SF 3422

as introduced - 86th Legislature (2009 - 2010) Posted on 05/14/2010 07:39am

A bill for an act
relating to public health and the environment; clarifying the authority of the
Pollution Control Agency to deny and revoke permits for commercial waste and
animal feedlot facilities; amending Minnesota Statutes 2008, sections 115.076;
116.07, subdivision 7; 116.0713.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2008, section 115.076, is amended to read:

115.076 deleted text begin BACKGROUND OF PERMIT APPLICANTS deleted text end new text begin COMMERCIAL
WASTE AND ANIMAL FEEDLOT FACILITY PERMITS; REVOCATION;
REFUSAL TO ISSUE OR TRANSFER new text end .

Subdivision 1.

Authority of commissioner.

(a) The agency may new text begin revoke or new text end refuse to
issue or to authorize the transfer of:

(1) a hazardous waste facility permit or a solid waste facility permit to construct
or operate a commercial waste facility as defined in section 115A.03, subdivision 6, if
the agency determines that the permit applicant new text begin or permittee new text end does not possess sufficient
expertise and competence to operate the facility in conformance with the requirements of
this chapter and chapters 114C and 116, or if other circumstances exist that demonstrate
that the permit applicant new text begin or permittee new text end may not operate the facility in conformance with the
requirements of this chapter and chapters 114C and 116; or

(2) an animal feedlot facility permit, under section 116.07, subdivision 7, to construct
or operate an animal feedlot facility, if the agency determines that the permit applicant
new text begin or permittee new text end does not possess sufficient expertise and competence to operate the feedlot
facility in conformance with the requirements of this chapter and chapter 116 or if other
circumstances exist that demonstrate that the permit applicant new text begin or permittee new text end may not operate
the feedlot facility in conformance with the requirements of this chapter and chapter 116.

(b) In making a determination under paragraph (a), the agency may consider:

(1) the experience of the permit applicant new text begin or permittee new text end in constructing or operating
commercial waste facilities or animal feedlot facilities;

(2) the expertise of the permit applicant new text begin or permittee new text end ;

(3) the past record of the permit applicant new text begin or permittee new text end in operating commercial
waste facilities or animal feedlot facilities in Minnesota and other states;

(4) any criminal convictions of the permit applicant new text begin or permittee new text end in state or federal
court during the past five years that bear on the likelihood that the permit applicant new text begin or
permittee new text end will operate the facility in conformance with the applicable requirements of this
chapter and chapters 114C and 116; and

(5) in the case of a corporation or business entity, any criminal convictions in state
or federal court during the past five years of any of the permit applicant's new text begin or permittee's
new text end officers, partners, or facility managers that bear on the likelihood that the facility will be
operated in conformance with the applicable requirements of this chapter and chapters
114C and 116.

Subd. 2.

Permit applicant new text begin or permittee new text end .

For purposes of this section, a permit
applicant new text begin or permittee new text end includes a natural person, a partnership and its owners, and a
corporation and its parent.

Subd. 3.

Investigation.

The commissioner may conduct an investigation to assist in
making determinations under subdivision 1. The reasonable costs of any investigation
must be paid by the permit applicant new text begin or permittee new text end .

Subd. 4.

Notice of permit new text begin revocation or new text end denial.

The agency may not new text begin revoke or
new text end refuse to issue or transfer a permit under this section without first providing the permit
applicant new text begin or permittee new text end with the relevant information and with an opportunity to respond
by commenting on the information and submitting additional information regarding the
circumstances surrounding the conviction, corrective measures to prevent recurrence, the
applicant's new text begin or permittee's new text end rehabilitation, and technical and managerial experience. In
making a final decision on the permit, the agency shall consider the permit applicant's new text begin or
permittee's new text end response prior to making a final decision on the permit.

Subd. 5.

Hearing.

If the agency proposes to deny a permit under this section,
the permit applicant new text begin or permittee new text end may request a hearing under chapter 14. The permit
applicant new text begin or permittee new text end may request that the hearing be held under Minnesota Rules, parts
1400.8510 to 1400.8612.

Sec. 2.

Minnesota Statutes 2008, section 116.07, subdivision 7, is amended to read:

Subd. 7.

Counties; processing of applications for animal lot permits.

Any
Minnesota county board may, by resolution, with approval of the Pollution Control
Agency, assume responsibility for processing applications for permits required by the
Pollution Control Agency under this section for livestock feedlots, poultry lots or other
animal lots. The responsibility for permit application processing, if assumed by a county,
may be delegated by the county board to any appropriate county officer or employee.

