T39CH79

Title 39 > T39CH79

Sections (16)

39-7901

TITLE 39 HEALTH AND SAFETY CHAPTER 79 LOCAL OPTION SWINE FACILITIES SITING ACT 39-7901. Short title. This act shall be known as the Local Option Swine Facilities Siting Act. History: [39-7901, added 2000, ch. 268, sec. 1, p. 755.]

39-7902

TITLE 39 HEALTH AND SAFETY CHAPTER 79 LOCAL OPTION SWINE FACILITIES SITING ACT 39-7902. Legislative findings and purposes. (1) The legislature finds that: (a) The swine industry is experiencing rapid changes such as increased sophistication of production technology, increased demand for capital to maintain or expand operations, consolidation of production and packing facilities and changing consumer demands and markets; (b) Large swine facilities increase social and environmental impacts in the areas where these facilities are located; (c) Adverse public health and environmental impacts can result from the improper siting of large swine facilities, therefore the need for establishing safe sites with an adequate supply of natural resources, such as water, and an adequate capacity for the disposal of animal waste is a matter of statewide concern; (d) Section 39-104A , Idaho Code, vests the department of environmental quality with the responsibility to make rules regulating swine operations; and section 39-105 , Idaho Code, vests the department of environmental quality with the responsibility for the general supervision of the promotion and protection of the life, health and environment of the people of the state, including regulation of air quality, water quality and disposal of solid waste. (2) (a) To facilitate swine facility siting decisions by boards of county commissioners and governing bodies of cities, this chapter establishes a review process within the department of environmental quality for construction or expansion of large swine facilities of a certain size, and to require approval of sites. (b) The procedures and requirements established in this chapter are necessary to facilitate the proper siting of large swine facilities, to effect timely and responsible completion of statutory duties and to ensure protection of human health, natural resources, private property values and the environment of the state. (c) The site approval required in this chapter is required in addition to any other license, permit or approval required by law or rule. (3) It is the intent of the legislature that this chapter will be applied only to swine facilities with a capacity of twenty thousand (20,000) animal units or more and that this chapter will not be applied to any other confined animal feeding operations. History: [39-7902, added 2000, ch. 268, sec. 1, p. 756; am. 2001, ch. 103, sec. 72, p. 313.]

39-7903

TITLE 39 HEALTH AND SAFETY CHAPTER 79 LOCAL OPTION SWINE FACILITIES SITING ACT 39-7903. Definitions. As used in this chapter: (1) Active unit means that part of a facility or unit that has received or is receiving wastes and that has not been closed. (2) Animal unit is a unit of measurement equaling two and one-half (2 1/2) swine, each weighing over twenty-five (25) kilograms (approximately fifty-five (55) pounds), or ten (10) weaned swine, each weighing under twenty-five (25) kilograms. Total animal units are calculated by adding the number of swine weighing over twenty-five (25) kilograms (approximately fifty-five (55) pounds) multiplied by four-tenths (.4), plus the number of weaned swine weighing under twenty-five (25) kilograms multiplied by one-tenth (.1). (3) Animal waste means animal excrement, feed wastes, process wastewater or any other waste associated with the confinement of swine. (4) Animal waste management system means any structure or system that provides for the collection, treatment, disposal, distribution or storage of animal waste. (5) Applicant means the owner or the operator with the owner’s written consent. (6) Aquifer means a geological formation, group of formations, or a portion of a formation capable of yielding significant quantities of ground water to wells or springs. (7) Certified planner means a person who has completed the nutrient management certification in accordance with the nutrient management standard. (8) County means any county in the state of Idaho. (9) Department means the Idaho department of environmental quality. (10) Director means the director of the Idaho department of environmental quality or his designee. (11) Existing facility means a facility built and in operation one (1) year or more before the original effective date of this chapter. (12) Expand or expanding facility means a swine facility of less than twenty thousand (20,000) animal units that increases its one-time animal unit capacity to twenty thousand (20,000) or more animal units. (13) Facility means any place, site or location or part thereof where swine are kept, handled, housed, or otherwise maintained and includes, but is not limited to, all buildings, lots, pens, animal waste management systems, structures, and other appurtenances and improvements on the land. (14) Ground water means water below the land surface in a zone of saturation. (15) Holocene fault means a fault characterized as a fracture or a zone of fractures in any material along which strata on one (1) side have been displaced with respect to that on the other side and holocene being the most recent epoch of the quaternary period, extending from the end of the pleistocene epoch to the present. (16) Land application means the spreading on or incorporation of animal waste into the soil mantle primarily for beneficial purposes. (17) Natural resources conservation service or NRCS means the United States department of agriculture, natural resources conservation service. (18

