Session of 1998
                   
SENATE BILL No. 524
         
By Committee on Agriculture
         
1-28
            9             AN ACT concerning water pollution control; relating to swine confined
10             feeding facilities; amending K.S.A. 1997 Supp. 65-166a and 65-171d
11             and repealing the existing sections.
12            
13       Be it enacted by the Legislature of the State of Kansas:
14           Section 1. K.S.A. 1997 Supp. 65-166a is hereby amended to read as
15       follows: 65-166a. (a) The secretary of health and environment is author-
16       ized and directed to establish by duly adopted rules or regulations a
17       schedule of fees to defray all or any part of the costs of administering the
18       water pollution control permit system established by K.S.A. 65-165 and
19       65-166 and amendments thereto. The amount of the fees so established
20       shall be based upon the quantity of raw wastes or treated wastes to be
21       discharged, units of design capacity of treatment facilities or structures,
22       numbers of potential pollution units, physical or chemical characteristics
23       of discharges and staff time necessary for review and evaluation of pro-
24       posed projects. In establishing the fee schedule, the secretary of health
25       and environment shall not assess fees for permits required in the exten-
26       sion of a sewage collection system, but such fees shall be assessed for all
27       treatment devices, facilities or discharges where a permit is required by
28       law and is issued by the secretary of health and environment or the sec-
29       retary's designated representative. Such fees shall be nonrefundable.
30           (b) Any such permit for which a fee is assessed shall expire five years
31       from the date of its issuance. The secretary of health and environment
32       may issue permits pursuant to K.S.A. 65-165 and amendments thereto
33       for terms of less than five years, if the secretary determines valid cause
34       exists for issuance of the permit with a term of less than five years. The
35       minimum fee assessed for any permit issued pursuant to K.S.A. 65-165
36       and amendments thereto shall be for not less than one year. Permit fees
37       may be assessed and collected on an annual basis and failure to pay the
38       assessed fee shall be cause for revocation of the permit. Any permit which
39       has expired or has been revoked may be reissued upon payment of the
40       appropriate fee and submission of a new application for a permit as pro-
41       vided in K.S.A. 65-165 and 65-166 and amendments thereto.
42           (c) A permit shall be required for:
43           (1) Any confined feeding facility with an animal unit capacity of 300

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  1       to 999 if the secretary determines that the facility has significant water
  2       pollution potential; and
  3           (2) any confined feeding facility with an animal unit capacity of 1,000
  4       or more.
  5           (d) At no time shall the annual permit fee for a confined feeding
  6       facility exceed:
  7           (1) $25 for facilities with an animal unit capacity of not more than
  8       999;
  9           (2) $100 for facilities with an animal unit capacity of 1,000 to 4,999;
10           (3) $200 for facilities with an animal unit capacity of 5,000 to 9,999;
11       or
12           (4) $400 for facilities with an animal unit capacity of 10,000 or more.
13           (e) The secretary of health and environment shall remit all moneys
14       received from the fees established pursuant to this act to the state trea-
15       surer at least monthly. Upon receipt of such remittance, the state treas-
16       urer shall deposit the entire amount thereof in the state treasury to the
17       credit of the state general fund.
18           (f) Any confined feeding facility with an animal unit capacity of less
19       than 300 may be required to obtain a permit from the secretary if the
20       secretary determines that such facility has significant water pollution po-
21       tential.
22           (g) Any confined feeding facility not otherwise required to obtain a
23       permit or certification may obtain a permit or certification from the sec-
24       retary. Any such facility obtaining a permit shall pay an annual permit fee
25       of not more than $25.
26           (h) Any swine confined feeding facility requesting to be permitted
27       shall meet the requirements established in subsection (1) of K.S.A. 65-
28       171d, and amendments thereto.
29           Sec. 2. K.S.A. 1997 Supp. 65-171d is hereby amended to read as
30       follows: 65-171d. (a) For the purpose of preventing surface and subsur-
31       face water pollution and soil pollution detrimental to public health or to
32       the plant, animal and aquatic life of the state, and to protect beneficial
33       uses of the waters of the state and to require the treatment of sewage
34       predicated upon technologically based effluent limitations, the secretary
35       of health and environment shall make such rules and regulations, includ-
36       ing registration of potential sources of pollution, as may in the secretary's
37       judgment be necessary to: (1) Protect the soil and waters of the state from
38       pollution resulting from underground storage reservoirs of hydrocarbons
39       and liquid petroleum gas; (2) control the disposal, discharge or escape of
40       sewage as defined in K.S.A. 65-164 and amendments thereto, by or from
41       municipalities, corporations, companies, institutions, state agencies, fed-
42       eral agencies or individuals and any plants, works or facilities owned or
43       operated, or both, by them; and (3) establish water quality standards for