(a) For the purposes of this subdivision, the term "processing" includes:

(1) the distribution to applicants of forms provided by the Pollution Control Agency;

(2) the receipt and examination of completed application forms, and the certification,
in writing, to the Pollution Control Agency either that the animal lot facility for which a
permit is sought by an applicant will comply with applicable rules and standards, or, if
the facility will not comply, the respects in which a variance would be required for the
issuance of a permit; and

(3) rendering to applicants, upon request, assistance necessary for the proper
completion of an application.

(b) For the purposes of this subdivision, the term "processing" may include, at the
option of the county board, issuing, denying, modifying, imposing conditions upon, or
revoking permits pursuant to the provisions of this section or rules promulgated pursuant
to it, subject to review, suspension, and reversal by the Pollution Control Agency. The
Pollution Control Agency shall, after written notification, have 15 days to review, suspend,
modify, or reverse the issuance of the permit. After this period, the action of the county
board is final, subject to appeal as provided in chapter 14. For permit applications filed
after October 1, 2001, section 15.99 applies to feedlot permits issued by the agency or a
county pursuant to this subdivision.

(c) For the purpose of administration of rules adopted under this subdivision, the
commissioner and the agency may provide exceptions for cases where the owner of a
feedlot has specific written plans to close the feedlot within five years. These exceptions
include waiving requirements for major capital improvements.

(d) For purposes of this subdivision, a discharge caused by an extraordinary natural
event such as a precipitation event of greater magnitude than the 25-year, 24-hour event,
tornado, or flood in excess of the 100-year flood is not a "direct discharge of pollutants."

(e) In adopting and enforcing rules under this subdivision, the commissioner shall
cooperate closely with other governmental agencies.

(f) The Pollution Control Agency shall work with the Minnesota Extension Service,
the Department of Agriculture, the Board of Water and Soil Resources, producer groups,
local units of government, as well as with appropriate federal agencies such as the Natural
Resources Conservation Service and the Farm Service Agency, to notify and educate
producers of rules under this subdivision at the time the rules are being developed and
adopted and at least every two years thereafter.

(g) The Pollution Control Agency shall adopt rules governing the issuance and
denial of permits for livestock feedlots, poultry lots or other animal lots pursuant to this
section. Pastures are exempt from the rules authorized under this paragraph. A feedlot
permit is not required for livestock feedlots with more than ten but less than 50 animal
units; provided they are not in shoreland areas. A livestock feedlot permit does not
become required solely because of a change in the ownership of the buildings, grounds,
or feedlot. These rules apply both to permits issued by counties and to permits issued
by the Pollution Control Agency directly.

(h) The Pollution Control Agency shall exercise supervising authority with respect
to the processing of animal lot permit applications by a county.

(i) Any new rules or amendments to existing rules proposed under the authority
granted in this subdivision, or to implement new fees on animal feedlots, must be
submitted to the members of legislative policy and finance committees with jurisdiction
over agriculture and the environment prior to final adoption. The rules must not become
effective until 90 days after the proposed rules are submitted to the members.

(j) Until new rules are adopted that provide for plans for manure storage structures,
any plans for a liquid manure storage structure must be prepared or approved by a
registered professional engineer or a United States Department of Agriculture, Natural
Resources Conservation Service employee.

(k) A county may adopt by ordinance standards for animal feedlots that are more
stringent than standards in Pollution Control Agency rules.

(l) After January 1, 2001, a county that has not accepted delegation of the feedlot
permit program must hold a public meeting prior to the agency issuing a feedlot permit
for a feedlot facility with 300 or more animal units, unless another public meeting has
been held with regard to the feedlot facility to be permitted.

(m) After the proposed rules published in the State Register, volume 24, number 25,
are finally adopted, the agency may not impose additional conditions as a part of a feedlot
permit, unless specifically required by law or agreed to by the feedlot operator.

(n) For the purposes of feedlot permitting, a discharge from land-applied manure
or a manure stockpile that is managed according to agency rule must not be subject to
a fine for a discharge violation.

(o) For the purposes of feedlot permitting, manure that is land applied, or a manure
stockpile that is managed according to agency rule, must not be considered a discharge
into waters of the state, unless the discharge is to waters of the state, as defined by
section 103G.005, subdivision 17, except type 1 or type 2 wetlands, as defined in section
103G.005, subdivision 17b, and does not meet discharge standards established for feedlots
under agency rule.

