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Session of 2000
          SENATE BILL No. 601           By Senator Huelskamp           2-9          

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  9             AN  ACT relating to livestock; concerning application of certain require-
10             ments to public livestock markets; amending K.S.A. 1999 Supp. 65-
11             171d and repealing the existing section.
12      
13       Be it enacted by the Legislature of the State of Kansas:
14             Section  1. K.S.A. 1999 Supp. 65-171d is hereby amended to read as
15       follows: 65-171d. (a) For the purpose of preventing surface and subsur-
16       face water pollution and soil pollution detrimental to public health or to
17       the plant, animal and aquatic life of the state, and to protect beneficial
18       uses of the waters of the state and to require the treatment of sewage
19       predicated upon technologically based effluent limitations, the secretary
20       of health and environment shall make such rules and regulations, includ-
21       ing registration of potential sources of pollution, as may in the secretary's
22       judgment be necessary to: (1) Protect the soil and waters of the state from
23       pollution resulting from underground storage reservoirs of hydrocarbons
24       and liquid petroleum gas; (2) control the disposal, discharge or escape of
25       sewage as defined in K.S.A. 65-164 and amendments thereto, by or from
26       municipalities, corporations, companies, institutions, state agencies, fed-
27       eral agencies or individuals and any plants, works or facilities owned or
28       operated, or both, by them; and (3) establish water quality standards for
29       the waters of the state to protect their beneficial uses.
30             (b) The secretary of health and environment may adopt by reference
31       any regulation relating to water quality and effluent standards promul-
32       gated by the federal government pursuant to the provisions of the federal
33       clean water act and amendments thereto, as in effect on January 1, 1989,
34       which the secretary is otherwise authorized by law to adopt.
35             (c) For the purposes of this act, including K.S.A. 65-161 through 65-
36       171h and K.S.A. 1999 Supp. 65-1,178 through 65-1,198, and amendments
37       thereto, and rules and regulations adopted pursuant thereto:
38             (1) "Pollution" means: (A) Such contamination or other alteration of
39       the physical, chemical or biological properties of any waters of the state
40       as will or is likely to create a nuisance or render such waters harmful,
41       detrimental or injurious to public health, safety or welfare, or to the plant,
42       animal or aquatic life of the state or to other designated beneficial uses;
43       or (B) such discharge as will or is likely to exceed state effluent standards

2
  1       predicated upon technologically based effluent limitations.
  2             (2) "Confined feeding facility" means any lot, pen, pool or pond,
  3       other than a public livestock market: (A) Which is used for the confined
  4       feeding of animals or fowl for food, fur or pleasure purposes; (B) which
  5       is not normally used for raising crops; and (C) in which no vegetation
  6       intended for animal food is growing.
  7             (3) "Animal unit" means a unit of measurement calculated by adding
  8       the following numbers: The number of beef cattle weighing more than
  9       700 pounds multiplied by 1.0; plus the number of cattle weighing less
10       than 700 pounds multiplied by 0.5; plus the number of mature dairy cattle
11       multiplied by 1.4; plus the number of swine weighing more than 55
12       pounds multiplied by 0.4; plus the number of swine weighing 55 pounds
13       or less multiplied by 0.1; plus the number of sheep or lambs multiplied
14       by 0.1; plus the number of horses multiplied by 2.0; plus the number of
15       turkeys multiplied by 0.018; plus the number of laying hens or broilers,
16       if the facility has continuous overflow watering, multiplied by 0.01; plus
17       the number of laying hens or broilers, if the facility has a liquid manure
18       system, multiplied by 0.033; plus the number of ducks multiplied by 0.2.
19       However, each head of cattle will be counted as one full animal unit for
20       the purpose of determining the need for a federal permit. "Animal unit"
21       also includes the number of swine weighing 55 pounds or less multiplied
22       by 0.1 for the purpose of determining applicable requirements for new
23       construction of a confined feeding facility for which a permit or registra-
24       tion has not been issued before January 1, 1998, and for which an appli-
25       cation for a permit or registration and plans have not been filed with the
26       secretary of health and environment before January 1, 1998, or for the
27       purpose of determining applicable requirements for expansion of such
28       facility. However, each head of swine weighing 55 pounds or less shall be
29       counted as 0.0 animal unit for the purpose of determining the need for
30       a federal permit.
31             (4) "Animal unit capacity" means the maximum number of animal
32       units which a confined feeding facility is designed to accommodate at any
33       one time.
34             (5) "Habitable structure" means any of the following structures which
35       is occupied or maintained in a condition which may be occupied and
36       which, in the case of a confined feeding facility for swine, is owned by a
37       person other than the operator of such facility: A dwelling, church, school,
38       adult care home, medical care facility, child care facility, library, com-
39       munity center, public building, office building or licensed food service or
40       lodging establishment.
41             (6) "Wildlife refuge" means Cheyenne Bottoms wildlife management
42       area, Cheyenne Bottoms preserve and Flint Hills, Quivera, Marais des
43       Cygnes and Kirwin national wildlife refuges.

