language to be deleted (2) new language
CHAPTER 435-H.F.No. 3692 An act relating to agriculture; amending feedlot permit provisions; providing for training and certification; defining terms; providing a moratorium; providing specific requirements for feedlot permit rules; adding requirements for administrative penalty orders; requiring a report, a study, and a plan; amending Minnesota Statutes 1998, sections 116.06, by adding a subdivision; 116.07, subdivision 7c; and 116.0713; Minnesota Statutes 1999 Supplement, sections 116.07, subdivision 7; and 116.072, subdivision 13; Laws 1998, chapter 40, section 52; proposing coding for new law in Minnesota Statutes, chapter 18C. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: Section 1. [18C.432] [MANURE APPLICATOR EDUCATION AND TRAINING.] Subdivision 1. [EDUCATION AND TRAINING.] (a) The commissioner shall develop, in conjunction with the University of Minnesota extension service, innovative educational and training programs addressing manure applicator concerns, including water quality protection and the development of manure management plans. (b) The commissioner shall appoint educational planning committees which must include representatives of industry. (c) Specific current regulatory concerns must be discussed and, if appropriate, incorporated into each training session. (d) The commissioner may approve programs from private industry and nonprofit organizations that meet minimum requirements for education, training, and certification. (e) The commissioner shall report to the house and senate agriculture policy and funding committees by January 30, 2001, with recommendations for training, examination, certification, and costs of a private applicator manure certification program. Subd. 2. [TRAINING MANUAL AND EXAMINATION DEVELOPMENT.] The commissioner, in conjunction with the University of Minnesota extension service, shall continually revise and update manure applicator training manuals and examinations. Questions in the examinations must be determined by the commissioner. Manuals and examinations must include manure management practices that discuss prevention of manure occurrence in waters of the state. Sec. 2. [18C.433] [PRIVATE MANURE APPLICATOR CERTIFICATION.] Subdivision 1. [REQUIREMENT.] Beginning January 1, 2005, except for a commercial animal waste technician, only a certified private manure applicator may apply animal waste from a feedlot that: (1) has a capacity of 300 animal units or more; and (2) does not have an updated manure management plan that meets the requirements of pollution control agency rules. Subd. 2. [CERTIFICATION.] (a) The commissioner shall prescribe certification requirements and provide training. The training may be done in cooperation with other government agencies and must be at least three hours in duration. (b) A person must apply to the commissioner for certification as a private manure applicator. The certification expires March 1 of the third calendar year after the initial year of certification. (c) The commissioner shall issue a private manure applicator card to a certified private manure applicator. Subd. 3. [FEES.] (a) A person applying to be certified as a private manure applicator must pay a nonrefundable $10 application fee. (b) A $5 fee must be paid for the issuance of a duplicate private manure applicator card. Sec. 3. Minnesota Statutes 1998, section 116.06, is amended by adding a subdivision to read: Subd. 4a. [ANIMAL UNIT.] "Animal unit" means a unit of measure used to compare differences in the production of animal manure that employs as a standard the amount of manure produced on a regular basis by a slaughter steer or heifer for an animal feedlot or manure storage area calculated by multiplying the number of animals of each type in clauses (1) to (9) by the respective multiplication factor and summing the resulting values for the total number of animal units. For purposes of this chapter, the following multiplication factors apply: (1) one mature dairy cow, whether milked or dry: (i) over 1,000 pounds, 1.4 animal units; or (ii) under 1,000 pounds, 1.0 animal unit; (2) one cow and calf pair, 1.2 units; (3) one calf, 0.2 unit; (4) one slaughter steer, 1.0 animal unit; (5) head of feeder cattle or heifer, 0.7 unit; (6) one head of swine: (i) over 300 pounds, 0.4 animal unit; (ii) between 55 pounds and 300 pounds, 0.3 animal unit; and (iii) under 55 pounds, 0.05 animal unit; (7) one horse, 1.0 animal unit; (8) one sheep or lamb, 0.1 animal unit; (9) one chicken: (i) one laying hen or broiler, if the facility has a liquid manure system, 0.033 animal unit; or (ii) one chicken if the facility has a dry manure system: (A) over five pounds, 0.005 animal unit; or (B) under five pounds, 0.003 animal unit; (10) one turkey: (i) over five pounds, 0.018 animal unit; or (ii) under five pounds, 0.005 animal unit; (11) one duck, 0.01 animal unit; and (12) for animals not listed in clauses (1) to (8), the number of animal units is the average weight of the animal in pounds divided by 1,000 pounds. Sec. 4. Minnesota Statutes 1999 Supplement, 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. 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, 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. Sec. 5. Minnesota Statutes 1998, section 116.07, subdivision 7c, is amended to read: Subd. 7c. [NPDES PERMITTING REQUIREMENTS.] (a) The agency must issue National Pollutant Discharge Elimination System permits for feedlots with 1,000 animal units or more and that meet the definition of a "concentrated animal feeding operation" in Code of Federal Regulations, title 40, section 122.23, based on the following
