Session of 1998
                   
HOUSE BILL No. 2829
         
By Committee on Agriculture
         
2-5
            9             AN ACT concerning confined hog breeding, farrowing, feeding or finish-
10             ing facilities; prohibiting the issuance of certain permits therefor dur-
11             ing specified period; directing secretary of health and environment to
12             adopt certain rules and regulations; directing audit by legislative post
13             audit; amending K.S.A. 1997 Supp. 65-166a, 65-171d and 65-3005 and
14             repealing the existing sections.
15            
16       Be it enacted by the Legislature of the State of Kansas:
17           Section 1. K.S.A. 1997 Supp. 65-166a is hereby amended to read as
18       follows: 65-166a. (a) The secretary of health and environment is author-
19       ized and directed to establish by duly adopted rules or regulations a
20       schedule of fees to defray all or any part of the costs of administering the
21       water pollution control permit system established by K.S.A. 65-165 and
22       65-166 and amendments thereto. The amount of the fees so established
23       shall be based upon the quantity of raw wastes or treated wastes to be
24       discharged, units of design capacity of treatment facilities or structures,
25       numbers of potential pollution units, physical or chemical characteristics
26       of discharges and staff time necessary for review and evaluation of pro-
27       posed projects. In establishing the fee schedule, the secretary of health
28       and environment shall not assess fees for permits required in the exten-
29       sion of a sewage collection system, but such fees shall be assessed for all
30       treatment devices, facilities or discharges where a permit is required by
31       law and is issued by the secretary of health and environment or the sec-
32       retary's designated representative. Such fees shall be nonrefundable.
33           (b) Any such permit for which a fee is assessed shall expire five years
34       from the date of its issuance. The secretary of health and environment
35       may issue permits pursuant to K.S.A. 65-165 and amendments thereto
36       for terms of less than five years, if the secretary determines valid cause
37       exists for issuance of the permit with a term of less than five years. The
38       minimum fee assessed for any permit issued pursuant to K.S.A. 65-165
39       and amendments thereto shall be for not less than one year. Permit fees
40       may be assessed and collected on an annual basis and failure to pay the
41       assessed fee shall be cause for revocation of the permit. Any permit which
42       has expired or has been revoked may be reissued upon payment of the
43       appropriate fee and submission of a new application for a permit as pro-

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  1       vided in K.S.A. 65-165 and 65-166 and amendments thereto.
  2           (c) A permit shall be required for:
  3           (1) Any confined feeding facility other than a confined hog breeding,
  4       farrowing, feeding or finishing facility, or any combination thereof, with
  5       an animal unit capacity of 300 to 999 if the secretary determines that the
  6       facility has significant water pollution potential;   and
  7           (2) any confined feeding facility other than a confined hog breeding,
  8       farrowing, feeding or finishing facility, or any combination thereof, with
  9       an animal unit capacity of 1,000 or more  .;
10           (3) any confined hog breeding, farrowing, feeding or finishing facility,
11       or any combination thereof, with an animal unit capacity of 300 to 499
12       if the secretary determines that the facility has significant water pollution
13       potential; and
14           (4) subject to the provisions of subsection (h), any confined hog breed-
15       ing, farrowing, feeding or finishing facility, or any combination thereof,
16       with an animal unit capacity of 500 or more.
17           (d) At no time shall the annual permit fee for a confined feeding
18       facility exceed:
19           (1) $25 for facilities with an animal unit capacity of not more than
20       999;
21           (2) $100 for facilities with an animal unit capacity of 1,000 to 4,999;
22           (3) $200 for facilities with an animal unit capacity of 5,000 to 9,999;
23       or
24           (4) $400 for facilities with an animal unit capacity of 10,000 or more.
25           (e) The secretary of health and environment shall remit all moneys
26       received from the fees established pursuant to this act to the state trea-
27       surer at least monthly. Upon receipt of such remittance, the state trea-
28       surer shall deposit the entire amount thereof in the state treasury to the
29       credit of the state general fund.
30           (f) Any confined feeding facility with an animal unit capacity of less
31       than 300 may be required to obtain a permit from the secretary if the
32       secretary determines that such facility has significant water pollution po-
33       tential.
34           (g) Any confined feeding facility not otherwise required to obtain a
35       permit or certification may obtain a permit or certification from the sec-
36       retary. Any such facility obtaining a permit shall pay an annual permit fee
37       of not more than $25.
38           (h) Notwithstanding any other provisions of law to the contrary, the
39       secretary shall not issue any permit for a new confined hog breeding,
40       farrowing, feeding or finishing facility, or any combination thereof, with
41       an animal unit capacity of 500 or more or issue any permit for the ex-
42       pansion of any existing confined hog breeding, farrowing, feeding or fin-
43       ishing facility, or any combination thereof, when such expansion causes

