65-171d. Prevention of water pollution; standards; permits; exemption; orders; hearings; appeals; fees; confined feeding facilities, registration prior to construction, separation distance requirement
65-171d
65-171d. Prevention of water pollution;standards; permits; exemption; orders; hearings;appeals; fees; confined feeding facilities, registration prior to construction,separation distance requirements, exemptions.(a) For the purpose of preventing surface and subsurface water pollution andsoil pollution detrimental to public health or to the plant, animal andaquatic life of the state, and to protect designateduses of the waters of the state and to require the treatment of sewagepredicated upon technologically based effluent limitations, the secretary ofhealth and environment shall make such rules and regulations, includingregistration of potential sources of pollution, as may in the secretary'sjudgment be necessary to: (1) Protect the soil and waters of the state frompollution resulting from underground storage of liquid petroleum gas andhydrocarbons, other thanunderground porosity storage of natural gas; (2) control the disposal,discharge or escape of sewageas defined in K.S.A. 65-164 and amendments thereto, by or from municipalities,corporations, companies, institutions, state agencies, federal agencies orindividuals and any plants, works or facilities owned or operated, or both, bythem; and (3) establish water quality standards for the waters of the state toprotect their designated uses. In no event shallthe secretary's authority be interpreted to include authority over thebeneficial use of water, water quantity allocations, protection against wateruse impairment of a beneficial use, or any other function or authority underthe jurisdiction of the Kansas water appropriation act, K.S.A. 82a-701, andamendments thereto.
(b) The secretary of health and environment may adopt by reference anyregulation relating to water quality and effluent standards promulgated by thefederal government pursuant to the provisions of the federal clean water actand amendments thereto, as in effect on January 1, 1989, which the secretary isotherwise authorized by law to adopt.
(c) For the purposes of this act, including K.S.A. 65-161 through 65-171h andK.S.A. 65-1,178 through 65-1,198, and amendments thereto, and rulesand regulations adopted pursuant thereto:
(1) "Pollution" means: (A) Such contamination or other alteration of thephysical, chemical or biological properties of any waters of the state as willor is likely to create a nuisance or render such waters harmful, detrimental orinjurious to public health, safety or welfare, or to the plant, animal oraquatic life of the state or to other designated uses; or (B)such discharge as will or is likely to exceed state effluent standardspredicated upon technologically based effluent limitations.
(2) "Confined feeding facility" means any lot, pen, pool or pond: (A) Whichis used for the confined feeding of animals or fowl for food, fur or pleasurepurposes; (B) which is not normally used for raising crops; and (C) in which novegetation intended for animal food is growing.
(3) "Animal unit" means a unit of measurement calculated by adding thefollowing numbers: The number of beef cattle weighing more than 700 poundsmultiplied by 1.0; plus the number of cattle weighing less than 700 poundsmultiplied by 0.5; plus the number of mature dairy cattle multiplied by 1.4;plus the number of swine weighing more than 55 pounds multiplied by 0.4; plusthe number of swine weighing 55 pounds or less multiplied by 0.1; plus thenumber of sheep or lambs multiplied by 0.1; plus the number of horsesmultiplied by 2.0; plus the number of turkeys multiplied by 0.018; plus thenumber of laying hens or broilers, if the facility has continuous overflowwatering, multiplied by 0.01; plus the number of laying hens or broilers, ifthe facility has a liquid manure system, multiplied by 0.033; plus the numberof ducks multiplied by 0.2. However, each head of cattle will be counted as onefull animal unit for the purpose of determining the need for a federal permit."Animal unit" also includes the number of swine weighing 55 pounds or lessmultiplied by 0.1 for the purpose of determining applicable requirements fornew construction of a confined feeding facility for which a permit orregistration has not been issued before January 1, 1998, and for which anapplication for a permit or registration and plans have not been filed with thesecretary of health and environment before January 1, 1998, or for the purposeof determining applicable requirements for expansion of such facility.However, each head of swine weighing 55 pounds or less shall be counted as 0.0animal unit for the purpose of determining the need for a federal permit.Except as otherwise provided, animal unitsfor public livestock markets shall be determined by using the average annualanimal units sold by the market during the past five calendar years divided by365. Such animal unit determination may be adjusted by the department if thepublic livestock market submits documentation that demonstrates that suchadjustment is appropriate based on the amount of time in 24-hour increments orpartials thereof that animals are at the market.
(4) "Animal unit capacity" means the maximum number of animal units which aconfined feeding facility is designed to accommodate at any one time.
(5) "Habitable structure" means any of the following structures which isoccupied or maintained in a condition which may be occupied and which, in thecase of a confined feeding facility for swine, is owned by a person other thanthe operator of such facility: A dwelling, church, school, adult care home,medical care facility, child care facility, library, community center, publicbuilding, office building or licensed food service or lodging establishment.