39-7904

TITLE 39 HEALTH AND SAFETY CHAPTER 79 LOCAL OPTION SWINE FACILITIES SITING ACT 39-7904. Site approval required — Site approval is supplemental — Local option — Local action required for department action. (1) No person may construct or expand a large swine facility regulated by this chapter without first obtaining site approval from the director as provided in this chapter. (2) The site approval required by this chapter for construction or expansion of a large swine facility is required in addition to requirements of any rules of the department. Further, the site approval required by this chapter must be obtained in addition to any other license, permit or approval required by law or rule. (3) This chapter does not preempt the local regulation of swine facilities. This chapter provides boards of county commissioners and governing bodies of cities with an optional procedure for siting swine facilities. If boards of county commissioners and governing bodies of cities do not exercise their option to comply with this chapter, they are not subject to its provisions and may exercise individual authority to accept, regulate or reject swine facilities independently of this chapter. (4) This chapter applies only if the board of county commissioners or governing body of a city, whichever has jurisdiction over the site for a proposed swine facility, chooses to comply with this chapter. If a board of county commissioners or a governing body of a city with jurisdiction chooses not to comply with this chapter, the department is not required to take any action under this chapter. (5) Boards of county commissioners and governing bodies of cities that choose to comply with this chapter shall signify compliance by resolution or ordinance communicated to the director in writing. (6) If a board of county commissioners or a governing body of a city chooses to comply with this chapter, the department does not have to issue a determination or notice of environmental suitability of facility location pursuant to its rules for swine facilities, IDAPA 58.01.09. History: [39-7904, added 2000, ch. 268, sec. 1, p. 758; am. 2021, ch. 321, sec. 24, p. 966.]

39-7905

TITLE 39 HEALTH AND SAFETY CHAPTER 79 LOCAL OPTION SWINE FACILITIES SITING ACT 39-7905. Application — Facilities regulated. (1) The following swine facilities must obtain site approval under this chapter: (a) New swine facilities having a one-time animal unit capacity of twenty thousand (20,000) or more animal units; and (b) Existing swine facilities that expand their one-time animal unit capacity to twenty thousand (20,000) animal units or more. (2) Two (2) or more swine facilities under common owners, operators or those with whom the owners or operators contract or are located within the same county or within five (5) miles of each other shall be considered, for purposes of licensing, to be a single facility regulated under this chapter, even though separately their capacity is less than twenty thousand (20,000) animal units. In each case, the director shall determine whether one (1) or multiple site approvals are required. (3) (a) Existing swine facilities with a one-time animal unit capacity of twenty thousand (20,000) animal units built and in operation one (1) year or more before the original effective date of this chapter are exempt from the requirement to obtain a site approval pursuant to this chapter unless they expand as provided in this section. However, such facilities shall register with the director within three (3) months after the original effective date of this chapter. The director shall determine the information that must be submitted as part of their registration. (b) Existing swine facilities required in this subsection to register with the director shall submit a nutrient management plan and closure plan to the director for approval within two (2) years of the original effective date of this chapter in accordance with rules of the department. An application fee shall not be required unless the facility is expanding. History: [39-7905, added 2000, ch. 268, sec. 1, p. 759.]

39-7906

TITLE 39 HEALTH AND SAFETY CHAPTER 79 LOCAL OPTION SWINE FACILITIES SITING ACT 39-7906. Director may make rules and contract with other agencies. (1) The director may adopt administrative rules he deems necessary or helpful to carry out the purposes of this chapter. (2) The director may enter into contracts, agreements, memorandums and other arrangements with federal, state and local agencies to carry out the purposes of this chapter. History: [39-7906, added 2000, ch. 268, sec. 1, p. 760.]