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  1             (7) "Public livestock market" has the meaning provided by K.S.A. 47-
  2       1001, and amendments thereto, except that the term includes livestock
  3       markets where federal veterinary inspection is regularly maintained.
  4             (d) In adopting rules and regulations, the secretary of health and en-
  5       vironment, taking into account the varying conditions that are probable
  6       for each source of sewage and its possible place of disposal, discharge or
  7       escape, may provide for varying the control measures required in each
  8       case to those the secretary finds to be necessary to prevent pollution. If
  9       a freshwater reservoir or farm pond is privately owned and where com-
10       plete ownership of land bordering the reservoir or pond is under common
11       private ownership, such freshwater reservoir or farm pond shall be ex-
12       empt from water quality standards except as it relates to water discharge
13       or seepage from the reservoir or pond to waters of the state, either surface
14       or groundwater, or as it relates to the public health of persons using the
15       reservoir or pond or waters therefrom.
16             (e)  (1) Whenever the secretary of health and environment or the
17       secretary's duly authorized agents find that the soil or waters of the state
18       are not being protected from pollution resulting from underground stor-
19       age reservoirs of hydrocarbons and liquid petroleum gas or that storage
20       or disposal of salt water not regulated by the state corporation commission
21       or refuse in any surface pond is causing or is likely to cause pollution of
22       soil or waters of the state, the secretary or the secretary's duly authorized
23       agents shall issue an order prohibiting such underground storage reservoir
24       or surface pond. Any person aggrieved by such order may within 15 days
25       of service of the order request in writing a hearing on the order.
26             (2) Upon receipt of a timely request, a hearing shall be conducted in
27       accordance with the provisions of the Kansas administrative procedure
28       act.
29             (3) Any action of the secretary pursuant to this subsection is subject
30       to review in accordance with the act for judicial review and civil enforce-
31       ment of agency actions.
32             (f) The secretary may adopt rules and regulations establishing fees
33       for the following services:
34             (1) Plan approval, monitoring and inspecting underground or buried
35       petroleum products storage tanks, for which the annual fee shall not ex-
36       ceed $5 for each tank in place;
37             (2) permitting, monitoring and inspecting salt solution mining oper-
38       ators, for which the annual fee shall not exceed $1,950 per company; and
39             (3) permitting, monitoring and inspecting hydrocarbon storage wells
40       and well systems, for which the annual fee shall not exceed $1,875 per
41       company.
42             (g) Prior to any new construction of a confined feeding facility with
43       an animal unit capacity of 300 to 999, such facility shall register with the

