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Second Regular Session

Sixty-first General Assembly

LLS NO. 98­0466.01 PLC SENATE BILL 98­088

STATE OF COLORADO

BY SENATOR Johnson;

also REPRESENTATIVE Entz.

AGR., NATURAL RESOURCES & ENERGY

A BILL FOR AN ACT

CONCERNING ENVIRONMENTAL PROTECTION REQUIREMENTS FOR HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATIONS.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.)

Prohibits a person from operating, constructing, or expanding a housed commercial swine confined feeding operation that discharges at least 50,000 gallons of process wastewater per day without a permit from the division of administration of the department of public health and environment ("division").

Requires that all permitted housed commercial swine confined feeding operations discharge waste within accepted agronomic rates.

Requires the division to enter into agreements with the local governing body to assist with inspections and enforcement.

Requires the water quality control commission to promulgate rules to implement permits that require the owner or operator of a housed commercial swine confined feeding operation to:

• Submit a swine waste management plan for approval by the division;
• Submit financial assurances in an amount to be determined by the division to cover the cost of cleanup when the facility is closed or abandoned or an incident occurs;
• Report spills or contamination to the division and the county department of health in which the spill or contamination is located;
• Monitor, through independent consultants and division supervision, the nitrogen and phosphorus content of the applied waste and the plants and soil to which the waste is applied, and to perform an analysis demonstrating that agronomic rates are not being exceeded;
• File a quarterly report with the division that contains monitoring data and an analysis of that data.

Mandates that each housed commercial swine confined feeding operation's manure or process wastewater impoundment, including such operation's spray irrigation waste application site, be located at least 1,000 feet away from another such impoundment, at least one mile from an adjoining landowner's property boundary, and at least 2 mile from any surface stream, reservoir, or water well.

Allows the division to charge an annual permit fee for each animal comprising such operation's working capacity and to enter into agreements with the commissioner of agriculture to implement the permitting requirements for the housed commercial swine confined feeding operations. Authorizes the division to enforce the permit requirements.

Establishes a rebuttable presumption that applied nitrogen or phosphorous will contaminate groundwater if waste generated by a housed commercial swine confined feeding operation is applied in a manner that exceeds agronomic rates by more than 25% in any 3­year period. Allows the owner or operator to rebut the presumption with a demonstration of site­specific monitoring data that shows that waste application does not exceed agronomic rates.

Requires owners or operators of housed commercial swine confined feeding operations that discharge waste onto state lands to develop and implement a monitoring program to ensure that there is no discharge to groundwater.

Requires a housed commercial swine confined feeding operation's process wastewater vessels and impoundments to be covered and managed to prevent emission of odorous gases.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  Part 5 of article 8 of title 25, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read:

25­8­501.1.  Permit required for point source water pollution control ­ definitions ­ housed commercial swine confined feeding operations ­ legislative declaration. (1)  THE GENERAL ASSEMBLY HEREBY FINDS, DETERMINES, AND DECLARES THAT THE ADVENT OF LARGE HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATIONS IN COLORADO HAS PRESENTED NEW CHALLENGES TO ENSURING THAT THE QUALITY OF STATE WATERS, PRINCIPALLY GROUNDWATER, IS PRESERVED AND PROTECTED. AS DISTINGUISHED FROM MORE TRADITIONAL OPERATIONS THAT HISTORICALLY HAVE CHARACTERIZED COLORADO'S LIVESTOCK INDUSTRY, LARGE HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATIONS USE SIGNIFICANT AMOUNTS OF PROCESS WATER FOR FLUSHING AND DISPOSING OF SWINE WASTE, COMMONLY STORE THIS WASTE IN LARGE IMPOUNDMENTS, AND DISPOSE OF IT THROUGH LAND APPLICATION. IN ADDITION, THE GENERAL ASSEMBLY FINDS, DETERMINES, AND DECLARES THAT THE EMISSIONS FROM SUCH OPERATIONS ARE PARTICULARLY ODOROUS AND OFFENSIVE. THE GENERAL ASSEMBLY FURTHER FINDS THAT IT IS NECESSARY TO ENSURE THAT THE LAND APPLICATION OF WASTE BY HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATIONS IS DONE IN A RESPONSIBLE MANNER, SO AS NOT TO ADVERSELY IMPACT COLORADO'S VALUABLE WATER RESOURCES OR CAUSE NUISANCE CONDITIONS.