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  1       the new capacity of any such facility to exceed an animal unit capacity of
  2       500 or more, during the period commencing on the effective date of this
  3       act, and ending July 1, 2000.
  4           Sec. 2. K.S.A. 1997 Supp. 65-171d is hereby amended to read as
  5       follows: 65-171d. (a) For the purpose of preventing surface and subsur-
  6       face water pollution and soil pollution detrimental to public health or to
  7       the plant, animal and aquatic life of the state, and to protect beneficial
  8       uses of the waters of the state and to require the treatment of sewage
  9       predicated upon technologically based effluent limitations, the secretary
10       of health and environment shall make such rules and regulations, includ-
11       ing registration of potential sources of pollution, as may in the secretary's
12       judgment be necessary to: (1) Protect the soil and waters of the state from
13       pollution resulting from underground storage reservoirs of hydrocarbons
14       and liquid petroleum gas; (2) control the disposal, discharge or escape of
15       sewage as defined in K.S.A. 65-164 and amendments thereto, by or from
16       municipalities, corporations, companies, institutions, state agencies, fed-
17       eral agencies or individuals and any plants, works or facilities owned or
18       operated, or both, by them; and (3) establish water quality standards for
19       the waters of the state to protect their beneficial uses.
20           (b) The secretary of health and environment may adopt by reference
21       any regulation relating to water quality and effluent standards promul-
22       gated by the federal government pursuant to the provisions of the federal
23       clean water act and amendments thereto, as in effect on January 1, 1989,
24       which the secretary is otherwise authorized by law to adopt.
25           (c) For the purposes of this act, including K.S.A. 65-161 through
26       65-171h and amendments thereto, and rules and regulations adopted pur-
27       suant thereto:
28           (1) ``Pollution'' means: (A) Such contamination or other alteration of
29       the physical, chemical or biological properties of any waters of the state
30       as will or is likely to create a nuisance or render such waters harmful,
31       detrimental or injurious to public health, safety or welfare, or to the plant,
32       animal or aquatic life of the state or to other designated beneficial uses;
33       or (B) such discharge as will or is likely to exceed state effluent standards
34       predicated upon technologically based effluent limitations.
35           (2) ``Confined feeding facility'' means any lot, pen, pool or pond: (A)
36       Which is used for the confined feeding of animals or fowl for food, fur
37       or pleasure purposes; (B) which is not normally used for raising crops;
38       and (C) in which no vegetation intended for animal food is growing.
39           (3) ``Animal unit'' means a unit of measurement calculated by adding
40       the following numbers: The number of beef cattle weighing more than
41       700 pounds multiplied by 1.0; plus the number of cattle weighing less
42       than 700 pounds multiplied by 0.5; plus the number of mature dairy cattle
43       multiplied by 1.4; plus the number of swine weighing more than 55