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  1       secretary of health and environment. Facilities with a capacity of less than
  2       300 animal units may register with the secretary. Any such registration
  3       shall be accompanied by a $25 fee. Within 30 days of receipt of such
  4       registration, the department of health and environment shall identify any
  5       significant water pollution potential or separation distance violations pur-
  6       suant to subsection (h). If there is identified a significant water pollution
  7       potential, such facility shall be required to obtain a permit from the sec-
  8       retary. If there is no water pollution potential posed by a facility with an
  9       animal unit capacity of less than 300, the secretary may certify that no
10       permit is required. If there is no water pollution potential nor any viola-
11       tion of separation distances posed by a facility with an animal unit capacity
12       of 300 to 999, the secretary shall certify that no permit is required and
13       that there are no certification conditions pertaining to separation dis-
14       tances. If a separation distance violation is identified, the secretary may
15       reduce the separation distance in accordance with subsection (i) and shall
16       certify any such reduction of separation distances.
17             (h)  (1) Any new construction or new expansion of a confined feeding
18       facility, other than a confined feeding facility for swine, shall meet or
19       exceed the following requirements in separation distances from any hab-
20       itable structure in existence when the application for a permit is
21       submitted:
22             (A) 1,320 feet for facilities with an animal unit capacity of 300 to 999;
23       and
24             (B) 4,000 feet for facilities with an animal unit capacity of 1,000 or
25       more.
26             (2) A confined feeding facility for swine shall meet or exceed the
27       following requirements in separation distances from any habitable struc-
28       ture or city, county, state or federal park in existence when the application
29       for a permit is submitted:
30             (A) 1,320 feet for facilities with an animal unit capacity of 300 to 999;
31             (B) 4,000 feet for facilities with an animal unit capacity of 1,000 to
32       3,724;
33             (C) 4,000 feet for expansion of existing facilities to an animal unit
34       capacity of 3,725 or more if such expansion is within the perimeter from
35       which separation distances are determined pursuant to subsection (k) for
36       the existing facility; and
37             (D) 5,000 feet for: (i) Construction of new facilities with an animal
38       unit capacity of 3,725 or more; or (ii) expansion of existing facilities to an
39       animal unit capacity of 3,725 or more if such expansion extends outside
40       the perimeter from which separation distances are determined pursuant
41       to subsection (k) for the existing facility.
42             (3) Any construction of new confined feeding facilities for swine shall
43       meet or exceed the following requirements in separation distances from

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  1       any wildlife refuge:
  2             (A) 10,000 feet for facilities with an animal unit capacity of 1,000 to
  3       3,724; and
  4             (B) 16,000 feet for facilities with an animal unit capacity of 3,725 or
  5       more.
  6             (i)  (1) The separation distance requirements of subsections (h)(1)
  7       and (2) shall not apply if the applicant for a permit obtains a written
  8       agreement from all owners of habitable structures which are within the
  9       separation distance stating such owners are aware of the construction or
10       expansion and have no objections to such construction or expansion. The
11       written agreement shall be filed in the register of deeds office of the
12       county in which the habitable structure is located.
13             (2)  (A) The secretary may reduce the separation distance require-
14       ments of subsection (h)(1) if: (i) No substantial objection from owners of
15       habitable structures within the separation distance is received in response
16       to public notice; or (ii) the board of county commissioners of the county
17       where the confined feeding facility is located submits a written request
18       seeking a reduction of separation distances.
19             (B) The secretary may reduce the separation distance requirements
20       of subsection (h)(2)(A) or (B) if: (i) No substantial objection from owners
21       of habitable structures within the separation distance is received in re-
22       sponse to notice given in accordance with subsection (l); (ii) the board of
23       county commissioners of the county where the confined feeding facility
24       is located submits a written request seeking a reduction of separation
25       distances; or (iii) the secretary determines that technology exists that
26       meets or exceeds the effect of the required separation distance and the
27       facility will be using such technology.
28             (C) The secretary may reduce the separation distance requirements
29       of subsection (h)(2)(C) or (D) if: (i) No substantial objection from owners
30       of habitable structures within the separation distance is received in re-
31       sponse to notice given in accordance with subsection (l); or (ii) the sec-
32       retary determines that technology exists that meets or exceeds the effect
33       of the required separation distance and the facility will be using such
34       technology.
35             (j)  (1) The separation distances required pursuant to subsection
36       (h)(1) shall not apply to:
37             (A) Confined feeding facilities which were permitted or certified by
38       the secretary on July 1, 1994;
39             (B) confined feeding facilities which existed on July 1, 1994, and reg-
40       istered with the secretary before July 1, 1996; or
41             (C) expansion of a confined feeding facility, including any expansion
42       for which an application was pending on July 1, 1994, if: (i) In the case
43       of a facility with an animal unit capacity of 1,000 or more prior to July 1,