schedule: (1) for applications received after April 22, 1998, a permit for a newly constructed or expanded animal feedlot with 2,000 or more animal units must be issued as an individual permit; (2) for applications received after January 1, 1999,a permit for a newly constructed or expanded animal feedlot with between 1,000 and 2,000 animal unitsthat is identified as a priority by the commissioner, using criteria established under paragraph (e)(d), must be issued as an individual permit; and (3)(2) after January 1, 2001, allan existing feedlots with 1,000 or more animal unitsfeedlot that is identified as a priority by the commissioner, using criteria established under paragraph (e) must be issued as an individual or general National Pollutant Discharge Elimination Systempermit .; and (b) By October 1, 1999,(3) the agency must issue a general National Pollutant Discharge Elimination System permit for animal feedlots with between 1,000 and 2,000 animal unitsthat are not identified under paragraph (a),clause (1) or (2). (c)(b) Prior to the issuance of a general National Pollutant Discharge Elimination System permit for a category of animal feedlot facility permittees, the agency must hold at least one public hearing on the permit issuance. (d)(c) To the extent practicable, the agency must include a public notice and comment period for an individual National Pollutant Discharge Elimination System permit concurrent with any public notice and comment for: (1) the purpose of environmental review of the same facility under chapter 116D; or (2) the purpose of obtaining a conditional use permit from a local unit of government where the local government unit is the responsible governmental unit for purposes of environmental review under chapter 116D. (e) By January 1, 1999,(d) The commissioner, in consultation with the feedlot and manure management advisory committee, created under section 17.136, and other interested parties must develop criteria for determining whether an individual National Pollutant Discharge Elimination System permit is required under paragraph (a), clause (2), for an animal feedlot with between 1,000 and 2,000 animal units(1). The criteria must be based on proximity to waters of the state, facility design, and other site-specific environmental factors. (f) By January 1, 2000,(e) The commissioner, in consultation with the feedlot and manure management advisory committee, created under section 17.136, and other interested parties must develop criteria for determining whether an individual National Pollutant Discharge Elimination System permit is required for an existing animal feedlot, under paragraph (a), clause (3)(2). The criteria must be based on violations and other compliance problems at the facility. (f) The commissioner, in consultation with the feedlot and manure management advisory committee, created under section 17.136, and other interested parties must develop criteria for determining when an individual National Pollutant Discharge Elimination System permit is transferred from individual to general permit status. (g) Notwithstanding the provisions in paragraph (a), until January 1, 2001, the commissioner may issue an individual National Pollutant Discharge Elimination System permit for an animal feedlot. After the general permit is issued and the criteria under paragraphs (d) and (e) are developed, individual permits issued pursuant to this paragraph that do not fit the criteria for an individual permit under the applicable provisions of paragraph (d) or (e) must be transferred to general permit status. (h) The commissioner, in consultation with the feedlot and manure management advisory committee, created under section 17.136, and other interested parties must develop criteria for determining which feedlots are required to apply for and obtain a National Pollutant Discharge Elimination System permit and which feedlots are required to apply for and obtain a state disposal system permit based upon the actual or potential to discharge. Sec. 6. Minnesota Statutes 1998, section 116.0713, is amended to read: 116.0713 [LIVESTOCK ODOR.] (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; (2) 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. Sec. 7. Minnesota