HB5637 98TH GENERAL ASSEMBLY

LRB098 19119 MGM 54270 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB5637

Introduced , by Rep. Naomi D. Jakobsson

SYNOPSIS AS INTRODUCED:

510 ILCS 77/10.2 new
510 ILCS 77/10.45
510 ILCS 77/11
510 ILCS 77/12
510 ILCS 77/12.1
510 ILCS 77/13
510 ILCS 77/15
510 ILCS 77/20
510 ILCS 77/35
510 ILCS 77/37 new

Amends the Livestock Management Facilities Act. Changes the definition of "new facility" to include an existing facility that expands or modifies its operations to increase the animal unit capacity. Provides that, within 10 calendar days after notification by the Department to the owner or operator that the registration and notice of intent to construct are complete, the owner or operator of the proposed facility shall mail by certified mail, return receipt requested, a copy of the complete notice of intent to construct form to the owners of property located within the setback areas. Makes changes to provisions concerning public hearings and final determinations. Provides that livestock management facilities or livestock waste handling facilities constructed after the effective date of this amendatory Act of the 98th General Assembly shall not have man-made conduits from surface waters to those livestock management facilities or livestock waste handling facilities. Provides that a livestock management facility's waste management plan shall be submitted to the Department and the Department shall make the plan available to the public. Adds information that a waste management plan must include. Provides for civil actions under specified provisions of the Act. Effective immediately.

A BILL FOR

AN ACT concerning animals.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Livestock Management Facilities Act is amended by changing Sections 10.45, 11, 12, 12.1, 13, 15, 20, and 35 and by adding Sections 10.2 and 37 as follows:

(510 ILCS 77/10.2 new)

Sec. 10.2. Affected party. "Affected party" means any person who is or will be aggrieved by the construction of the proposed livestock management facility or livestock waste handling facility, including, but not limited to, all persons identified by the applicant in its notice of intent to construct as owning property within the setback area or as owners or operators of the nearest residence, non-farm business, or common place of assembly, as well as any person who owns or resides in property contiguous to the outer boundaries of the required setback.

(510 ILCS 77/10.45)

Sec. 10.45. New facility. "New facility" means a livestock management facility or a livestock waste handling facility the construction or expansion of which is commenced on or after the effective date of this Act. "New facility" includes an existing facility that expands or modifies its operations to increase the animal unit capacity. Expanding a facility where the fixed capital cost of the new components constructed within a 2-year period does not exceed 50% of the fixed capital cost of a comparable entirely new facility shall not be deemed a new facility as used in this Act.

(Source: P.A. 89-456, eff. 5-21-96.)

(510 ILCS 77/11)

Sec. 11. Filing notice of intent to construct and construction data; registration of facilities.

(a) An owner or operator shall file a notice of intent to construct for a livestock management facility or livestock waste handling facility with the Department prior to construction to establish a base date, which shall be valid for one year, for determination of setbacks in compliance with setback distances or, in the case of construction that is not a new facility, with the maximum feasible location requirements of Section 35 of this Act.

(b) For a livestock waste handling facility that is not subject to Section 12 of this Act, a construction plan of the waste handling structure with design specifications of the structure noted as prepared by or for the owner or operator shall be filed with the Department at least 10 calendar days prior to the anticipated dates of construction. Upon receipt of the notice of intent to construct form or the construction plan, the Department shall review the documents to determine if all information has been submitted or if clarification is needed. The Department shall, within 15 calendar days of receipt of a notice of intent to construct or the construction plan, notify the owner or operator that construction may begin or that clarification is needed.

(c) For a livestock waste handling facility that is subject to Section 12 of this Act, a completed registration shall be filed with the Department at least 37 calendar days prior to the anticipated dates of construction. The registration shall include the following: (i) the name and address of the owner and operator of the livestock waste handling facility; (ii) a general description of the livestock waste handling structure and the type and number of the animal units of livestock it serves; (iii) the construction plan of the waste handling structure with design specifications of the structure noted as prepared by or for the owner or operator, and (iv) anticipated dates of construction. The Department shall, within 15 calendar days of receipt of the registration form, notify the person submitting the form that the registration is complete or that clarification information is needed. Within 10 calendar days after notification by the Department to the owner or operator that the registration and notice of intent to construct are complete, the owner or operator of the proposed facility shall mail by certified mail, return receipt requested, a copy of the complete notice of intent to construct form to the owners of property located within the setback areas. This mailing shall include information about the right to petition the county board to request a public hearing.

(d) Any owner or operator who fails to file a notice of intent to construct form or construction plans with the Department prior to commencing construction, upon being discovered by the Department, shall be subject to an administrative hearing by the Department. The administrative law judge, upon determination of a failure to file the appropriate form, shall impose a civil administrative penalty in an amount no more than $1,000 and shall enter an administrative order directing that the owner or operator file the appropriate form within 10 business days after receiving notice from the Department. If, after receiving the administrative law judge's order to file, the owner or operator fails to file the appropriate form with the Department, the Department shall impose a civil administrative penalty in an amount no less than $1,000 and no more than $2,500 and shall enter an administrative order prohibiting the operation of the facility until the owner or operator is in compliance with this Act. Penalties under this subsection (d) not paid within 60 days of notice from the Department shall be submitted to the Attorney General's office or an approved private collection agency.

(Source: P.A. 91-110, eff. 7-13-99.)

(510 ILCS 77/12)

Sec. 12. Public hearing informational meeting; lagoons and non-lagoon structures.

(a) Beginning on the effective date of this amendatory Act of 1999, within 7 days after receiving a complete form giving notice of intent to construct (i) a new livestock management facility or livestock waste handling facility serving 1,000 or more animal units that does not propose to utilize a lagoon or (ii) a livestock waste management facility or livestock waste handling facility that does propose to utilize a lagoon, the Department shall send a copy of the notice form to the county board of the county in which the facility is to be located and shall publish a public notice in a newspaper of general circulation within the county.

