HB2409 94TH GENERAL ASSEMBLY

LRB094 08068 JAM 38252 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB2409

Introduced 2/17/2005, by Rep. Brandon W. Phelps

SYNOPSIS AS INTRODUCED:

510 ILCS 77/11
510 ILCS 77/12
510 ILCS 77/13
510 ILCS 77/20
510 ILCS 77/35
510 ILCS 77/55
510 ILCS 77/17 rep.

Amends the Livestock Management Facilities Act. Provides that livestock management facilities and livestock waste handling facilities serving less than 50 animal units or serving 150 or less animal units and located wholly within certain agricultural areas are exempt from the requirement to file a notice of intent to construct. Requires owners and operators of livestock waste handling facilities to send a notice of intent to construct to owners of property within the setback distances. Subjects owners and operators who begin construction prior to receiving written approval from the Illinois Department of Agriculture to an administrative hearing and a civil penalty. Provides that livestock management facilities or livestock waste handling facilities serving 2,000 or less animal units located in certain agricultural areas are not required to hold public informational meetings related to proposed construction. Provides that livestock management facilities and livestock waste handling facilities located in certain agricultural areas are exempt from certain construction standards. Allows livestock waste handling facilities with a design capacity of 300 or less animal units to demonstrate that a reduced storage volume is feasible due to the availability of certain land application areas. Exempts settling basins and holding ponds for the management and control of feedlot runoff and within which no livestock manure is actively stored or handled and permanent manure pipelines designed and utilized to transport manure from a livestock waste handling facility to a land application area from certain construction standards. Provides that an owner or operator who commences operation prior to receiving written approval from the Department is subject to an administrative hearing and a civil penalty. Provides that livestock management facility owners and operators who have been issued a National Pollution Discharge Elimination System-Concentrated Animal Feeding Operation Permit are not required to prepare a general waste management plan. Exempts from setback requirements livestock management facilities and livestock waste handling facilities serving 50 to 150 animal units in certain agricultural areas and with certain separation distances. Requires the Livestock Management Facilities Advisory Committee to meet as needed as determined by the Chair to accomplish its duties.

FISCAL NOTE ACT MAY APPLY

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 11, 12, 13, 20, 35, and 55 as follows:

(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.

(a-5) A livestock management facility or livestock waste handling facility serving less than 50 animal units shall be exempt from the requirement to file a notice of intent to construct. A livestock management facility or livestock waste handling facility serving 150 or less animal units located wholly within an agricultural area as established pursuant to the Agricultural Areas Conservation and Protection Act with a separation distance of not less than 2,640 feet between the outermost extent of the livestock management facility or livestock waste handling facility and the agricultural area boundaries shall be exempt from the requirement to file a notice of intent to construct.

(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. Upon notification by the Department that the notice is complete, the owner or operator shall send a copy of the notice of intent to construct for a livestock management facility or livestock waste handling facility to the owners of property within the setback distances. For the purposes of this subsection (b), the owners of property located within the setback areas are presumed, unless established to the contrary, to be the persons shown by the current tax collector's warrant book to be the party in whose name the taxes were last assessed. 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. Upon notification by the Department that the registration is complete, the owner or operator shall send a copy of the notice of intent to construct for a livestock management facility or livestock waste handling facility to the owners of property within the setback distances. For the purposes of this subsection (c), the owners of property located within the setback areas are presumed, unless established to the contrary, to be the persons shown by the current tax collector's warrant book to be the party in whose name the taxes were last assessed.

(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.

(d-5) Any owner or operator who commences construction prior to receiving written approval from the Department shall be subject to an administrative hearing by the Department. The administrative law judge, upon determination of a failure to receive written approval from the Department prior to commencement of construction, shall impose a civil administrative penalty in an amount not exceeding $1,000 and shall enter an administrative order directing that the owner or operator pay the monetary penalty to the Department prior to the re-commencement of any additional construction and the placement of the facility into operation.

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

(510 ILCS 77/12)

Sec. 12. Public 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 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. After receiving a copy of the notice form from the Department, the county board may, at its discretion and within 30 days after receipt of the notice, request that the Department conduct an informational meeting concerning the proposed construction that is subject to this Section. 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 conduct the informational meeting, the Department shall conduct the informational meeting within 15 days of the county board's request. If the Department conducts such a meeting, it shall cause notice of the 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 meeting. The owner or operator who submitted the notice of intent to construct to the Department shall appear at the meeting. At the meeting, the Department shall afford members of the public an opportunity to ask questions and present oral or written comments concerning the proposed construction. Notwithstanding the provisions of this Section, a livestock management facility or livestock waste handling facility serving 2,000 or less animal units whose location and setbacks are located wholly within an agricultural area established pursuant to the Agricultural Areas Conservation and Protection Act shall be exempt from the requirements of this Section.

(b) The county board shall submit at the informational meeting or within 30 days 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 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) When the county board requests an informational meeting, construction shall not begin until after the 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 notice that the setbacks and all applicable requirements of this Act have been met.