39-7907

TITLE 39 HEALTH AND SAFETY CHAPTER 79 LOCAL OPTION SWINE FACILITIES SITING ACT 39-7907. Location guidelines. This section provides location guidelines for swine facilities regulated by this chapter. Where the location guidelines provide a specific setback distance, that distance is the minimum setback distance that may be imposed. Further setback distances shall be imposed as circumstances require. (1) A swine facility regulated by this chapter shall not: (a) Locate its closest waste facility within at least two (2) miles of any occupied residence not owned or leased by the owner or operator of the swine facility; (b) Land apply liquid animal waste within at least one (1) mile of the nearest corner of an occupied residence not owned or leased by the owner or operator of the swine facility. (2) The setback distances provided in subsection (1) of this section do not apply if the affected property owner executes a written waiver with the owner or operator of the swine facility, under terms and conditions that the parties may negotiate. The written waiver is effective when recorded in the offices of the recorder of deeds in the county in which the property is located. The recorded waiver shall preclude enforcement of the setback distances contained in subsection (1) of this section. A change in ownership of the applicable property or change in ownership of the swine facility does not affect the validity of the waiver. (3) All distances between occupied residences and swine facilities shall be measured from the closest corner of the walls of the occupied residence to the closest point of the nearest waste structure or waste facility, as defined by the director. (4) No liquid animal waste may be land applied within at least one hundred (100) feet of an existing public or private drinking water well. (5) The minimum distance from a waste structure or waste facility to a domestic well, public well or public water source shall be at least one (1) mile. (6) Further, swine facilities shall not be located: (a) In areas designated by the United States fish and wildlife service or the Idaho department of fish and game as critical habitat for endangered or threatened species of plants, fish or wildlife; (b) So as to be at variance with any locally adopted land use plan or zoning requirement unless otherwise provided by local law or ordinance. If no land use plan has been adopted by the local government which would have land use jurisdiction pursuant to chapter 65, title 67 , Idaho Code, the recommendations of the panel approving a site shall contain an analysis of the requirements and guidelines provided in this chapter. The analysis shall be accompanied by findings and conclusions, entered by the local government with jurisdiction after the local government has held a public hearing in accord with section 67-6509 , Idaho Code, that the public interest would be served by locating a swine facility on the site for which approval is sought; (c) No nearer than one

39-7908

TITLE 39 HEALTH AND SAFETY CHAPTER 79 LOCAL OPTION SWINE FACILITIES SITING ACT 39-7908. Site review panels established. (1) A site review panel shall be established to ensure public input in the siting process and to recommend to the director site approval, approval with conditions or rejection. (2) A panel shall consist of eight (8) members to be appointed as follows: (a) Three (3) members shall be the director of the department of environmental quality or his designee, the director of the department of water resources or his designee, and the director of the department of agriculture or his designee. (b) One (1) member shall be a public member appointed by the governor. The public member shall be an environmental professional, shall serve as chairman of the panel and shall be a voting member. A member who is a public member shall be appointed to serve on site review panels only until the particular site application subject to their review is approved, or until the application is rejected and is no longer subject to their review. (c) Two (2) members shall be appointed by the city council of the city located closest to, or in which the swine facility is proposed to be located or expanded, provided the governing body of the city has signified compliance with this chapter as provided in section 39-7903 , Idaho Code. At least one (1) shall be a resident of the city. However, if two (2) cities are equidistant from the proposed or expanding swine facility, plus or minus five (5) miles, the city council of each city shall appoint one (1) member each to the site review panel, each of whom shall be a resident of the city appointing them. The members serving pursuant to this subsection shall serve until the particular site application subject to their review is approved or it is rejected and is no longer subject to their review. (d) Two (2) members shall be appointed by the county commission and be residents of the county where the swine facility is proposed to be located or expanded, provided the board of county commissioners has signified compliance with this chapter as provided in section 39-7903 , Idaho Code. The members serving pursuant to this subsection shall serve until the particular site application subject to their review is approved, or until the application is rejected and is no longer subject to their review. (e) A person nominated to represent a city or county shall not have a conflict of interest, as that term is defined in section 74-403 , Idaho Code, or derive any economic gain as that term is defined in section 74-403 , Idaho Code, from the location of the proposed or expanding swine facility. (3) The director shall notify the city council of the nearest city, or cities if two (2) cities are within five (5) miles of the site of the proposed facility, and the board of county commissioners in which the site is located, of a site application filed with the department and shall instruct the city or cities and county to appoint the necessary

