CHAPTER 34A-2B
LIVESTOCK DISCHARGE CONTROL
34A-2B-1
Definitions.
34A-2B-2
Environmental livestock cleanup fund--Sources of funding.
34A-2B-3
Expenditure of funds by secretary.
34A-2B-4
Disbursement of funds.
34A-2B-5
Reimbursement for corrective actions.
34A-2B-6
Compliance with conditions of permits--Discharge.
34A-2B-7
Violation--Corrective action.
34A-2B-8
Judicial remedies.
34A-2B-9
Violator's liability for expenses.
34A-2B-10
Lien on property--Notice--Priority of lien--Exceptions.
34A-2B-11
Other remedies.
34A-2B-1 Definitions.
34A-2B-1.
Definitions.
Terms used in this section mean:
(1)
"Corrective action," any action taken to minimize, contain, eliminate, remediate, mitigate,
and clean up a discharge from a livestock operation, including any necessary emergency
remedial action;
(2)
"Corrective action cost," any cost incurred by the department in the investigation of a
discharge from a livestock operation; in the corrective action that is required if the
secretary determines that a discharge has occurred, or a potential for a discharge exists but
an owner, operator, or liability fund capable of performing the corrective actions either
cannot be identified, refuses, or is unable to undertake the corrective actions; or the
performance of reasonable measures undertaken to prevent or mitigate damage to the
public health, safety, welfare, or environment of the state;
(3)
"Department," the Department of Environment and Natural Resources;
(4)
"Discharge," an intentional or unintentional act or omission which results in the release,
spill, leak, escape, or disposal of manure or other materials or wastes associated with
livestock operations that have not been contained or managed properly and are a source
of harm or a threat of harm to public health, safety, or the environment, and must be
corrected. The term excludes any allowable discharge from a livestock operation made
in compliance with the conditions of a state environmental permit;
(5)
"Emergency remedial effort," any action taken to protect the public health, safety, or the
environment from imminent danger resulting from a discharge or threatened discharge,
and any action taken to contain a discharge which, if not contained, will in time pose a
greater threat to the public health, safety, or the environment than if such action is not
immediately taken;
(6)
"Environment," land, including public and private property, surface and underground
waters, fish, wildlife, biota, air, and other such resources within the state;
(7)
"Person," public or private corporations, companies, associations, societies, firms, limited
liability companies, partnerships, cooperatives, joint stock companies, individuals, the
United States, this state and any of its political subdivisions and agencies, and any other
state;
(8)
"Responsible person," a person who has caused a discharge of manure or other material
or waste associated with livestock operations, or a person who is an owner or operator of
a livestock operation at any time during or after the discharge, or a person otherwise
jointly or severally liable under law for the discharge; and
(9)
"Secretary," the secretary of the Department of Environment and Natural Resources.
Source: SL 1998, ch 216, § 2.
34A-2B-2 Environmental livestock cleanup fund--Sources of funding.
34A-2B-2.
Environmental livestock cleanup fund--Sources of funding.
There is hereby
established in the state treasury an operating fund to be known as the environmental livestock
cleanup fund for the purpose of providing funds for the cleanup of discharges as defined in § 34A-2B-1. Money from the following sources shall be deposited into the environmental livestock cleanup
fund:
(1)
Money, other than criminal fines assessed in criminal actions, recovered by the state from
any livestock operation in any action or administrative proceeding based upon violation
of the state's environmental statutes in Title 34A or upon damage to the environment,
including actions for administrative expense recoveries, civil penalties, compensatory
damages, and money paid pursuant to any agreement, stipulation, or settlement in such
actions or proceedings;
(2)
Interest attributable to investment of the money in the fund; and
(3)
Money received by the department in the form of gifts, grants, reimbursements, or
appropriations from any source intended to be used for the purposes of the environmental
livestock cleanup fund.
All money in the environmental livestock cleanup fund is continuously appropriated for the
purposes specified in § 34A-2B-3. All money received by the department for the environmental
livestock cleanup fund shall be set forth in an informational budget pursuant to § 4-7-7.2 and be
annually reviewed by the Legislature.
Source: SL 1998, ch 216, § 3.
34A-2B-3 Expenditure of funds by secretary.
34A-2B-3.
Expenditure of funds by secretary.