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  1       the waters of the state to protect their beneficial uses.
  2           (b) The secretary of health and environment may adopt by reference
  3       any regulation relating to water quality and effluent standards promul-
  4       gated by the federal government pursuant to the provisions of the federal
  5       clean water act and amendments thereto, as in effect on January 1, 1989,
  6       which the secretary is otherwise authorized by law to adopt.
  7           (c) For the purposes of this act, including K.S.A. 65-161 through
  8       65-171h and amendments thereto, and rules and regulations adopted pur-
  9       suant thereto:
10           (1) ``Pollution'' means: (A) Such contamination or other alteration of
11       the physical, chemical or biological properties of any waters of the state
12       as will or is likely to create a nuisance or render such waters harmful,
13       detrimental or injurious to public health, safety or welfare, or to the plant,
14       animal or aquatic life of the state or to other designated beneficial uses;
15       or (B) such discharge as will or is likely to exceed state effluent standards
16       predicated upon technologically based effluent limitations.
17           (2) ``Confined feeding facility'' means any lot, pen, pool or pond: (A)
18       Which is used for the confined feeding of animals or fowl for food, fur
19       or pleasure purposes; (B) which is not normally used for raising crops;
20       and (C) in which no vegetation intended for animal food is growing.
21           (3) ``Animal unit'' means a unit of measurement calculated by adding
22       the following numbers: The number of beef cattle weighing more than
23       700 pounds multiplied by 1.0; plus the number of cattle weighing less
24       than 700 pounds multiplied by 0.5; plus the number of mature dairy cattle
25       multiplied by 1.4; plus the number of swine weighing more than 55
26       pounds multiplied by 0.4; plus the number of swine weighing 55 pounds
27       or less multiplied by 0.1; plus the number of sheep or lambs multiplied
28       by 0.1; plus the number of horses multiplied by 2.0; plus the number of
29       turkeys multiplied by 0.018; plus the number of laying hens or broilers,
30       if the facility has continuous overflow watering, multiplied by 0.01; plus
31       the number of laying hens or broilers, if the facility has a liquid manure
32       system, multiplied by 0.033; plus the number of ducks multiplied by 0.2.
33       However, each head of cattle will be counted as one full animal unit for
34       the purpose of determining the need for a federal permit. ``Animal unit''
35       also includes the number of swine weighing 55 pounds or less multiplied
36       by 0.1 for the purpose of determining applicable requirements for new
37       construction of a confined feeding facility for which a permit or registra-
38       tion has not been issued before January 1, 1998, and for which an appli-
39       cation for a permit or registration and plans have not been filed with the
40       secretary of health and environment before January 1, 1998, or for the
41       purpose of determining applicable requirements for expansion of such
42       facility. However, each head of swine weighing 55 pounds or less shall be
43       counted as 0.0 animal unit for the purpose of determining the need for

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  1       a federal permit.
  2           (4) ``Animal unit capacity'' means the maximum number of animal
  3       units which a confined feeding facility is designed to accommodate at any
  4       one time.
  5           (5) ``Habitable structure'' means any of the following structures which
  6       is occupied or maintained in a condition which may be occupied: A dwell-
  7       ing, church, school, adult care home, medical care facility, child care
  8       facility, library, community center, public building, office building or li-
  9       censed food service or lodging establishment.
10           (d) In adopting rules and regulations, the secretary of health and en-
11       vironment, taking into account the varying conditions that are probable
12       for each source of sewage and its possible place of disposal, discharge or
13       escape, may provide for varying the control measures required in each
14       case to those the secretary finds to be necessary to prevent pollution. If
15       a freshwater reservoir or farm pond is privately owned and where com-
16       plete ownership of land bordering the reservoir is under common private
17       ownership, such freshwater reservoir or farm pond shall be exempt from
18       water quality standards except as it relates to water discharge or seepage
19       from the reservoir to waters of the state, either surface or groundwater,
20       or as it relates to the public health of persons using the reservoir or pond
21       or waters therefrom.
22           (e) (1) Whenever the secretary of health and environment or the
23       secretary's duly authorized agents find that the soil or waters of the state
24       are not being protected from pollution resulting from underground stor-
25       age reservoirs of hydrocarbons and liquid petroleum gas or that storage
26       or disposal of salt water not regulated by the state corporation commission
27       or refuse in any surface pond is causing or is likely to cause pollution of
28       soil or waters of the state, the secretary or the secretary's duly authorized
29       agents shall issue an order prohibiting such underground storage reservoir
30       or surface pond. Any person aggrieved by such order may within 15 days
31       of service of the order request in writing a hearing on the order.
32           (2) Upon receipt of a timely request, a hearing shall be conducted in
33       accordance with the provisions of the Kansas administrative procedure
34       act.
35           (3) Any action of the secretary pursuant to this subsection is subject
36       to review in accordance with the act for judicial review and civil enforce-
37       ment of agency actions.
38           (f) The secretary may adopt rules and regulations establishing fees
39       for the following services:
40           (1) Plan approval, monitoring and inspecting underground or buried
41       petroleum products storage tanks, for which the annual fee shall not ex-
42       ceed $5 for each tank in place;
43           (2) permitting, monitoring and inspecting salt solution mining oper-