Statutes 1999 Supplement, section 116.072, subdivision 13, is amended to read: Subd. 13. [FEEDLOT ADMINISTRATIVE PENALTY ORDERS.] (a) Prior to the commissioner proposing an administrative penalty order to a feedlot operator for a violation of feedlot laws or rules, the agency staff who will determine if a penalty is appropriate and who will determine the size of the penalty shall offer to meet with the feedlot operator to discuss the violation, and to allow the feedlot operator to present any information that may affect any agency decisions on the administrative penalty order. (b) Notwithstanding subdivision 5, for seriousfeedlot law or rule violations for which an administrative penalty order is issued under this section, not less than 75 percent of the penalty maymust be forgiven if: (1) the abated penalty is used for approved measures to mitigate the violation for which the administrative penalty order was issued or for environmental improvements to the farm; and (2) the commissioner determines that the violation has been corrected or that appropriate steps are being taken to correct the action. Sec. 8. Laws 1998, chapter 401, section 52, is amended to read: Sec. 52. [PERMIT REQUIREMENTS.] Until June 30, 2000six months after preparation and final approval by the environmental quality board of the generic environmental impact statement required under Laws 1998, chapter 366, section 86, subdivision 2, or June 1 following approval of the statement, whichever date is later, neither the pollution control agency nor a county board may issue a permit for the construction of an open-air clay, earthen, or flexible membrane lined swine waste lagoon. This section does not apply to repair or modification related to an environmental improvement of an existing lagoon. Sec. 9. [TIMELY RESPONSE TO PERMIT APPLICATIONS; REPORT ON NEEDS.] If the agency determines that it is unable to accomplish timely response to animal feedlot permit applications under Minnesota Statutes, section 15.99, using existing resources, the commissioner shall, not later than October 15, 2000, report to the commissioner of finance and the environment and agriculture policy and finance committees of the senate and house of representatives on the additional resources needed to accomplish timely response. Sec. 10. [RULES FOR ANIMAL FEEDLOTS AND STORAGE, TRANSPORTATION, AND UTILIZATION OF MANURE.] (a) The pollution control agency shall amend the proposed permanent rules relating to animal feedlots and storage, transportation, and utilization of manure, published in the State Register, volume 24, number 25, pages 848 to 884, December 20, 1999, according to this section and pursuant to Minnesota Statutes, section 14.388. (b) The agency shall remove the following provisions of the proposed rules: (1) restrictions on the pasturing of animals, including winter feeding areas that comply with Minnesota Statutes, section 116.07, subdivision 7, paragraph (o); (2) the requirement for a manure management plan, except in the case of a feedlot requiring a feedlot permit; (3) the inclusion in the animal unit definition of manure that is produced by animals that are not owned or managed by the person who accepts manure from another party; and (4) the requirement that a feedlot must include a pollution prevention plan as part of their feedlot permit application. (c) In the rules, the agency shall not require: (1) a feedlot operator to remove manure packs and mounding, except as necessary to prevent pollution; (2) information on the permit application that is not specifically required in the rules, unless the feedlot operator will be using a new technology; (3) more than the following information on the newspaper notification of proposed construction or expansion: (i) name of the owner or owners; (ii) name of the facility; (iii) location of the facility by county, township, section, or quarter-section; (iv) species of livestock and total animal units; and (v) type of building and manure storage system; (4) the regulation of process-generated wastewater, unless it contains manure; (5) that a feedlot must be issued an individual state disposal system permit, unless the feedlot meets the criteria established for individual permits under Minnesota Statutes, section 116.07, subdivision 7c; and (6) registration or a permit for a livestock facility located on county fairgrounds. (d) In the rules, the agency shall: (1) include a registration notice provision requiring the permitting authority to notify feedlot operators at least 90 days prior to the reregistration deadline; (2) include a provision requiring that a receipt of registration be sent back to the feedlot operator within 30 days of receipt of the registration by the agency or the delegated county; (3) provide that feedlot permits remain in effect until a new permit is issued by the agency or a county; (4) provide that location restrictions for schools and child care centers apply only to