39-7909

TITLE 39 HEALTH AND SAFETY CHAPTER 79 LOCAL OPTION SWINE FACILITIES SITING ACT 39-7909. Siting application — Fee — Rules. (1) A site application shall include, in a format set forth by the director and when determined applicable by the director, the following information: (a) Name, mailing address and phone number of the facility owner; (b) Name, mailing address and phone number of the facility operator; (c) Name and mailing address of the facility; (d) Legal description of the facility location; (e) The legal structure of the entity owning the facility, including the names and addresses of all directors, officers, registered agents and partners; (f) The names and locations of all swine facilities owned and/or operated by the applicant within the last ten (10) years; (g) The one-time animal unit capacity of the facility; (h) The type of animals to be confined at the facility; (i) Evidence that a valid water right exists to supply adequate water for the proposed facility or a copy of either an application for a permit to appropriate water or an application to change the point of diversion, place, period and nature of use of an existing water right that has been filed with the Idaho department of water resources which, if approved, will supply adequate water for the proposed operation; (j) The facility’s biosecurity and sanitary standards. (2) A facility plan. Plans and specifications for the facility’s animal waste management system that include the following information: (a) Vicinity map(s) prepared on one (1) or more seven and one-half minute (7.5′) USGS topographic quadrangle maps or a high quality reproduction(s) that includes the following: (i) Layout of the facility, including buildings and animal waste management system; (ii) The one hundred (100) year FEMA flood zones or other appropriate flood data for the facility site and land application sites owned or leased by the applicant; (iii) The location of occupied dwellings, public and private gathering places, such as schools, churches and parks, and incorporated municipalities which are within a two (2) mile radius of the facility; and (iv) Private and community domestic water wells, irrigation wells, irrigation conveyance and drainage structures, monitoring wells, wetlands, streams, springs, and reservoirs which are within a one (1) mile radius of the facility. (b) Facility specifications including: (i) A site plan showing: 1. Building locations; 2. Waste facilities; 3. All waste conveyance systems; and 4. All irrigation systems used for land application, including details of approved water supply protection devices. (ii) Building plans showing: 1. All wastewater collection systems in housed units; 2. All freshwater supply systems, including details of approved water supply protection devices; 3. Detailed drawings of wastewater collection and conveyance systems and containment construction; and 4. Detailed construction and installation procedures. (3) Site characterization. A characterizat

39-7910

TITLE 39 HEALTH AND SAFETY CHAPTER 79 LOCAL OPTION SWINE FACILITIES SITING ACT 39-7910. Duties of the director relative to applications. (1) Upon determination that a siting application is complete, the director shall: (a) Notify the permanent panel members, the city and/or county in which the swine facility site is located, the director of the department of fish and game, the director of the Idaho state police, and other state agencies as deemed appropriate by the director. (b) Publish a notice that the application has been received, as provided in section 60-109 , Idaho Code, in a newspaper having major circulation in the county and the immediate vicinity of the site. The notice shall contain a map indicating the location of the site, a description of the proposed action and the location where the application may be reviewed. The notice shall describe the procedure by which the siting approval under this chapter may be granted. (2) Upon notification by the director, the chairman shall immediately notify the representatives of the state to the panel and the public members. The chairman shall also notify the applicable county and city for their appointment of members as provided in subsection (2) of section 39-7908 , Idaho Code. Within thirty (30) days after the notification, the board of commissioners of the county and the city council shall select the members to serve on the panel. The panel shall be created at that time and notification of the creation of the panel shall be made to the chairman. (3) Within thirty (30) days after appointment of panel members, the panel shall meet to review and establish a timetable for the consideration of the draft site approval. (4) The panel shall: (a) Set a date and arrange for publication of notice of a public hearing, in a newspaper having major circulation in the vicinity of the proposed site, at its first meeting. The public notice shall: (i) Contain a map indicating the location of the site and proposed facility, a description of the proposed action, and the location where the application for a siting approval may be reviewed and where copies may be obtained; (ii) Identify the time, place and location for the public hearing held to receive public comment and input on the application for a siting approval; (b) Publish the notice not less than thirty (30) days before the date of the public hearing, and the notice shall be, at a minimum, a twenty (20) days’ notice as provided in section 60-109 , Idaho Code. (5) Comment and input on the proposed siting of the swine facility may be presented orally or in writing at the public hearing and shall continue to be accepted in writing by the panel for thirty (30) days after the public hearing date. The public hearing shall be held in the same county as the proposed site. If the proposed site is adjacent to a city or populated area in a neighboring county, it is recommended that public hearings also be held in the neighboring county. (6) The panel shall consider, b