(6) "Wildlife refuge" means Cheyenne Bottoms wildlife management area,Cheyenne Bottoms preserve and Flint Hills, Quivera, Marais des Cygnes andKirwin national wildlife refuges.
(d) In adopting rules and regulations, the secretary of health andenvironment, taking into account the varying conditions that are probable foreach source of sewage and its possible place of disposal, discharge or escape,may provide for varying the control measures required in each case to those thesecretary finds to be necessary to prevent pollution. If a freshwater reservoiror farm pond is privately owned and where complete ownership of land borderingthe reservoir or pond is under common private ownership, such freshwaterreservoir or farm pond shall be exempt from water quality standards except asit relates to water discharge or seepage from the reservoir or pond to watersof the state, either surface or groundwater, or as it relates to the publichealth of persons using the reservoir or pond or waters therefrom.
(e) (1) Whenever the secretary of health and environment or the secretary'sduly authorized agents find that storage or disposal of saltwaternot regulated by the state corporation commission or refuse in any surface pondnot regulated by the state corporation commission is causing or islikely to cause pollution of soil or waters of the state, thesecretary or the secretary's duly authorized agents shall issue an orderprohibiting suchstorage or disposal of salt water or refuse. Any personaggrieved by such order may within 15 days of service of the order request inwriting a hearing on the order.
(2) Upon receipt of a timely request, a hearing shall be conducted inaccordance with the provisions of the Kansas administrative procedure act.
(3) Any action of the secretary pursuant to this subsectionis subject to review in accordance with the act for judicial review andcivil enforcement of agency actions.
(f) The secretary may adopt rules and regulations establishing feesfor plan approval, monitoring and inspecting underground or buriedpetroleumproducts storage tanks, for which the annual fee shall not exceed $5 for eachtank in place.
(g) Prior to any new construction of a confinedfeeding facility with an animal unit capacity of 300 to 999, such facilityshall register with the secretary of health and environment.Facilities with a capacity of less than 300 animal units may register withthe secretary. Any such registration shall be accompanied bya $25 fee. Within 30 days of receipt of such registration,the department of health and environment shallidentify any significant water pollutionpotential or separation distance violations pursuant tosubsection (h). If there is identified a significant waterpollution potential, such facility shall be required to obtaina permit from the secretary.If there is no water pollution potential posed by a facility with an animalunitcapacity of less than 300, the secretary may certify that no permit isrequired. If there is no water pollution potential nor any violation ofseparation distances posed by a facility with an animal unit capacity of300 to 999, the secretary shall certify that no permit is required and thatthereare no certification conditions pertaining to separation distances. If aseparation distance violation is identified, the secretary may reduce theseparationdistance in accordance with subsection (i) and shall certify anysuch reductionof separation distances.
(h) (1) Any new construction or new expansion of a confined feedingfacility, other than a confined feeding facility for swine, shall meet orexceed the followingrequirements in separation distances from any habitable structure inexistence when the application for a permit is submitted:
(A) 1,320 feet for facilities with an animal unit capacityof 300to 999; and
(B) 4,000 feet for facilities with an animal unit capacityof 1,000 or more.
(2) A confinedfeeding facility for swine shall meet or exceed the followingrequirements in separation distances from any habitable structureor city, county, state or federal park in existence when theapplicationfor a permit is submitted:
(A) 1,320 feet for facilities with an animal unit capacityof 300 to 999;
(B) 4,000 feet for facilities with an animal unit capacityof 1,000 to 3,724;
(C) 4,000 feet for expansion of existing facilities to ananimal unit capacity of 3,725 or more if such expansion is withinthe perimeter from which separation distances are determinedpursuant to subsection (k) for the existing facility; and
(D) 5,000 feet for: (i) Construction of new facilities withan animal unit capacity of 3,725 or more; or (ii) expansion ofexisting facilities to an animal unit capacity of 3,725 or moreif such expansion extends outside the perimeter from whichseparation distances are determined pursuant to subsection (k)for the existing facility.
(3) Any construction of new confined feeding facilitiesfor swine shall meet or exceed the following requirements inseparation distances from any wildlife refuge:
(A) 10,000 feet for facilities with an animal unit capacityof 1,000 to 3,724; and
(B) 16,000 feet for facilities with an animal unit capacityof 3,725 or more.
(i) (1) The separation distance requirements of subsections (h)(1)and (2)shall not apply if the applicant for a permit obtains a writtenagreement from allowners of habitable structures which are within the separation distancestating suchowners are aware of the construction or expansion and have noobjections to such construction or expansion. The writtenagreement shall be filed in the register of deeds office of thecounty in which the habitable structure is located.
(2) (A) The secretary may reduce the separation distancerequirements of subsection (h)(1) if: (i)No substantial objection from owners of habitable structures within theseparation distanceis received in response to public notice; or (ii) the board ofcountycommissioners of the countywhere the confined feeding facility is located submits a written requestseeking a reduction of separation distances.