(a-5) After receiving a copy of the notice form from the Department, the county board shall, may, at its discretion and within 30 days after receipt of the notice, upon request from any person receiving personal notice under Section 10.2 or 11 of this Act, request that the Department conduct a public hearing an informational meeting concerning the proposed construction that is subject to this Section. The In addition, during the county's 30-day review period, county residents may petition the county board of the county where the proposed new facility will be located to request that the Department conduct an informational meeting. When petitioned by 75 or more of the county's residents who are registered voters, the county board shall request that the Department conduct an informational meeting. If the county board requests that the Department shall conduct the public hearing informational meeting, the Department shall conduct the informational meeting within 15 days of the county board's request. The If the Department conducts such a meeting, it shall cause notice of the hearing meeting to be published in a newspaper of general circulation in the county and in the State newspaper and shall send a copy of the notice to the County Board. Upon receipt of the notice, the County Board shall post the notice on the public informational board at the county courthouse at least 10 days before the hearing meeting. The owner or operator who submitted the notice of intent to construct to the Department shall appear at the hearing meeting. At the hearing meeting, the Department shall afford affected parties and other persons members of the public an opportunity to ask questions and present oral or written comments concerning the proposed construction. The period for comments shall end 10 days after the date on which the public hearing is held.

(b) The county board shall submit, at the informational meeting or within 30 days of the public hearing, a following the meeting an advisory, non-binding recommendation to the Department about the proposed new facility's construction in accordance with the applicable requirements of this Act. The county board's recommendation against the granting of permission to construct shall result in the prohibition of construction by the Department. The county board's recommendation to grant permission to construct shall be advisory to the Department, pending review of the application by the Department. The advisory, non-binding recommendation shall contain at a minimum:

(1) a statement of whether the proposed facility achieves or fails to achieve each of the 8 siting criteria as outlined in subsection (d); and

(2) a statement of the information and criteria used by the county board in determining that the proposed facility met or failed to meet any of the criteria described in subsection (d).

(c) Construction When the county board requests an informational meeting, construction shall not begin until after the public hearing informational meeting has been held, the Department has reviewed the county board's recommendation and replied to the recommendation indicating if the proposed new livestock management facility or the new livestock waste handling facility is or will be in compliance with the requirements of the Act, and the owner, operator, or certified manager and operator has received the Department's final determination notice that the setbacks and all applicable requirements of this Act have been met.

(d) At the public hearing informational meeting for the proposed facility, the Department of Agriculture shall receive evidence by testimony or otherwise on the following subjects:

(1) that the proposed facility is authorized in the zoning district within which the subject property is located;

(2) that the proposed facility is consistent with the county's comprehensive plan and planned future development of the area;

(3) that the proposed facility is consistent with existing uses, zoning, and general character of the surrounding area;

(4) that the establishment, maintenance, and operation of the proposed facility will not be detrimental to or endanger the public health, safety, morals, comfort, or general welfare of the area;

(5) that the proposed facility will not be injurious to the use and enjoyment of other properties in the vicinity, nor will it otherwise create a nuisance;

(6) that the proposed facility will not diminish or impair property values within the vicinity;

(7) that adequate utilities, access roads, drainage, and other necessary facilities have been or will be provided and road damage will be mitigated;

(8) that adequate measures have been or will be taken to provide ingress and egress to ensure that the proposed facility will not cause traffic congestion and hazards on public roads; and

(9) that the proposed facility has adequate plans for the storage, treatment, management, and disposal of its waste to ensure that it is protective of the environment and will not cause odor or air pollution or cause spills, runoff, or leaching or otherwise result in the destruction, loss, or damage to surface or groundwater or other natural resources.

In determining whether the foregoing standards have been met, the county or local siting authority may consider as evidence the previous operating experience and evidence of mismanagement or past violations of law, including past record of convictions or admissions of violations of the applicant and any subsidiary, parent corporation, or managing partner in the field of livestock management when considering the criteria.

(1) Whether registration and livestock waste management plan certification requirements, if required, are met by the notice of intent to construct.

(2) Whether the design, location, or proposed operation will protect the environment by being consistent with this Act.

(3) Whether the location minimizes any incompatibility with the surrounding area's character by being located in any area zoned for agriculture where the county has zoning or where the county is not zoned, the setback requirements established by this Act are complied with.

(4) Whether the facility is located within a 100-year floodplain or an otherwise environmentally sensitive area (defined as an area of karst area or with aquifer material within 5 feet of the bottom of the livestock waste handling facility) and whether construction standards set forth in the notice of intent to construct are consistent with the goal of protecting the safety of the area.

(5) Whether the owner or operator has submitted plans for operation that minimize the likelihood of any environmental damage to the surrounding area from spills, runoff, and leaching.

(6) Whether odor control plans are reasonable and incorporate reasonable or innovative odor reduction technologies given the current state of such technologies.

(7) Whether traffic patterns minimize the effect on existing traffic flows.

(8) Whether construction or modification of a new facility is consistent with existing community growth, tourism, recreation, or economic development or with specific projects involving community growth, tourism, recreation, or economic development that have been identified by government action for development or operation within one year through compliance with applicable zoning and setback requirements for populated areas as established by this Act.

(Source: P.A. 91-110, eff. 7-13-99.)

(510 ILCS 77/12.1)

Sec. 12.1. Final determination.

(a) Within 15 calendar days of the close of the comment period under subsection (b) of Section 12, the Department shall determine if, more likely than not, the provisions of the Act have been met and shall send written notice of this determination to the applicant and the county board indicating that construction may proceed. If the Department finds that, more likely than not, the provisions of the Act have not been met the Department shall send written notice to the applicant and the county board that construction is prohibited.

