion of a confined
feeding operation or concentrated animal feeding operation that
results in an increase in the confined animal capacity.
SOURCE: IC 13-11-2-191; (09)HB1074.1.4. -->
SECTION 4. IC 13-11-2-191 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JANUARY 1, 2010]: Sec. 191. (a)
"Responsible party", for purposes of IC 13-18-10, means any of the
following:
(1) An applicant.
(2) An officer, a corporation director, or a senior management
official of any of the following that is an applicant:
(A) A corporation.
(B) A partnership.
(C) A limited liability company.
(D) A business association.
(a) (b) "Responsible party", for purposes of IC 13-19-4, means:
(1) an officer, a corporation director, or a senior management
official of a corporation, partnership, limited liability company, or
business association that is an applicant; or
(2) an individual, a corporation, a limited liability company, a
partnership, or a business association that owns, directly or
indirectly, at least a twenty percent (20%) interest in the
applicant.
(b) (c) "Responsible party", for purposes of IC 13-20-6, means:
(1) an officer, a corporation director, or a senior management
official of a corporation, partnership, limited liability company, or
business association that is an operator; or
(2) an individual, a corporation, a limited liability company, a
partnership, or a business association that owns, directly or
indirectly, at least a twenty percent (20%) interest in the operator.
(c) (d) "Responsible party", for purposes of IC 13-24-2, has the
meaning set forth in Section 1001 of the federal Oil Pollution Act of
1990 (33 U.S.C. 2701).
(d) (e) "Responsible party", for purposes of IC 13-25-6, means a
person:
(1) who:
(A) owns hazardous material that is involved in a hazardous
materials emergency; or
(B) owns a container or owns or operates a vehicle that
contains hazardous material that is involved in a hazardous
materials emergency; and
(2) who:
(A) causes; or
(B) substantially contributes to the cause of;
the hazardous materials emergency.
SOURCE: IC 13-18-10-1; (09)HB1074.1.5. -->
SECTION 5. IC 13-18-10-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JANUARY 1, 2010]: Sec. 1. (a) Except as
provided in subsection (b), a person may not start construction or
modification of a confined feeding operation either of the following
without obtaining the prior approval of the department:
(1) A confined feeding operation.
(2) A CAFO.
(b) Subject to section 1.5 of this chapter, obtaining an NPDES
permit for a CAFO meets the requirements of subsection (a) (a)(2) and
327 IAC 16 to obtain an approval.
SOURCE: IC 13-18-10-1.5; (09)HB1074.1.6. -->
SECTION 6. IC 13-18-10-1.5 IS ADDED TO THE INDIANA
CODE AS A
NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JANUARY 1, 2010]:
Sec. 1.5. (a) This section applies
to the following:
(1) An applicant for approval under section 1(a) of this
chapter whose application:
(A) is:
(i) filed with the department; and
(ii) not approved by the department;
before 2010; or
(B) is filed with the department after 2009.
(2) A person who applies for approval under 327 IAC 5 of an
individual NPDES permit for a CAFO whose application:
(A) is:
(i) filed with the department; and
(ii) not approved by the department;
before 2010; or
(B) is filed with the department after 2009.
(3) A person who files a notice of intent under 327 IAC 15 for
general NPDES permit coverage for a CAFO whose notice is
filed after 2009.
(b) An applicant referred to in subsection (a)(1) or (a)(2) must
include in the application the disclosure statement or statements
referred to in subsection (d).
(c) A person referred to in subsection (a)(3) must include the
disclosure statement or statements referred to in subsection (d) and
proof of financial assurance referred to in subsection (g) in the
notice of intent filed under 327 IAC 15 for general NPDES permit
coverage for the CAFO.
(d) An applicant or person referred to in subsection (b) or (c)
must submit to the department a disclosure statement for each
responsible party that includes the following:
(1) The name and business address of the responsible party.
(2) A description of the responsible party's experience in
managing the type of facility that will be managed under the
permit.
(3) Subject to subsection (h), a description of all pending
administrative, civil, or criminal enforcement actions filed
against the responsible party that alleges either of the
following:
(A) Acts or omissions that:
(i) constitute a material violation of a state or federal
environmental law or regulation; and
(ii) present a substantial endangerment to human health
or the environment.
(B) Knowing repeated violations of state or federal
environmental laws or regulations that could lead to
environmental harm.
(4) Subject to subsection (h), a description of all finally
adjudicated or settled administrative, civil, or criminal
enforcement actions resolved against the responsible party
within the three (3) years that immediately precede the date
of the application involving either of the following:
(A) Acts or omissions that:
(i) constitute a material violation of a state or federal
environmental law or regulation; and
(ii) present a substantial endangerment to human health
or the environment.
(B) Knowing repeated violations of state or federal
environmental laws or regulations that could lead to
environmental harm.
(5) Identification of all state and federal environmental
permits previously denied or revoked.
(e) A disclosure statement submitted under subsection (d):
(1) must be executed under oath or affirmation; and
(2) is subject to the penalty for perjury under IC 35-44-2-1.
(f) The department may investigate and verify the information
set forth in a disclosure statement submitted under subsection (d).
(g) A person referred to in subsection (b) or (c) must submit to
the department evidence of financial assurance, maintained in
accordance with and in amounts established by rules adopted
under section 4 of this chapter. The financial assurance must be in
the form of a liability insurance policy issued by an insurance
company authorized to do business in Indiana.
(h) The information an applicant or person is required under
subsection (d)(3) and (d)(4) to include in a disclosure statement
does not include information related to acts, omissions, or
violations of an independent contractor of the applicant or person.