(2)  AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE REQUIRES:

(a)  "AGRONOMIC RATE OF APPLICATION" MEANS THE RATE OF APPLICATION OF NUTRIENTS TO PLANTS THAT IS NECESSARY TO SATISFY THE PLANTS' NUTRITIONAL REQUIREMENTS WHILE STRICTLY MINIMIZING THE AMOUNT OF NUTRIENTS THAT RUN OFF TO SURFACE WATERS OR THE GROUNDWATER AS IT PERCOLATES TO NOURISH THE ROOT ZONE OF THE PLANT, AS SPECIFIED BY THE FERTILIZER SUGGESTIONS IN THE "SERVICE IN ACTION" BULLETIN, NUMBERS 534­544, PUBLISHED BY THE COLORADO STATE UNIVERSITY EXTENSION SERVICE, AS THE SAME MAY BE REVISED, AMENDED, OR SUPPLEMENTED, OR ANY SUCCESSOR DOCUMENT. IF NO SUCH BULLETIN IS APPLICABLE TO THE PLANTS TO WHICH THE HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION IS APPLYING WASTE, SUCH OPERATION SHALL RELY ON THE BULLETIN THAT ADDRESSED THE MOST CLOSELY RELATED PLANT TYPE, OR ALTERNATIVELY, ON AN ACTUAL COMPOSITE SAMPLE OF THE NUTRIENT CONTENT OF THE PLANT TISSUE TAKEN FROM THE PREVIOUS YEAR'S GROWTH. APPLICATION AT THE AGRONOMIC RATE REQUIRES THAT ANY WASTE APPLICATION OCCUR ONLY DURING THE PERIOD OF GERMINATION AND GROWTH OF THE PLANTS TO WHICH THE WASTE IS APPLIED.

(b)  "HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION" MEANS THE PRACTICE OF RAISING SWINE IN HOUSES, BUILDINGS, OR OTHER ENCLOSED STRUCTURES WHEREIN SWINE OF ANY SIZE ARE FED AT SUCH PLACE OF CONFINEMENT FOR FORTY­FIVE DAYS OR LONGER IN ANY TWELVE­MONTH PERIOD AND CROP OR FORAGE GROWTH OR PRODUCTION IS NOT SUSTAINED IN THE AREA OF CONFINEMENT, AND WHICH OPERATION EITHER GENERATES AN AVERAGE OF AT LEAST FIFTY THOUSAND GALLONS OF PROCESS WASTEWATER PER DAY OR IS DEEMED A COMMERCIAL OPERATION UNDER LOCAL ZONING OR LAND USE REGULATIONS. TWO OR MORE HOUSED SWINE CONFINED FEEDING OPERATIONS SHALL BE CONSIDERED TO BE A SINGLE HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION IF THEY ARE UNDER COMMON OR AFFILIATED OWNERSHIP OR MANAGEMENT, ARE ADJACENT TO OR UTILIZE A COMMON AREA OR SYSTEM FOR MANURE DISPOSAL, ARE INTEGRATED IN THEIR OPERATIONS IN ANY WAY, ARE LOCATED OR DISCHARGE WITHIN THE SAME WATERSHED OR INTO WATERSHEDS THAT ARE HYDROLOGICALLY CONNECTED, OR ARE TREATED AS INTEGRATED BY THE OWNER OR OWNERS FOR ACCOUNTING, TAXATION, OR BALANCE SHEET PURPOSES.

(c)  "HOUSED SWINE CONFINED FEEDING OPERATION" MEANS THE PRACTICE OF RAISING SWINE IN HOUSES, BUILDINGS, OR OTHER ENCLOSED STRUCTURES WHEREIN SWINE OF ANY SIZE ARE FED AT SUCH PLACE OF CONFINEMENT FOR FORTY­FIVE DAYS OR LONGER IN ANY TWELVE­MONTH PERIOD AND CROP OR FORAGE GROWTH OR PRODUCTION IS NOT SUSTAINED IN THE AREA OF CONFINEMENT, AND WHICH OPERATION EITHER GENERATES AN AVERAGE OF AT LEAST FIFTY THOUSAND GALLONS OF PROCESS WASTEWATER PER DAY OR IS DEEMED A COMMERCIAL OPERATION UNDER LOCAL ZONING OR LAND USE REGULATIONS.