(a-5) If the Department finds that additional information or that specific changes are needed in order to assist the Department in making the determination under subsection (a) of this Section, the Department may request such information or changes from the owner or operator of the new livestock waste handling facility or waste management facility.

(b) (Blank). If no informational meeting is held, the Department shall, within 15 calendar days following the end of the period for the county board to request an informational meeting, notify the owner or operator that construction may begin or that clarification is needed.

(c) If the owner or operator of a proposed livestock management facility or livestock waste handling facility amends the facility plans during the Department's review, the Department shall notify the county board, which may exercise its option of a public informational meeting pursuant to Section 12 of this Act.

(d) If the owner or operator of a proposed new livestock management or new livestock waste handling facility amends the facility plans during the Department's review process by increasing the animal unit capacity of the facility such that the required setback distances will be increased, or makes any other material amendment to the facility plans, the owner or operator shall submit a revised notice of intent to construct and comply with applicable provisions of this Act as if the application were a new application.

(e) An affected party who participated in the public hearing under Section 12 of this Act, or any applicant, may judicially appeal the Department's final determination under the Code of Civil Procedure.

(Source: P.A. 91-110, eff. 7-13-99.)

(510 ILCS 77/13)

Sec. 13. Livestock waste handling facilities other than earthen livestock waste lagoons; construction standards; certification; inspection; removal-from-service requirements.

(a) After the effective date of this amendatory Act of 1999, livestock waste handling facilities other than earthen livestock waste lagoons used for the storage of livestock waste shall be constructed in accordance with this Section.

(1) Livestock waste handling facilities constructed of concrete shall meet the strength and load factors set forth in the Midwest Plan Service's Concrete Manure Storage Handbook (MWPS-36) and future updates. In addition, those structures shall meet the following requirements:

(A) Waterstops shall be incorporated into the design of the storage structure when consistent with the requirements of paragraph (1) of this subsection;

(B) Storage structures that handle waste in a liquid form shall be designed to contain a volume of not less than the amount of waste generated during 150 days of facility operation at design capacity; the owner or operator of a livestock waste handling facility constructed with concrete with a design capacity of less than 300 animal units may demonstrate to the Department that a reduced storage volume, not less than 60 days, is feasible due to (i) the availability of land application areas that can receive manure at agronomic rates or (ii) another manure disposal method is proposed that will allow for the reduced manure storage design capacity; the Department shall evaluate the proposal and determine whether a reduced manure storage design capacity is appropriate for the site; and

(C) Storage structures not covered or otherwise protected from precipitation shall, in addition to the waste storage volume requirements of subparagraph (B) of paragraph (1) of this subsection, include a 2-foot freeboard.

(2) A livestock waste handling facility in a prefabricated form shall meet the strength, load, and compatibility factors for its intended use. Those factors shall be verified by the manufacturer's specifications.

(3) Livestock waste handling facilities holding semi-solid livestock waste, including but not limited to picket dam structures, shall be constructed according to the requirements set forth in the Midwest Plan Service's Livestock Waste Facilities Handbook (MWPS-18) and future updates or similar standards used by the Natural Resources Conservation Service of the United States Department of Agriculture.

(4) Livestock waste handling facilities holding solid livestock waste shall be constructed according to the requirements set forth in the Midwest Plan Service's Livestock Waste Facilities Handbook (MWPS-18) and future updates or similar standards used by the Natural Resources Conservation Service of the United States Department of Agriculture. In addition, solid livestock waste stacking structures shall be sized to store not less than the amount of waste generated during 6 months of facility operation at design capacity. The owner or operator of a livestock waste handling facility holding solid livestock waste with a design capacity of less than 300 animal units may demonstrate to the Department that a reduced storage volume, not less than 2 months, is feasible due to (i) the availability of land application areas that can receive manure at agronomic rates or (ii) another manure disposal method is proposed that will allow for the reduced storage design capacity. The Department shall evaluate the proposal and determine whether a reduced manure storage design capacity is appropriate for the site.

(5) Holding ponds used for the temporary storage of livestock feedlot run-off shall be constructed according to the requirements set forth in the Midwest Plan Service's Livestock Waste Facilities Handbook (MWPS-18) and future updates or similar standards used by the Natural Resources Conservation Service of the United States Department of Agriculture.

(6) Facilities constructed after the effective date of this amendatory Act of the 98th General Assembly shall be constructed to ensure that there are no man-made conduits from livestock management facilities or livestock waste handling facilities to surface waters.

(b) New livestock management facilities and livestock waste handling facilities constructed after the effective date of this amendatory Act of 1999 shall be subject to the additional construction requirements and siting prohibitions provided in this subsection (b).

(1) No new non-lagoon livestock management facility or livestock waste handling facility may be constructed within the floodway of a 100-year floodplain. A new livestock management facility or livestock waste handling facility may be constructed within the portion of a 100-year floodplain that is within the flood fringe and outside the floodway provided that the facility is designed and constructed to be protected from flooding and meets the requirements set forth in the Rivers, Lakes, and Streams Act, Section 5-40001 of the Counties Code, and Executive Order Number 4 (1979). The delineation of floodplains, floodways, and flood fringes shall be in compliance with the National Flood Insurance Program. Protection from flooding shall be consistent with the National Flood Insurance Program and shall be designed so that stored livestock waste is not readily removed.