licensed child care centers, the public schools defined in Minnesota Statutes, section 120A.05, and private schools, excluding home school sites; (5) allow for compliance with interim corrective measures for eligible open lots by October 1, 2005, and final compliance by October 1, 2010; (6) allow direct notification of a feedlot permit application in lieu of the newspaper notification as provided in Minnesota Statutes, section 116.07, subdivision 7a; (7) allow a short-term stockpile site for 365 days; (8) include only a general reference that the rules do not preempt the adoption or enforcement of zoning ordinances or plans by counties, townships, or cities; (9) allow manure storage facility specifications that are proposed by a registered professional engineer or a United States Department of Agriculture, Natural Resources Conservation Service employee and that meet federal and state discharge and water quality restrictions; (10) include an exemption from the prohibition on reuse of a short-term stockpiling site in the preceding or following calendar years for a site where manure is stockpiled for less than ten days and the site is not used as a stockpile site for more than six times in a calendar year; and (11) provide that the management of nutrients from manure can be consistent with guidelines, definitions, or recommendations published by the University of Minnesota or another land grant college in a contiguous state. Sec. 11. [FEEDLOT UPGRADES; REPORT, FINANCIAL ASSISTANCE.] (a) The commissioner of agriculture, in close collaboration with the commissioner of the pollution control agency and in consultation with the commissioner of finance and a representative of the board of water and soil resources, shall study the need for state financial assistance by operators of feedlots with a capacity of less than 1,000 animal units required to upgrade facilities under proposed livestock feedlot rules published in the State Register, volume 24, number 25. (b) The study must identify the specific financial needs of operators of feedlots with capacities: (1) less than 100 animal units; (2) more than 100 but less than 300 animal units; and (3) more than 300 but less than 500 animal units. (c) Not later than February 1, 2001, the commissioner of agriculture shall report the findings of the study to the standing committees of the senate and house of representatives with jurisdiction over agriculture and environment policy issues and budgeting. The report must include recommendations to the legislature on anticipated state costs to provide matching funds for feedlot upgrades under Minnesota Statutes, section 116.07, subdivision 7, paragraph (p). Sec. 12. [MORATORIUM ON UPGRADE REQUIREMENTS FOR SMALL FEEDLOTS.] Until the funding proposal for feedlots with a capacity less than 100 animal units required by section 11 has been enacted and funding under the proposal has been made available, the pollution control agency may not require the operator of an existing feedlot with less than 100 animal units to upgrade the feedlot, unless cost-share money is available to the feedlot operator for 75 percent of the cost of the upgrade or the upgrade is needed to correct an immediate public health threat under Minnesota Statutes, section 145A.04, subdivision 8. Sec. 13. [WORKGROUP; REPORT.] The commissioner of the pollution control agency shall convene a workgroup consisting of representatives from Natural Resources Conservation Services and private sector licensed professional engineers, including individuals with expertise in hydraulics, structural systems, and geology, to review and propose design standards for liquid manure storage facilities in areas susceptible to soil collapse and sinkhole formation. This review shall include an evaluation of whether such standards should be volume based or animal unit based. The commissioner shall submit the findings and recommendations of the workgroup to the senate and house agriculture and rural development committees by October 31, 2000. Sec. 14. [PRIVATE MANURE APPLICATOR EDUCATION AND TRAINING PLAN.] (a) The commissioner of agriculture shall study and develop a plan, in conjunction with the University of Minnesota extension service, for innovative educational and training programs addressing manure applicator concerns, including water quality protection and the development of manure management plans. (b) The commissioner shall appoint educational planning committees, which must include representatives of industry. (c) Specific current regulatory concerns must be discussed and, if appropriate, incorporated into the plan. (d) The commissioner may consider programs from private industry and nonprofit organizations that meet minimum requirements for education, training, and certification. Sec. 15. [EFFECTIVE DATE.] Sections 1 to 14 are effective the day following final enactment. Presented to the governor April 20, 2000 Signed by the governor April 24, 2000, 1:40 p.m.