(d)  "PROCESS WASTEWATER" MEANS ANY PROCESS­GENERATED WASTEWATER USED IN A HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION, INCLUDING WATER USED FOR FEEDING, FLUSHING, OR WASHING OR ANY WATER OR PRECIPITATION THAT COMES INTO CONTACT WITH ANY MANURE, URINE, OR RAW MATERIAL, ANY INTERMEDIATE OR FINAL MATERIAL, OR ANY PRODUCT USED IN OR RESULTING FROM THE PRODUCTION OF SWINE.

(3)  NO PERSON SHALL OPERATE, CONSTRUCT, OR EXPAND A HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION WITHOUT FIRST HAVING OBTAINED A PERMIT FROM THE DIVISION OF ADMINISTRATION IN THE DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT.

(4)  NO SOLID OR LIQUID WASTE GENERATED BY A HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION SHALL BE APPLIED TO LAND BY ANY PERSON AT A RATE THAT EXCEEDS, IN AMOUNT OR DURATION, THE AGRONOMIC RATE OF APPLICATION.

(5)  THE DIVISION MAY REQUIRE A PERMIT FOR THE OPERATION, CONSTRUCTION, OR EXPANSION OF A HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION THAT GENERATES LESS THAN AN AVERAGE OF FIFTY THOUSAND GALLONS OF PROCESS WASTEWATER PER DAY IF THE DIVISION DETERMINES THAT THE HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION HAS SIGNIFICANT POTENTIAL TO IMPACT WATER QUALITY.

(6) (a)  THE OWNER OR OPERATOR OF A HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION SHALL SUBMIT TO THE DIVISION, ON A QUARTERLY BASIS, A MONITORING REPORT AND AGRONOMIC ANALYSIS DEMONSTRATING THAT FOR EACH MONTH DURING WHICH SOLID OR LIQUID WASTE GENERATED BY THE OPERATION HAS BEEN APPLIED TO LAND, THE NITROGEN AND PHOSPHORUS APPLIED TO THE LAND HAS BEEN AT NO GREATER THAN THE AGRONOMIC RATE OF APPLICATION. THE MONITORING REPORT AND AGRONOMIC ANALYSIS SHALL IDENTIFY ALL SOURCES OF NITROGEN AND PHOSPHORUS APPLIED UNDER EACH DISCRETE AREA OF WASTE APPLICATION, INCLUDING UNDER EACH SPRINKLER APPLYING LIQUID WASTE AND SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, AN ANALYSIS OF THE AMOUNTS AND CONCENTRATIONS OF APPLIED NITROGEN AND PHOSPHORUS IN ANY APPLIED COMMERCIAL FERTILIZER AND THE YIELD OF THE OVERLYING PLANTS.

(b)  IF THE DIVISION DETERMINES THAT THE NITROGEN OR PHOSPHOROUS CONTAINED IN THE WASTE GENERATED BY A HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION HAS BEEN APPLIED, IN ANY QUARTER­YEAR PERIOD, IN EXCESS OF THE AGRONOMIC RATE OF APPLICATION, IT SHALL TAKE ENFORCEMENT ACTION AGAINST THE HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION PURSUANT TO PART 6 OF THIS ARTICLE. IN CALCULATING THE AGRONOMIC RATE OF APPLICATION, THE DIVISION SHALL PRESUME, IF THE MONITORING, SAMPLING, AND QUARTERLY AGRONOMIC REPORTS ARE PERFORMED ACCORDING TO PARAGRAPH (a) OF THIS SUBSECTION (6), THAT:

(I)  WHERE THE LAND APPLICATION OF WASTE IS MADE BY SPRINKLER, THERE WILL BE A MAXIMUM NITROGEN AND PHOSPHOROUS LOSS OF FIFTEEN PERCENT; AND

(II)  WHERE THE LAND APPLICATION OF WASTE IS MADE BY ANY METHOD OTHER THAN SPRINKLER, THERE WILL BE A MAXIMUM NITROGEN AND PHOSPHOROUS LOSS OF TEN PERCENT.