(2) A new non-lagoon livestock waste handling facility constructed in a karst area shall be designed to prevent seepage of the stored material into groundwater in accordance with ASAE 393.2 or future updates. Owners or operators of proposed facilities should consult with the local soil and water conservation district, the University of Illinois Cooperative Extension Service, or other local, county, or State resources relative to determining the possible presence or absence of such areas. Notwithstanding the other provisions of this paragraph (2), after the effective date of this amendatory Act of 1999, no non-lagoon livestock waste handling facility may be constructed within 400 feet of any natural depression in a karst area formed as a result of subsurface removal of soil or rock materials that has caused the formation of a collapse feature that exhibits internal drainage. For the purposes of this paragraph (2), the existence of such a natural depression in a karst area shall be indicated by the uppermost closed depression contour lines on a USGS 7 1/2 minute quadrangle topographic map or as determined by Department field investigation in a karst area.

(3) A new non-lagoon livestock waste handling facility constructed in an area where aquifer material is present within 5 feet of the bottom of the facility shall be designed to ensure the structural integrity of the containment structure and to prevent seepage of the stored material to groundwater. Footings and underlying structure support shall be incorporated into the design standards of the storage structure in accordance with the requirements of Section 4.1 of the American Society of Agricultural Engineers (ASAE) EP 393.2 or future updates.

(c) A livestock waste handling facility owner may rely on guidance from the local soil and water conservation district, the Natural Resources Conservation Service of the United States Department of Agriculture, or the University of Illinois Cooperative Extension Service for soil type and associated information.

(d) The standards in subsections (a) and (b) shall serve as interim construction standards until such time as permanent rules promulgated pursuant to Section 55 of this Act become effective. In addition, the Department and the Board shall utilize the interim standards in subsections (a) and (b) as a basis for the development of such permanent rules.

(e) The owner or operator of a livestock management facility or livestock waste handling facility may, with the approval of the Department, elect to exceed the strength and load requirements as set forth in this Section.

(f) The owner or operator of a livestock management facility or livestock waste handling facility shall send, by certified mail or in person, to the Department a certification of compliance together with copies of verification documents upon completion of construction. In the case of structures constructed with the design standards used by the Natural Resources Conservation Service of the United States Department of Agriculture, copies of the design standards and a statement of verification signed by a representative of the United States Department of Agriculture shall accompany the owner's or operator's certification of compliance. The certification shall state that the structure meets or exceeds the requirements in subsection (a) of this Section. A $250 filing fee shall accompany the statement.

(g) The Department shall inspect the construction site prior to construction, during construction, and within 10 business days following receipt of the certification of compliance to determine compliance with the construction standards.

(h) The Department shall require modification when necessary to bring the construction into compliance with the standards set forth in this Section. The person making the inspection shall discuss with the owner, operator, or certified livestock manager an evaluation of the livestock waste handling facility construction and shall (i) provide on-site written recommendations to the owner, operator, or certified livestock manager of what modifications are necessary or (ii) inform the owner, operator, or certified livestock manager in writing that the facility meets the standards set forth in this Section. On the day of the inspection, the person making the inspection shall give the owner, operator, or certified livestock manager a written report of findings based on the inspection together with an explanation of remedial measures necessary to enable the livestock waste handling facility to meet the standards set forth in this Section. The Department shall, within 5 business days of the date of inspection, send an official written notice to the owner or operator of the livestock waste handling facility by certified mail, return receipt requested, indicating that the facility meets the standards set forth in this Section or identifying the remedial measures necessary to enable the livestock waste handling facility to meet the standards set forth in this Section. The owner or operator shall, within 10 business days of receipt of an official written notice of deficiencies, contact the Department to develop the principles of an agreement of compliance. The owner or operator and the Department shall enter into an agreement of compliance setting forth the specific changes to be made to bring the construction into compliance with the standards required under this Section. If an agreement of compliance cannot be achieved, the Department shall issue a compliance order to the owner or operator outlining the specific changes to be made to bring the construction into compliance with the standards required under this Section. The owner or operator and any affected party can request an administrative hearing to review contest the provisions of the Department's compliance order.

(i) (Blank).

(j) If any owner or operator operates in violation of an agreement of compliance, the Department shall seek an injunction in circuit court to prohibit the operation of the facility until construction and certification of the livestock waste handling facility are in compliance with the provisions of this Section.

(k) When any livestock management facility not using an earthen livestock waste lagoon is removed from service, the accumulated livestock waste remaining within the facility shall be removed and applied to land at rates consistent with a waste management plan for the facility. Removal of the waste shall occur within 12 months after the date livestock production at the facility ceases. In addition, the owner or operator shall make provisions to prevent the accumulation of precipitation within the livestock waste handling facility. Upon completion of the removal of manure, the owner or operator of the facility shall notify the Department that the facility is being removed from service and the remaining manure has been removed. The Department shall conduct an inspection of the livestock waste handling facility and notify inform the owner or operator in writing that the requirements imposed under this subsection (k) have been met or that additional actions are necessary. Commencement of operations at a facility that has livestock shelters left intact and that has completed the requirements imposed under this subsection (k) and that has been operated as a livestock management facility or livestock waste handling facility for 4 consecutive months at any time within the previous 10 years shall not be considered a new or expanded livestock management or waste handling facility. A new facility constructed after May 21, 1996 that has been removed from service for a period of 2 or more years shall not be placed back into service prior to an inspection of the livestock waste handling facility and receipt of written approval by the Department.

(Source: P.A. 95-38, eff. 1-1-08; 96-328, eff. 8-11-09.)

(510 ILCS 77/15)

Sec. 15. Livestock waste lagoon.