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  1       1994, the expansion is located at a distance not less than the distance
  2       between the facility and the nearest habitable structure prior to the ex-
  3       pansion; or (ii) in the case of a facility with an animal unit capacity of less
  4       than 1,000 prior to July 1, 1994, the expansion is located at a distance not
  5       less than the distance between the facility and the nearest habitable struc-
  6       ture prior to the expansion and the animal unit capacity of the facility
  7       after expansion does not exceed 2,000.
  8             (2) The separation distances required pursuant to subsections
  9       (h)(2)(A) and (B) shall not apply to:
10             (A) Confined feeding facilities for swine which were permitted or
11       certified by the secretary on July 1, 1994;
12             (B) confined feeding facilities for swine which existed on July 1, 1994,
13       and registered with the secretary before July 1, 1996; or
14             (C) expansion of a confined feeding facility which existed on July 1,
15       1994, if: (i) In the case of a facility with an animal unit capacity of 1,000
16       or more prior to July 1, 1994, the expansion is located at a distance not
17       less than the distance between the facility and the nearest habitable struc-
18       ture prior to the expansion; or (ii) in the case of a facility with an animal
19       unit capacity of less than 1,000 prior to July 1, 1994, the expansion is
20       located at a distance not less than the distance between the facility and
21       the nearest habitable structure prior to the expansion and the animal unit
22       capacity of the facility after expansion does not exceed 2,000.
23             (3) The separation distances required pursuant to subsections
24       (h)(2)(C) and (D) and (h)(3) shall not apply to the following, as deter-
25       mined in accordance with subsections (a), (e) and (f) of K.S.A. 1999 Supp.
26       65-1,178 and amendments thereto:
27             (A) Expansion of an existing confined feeding facility for swine if an
28       application for such expansion has been received by the department be-
29       fore March 1, 1998; and
30             (B) construction of a new confined feeding facility for swine if an
31       application for such facility has been received by the department before
32       March 1, 1998.
33             (k) The separation distances required by this section for confined
34       feeding facilities for swine shall be determined from the exterior perim-
35       eter of any buildings utilized for housing swine, any lots containing swine,
36       any swine waste retention lagoons or ponds or other manure or waste-
37       water storage structures and any additional areas designated by the ap-
38       plicant for future expansion. Such separation distances shall not apply to
39       offices, dwellings and feed production facilities of a confined feeding fa-
40       cility for swine.
41             (l) The applicant shall give the notice required by subsections
42       (i)(2)(B) and (C) by certified mail, return receipt requested, to all owners
43       of habitable structures within the separation distance. The applicant shall

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  1       submit to the department evidence, satisfactory to the department, that
  2       such notice has been given.
  3             (m) All plans and specifications submitted to the department for new
  4       construction or new expansion of confined feeding facilities may be, but
  5       are not required to be, prepared by a professional engineer or a consult-
  6       ant, as approved by the department. Before approval by the department,
  7       any consultant preparing such plans and specifications shall submit to the
  8       department evidence, satisfactory to the department, of adequate general
  9       commercial liability insurance coverage. 
10       Sec.  2. K.S.A. 1999 Supp. 65-171d is hereby repealed.
11        Sec.  3. This act shall take effect and be in force from and after its
12       publication in the statute book.