(p) Unless the upgrade is needed to correct an immediate public health threat under
section 145A.04, subdivision 8, or the facility is determined to be a concentrated animal
feeding operation under Code of Federal Regulations, title 40, section 122.23, in effect on
April 15, 2003, the agency may not require a feedlot operator:

(1) to spend more than $3,000 to upgrade an existing feedlot with less than 300
animal units unless cost-share money is available to the feedlot operator for 75 percent of
the cost of the upgrade; or

(2) to spend more than $10,000 to upgrade an existing feedlot with between 300
and 500 animal units, unless cost-share money is available to the feedlot operator for 75
percent of the cost of the upgrade or $50,000, whichever is less.

(q) For the purposes of this section, "pastures" means areas, including winter feeding
areas as part of a grazing area, where grass or other growing plants are used for grazing
and where the concentration of animals allows a vegetative cover to be maintained during
the growing season except that vegetative cover is not required:

(1) in the immediate vicinity of supplemental feeding or watering devices;

(2) in associated corrals and chutes where livestock are gathered for the purpose of
sorting, veterinary services, loading and unloading trucks and trailers, and other necessary
activities related to good animal husbandry practices; and

(3) in associated livestock access lanes used to convey livestock to and from areas
of the pasture.

new text begin (r) In an action brought by the state to compel performance under section
115.071, subdivision 5, for an animal feedlot violation, the court shall either approve
the performance measures sought by the state or deny them. The court shall not amend
the performance measures sought by the state, unless the changes are approved by the
commissioner.
new text end

new text begin (s) A feedlot operator has 60 days to challenge the requirements of a permit issued
for the feedlot. After a 60-day period, a feedlot operator shall not be allowed to challenge
the conditions of the permit.
new text end

Sec. 3.

Minnesota Statutes 2008, section 116.0713, is amended to read:

116.0713 deleted text begin LIVESTOCK ODOR deleted text end new text begin HYDROGEN SULFIDE MONITORING AND
ENFORCEMENT new text end .

(a) The Pollution Control Agency must:

(1) monitor and identify potential livestock facility violations of the state ambient
air quality standards for hydrogen sulfide, using a protocol for responding to citizen
complaints regarding feedlot odor and its hydrogen sulfide component, including the
appropriate use of portable monitoring equipment that enables monitoring staff to follow
plumes;

new text begin (2) require monitoring of hydrogen sulfide on the downwind boundaries of the
property for all concentrated animal feeding operations based on the prevailing winds in
the area; and
new text end

deleted text begin (2) deleted text end new text begin (3) new text end when livestock production facilities are found to be in violation of ambient
hydrogen sulfide standards, take appropriate actions necessary to ensure compliance,
utilizing appropriate technical assistance and enforcement and penalty authorities provided
to the agency by statute and rule.

(b) Livestock production facilities are exempt from state ambient air quality
standards while manure is being removed and for seven days after manure is removed
from barns or manure storage facilities.

(c) For a livestock production facility having greater than 300 animal units, the
maximum cumulative exemption in a calendar year under paragraph (b) is 21 days for
the removal process.

(d) The operator of a livestock production facility that claims exemption from state
ambient air quality standards under paragraph (b) must provide notice of that claim to
either the Pollution Control Agency or the county feedlot officer delegated under section
116.07.

(e) State ambient air quality standards are applicable at the property boundary of a
farm or a parcel of agricultural land on which a livestock production facility is located,
except that if the owner or operator of the farm or parcel obtains an air quality easement
from the owner of land adjoining the farm or parcel, the air quality standards must be
applicable at the property boundary of the adjoining land to which the easement pertains.
The air quality easement must be for no more than five years, must be in writing, and must
be available upon request by the agency or the county feedlot officer. Notwithstanding
the provisions of this paragraph, state ambient air quality standards are applicable at
locations to which the general public has access. The "general public" does not include
employees or other categories of people who have been directly authorized by the property
owner to enter or remain on the property for a limited period of time and for a specific
purpose, or trespassers.

(f) The agency may not require air emission modeling for a type of livestock system
that has not had a hydrogen sulfide emission violation.

new text begin (g) Notwithstanding section 116B.02, subdivision 2, chapter 116B applies to
hydrogen sulfide emissions from any livestock facility in the state.
new text end

new text begin (h) The commissioner shall require a livestock facility owner or operator to take all
necessary actions to abate an imminent public health threat within 30 days after the threat
is discovered. If the owner or operator does not take the appropriate actions within the
30-day period, the commissioner shall immediately take action under section 115B.17 to
abate the imminent public health threat.
new text end

new text begin (i) For the purposes of this section:
new text end

new text begin (1) "concentrated animal feeding operation" has the meaning given in Code of
Federal Regulations, title 40, section 122.23; and
new text end

new text begin (2) "imminent public health threat" means an ambient air quality measurement of at
least 75 parts per billion of hydrogen sulfide at the property boundary of a livestock facility.
new text end