(a) Standards for livestock waste lagoon construction. Any earthen livestock waste lagoon subject to registration shall be constructed or modified in accordance with "Design of Anaerobic Lagoons for Animal Waste Management" promulgated by the American Society of Agricultural Engineers or the national guidelines as published by the United States Department of Agriculture Natural Resource Conservation Service in Illinois and titled Waste Treatment Lagoon. The owner or operator of the earthen livestock lagoon may, with approval from the Department, modify or exceed these standards in order to meet site specific objectives. Notwithstanding any other requirement of this subsection, every earthen livestock waste lagoon shall include the construction of a secondary berm, filter strip, grass waterway, or terrace, or any combination of those, outside the perimeter of the primary berm if an engineer licensed under the Professional Engineering Practice Act of 1989 and retained by the registrant determines, with the concurrence of the Department, that construction of such a secondary berm or other feature or features is necessary in order to ensure against a release of livestock waste from the lagoon (i) that encroaches or is reasonably expected to encroach upon land other than the land occupied by the livestock waste handling facility of which the lagoon is a part or (ii) that enters or is reasonably expected to enter the waters of this State. The Department shall determine compliance with these requirements. The Department may require changes in design or additional requirements to protect groundwater, such as extra liner depth or synthetic liners, when it appears groundwater could be impacted. Livestock management facilities or livestock waste handling facilities constructed after the effective date of this amendatory Act of the 98th General Assembly shall not have man-made conduits from surface waters to those livestock management facilities or livestock waste handling facilities.

(a-5) New earthen livestock waste lagoons constructed after the effective date of this amendatory Act of 1999 shall be subject to additional construction requirements and siting prohibitions as provided in this subsection (a-5).

(1) No new earthen livestock waste lagoon may be constructed within the floodway of a 100-year floodplain. A new earthen livestock waste lagoon may be constructed within the portion of a 100-year floodplain that is within the flood fringe and outside the floodway provided that the facility is designed and constructed so that livestock waste is not readily removed during flooding and meets the requirements set forth in the Rivers, Lakes, and Streams Act, Section 5-40001 of the Counties Code, and Executive Order Number 4 (1979). The delineation of floodplains, floodways, and flood fringes shall be in compliance with the National Flood Insurance Program.

(2) A new earthen livestock waste lagoon constructed in a karst area shall be designed to prevent seepage of the stored material to groundwater. Owners or operators of proposed facilities shall consult with the local soil and water conservation district, the University of Illinois Cooperative Extension Service, or other local, county, or State resources relative to determining the possible presence or absence of such areas. Notwithstanding the other provisions of this paragraph (2), after the effective date of this amendatory Act of 1999, no earthen livestock waste lagoon may be constructed within 400 feet of any natural depression in a karst area formed as a result of subsurface removal of soil or rock materials that has caused the formation of a collapse feature that exhibits internal drainage. For the purposes of this paragraph (2), the existence of such natural depression in a karst area shall be indicated by the uppermost closed depression contour lines on a USGS 7 1/2 minute quadrangle topographic map or as determined by Department field investigation in a karst area.

(b) Registration and certification. Any earthen livestock waste lagoon newly constructed or modified (does not include repairs) after the effective date of rules adopted for the implementation of this Act shall be registered by the owner or operator with the Department on a form provided by the Department. Lagoons constructed prior to the effective date of rules adopted for the implementation of this Act may register with the Department at no charge.

In order to give the Department notice of the owner's or operator's intent to construct or modify an earthen livestock waste lagoon, the owner or operator shall register such lagoon with the Department during the preconstruction phase. Construction shall not begin until 30 days after submittal of a registration form by certified mail to the Department. When a public hearing an informational meeting is held requested by the county, construction shall not begin until after the public hearing is concluded and the comment period has ended informational meeting has been held.

Livestock waste lagoon registration forms shall be made available to producers at offices of the Department of Agriculture, Cooperative Extension Service, and Soil and Water Conservation Districts.

Registration information shall include the following:

(1) Name(s) and address(es) of the owner and operator who are responsible for the livestock waste lagoon.

(2) General location of lagoon.

(3) Design construction plans and specifications.

(4) Specific location information:

(A) Distance to a private or public potable well;

(B) Distance to closest occupied private residence (other than any occupied by owner or operator);

(C) Distance to nearest stream; and

(D) Distance to nearest populated area.

(5) Anticipated beginning and ending dates of construction.

(6) Type of livestock and number of animal units.

The Department of Agriculture upon receipt of a livestock waste lagoon registration form shall review the form to determine that all required information has been provided. The person filing the registration shall be notified within 15 working days that the registration is complete or that clarification of information is needed. No later than 10 working days after receipt of the clarification information, the Department shall notify the owner or operator that the registration is complete.

The Department shall inspect an earthen livestock waste lagoon during preconstruction, construction, and post-construction. The Department shall require modifications when necessary to bring construction in compliance with the standards as set forth in subsection (a) of Section 15. The person making the inspection shall discuss with the owner, operator, or certified livestock manager an evaluation of the livestock waste lagoon construction and shall (i) provide on-site written recommendations to the owner, operator, or certified livestock manager of what modifications are necessary or (ii) inform the owner, operator, or certified livestock manager that the lagoon meets the standards set forth in subsection (a) of Section 15. On the day of the inspection, the person making the inspection shall give the owner, operator, or certified livestock manager a written report of his or her findings based on the inspection, together with an explanation of any remedial measures necessary to enable the lagoon to meet the standards set forth in subsection (a).

The person making any inspection shall comply with reasonable animal health protection procedures as requested by the owner, operator, or certified livestock manager.

Upon completion of the construction or modification, but prior to placing the lagoon in service, the owner or operator of the livestock waste lagoon shall certify on a form provided by the Department that the lagoon has been constructed or modified in accordance with the standards set forth in subsection (a) of Section 15 and that the information provided on the registration form is correct.

(1) The certification notice to the Department shall include a certification statement and signature.

(2) The certification shall state: "I hereby certify that the information provided on this form is correct and that the lagoon has been constructed in accordance with the standards as required by the Livestock Management Facilities Act."