SOURCE: IC 13-18-10-2; (09)HB1074.1.7. -->
SECTION 7. IC 13-18-10-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JANUARY 1, 2010]: Sec. 2. (a) Application
for approval of the construction
or modification of a confined feeding
operation
or a CAFO 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.
(6) The disclosure statement or statements and the proof of
financial assurance required under section 1.5 of this chapter.
(b) An applicant who applies for approval to construct a confined
feeding operation
or a CAFO on land that is undeveloped or for which
a valid existing approval has not been issued,
or to modify a confined
feeding operation or a CAFO, 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 or the CAFO is to be located
or modified; or
(B) if a person who owns land that adjoins the land on which
the confined feeding operation or the CAFO is to be located
or modified 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 or the CAFO is to be located or modified;
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, 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 that certifies that the applicant
has complied with this subsection.
(c) A person must comply with subsection (d) if:
(1) as provided in section 1(b) of this chapter, the person is not
required to file an application for construction of a CAFO:
(A) on land that is undeveloped; or
(B) for which:
(i) a valid existing approval has not been issued; or
(ii) an NPDES permit has not been obtained;
or for modification of a CAFO; and
(2) the person files:
(A) an application under 327 IAC 5 for an individual
NPDES permit for the construction or modification of a
CAFO; or
(B) a notice of intent under 327 IAC 15 for general NPDES
permit coverage for construction or modification of a
CAFO.
(d) A person referred to in subsection (c) shall make a
reasonable effort to provide notice:
(1) to:
(A) each person who owns land that adjoins the land on
which the CAFO is to be located or modified; and
(B) if a person who owns land that adjoins the land on
which the CAFO is to be located or modified does not
occupy the land, all occupants of the land; and
(2) to the county executive of the county in which the CAFO
is to be located or modified;
not more than ten (10) working days after submitting an
application or filing a notice of intent. The notice must be sent by
mail, be in writing, include the date on which the application or
notice of intent was submitted to or filed with the department, and
include a brief description of the subject of the application or
notice of intent. The person shall pay the cost of complying with
this subsection. The person shall submit an affidavit to the
department that certifies that the person has complied with this
subsection.
(e) In addition to the requirements of subsection (d), a person
referred to in subsection (c) shall publish notice under IC 5-3-1 not
more than ten (10) days after filing an application or a notice of
intent as described in subsection (c)(2). The published notice of
intent must include the date the application or notice of intent was
filed and a brief description of the subject of the application or
notice of intent. The person shall pay the cost of publication and
submit proof of publication to the department.
(c) (f) Plans and specifications for manure treatment or control
facilities for a confined feeding operation or a CAFO 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 or the CAFO 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 or CAFOs.
SOURCE: IC 13-18-10-2.1; (09)HB1074.1.8. -->
SECTION 8. IC 13-18-10-2.1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JANUARY 1, 2010]: 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.
(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 or the CAFO 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 or CAFOs.
(e) Subject to subsection (f), the commissioner may deny an
application upon making either of the following findings:
(1) A responsible party intentionally misrepresented or
concealed any material fact in a disclosure statement required
in section 1.5 of this chapter.
(2) An enforcement action was resolved against a responsible
party as described in section 1.5(d)(4) of this chapter.
(f) The commissioner may not deny an application under this
section based solely on pending actions disclosed under section
1.5(d)(3) of this chapter.
(g) Before making a determination to approve or deny an
application, the commissioner must consider the following factors:
(1) The nature and details of the acts attributed to the
applicant or responsible party.
(2) The degree of culpability of the responsible party.
(3) The responsible party's cooperation with the state or
federal agencies involved in the investigation of the activities
involved in actions referred to in section 1.5(d)(4) of this
chapter.
(4) The responsible party's dissociation from any other
persons or entities convicted in a criminal enforcement action
referred to in section 1.5(d)(4) of this chapter.
(5) Prior or subsequent self-policing or internal education
programs established by the responsible party to prevent acts,
omissions, or violations referred to in section 1.5(d)(4) of this
chapter.
(6) Any demonstration of good citizenship by the person or
responsible party.
(e) (h) 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 13-18-10-2.2; (09)HB1074.1.9. -->
SECTION 9. IC 13-18-10-2.2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JANUARY 1, 2010]: Sec. 2.2. (a) If an
applicant receives an approval under 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 or CAFO:
(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 or
CAFO 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 CAFO or the date all appeals brought under
IC 4-21.5 concerning the construction of the confined feeding
operation or CAFO have been completed, whichever is later.
SOURCE: IC 13-18-10-2.6; (09)HB1074.1.10. -->
SECTION 10. IC 13-18-10-2.6 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JANUARY 1, 2010]: Sec. 2.6. The
department shall establish a compliance and technical assistance
program for owners and operators of confined feeding operations
and
CAFOs that may be administered by:
(1) the department;
(2) a state college or university; or
(3) a contractor.
SOURCE: IC 13-18-10-4; (09)HB1074.1.11. -->
SECTION 11. IC 13-18-10-4, AS AMENDED BY P.L.2-2007,
SECTION 167, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JANUARY 1, 2010]: 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 CAFOs and may include uniform standards for:
(1) construction and manure containment that are appropriate for
a specific site; and
(2) manure application and handling that are consistent with best
management practices:
(A) designed to reduce the potential for manure to be
conveyed off a site by runoff or soil erosion; and
(B) that are appropriate for a specific site.
(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) postsecondary educational institution extension bulletins;
and
(2) be developed through technical review by the department,
postsecondary educational institution specialists, and other animal
industry specialists.