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  1       ators, for which the annual fee shall not exceed $1,950 per company; and
  2           (3) permitting, monitoring and inspecting hydrocarbon storage wells
  3       and well systems, for which the annual fee shall not exceed $1,875 per
  4       company.
  5           (g) Prior to any new construction of a confined feeding facility with
  6       an animal unit capacity of 300 to 999, such facility shall register with the
  7       secretary of health and environment. Facilities with less than 300 animal
  8       units may register with the secretary. Any such registration shall be ac-
  9       companied by a $25 fee. Within 30 days of receipt of such registration,
10       the department of health and environment shall identify any significant
11       water pollution potential or separation distance violations pursuant to sub-
12       section (h). If there is identified a significant water pollution potential,
13       such facility shall be required to obtain a permit from the secretary. If
14       there is no water pollution potential posed by a facility with an animal
15       unit capacity of less than 300, the secretary may certify that no permit is
16       required. If there is no water pollution potential nor any violation of
17       separation distances posed by a facility with an animal unit capacity of
18       300 to 999, the secretary shall certify that no permit is required and that
19       there are no certification conditions pertaining to separation distances. If
20       a separation distance violation is identified, the secretary may reduce the
21       separation distance in accordance with subsection (i) and shall certify any
22       such reduction of separation distances.
23           (h) Any new construction or new expansion of a confined feeding
24       facility shall meet or exceed the following requirements in separation
25       distances from any habitable structure:
26           (1) 1320 feet for facilities with an animal unit capacity of 300 to 999;
27       and
28           (2) 4000 feet for facilities with an animal unit capacity of 1,000 or
29       more.
30           (i) The separation distance requirements of subsection (h) shall not
31       apply if such person newly constructing or newly expanding a confined
32       feeding facility obtains a written agreement from all owners of habitable
33       structures which are within the separation distance stating such owners
34       are aware of such construction or expansion and have no objections to
35       such construction or expansion. The written agreement shall be filed in
36       the register of deeds office of the county in which the habitable structure
37       is located. The secretary may reduce separation distance requirements if:
38       (1) No substantial objection from owners of habitable structures within
39       the separation distance is received in response to public notice; or (2) the
40       board of county commissioners of the county where the confined feeding
41       facility is located submits a written request seeking a reduction of sepa-
42       ration distances.
43           (j) The separation distances required pursuant to subsection (h) shall

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  1       not apply to:
  2           (1) Confined feeding facilities which are permitted or certified by the
  3       secretary on the effective date of this act;
  4           (2) confined feeding facilities which exist on the effective date of this
  5       act and register with the secretary before July 1, 1996; or
  6           (3) expansion of a confined feeding facility, including any expansion
  7       for which an application is pending on the effective date of this act, if:
  8       (A) In the case of a facility with an animal unit capacity of 1,000 or more
  9       prior to the effective date of this act, the expansion is located at a distance
10       not less than the distance between the facility and the nearest habitable
11       structure prior to the expansion; or (B) in the case of a facility with an
12       animal unit capacity of less than 1,000 prior to the effective date of this
13       act and, the expansion is located at a distance not less than the distance
14       between the facility and the nearest habitable structure prior to the ex-
15       pansion the animal unit capacity of the facility after expansion does not
16       exceed 2,000.
17           (k) All plans and specifications submitted to the department for new
18       construction or new expansion of confined feeding facilities may be, but
19       are not required to be, prepared by a professional engineer or a consult-
20       ant.
21           (l) The owner of new construction or new expansion of a swine con-
22       fined feeding facility with an animal unit capacity of 1,000 or more shall
23       be required to provide a surety bond or cash bond in an amount deter-
24       mined by the secretary to pay the costs of cleanup in the event such swine
25       confined feeding facility is abandoned. The amount of bond shall be based
26       on the animal unit capacity of the facility.
27           Sec. 3. K.S.A. 1997 Supp. 65-166a and 65-171d are hereby repealed.
28           Sec. 4. This act shall take effect and be in force from and after its
29       publication in the statute book.
30