Within 10 business days of receipt of the certification of compliance, the Department shall inspect the lagoon site. The Department shall, within 5 business days of the date of inspection, send an official written notice by certified mail, return receipt requested, to the owner or operator of the facility indicating that all the requirements of this Section have been met or that deficiencies exist that must be corrected prior to the completion of the lagoon registration process and the placement of the lagoon into service. The owner or operator of the lagoon may proceed to place the lagoon in service after receipt of the Department's notice that all the requirements of this Section have been met.

(c) Complaint procedure. Any person having a complaint concerning an earthen livestock waste lagoon may file a complaint with the Agency. If the Agency finds that groundwater has been negatively impacted because of structural problems with the earthen lagoon, the Agency shall notify the Department that modification of the lagoon is necessary. The livestock owner or operator or the Department may request guidance from the United States Department of Agriculture Natural Resource Conservation Service or the University of Illinois Cooperative Extension Service.

The person making any inspection shall comply with animal health protection procedures as requested by the owner or operator.

Any earthen livestock waste lagoon in service prior to the effective date of the rules for implementation of this Act is not subject to registration but is only subject to the complaint procedure. However, any such livestock waste lagoon found impacting groundwater shall be required to be repaired, modified, or have procedures instituted so groundwater is not negatively impacted.

If an investigation reveals groundwater has been negatively impacted, the Department and Agency shall cooperate with the owner or operator of the affected livestock waste lagoon to provide a reasonable solution to protect the groundwater.

Nothing in this Section shall limit the Agency's authority under the Environmental Protection Act to investigate and respond to violations of the Environmental Protection Act or rules adopted under that Act.

(d) Livestock waste lagoon registration fee. The livestock waste lagoon registration fee is $250.

(e) Closure of livestock waste lagoons. When any earthen livestock waste lagoon is removed from service, it shall be completely emptied. Appropriate closure procedures shall be followed as determined by rule. The remaining hole must be filled. The closure requirements shall be completed within two years from the date of cessation of operation unless the lagoon is maintained or serviced. The Department may grant a waiver to the before-stated closure requirements that will permit the lagoon to be used for an alternative purpose.

Upon a change in ownership of a registered earthen livestock waste lagoon, the owner shall notify the Department of the change within 30 working days of the closing of the transaction.

(f) Administrative authority. All actions of the Department of Agriculture are subject to the Illinois Administrative Procedure Act and any applicant, registrant, owner, operator, or affected party shall be able to judicially appeal any Department action under the Administrative Review Law.

Any earthen livestock waste lagoon subject to registration shall not begin operation until the owner or operator of the lagoon has met the requirements of this Act.

The owner or operator of any earthen livestock waste lagoon subject to registration that has not been registered or constructed in accordance with standards set forth in subsection (a) of Section 15 shall, upon being identified as such by the Department, be given written notice by the Department to register and certify the lagoon within 10 working days of receipt of the notice. The Department may inspect such lagoon and require compliance in accordance with subsections (a) and (b) of this Section. If the owner or operator of the livestock waste lagoon that is subject to registration fails to comply with the notice, the Department may issue a cease and desist order until such time as compliance is obtained with the requirements of this Act. Failure to construct the lagoon in accordance with the construction plan and Department recommendations is a business offense punishable by a fine of not more than $5,000.

(Source: P.A. 90-565, eff. 6-1-98; 91-110, eff. 7-13-99.)

(510 ILCS 77/20)

Sec. 20. Handling, storing and disposing of livestock waste.

(a) The livestock management facility owner or operator shall comply with the requirements for handling, storing, and disposing of livestock wastes as set forth in the rules adopted pursuant to the Illinois Environmental Protection Act concerning agriculture related pollution.

(b) The livestock management facility owner or operator at a facility of less than 1,000 animal units shall not be required to prepare and maintain a waste management plan.

(c) The livestock management facility owner or operator at a facility of 1,000 or greater animal units but less than 5,000 animal units shall prepare and maintain on file at the livestock management facility a general waste management plan. The plan shall be submitted to the Department and the Department shall make the plan available to the public. Notwithstanding this requirement, a livestock management facility subject to this subsection may be operated on an interim basis but not to exceed 6 months after the effective date of the rules promulgated pursuant to this Act to allow for the owner or operator of the facility to develop a waste management plan. The waste management plan shall be available for inspection during normal business hours by Department personnel.

(d) The livestock management facility owner or operator at a facility of 5,000 or greater animal units shall prepare, maintain, and submit to the Department the waste management plan for approval. Approval of the waste management plan shall be predicated on compliance with provisions of subsection (f). The waste management plan shall be approved by the Department before operation of the facility or in the case of an existing facility, the waste management plan shall be submitted within 60 working days after the effective date of the rules promulgated pursuant to this Act.

The owner or operator of an existing livestock management facility that through growth meets or exceeds 5,000 animal units shall file its waste management plan with the Department within 60 working days after reaching the stated animal units.

The owner or operator of a livestock management facility that is subject to this subsection (d) shall file within 60 working days with the Department a revised waste management plan when there is a change as provided in subsection (e) of this Section that will materially affect compliance with the waste management plan.

(d-5) The owner or operator of multiple livestock management facilities under common facility ownership where the cumulative animal units of the facilities are equal to or greater than the animal unit numbers provided for in subsection (c) of this Section shall prepare and keep on file at each facility a waste management plan in accordance with the requirements of subsection (c). The owner or operator of multiple livestock management facilities that are under common facility ownership where the cumulative animal units of the facilities are equal to or greater than the animal unit numbers provided for in subsection (d) of this Section shall prepare and file with the Department a waste management plan in accordance with the provisions of subsection (d). Cumulative animal units shall be determined by combining the animal units of multiple livestock management facilities under the common facility ownership based upon the design capacity of each facility. For the purposes of this subsection (d-5), "under common facility ownership" means the same person or persons own, directly or indirectly, through majority owned business entities at least 51% of any person or persons (as defined by Section 10.55) that own or operate the livestock management facility or livestock waste handling facility located in the State of Illinois.