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  1       pounds multiplied by 0.4; plus the number of swine weighing 55 pounds
  2       or less multiplied by 0.1; plus the number of sheep or lambs multiplied
  3       by 0.1; plus the number of horses multiplied by 2.0; plus the number of
  4       turkeys multiplied by 0.018; plus the number of laying hens or broilers,
  5       if the facility has continuous overflow watering, multiplied by 0.01; plus
  6       the number of laying hens or broilers, if the facility has a liquid manure
  7       system, multiplied by 0.033; plus the number of ducks multiplied by 0.2.
  8       However, each head of cattle will be counted as one full animal unit for
  9       the purpose of determining the need for a federal permit. ``Animal unit''
10       also includes the number of swine weighing 55 pounds or less multiplied
11       by 0.1 for the purpose of determining applicable requirements for new
12       construction of a confined feeding facility for which a permit or registra-
13       tion has not been issued before January 1, 1998, and for which an appli-
14       cation for a permit or registration and plans have not been filed with the
15       secretary of health and environment before January 1, 1998, or for the
16       purpose of determining applicable requirements for expansion of such
17       facility. However, each head of swine weighing 55 pounds or less shall be
18       counted as 0.0 animal unit for the purpose of determining the need for
19       a federal permit.
20           (4) ``Animal unit capacity'' means the maximum number of animal
21       units which a confined feeding facility is designed to accommodate at any
22       one time.
23           (5) ``Habitable structure'' means any of the following structures which
24       is occupied or maintained in a condition which may be occupied: A dwell-
25       ing, church, school, adult care home, medical care facility, child care
26       facility, library, community center, public building, office building or li-
27       censed food service or lodging establishment.
28           (d) In adopting rules and regulations, the secretary of health and en-
29       vironment, taking into account the varying conditions that are probable
30       for each source of sewage and its possible place of disposal, discharge or
31       escape, may provide for varying the control measures required in each
32       case to those the secretary finds to be necessary to prevent pollution. If
33       a freshwater reservoir or farm pond is privately owned and where com-
34       plete ownership of land bordering the reservoir is under common private
35       ownership, such freshwater reservoir or farm pond shall be exempt from
36       water quality standards except as it relates to water discharge or seepage
37       from the reservoir to waters of the state, either surface or groundwater,
38       or as it relates to the public health of persons using the reservoir or pond
39       or waters therefrom.
40           (e) (1) Whenever the secretary of health and environment or the
41       secretary's duly authorized agents find that the soil or waters of the state
42       are not being protected from pollution resulting from underground stor-
43       age reservoirs of hydrocarbons and liquid petroleum gas or that storage

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  1       or disposal of salt water not regulated by the state corporation commission
  2       or refuse in any surface pond is causing or is likely to cause pollution of
  3       soil or waters of the state, the secretary or the secretary's duly authorized
  4       agents shall issue an order prohibiting such underground storage reservoir
  5       or surface pond. Any person aggrieved by such order may within 15 days
  6       of service of the order request in writing a hearing on the order.
  7           (2) Upon receipt of a timely request, a hearing shall be conducted in
  8       accordance with the provisions of the Kansas administrative procedure
  9       act.
10           (3) Any action of the secretary pursuant to this subsection is subject
11       to review in accordance with the act for judicial review and civil enforce-
12       ment of agency actions.
13           (f) The secretary may adopt rules and regulations establishing fees
14       for the following services:
15           (1) Plan approval, monitoring and inspecting underground or buried
16       petroleum products storage tanks, for which the annual fee shall not ex-
17       ceed $5 for each tank in place;
18           (2) permitting, monitoring and inspecting salt solution mining oper-
19       ators, for which the annual fee shall not exceed $1,950 per company; and
20           (3) permitting, monitoring and inspecting hydrocarbon storage wells
21       and well systems, for which the annual fee shall not exceed $1,875 per
22       company.
23           (g) Prior to any new construction of a confined feeding facility with
24       an animal unit capacity of 300 to 999, such facility shall register with the
25       secretary of health and environment. Facilities with less than 300 animal
26       units may register with the secretary. Any such registration shall be ac-
27       companied by a $25 fee. Within 30 days of receipt of such registration,
28       the department of health and environment shall identify any significant
29       water pollution potential or separation distance violations pursuant to sub-
30       section (h). If there is identified a significant water pollution potential,
31       such facility shall be required to obtain a permit from the secretary. If
32       there is no water pollution potential posed by a facility with an animal
33       unit capacity of less than 300, the secretary may certify that no permit is
34       required. If there is no water pollution potential nor any violation of
35       separation distances posed by a facility with an animal unit capacity of
36       300 to 999, the secretary shall certify that no permit is required and that
37       there are no certification conditions pertaining to separation distances. If
38       a separation distance violation is identified, the secretary may reduce the
39       separation distance in accordance with subsection (i) and shall certify any
40       such reduction of separation distances.
41           (h) Any new construction or new expansion of a confined feeding
42       facility shall meet or exceed the following requirements in separation
43       distances from any habitable structure:

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  1           (1) 1320 feet for facilities with an animal unit capacity of 300 to 999;
  2       and
  3           (2) 4000 feet for facilities with an animal unit capacity of 1,000 or
  4       more.
  5           (i) The separation distance requirements of subsection (h) shall not
  6       apply if such person newly constructing or newly expanding a confined
  7       feeding facility obtains a written agreement from all owners of habitable
  8       structures which are within the separation distance stating such owners
  9       are aware of such construction or expansion and have no objections to
10       such construction or expansion. The written agreement shall be filed in
11       the register of deeds office of the county in which the habitable structure
12       is located. The secretary may reduce separation distance requirements if:
13       (1) No substantial objection from owners of habitable structures within
14       the separation distance is received in response to public notice; or (2) the
15       board of county commissioners of the county where the confined feeding
16       facility is located submits a written request seeking a reduction of sepa-
17       ration distances.
18           (j) The separation distances required pursuant to subsection (h) shall
19       not apply to:
20           (1) Confined feeding facilities which are permitted or certified by the
21       secretary on the effective date of this act;
22           (2) confined feeding facilities which exist on the effective date of this
23       act and register with the secretary before July 1, 1996; or
24           (3) expansion of a confined feeding facility, including any expansion
25       for which an application is pending on the effective date of this act, if:
26       (A) In the case of a facility with an animal unit capacity of 1,000 or more
27       prior to the effective date of this act, the expansion is located at a distance
28       not less than the distance between the facility and the nearest habitable
29       structure prior to the expansion; or (B) in the case of a facility with an
30       animal unit capacity of less than 1,000 prior to the effective date of this
31       act and, the expansion is located at a distance not less than the distance
32       between the facility and the nearest habitable structure prior to the ex-
33       pansion the animal unit capacity of the facility after expansion does not
34       exceed 2,000.
35           (k) All plans and specifications submitted to the department for new
36       construction or new expansion of confined feeding facilities may be, but
37       are not required to be, prepared by a professional engineer or a consult-
38       ant.
39           (l) In addition to any other requirement of the secretary provided by
40       law, the secretary shall adopt rules and regulations that require the com-
41       plete elimination of leakage from pits and lagoons and other sources as-
42       sociated with confined hog breeding, farrowing, feeding or finishing fa-
43       cilities, or any combination thereto; development of extensive manure