If necessary in the performance of duties under
the environmental statutes in Title 34A, the secretary may expend money from the environmental
livestock cleanup fund to provide for the costs of investigations, emergency remedial efforts,
corrective actions, and managerial or administrative activities associated with such activities
resulting from a discharge. The secretary's use of the environmental livestock cleanup fund shall be
based upon the following:
(1)
In the case of an investigation, when the secretary determines that a discharge has
probably occurred and that the general operating budget of the department for such
purposes is not adequate to cover the costs of the necessary investigatory activities;
(2)
In the case of an emergency remedial effort, when the secretary determines that a
discharge has occurred and that corrective actions shall be immediately undertaken to
protect an imminent threat to the public health or safety or to contain a discharge which,
if not immediately contained, will in time pose a significantly greater threat to public
health or safety or to the environment of this state than if such action is not immediately
taken;
(3)
In the case of a discharge not of an emergency nature when the secretary determines that
a discharge has occurred, that a responsible party or liability fund capable of performing
the corrective actions either cannot be identified or refuses to undertake corrective actions,
and that corrective actions shall be undertaken to protect the public health, safety, welfare,
or environment of the state; or
(4)
In the case of corrective action required at a livestock operation when the secretary
determines that the potential for a discharge exists, that an owner, operator, or liability
fund capable of performing the corrective actions either cannot be identified, refuses or
is unable to undertake corrective actions, and that corrective action must be undertaken
to protect against an imminent threat to the public health, safety, welfare, or environment
of the state.
Source: SL 1998, ch 216, § 6.
34A-2B-4 Disbursement of funds.
34A-2B-4.
Disbursement of funds.
The department shall perform all administrative functions
relative to the environmental livestock cleanup fund and corrective actions funded by it.
Disbursements from the environmental livestock cleanup fund shall be on warrants drawn by the
state auditor pursuant to vouchers approved by the secretary.
Source: SL 1998, ch 216, § 7.
34A-2B-5 Reimbursement for corrective actions.
34A-2B-5.
Reimbursement for corrective actions.
The department may bring an action in
circuit court against the responsible person to obtain reimbursement for corrective action costs
expended from the environmental livestock cleanup fund. The secretary may seek recovery of other
funds expended by the department as a result of a discharge through actions brought under the
provisions of Title 34A.
Source: SL 1998, ch 216, § 8.
34A-2B-6 Compliance with conditions of permits--Discharge.
34A-2B-6.
Compliance with conditions of permits--Discharge.
The discharge of manure and
other materials or wastes associated with livestock operations is prohibited unless pursuant to and
in compliance with the conditions of permits issued in accordance with environmental statutes in
Title 34A.
Source: SL 1998, ch 216, § 9.
34A-2B-7 Violation--Corrective action.
34A-2B-7.
Violation--Corrective action.
If a discharge in violation of § 34A-2B-6 has
occurred, or the department has reason to believe that a discharge in violation of § 34A-2B-6 has
occurred, the department shall order the responsible person to take corrective action concerning the
discharge within a specified time. If the responsible person fails to comply with the department's
order, the department may file an injunctive action in the circuit court of the county wherein the
discharge has occurred seeking such corrective action. If the discharge occurs at any operation
permitted under Title 34A and constitutes a violation of such permit, the department may order the
operation to cease and desist further activity for the duration of the corrective action. This section
is supplementary to other remedies available to the department under Title 34A.
Source: SL 1998, ch 216, § 10.
34A-2B-8 Judicial remedies.
34A-2B-8.
Judicial remedies.
The department may file an action in circuit court for
preliminary and permanent injunctive relief if the secretary determines emergency remedial efforts
are necessary to prevent, contain, control, or mitigate a discharge.
Source: SL 1998, ch 216, § 11.
34A-2B-9 Violator's liability for expenses.
34A-2B-9.
Violator's liability for expenses.
Any person who has caused a discharge in
violation of § 34A-2B-6 is strictly liable for the corrective action costs expended by the department.
Source: SL 1998, ch 216, § 12.
34A-2B-10 Lien on property--Notice--Priority of lien--Exceptions.
34A-2B-10.
Lien on property--Notice--Priority of lien--Exceptions.
All corrective action
costs expended pursuant to this section constitute a lien on the property where the discharge occurs
when a notice of lien is filed with the register of deeds in the county in which the property is located.
The notice of lien shall contain a description of the property of the responsible person upon which
the lien is made, a description of the property from which the discharge requiring corrective action
or emergency remedial efforts occurred, and a statement of the corrective action costs expended from
the environmental livestock cleanup fund. Upon entry, the lien shall attach to all real property of the
responsible person. The lien has priority over all other claims or liens on the property, except those
which had been perfected before the department's filing of the notice of lien. No lien may be filed
if a responsible person cannot be identified or if negligence was not a factor in the discharge.
Source: SL 1998, ch 216, § 13.
34A-2B-11 Other remedies.
34A-2B-11.
Other remedies.
Nothing in this section precludes the pursuit of any other
administrative, civil, injunctive, or criminal remedies by the department or any other person.
Administrative remedies need not be exhausted in order to proceed under this section. The remedies
provided by this section are in addition to those provided by existing statutory or common law.
Source: SL 1998, ch 216, § 14.
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