(e) The owner or operator of a livestock management facility shall update the waste management plan when there is a change in values shown in the plan under item (1) of subsection (f) of this Section. The waste management plan and records of livestock waste disposal shall be kept on file for three years.

(f) The application of livestock waste to the land is an acceptable, recommended, and established practice in Illinois. However, when livestock waste is not applied in a responsible manner, it may create pollutional problems. It should be recognized that research relative to livestock waste application based on livestock waste nutrient content is currently ongoing. The Dean of the College of Agricultural, Consumer and Environmental Sciences at the University of Illinois, or his or her designee, shall annually report to the Advisory Committee on the status of phosphorus research, including research that has been supported in whole or in part by the Illinois Council on Food and Agricultural Research. The Advisory Committee may also consult with other appropriate research entities on the status of phosphorus research. It is considered acceptable to prepare and implement a waste management plan based on a nitrogen rate, unless otherwise restricted by this Section. The waste management plan shall include the following:

(1) An estimate of the volume of livestock waste to be disposed of annually, which shall be obtained by multiplying the design capacity of the facility by the appropriate amount of waste generated by the animals. The values showing the amount of waste generated in Table 2-1, Midwest Plan Service's, MWPS-18, Livestock Waste Management Facilities Handbook or Design Criteria for the field application of livestock waste adopted by the Agency may be used.

(2) The number of acres available for disposal of the waste, whether they are owned by the owner or operator of the livestock waste management facility or are shown to be contracted with another person or persons for disposal of waste.

(3) An estimate of the nutrient value of the waste. The owner or operator may prepare a plan based on an average of the minimum and maximum numbers in the table values derived from Midwest Plan Service's, MWPS-18, Livestock Waste Facilities Handbook, the Agency's Agriculture Related Pollution regulations, or the results of analysis performed on samples of waste. For the purposes of compliance with this subsection, the nutrient values of livestock waste may vary as indicated in the source table. In the case of laboratory analytical results, the nutrient values may vary with the accuracy of the analytical method.

(3.5) Results of the Bray P1 or Mehlich test for soil phosphorus reported in pounds of elemental phosphorus per acre. Soil samples shall be obtained and analyzed from the livestock waste application fields on land owned or under the control of the owner or operator where applications are planned. Fields where livestock waste is applied shall be sampled every 3 years. Sampling procedures, such as the number of samples and the depth of sampling, as outlined in the current edition of the Illinois Agronomy Handbook shall be followed when soil samples are obtained.

(3.6) If the average Bray P1 or Mehlich test result for soil phosphorus calculated from samples obtained from the application field is 300 pounds or less of elemental phosphorus per acre, livestock waste may continue to be applied to that field in accordance with subsection (f) of this Section. If the average Bray P1 or Mehlich test result for soil phosphorus for an application field is greater than 300 pounds of elemental phosphorus per acre, the owner or operator shall apply livestock waste at the phosphorus rate to the field until the average Bray P1 or Mehlich test for soil phosphorus indicates there is less than 300 pounds of elemental phosphorus per acre. Upon the development of a phosphorus index that is approved subject to the provisions established in Section 55 of this Act, the owner or operator shall use such index in lieu of the 300 pounds of elemental phosphorus per acre.

(4) An indication that the livestock waste will be applied at rates not to exceed the agronomic nitrogen demand of the crops to be grown when averaged over a 5-year period.

(5) A provision that livestock waste applied within 1/4 mile of any residence not part of the facility shall be injected or incorporated on the day of application. However, livestock management facilities and livestock waste handling facilities that have irrigation systems in operation prior to the effective date of this Act or existing facilities applying waste on frozen ground are not subject to the provisions of this item (5).

(6) A provision that livestock waste may not be applied within 200 feet of surface water unless the water is upgrade or there is adequate diking, and waste will not be applied within 150 feet of potable water supply wells.

(7) A provision that livestock waste may not be applied in a 10-year flood plain unless the injection or incorporation method of application is used.

(8) A provision that livestock waste may not be applied in waterways.

(9) A provision that if waste is spread on frozen or snow-covered land, the application will be limited to land areas on which:

(A) land slopes are 5% or less, or

(B) adequate erosion control practices exist.

(10) Methods for disposal of animal waste.

(11) A release control and prevention plan that covers releases at land application areas, livestock waste handling facilities, and livestock management facilities. The plan shall include but not be limited to: containment methods, cleanup procedures, and disposal of released waste. In the event of a release, the waste shall be contained and collected immediately upon discovery, and the release shall be reported under Section 18 of this Act. The cause of the release shall be corrected as soon as practicable and before resuming application.

(12) A provision that waste applicators shall inspect land application equipment during use for spillage, leakage, blockage, decoupling, and problems that result in improper operation, and ensure the equipment is properly calibrated and in good working order prior to application. During application and for 24 hours afterward, conduits to surface waters (including subsurface drainage systems) shall be monitored to ensure a surface water discharge is not occurring, and application shall cease immediately if there is a discharge. In no instance shall application equipment in use be left unattended.

(13) A provision that livestock waste shall not be applied within 100 feet of down gradient open subsurface drainage intakes, agricultural drainage wells, sinkholes, grassed waterways, or other conduits to surface water, unless a 35 foot vegetative buffer exists between the land application area and the grassed waterways, open subsurface drainage intakes, agricultural drainage wells, sinkholes, or other conduits to surface water.