(B) The secretary may reduce the separation distancerequirements of subsection (h)(2)(A) or (B) if: (i) Nosubstantial objection from owners of habitable structures withinthe separation distance is received in response to notice givenin accordance with subsection (l); (ii) the board of countycommissioners of the county where the confined feeding facilityis located submits a written request seeking a reduction ofseparation distances; or (iii) the secretary determines that technology existsthat meets or exceeds the effect of the required separation distance and thefacility will be using such technology.
(C) The secretary may reduce the separation distancerequirements of subsection (h)(2)(C) or (D) if: (i) Nosubstantial objection from owners of habitable structures withinthe separation distance is received in response to notice givenin accordance with subsection (l); or (ii) the secretary determinesthat technology exists that meets or exceeds the effect of therequired separation distance and the facility will be using suchtechnology.
(j) (1) The separation distances required pursuant to subsection(h)(1)shall notapply to:
(A) Confined feeding facilities which were permittedor certifiedby thesecretary on July 1, 1994;
(B) confined feeding facilities which existed on July 1, 1994, andregistered with thesecretary before July 1, 1996; or
(C) expansion of a confined feeding facility, including anyexpansionfor which an application was pending on July 1, 1994, if:(i) In the case of a facility with ananimal unit capacity of 1,000 or more prior to July 1, 1994,the expansionis located at a distance not less thanthe distance between the facility and the nearest habitable structure prior totheexpansion; or (ii) in the case of a facility with an animal unitcapacity ofless than 1,000 prior to July 1, 1994, the expansion is located ata distance not lessthan the distance between the facility and the nearest habitable structurepriorto the expansion and the animal unit capacity ofthe facility after expansion does not exceed 2,000.
(2) The separation distances required pursuant tosubsections (h)(2)(A) and (B) shall not apply to:
(A) Confined feeding facilities for swine whichwere permitted or certified by the secretary onJuly 1, 1994;
(B) confined feeding facilities for swine which existed on July 1, 1994, andregistered with the secretary before July 1, 1996; or
(C) expansion of a confined feeding facility which existed on July 1, 1994,if: (i) In the case of a facility with an animal unitcapacity of 1,000 or more prior toJuly 1, 1994, the expansion is located at a distance not less than thedistance between the facility and the nearest habitable structureprior to the expansion; or (ii) in the case of a facility with ananimal unit capacity of less than 1,000 prior toJuly 1, 1994, the expansion is located at a distance not lessthan the distance between the facility and the nearest habitablestructure prior to the expansion and the animal unit capacity ofthe facility after expansion does not exceed 2,000.
(3) The separation distances required pursuant tosubsections (h)(2)(C) and (D) and (h)(3) shall not apply to thefollowing, as determined in accordance with subsections (a), (e)and (f) of K.S.A. 65-1,178 and amendments thereto:
(A) Expansion of an existing confined feeding facility forswine if an application for such expansion has been received bythe department before March 1, 1998; and
(B) construction of a new confined feeding facility forswine if an application for such facility has been received bythe department before March 1, 1998.
(k) The separation distances required by this section forconfined feeding facilities for swine shall be determined fromthe exterior perimeter of any buildings utilized for housingswine, any lots containing swine, any swine waste retention lagoons orponds or other manure or wastewater storage structures and anyadditional areas designated by the applicant for futureexpansion. Such separation distances shall not apply to offices,dwellings and feed production facilities of a confined feedingfacility for swine.
(l) The applicant shall give the notice required by subsections (i)(2)(B)and (C) by certified mail, return receipt requested, to all owners of habitablestructures within the separation distance. The applicant shall submit to thedepartment evidence, satisfactory to the department, that such notice has beengiven.
(m) All plans and specifications submitted to the department fornew construction or new expansion of confined feeding facilities may be, butare not required to be, prepared by a professionalengineer or a consultant, as approved by the department.Before approval by thedepartment, any consultant preparing such plans and specifications shall submitto the department evidence, satisfactory to the department, of adequategeneral commercial liability insurance coverage.
History: L. 1933, ch. 85, § 1 (Special Session); L. 1945, ch. 234, § 1; L.1953, ch. 284, § 1; L. 1957, ch. 333, § 1; L. 1967, ch. 333, § 4; L.1971, ch. 201, § 1; L. 1974, ch. 247, § 2; L.1974, ch. 352, § 39; L. 1984, ch. 222, § 2;L. 1986, ch. 204, § 6; L. 1986, ch. 201, § 22;L. 1988, ch. 356, § 181;L. 1989, ch. 185, § 4;L. 1994, ch. 213, § 1;L. 1995, ch. 204, § 13;L. 1997, ch. 139, § 2;L. 1998, ch. 143, § 1;L. 2001, ch. 160, § 15;L. 2002, ch. 164, § 1;L. 2003, ch. 118, § 2; July 1.