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

(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 77/13)

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. A livestock management facility or livestock waste handling facility serving 150 or less animal units located wholly within an agricultural area as established pursuant to the Agricultural Areas Conservation and Protection Act with a separation distance of not less than 2,640 feet between the outermost extent of the livestock management facility or livestock waste handling facility and the agricultural area boundaries shall be exempt from the requirements of 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 with a design capacity of 300 or less animal units may demonstrate to the Department that a reduced storage volume, not less than 60 days, is feasible due to the availability of land application areas which can receive manure at agronomic rates or other manure disposal method is proposed which 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 with a design capacity of 300 or less animal units may demonstrate to the Department that a reduced storage volume, not less than 2 months, is feasible due to the availability of land application areas which can receive manure at agronomic rates or other manure disposal method is proposed which 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) Settling basins and holding ponds that are designed, constructed, and operated solely for the management and control of feedlot runoff only and within which no livestock manure is actively stored or handled are exempt from the requirements of this Section. An additional manure storage structure must be present at the livestock management facility for this exemption to be valid.

(7) Permanent manure pipelines or other conveyances that are designed and utilized to transport manure from a livestock waste handling facility to a land application area shall not be subject to the provisions of this Section. Pipelines and other conveyances that transport manure from one component of a livestock waste handling facility to another component of the same livestock waste handling facility shall be subject to the provisions of this Section.

(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 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 can request an administrative hearing to contest the provisions of the Department's compliance order.

(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.

(j-5) Any owner or operator who commences operation prior to receiving written approval from the Department shall be subject to an administrative hearing by the Department. The administrative law judge, upon determination of a failure to receive written approval from the Department prior to the commencement of operation shall impose a civil administrative penalty in an amount not exceeding $1,000.

(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 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. 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. 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. A livestock management facility owner or operator who has been issued a National Pollutant Discharge Elimination System-Concentrated Animal Feeding Operation Permit by the United States Environmental Protection Agency or the Illinois Environmental Protection Agency shall not be subject to the requirements of this subsection (c) during the time period that the permit is effective.

(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.

A livestock management facility owner or operator who has been issued a National Pollutant Discharge Elimination System-Concentrated Animal Feeding Operation Permit by the United States Environmental Protection Agency or the Illinois Environmental Protection Agency shall not be subject to the requirements of this subsection (d) during the time period that the permit is effective.

(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.

(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, the minimum setback distance shall be 1/4 mile from the nearest occupied residence and 1/2 mile from the nearest populated area.

(3.5) A livestock management facility or waste handling facility serving 50 or greater and 150 or less animal units located wholly within an agricultural area as established pursuant to the Agricultural Areas Conservation and Protection Act with a separation distance of not less than 2,640 feet between the outermost extent of the livestock management facility or livestock waste handling facility and the agricultural area boundaries shall be exempt from setback distances as set forth in this Act but shall be subject to rules adopted under the Illinois Environmental Protection Act.

(4) For a livestock management facility or livestock waste handling facility serving 1,000 or greater but less than 7,000 animal units, the setback is as follows:

(A) For a populated area, the minimum setback shall be increased 440 feet over the minimum setback of 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 220 feet over the minimum setback of 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 7,000 or greater animal units, the setback is as follows:

(A) For a populated area, the minimum setback shall be 1 mile.

(B) 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 77/55)

Sec. 55. Rules; Livestock Management Facilities Advisory Committee.

(a) There is hereby established a Livestock Management Facilities Advisory Committee, which shall include the Directors of the Department of Agriculture, the Environmental Protection Agency, the Department of Natural Resources, and the Department of Public Health, or their designees. The Director of Agriculture or his or her designee shall serve as the Chair of the Advisory Committee. Members of the Advisory Committee may organize themselves as they deem necessary and shall serve without compensation.

(b) The Advisory Committee shall review, evaluate, and make recommendations to the Department of Agriculture for rules necessary for the implementation of this Act. Based upon the recommendations of the Advisory Committee, the Department of Agriculture shall: (i) propose rules to the Pollution Control Board for the implementation of design and construction standards for livestock waste handling facilities as set forth in Sections 13 and 15(a-5) of this Act based upon the standards set forth in the American Society of Agricultural Engineers' Standards, Engineering Practices and Data (ASAE Standards) and future updates, Midwest Plan Service's Concrete Manure Storage Handbook (MWPS-36) and future updates and related supplemental technical documents, the Midwest Plan Service's Livestock Waste Facilities Handbook (MWPS-18) and future updates and related supplemental technical documents or similar standards used by the Natural Resources Conservation Service of the United States Department of Agriculture; and (ii) on and after the effective date of this amendatory Act of 1999, provide public notice in the State newspaper, the Illinois Register, and on the Department's Internet website; hold public hearings during the first notice period; and take public comments and adopt rules pursuant to the Illinois Administrative Procedure Act for all Sections of this Act other than design and construction standards for livestock waste handling facility as set forth in Sections 13 and 15(a-5).

(c) The Pollution Control Board shall hold hearings on and adopt rules for the implementation of design and construction standards for livestock waste handling facilities as set forth in Sections 13 and 15(a-5) of this Act in the manner provided for in Sections 27 and 28 of the Environmental Protection Act. Rules adopted pursuant to this Section shall take into account all available pollution control technologies and shall be technologically feasible and economically reasonable.

(d) The Advisory Committee shall meet as needed as determined by the Chair of the Advisory Committee to accomplish the requirements of subsection (b) once every 6 months after the effective date of this amendatory Act of 1997 to review, evaluate, and make recommendations to the Department of Agriculture concerning the Department's random inspection of livestock waste lagoons under Section 16 of this Act.

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

(510 ILCS 77/17 rep.)

Section 10. The Livestock Management Facilities Act is amended by repealing Section 17.