(g) Any person who is required to prepare and maintain a waste management plan and who fails to do so shall be issued a warning letter by the Department for the first violation and shall be given 30 working days to prepare a waste management plan. For failure to prepare and maintain a waste management plan, the person shall be fined an administrative penalty of up to $1,000 by the Department and shall be required to enter into an agreement of compliance to prepare and maintain a waste management plan within 30 working days. For failure to prepare and maintain a waste management plan after the second 30 day period or for failure to enter into a compliance agreement, the Department may issue an operational cease and desist order until compliance is attained.

(Source: P.A. 91-110, eff. 7-13-99; 92-16, eff. 6-28-01.)

(510 ILCS 77/35)

Sec. 35. Setbacks for livestock management and livestock handling facilities.

(a) Grandfather provision; facilities in existence prior to July 15, 1991. Livestock management facilities and livestock waste handling facilities in existence prior to July 15, 1991 shall comply with setbacks in existence prior to July 15, 1991, as set forth in the Illinois Environmental Protection Act and rules promulgated under that Act.

(b) Grandfather provision; facilities in existence on effective date and after July 15, 1991. Livestock management facilities and livestock waste handling facilities in existence on the effective date of this Act but after July 15, 1991 shall comply with setbacks in existence prior to the effective date of this Act, as set forth in the Illinois Environmental Protection Act and rules promulgated under that Act.

(c) New livestock management or livestock waste handling facilities. Any new facility shall comply with the following setbacks:

(1) For purposes of determining setback distances, minimum distances shall be measured from the nearest corner of the residence or place of common assembly to the nearest corner of the earthen waste lagoon or livestock management facility, whichever is closer.

(2) A livestock management facility or livestock waste handling facility serving less than 50 animal units shall be exempt from setback distances as set forth in this Act but shall be subject to rules promulgated under the Illinois Environmental Protection Act.

(3) For a livestock management facility or waste handling facility serving 50 or greater but less than 1,000 animal units to be constructed before the effective date of this amendatory Act of the 98th General Assembly, the minimum setback distance shall be 1/4 mile from the nearest occupied residence and 1/2 mile from the nearest populated area.

(4) For a livestock management facility or livestock waste handling facility serving 1,000 or greater but less than 7,000 animal units to be constructed on or after the effective date of this amendatory Act of the 98th General Assembly, the setback is as follows:

(A) For a populated area, the minimum setback shall be increased 1/4 mile 440 feet over the minimum setback of one 1/2 mile for each additional 1,000 animal units over 1,000 animal units.

(B) For any occupied residence, the minimum setback shall be increased 1/4 mile 220 feet over the minimum setback of 1/2 1/4 mile for each additional 1,000 animal units over 1,000 animal units.

(5) For a livestock management facility or livestock waste handling facility serving 50 7,000 or greater but less than 1,000 animal units to be constructed on or after the effective date of this amendatory Act of the 98th General Assembly, the minimum setback is as follows:

(A) 750 feet from surface waters; and For a populated area, the minimum setback shall be 1 mile.

(B) 1/4 mile from designated surface drinking water supplies, outstanding resource waters, and streams designated as biologically significant by the Department of Natural Resources. For any occupied residence, the minimum setback shall be 1/2 mile.

(d) Requirements governing the location of a new livestock management facility and new livestock waste-handling facility and conditions for exemptions or compliance with the maximum feasible location as provided in rules adopted pursuant to the Illinois Environmental Protection Act concerning agriculture regulated pollution shall apply to those facilities identified in subsections (b) and (c) of this Section. With regard to the maximum feasible location requirements, any reference to a setback distance in the rules under the Illinois Environmental Protection Act shall mean the appropriate distance as set forth in this Section.

(e) Setback category shall be determined by the design capacity in animal units of the livestock management facility.

(f) Setbacks may be decreased when innovative designs as approved by the Department are incorporated into the facility.

(g) A setback may be decreased when waivers are obtained from owners of residences that are occupied and located in the setback area.

(Source: P.A. 91-110, eff. 7-13-99.)

(510 ILCS 77/37 new)

Sec. 37. Civil action.

(a) Any person may commence a civil action on his or her own behalf (1) against any person who is in violation of (A) an agreement of compliance or a compliance order under Section 13 or Section 15 of this Act; (B) the release, reporting, odor control, or certified livestock manager standards under Sections 16, 18, 20, 25 or 30 of this Act; or (C) the setback requirements under Section 35 of this Act; or (2) against the Agency or Department where there is an alleged failure to perform any act or duty under this Act that is not discretionary.

(b) The court hearing the action may enforce the provisions of this Act by (1) ordering any person to perform the non-discretionary duty, (2) awarding civil penalties under Sections 15, 16, 18, 20, 25, and 30 of this Act, or (3) awarding damages, including attorney and expert witness fees. No existing civil or criminal remedy for any wrongful action is impaired by this Act.

(c) Any action brought in a State court under this Section may be brought only in the county in which the livestock facility complained of is located.

(d) No action shall be commenced before 60 days after the plaintiff has given notice of the alleged violation to (1) the Department, (2) the Agency, and (3) the alleged violator.

(e) No action shall be commenced if, at the time the action is filed, the Department or the Attorney General is diligently prosecuting an administrative hearing or legal action as described in Section 13, 16, 18, 25, or 30 of this Act, regarding the same violation. However, any person has the right to intervene in any civil action as a matter of right.

(f) In any action under this Section, the Department may intervene if that intervention results in diligent prosecution.

(g) Nothing in this Section restricts any right which any person has under any statute or common law to seek enforcement of any standard related to livestock management facilities, livestock waste handling facilities, or lagoons, or to seek any other relief against the owner or operator of the livestock management facilities, livestock waste handling facilities, or lagoons.

Section 99. Effective date. This Act takes effect upon becoming law.