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  1       management plans including nutrient management and independent mon-
  2       itoring procedures thereof prior to issuance of any permit for such facil-
  3       ities; and complete guarantee by the facility of the full cost of clean up
  4       and renewal of the site after closure or abandonment of such facilities
  5       with no cost to the citizens of the state.
  6           Sec. 3. K.S.A. 1997 Supp. 65-3005 is hereby amended to read as
  7       follows: 65-3005. The secretary shall have the power to:
  8           (a) Adopt, amend and repeal rules and regulations implementing and
  9       consistent with this act.
10           (b) Hold hearings relating to any aspect of or matter in the admin-
11       istration of this act concerning air quality control, and in connection there-
12       with, compel the attendance of witnesses and the production of evidence.
13           (c) Issue such orders, permits and approvals as may be necessary to
14       effectuate the purposes of this act and enforce the same by all appropriate
15       administrative and judicial proceedings.
16           (d) Require access to records relating to emissions which cause or
17       contribute to air pollution.
18           (e) Prepare and develop a comprehensive plan or plans for the pre-
19       vention, abatement and control of air pollution in this state.
20           (f) Adopt rules and regulations governing such public notification and
21       comment procedures as authorized by this act.
22           (g) Encourage voluntary cooperation by persons or affected groups
23       to achieve the purposes of this act.
24           (h) (1) Encourage local units of government to handle air pollution
25       problems within their respective jurisdictions and on a cooperative basis;
26       (2) provide technical and consultative assistance therefor; and (3) enter
27       into agreements with local units of government to administer all or part
28       of the provisions of the Kansas air quality act in the units' respective
29       jurisdictions.
30           (i) Encourage and conduct studies, investigations and research relat-
31       ing to air contamination and air pollution and their causes, effects, pre-
32       vention, abatement and control.
33           (j) Encourage air contaminant emission sources to voluntarily imple-
34       ment strategies, including the development and use of innovative tech-
35       nologies, market-based principles and other private initiatives to reduce
36       or prevent pollution.
37           (k) Determine by means of field studies and sampling the degree of
38       air contamination and air pollution in the state and the several parts
39       thereof.
40           (l) Establish ambient air quality standards for the state as a whole or
41       for any part thereof.
42           (m) Collect and disseminate information and conduct educational
43       and training programs relating to air contamination and air pollution.

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  1           (n) Advise, consult and cooperate with other agencies of the state,
  2       local governments, industries, other states, interstate or interlocal agen-
  3       cies, and the federal government, and with interested persons or groups.
  4           (o) Accept, receive and administer grants or other funds or gifts from
  5       public and private entities, including the federal government, for the pur-
  6       pose of carrying out any of the functions of this act. Such funds received
  7       by the secretary pursuant to this section shall be deposited in the state
  8       treasury to the account of the department of health and environment.
  9           (p) Enter into contracts and agreements with other state agencies or
10       subdivisions, municipalities, the federal government or its agencies or
11       private entities as is necessary to accomplish the purposes of the Kansas
12       air quality act.
13           (q) Adopt rules and regulations to substantially eliminate odor caus-
14       ing gases and particles emitted from confined hog breeding, farrowing,
15       feeding or finishing facilities, or any combination thereof, with a capacity
16       of 500 animal units or larger including, but not limited to, the establish-
17       ment of air quality standards and adoption of odor measurement and
18       control standards related thereto.
19           New Sec. 4. A performance audit shall be conducted by the legisla-
20       tive post auditor in accordance with the provisions of the legislative post
21       audit act to identify and study the: (1) Current and potential economic
22       impact of existing confined hog breeding, farrowing, feeding and finishing
23       facilities, or any combination thereof, having a capacity of 500 animal units
24       or larger, on the infrastructure and public services provided by counties
25       and affected local townships and communities including, but not limited
26       to, the protection of homes, schools and public facilities from odor and
27       potential surface or groundwater contamination; (2) in addition to the
28       analysis of individual facilities, the potential cumulative impact that large
29       numbers of such existing and proposed future facilities on counties and
30       local townships and communities; and (3) costs to the state and counties
31       associated with responding to and adjudicating nuisance claims emanating
32       from the presence of such existing and proposed future facilities.
33           Sec. 5. K.S.A. 1997 Supp. 65-166a, 65-171d and 65-3005 are hereby
34       repealed.
35           Sec. 6. This act shall take effect and be in force from and after its
36       publication in the Kansas register.
37      
38