39-7911

TITLE 39 HEALTH AND SAFETY CHAPTER 79 LOCAL OPTION SWINE FACILITIES SITING ACT 39-7911. Financial assurance for closure and remediation. (1) All swine facilities regulated by section 39-104A , Idaho Code, and this chapter shall provide financial assurances demonstrating financial capability to meet requirements for closure of the facilities and remediation. Requirements for financial assurances shall be determined by the agency as set forth in rule. Financial assurances may include any mechanism or combination of mechanisms meeting the requirements established by agency rule including, but not limited to, surety bonds, trust funds, irrevocable letters of credit, insurance and corporate guarantees. The mechanism(s) used to demonstrate financial capability must be legally valid, binding and enforceable under applicable law and must ensure that the funds necessary to meet the costs of closure and remediation will be available whenever the funds are needed. The director may retain financial assurances for up to five (5) years after closure of a facility to ensure proper closure and remediation, as defined by rule. (2) Nothing in this section prohibits the boards of county commissioners of any county or the governing body of any city from adopting regulations that are more stringent or that require greater financial assurances than those imposed by the department of environmental quality. History: [39-7911, added 2000, ch. 268, sec. 1, p. 767; am. 2001, ch. 103, sec. 75, p. 317.]

39-7912

TITLE 39 HEALTH AND SAFETY CHAPTER 79 LOCAL OPTION SWINE FACILITIES SITING ACT 39-7912. Director may request additional information. The applicant shall provide the director with additional information the director deems necessary to process an application, within thirty (30) days of the director’s request. The time period within which the director must act with regard to an application shall be stayed until the information requested is provided. If an applicant fails to provide the information within this time period, unless a longer time period is allowed by the director, the director may stop the application process and require the applicant to submit a new application. History: [39-7912, added 2000, ch. 268, sec. 1, p. 767.]

39-7913

TITLE 39 HEALTH AND SAFETY CHAPTER 79 LOCAL OPTION SWINE FACILITIES SITING ACT 39-7913. Violations and enforcement. (1) The following acts are unlawful: (a) Failure to comply with this chapter and any rules of the department regulating swine facilities, and conditions of site approval granted pursuant to this chapter; (b) Knowingly making a false statement, representation, or certification in any application report, document, or record developed, maintained, or submitted pursuant to this chapter, rules or conditions of a site approval. (2) Any person violating this chapter or any site approval or order under this chapter is liable for a civil or criminal penalty in accordance with chapter 1, title 39 , Idaho Code. The director may apply the provisions of chapter 1, title 39 , Idaho Code, to ensure compliance. (3) The director may revoke a site approval: (a) For material violation of any condition of a site approval, final agency order or order or judgment of a court secured by any state or federal agency and relating to the operation of a swine facility; (b) If an approval was obtained by misrepresentation or failure to disclose all relevant facts; (c) If approval for adequate water rights cannot be obtained from the Idaho department of water resources; (d) The site or facility does not meet the requirements of this chapter. (4) A private right of action on behalf of any person who has been injured or damaged by any approval authorized in this chapter or violation of the terms of any approval or rule authorized in this chapter may be maintained in accordance with the provisions of this chapter and/or the provisions of chapter 52, title 67 , Idaho Code, as applicable. History: [39-7913, added 2000, ch. 268, sec. 1, p. 767.]

39-7914

TITLE 39 HEALTH AND SAFETY CHAPTER 79 LOCAL OPTION SWINE FACILITIES SITING ACT 39-7914. Confidentiality of records. Information obtained by a public agency pursuant to this chapter or its associated rules is subject to public disclosure pursuant to the provisions of chapter 1, title 74 , Idaho Code. Information submitted under a trade secret claim may be entitled to confidential treatment as provided in section 74-114 , Idaho Code, and rules of the department of environmental quality. History: [39-7914, added 2000, ch. 268, sec. 1, p. 768; am. 2001, ch. 103, sec. 76, p. 317; am. 2015, ch. 141, sec. 100, p. 451.]

39-7915

TITLE 39 HEALTH AND SAFETY CHAPTER 79 LOCAL OPTION SWINE FACILITIES SITING ACT 39-7915. Severability clause. If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable. History: [39-7915, added 2000, ch. 268, sec. 1, p. 768.]

39-7916

TITLE 39 HEALTH AND SAFETY CHAPTER 79 LOCAL OPTION SWINE FACILITIES SITING ACT 39-7916. Conflicts clause. If a conflict arises between this chapter and rules of the department regulating swine facilities, the most restrictive provision shall apply. History: [39-7916, added 2000, ch. 268, sec. 1, p. 768.]