(c)  IF THE NITROGEN OR PHOSPHOROUS APPLICATION RATE, TAKING INTO ACCOUNT REASONABLE LOSSES BUT IN NO EVENT MORE THAN THE MAXIMUM LOSSES PROVIDED IN PARAGRAPH (b) OF THIS SUBSECTION (6), HAS EXCEEDED THE AGRONOMIC RATE OF APPLICATION ALLOCABLE TO THE PREVIOUS QUARTER­YEAR PERIOD BY MORE THAN TWENTY­FIVE PERCENT, IT SHALL BE PRESUMED THAT A DISCHARGE TO THE GROUNDWATER WILL RESULT, AND THE DIVISION SHALL, IN ADDITION TO THE ENFORCEMENT OPTIONS AVAILABLE UNDER PART 6 OF THIS ARTICLE, ISSUE A CEASE AND DESIST ORDER TO THE OWNER OR OPERATOR NO LATER THAN THIRTY DAYS AFTER MAKING SUCH DETERMINATION. SUCH ENFORCEMENT SHALL ALSO INCLUDE REQUIRING THAT THE OWNER OR OPERATOR ADJUST THE APPLICATION RATE TO COMPENSATE FOR THE OVER­APPLICATION OF NITROGEN OR PHOSPHOROUS AND TEST THE SOIL AND SOIL MOISTURE BENEATH THE APPLICATION SITES AT DEPTHS BELOW THE ROOT ZONE OF THE OVERLYING PLANTS FOR THE PURPOSE OF TRACKING THE NITROGEN AND PHOSPHOROUS LOADINGS TO THE GROUNDWATER AS A RESULT OF THE OVER­APPLICATION. THE DIVISION SHALL VERIFY THE ACCURACY OF THE SAMPLING AND TESTING PROTOCOL AND PROCEDURES THROUGH ON­SITE INSPECTIONS. THE OWNER OR OPERATOR OF THE HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION SHALL DELIVER TO THE DIVISION SPLIT SAMPLES, WHICH THE DIVISION SHALL ANALYZE OR HAVE ANALYZED AT AN INDEPENDENT LABORATORY AT THE EXPENSE OF THE OWNER OR OPERATOR.

(d)  THE OWNER OR OPERATOR OF A HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION SHALL BE PERMITTED TO ATTEMPT TO REBUT THE PRESUMPTION OF PARAGRAPH (c) OF THIS SUBSECTION (6) AND DEMONSTRATE THAT, DUE TO THE UNIQUE ASPECTS OF ITS WASTE DISPOSAL SYSTEM OR THE SITE WHERE ITS WASTE IS APPLIED, NITROGEN AND PHOSPHOROUS LOSSES EXCEED THOSE THAT WOULD BE EXPECTED TO OCCUR UNDER COMMONLY ACCEPTED AGRONOMIC AND AGRICULTURAL PRINCIPLES APPLICABLE TO THE KIND OF WASTE, PLANTS, AND SOIL AT ISSUE. SUCH A DEMONSTRATION SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, THE SUBMISSION OF REGULARLY SAMPLED AND ANALYZED MONITORING DATA OF SOILS AND PERCOLATES THROUGHOUT THE SOIL PROFILE BETWEEN THE ROOT ZONE OF THE OVERLYING PLANTS AND THE WATER TABLE IN ORDER TO DEMONSTRATE THAT EXCESSIVE NITROGEN OR PHOSPHOROUS LEACHING IS NOT OCCURRING.

(e)  THE ACTUAL MONITORING AND SAMPLING AND PREPARATION OF THE QUARTERLY MONITORING REPORTS AND AGRONOMIC ANALYSES BY HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATIONS SHALL BE PERFORMED BY A QUALIFIED, INDEPENDENT CONSULTANT APPROVED BY THE DIVISION.

(7)  ON OR BEFORE OCTOBER 1, 1998, THE COMMISSION SHALL PROMULGATE THE RULES NECESSARY TO ENSURE THE EFFECTIVE ADMINISTRATION OF PERMITS UNDER THIS SECTION BY NO LATER THAN JANUARY 1, 1999. SUCH RULES SHALL REQUIRE, AT A MINIMUM, THE FOLLOWING:

(a)  THAT THE OWNER OR OPERATOR OF A HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION SHALL SUBMIT A SWINE WASTE MANAGEMENT PLAN THAT INCLUDES A CLASSIFICATION OF SOILS, PREPARED BY A PROFESSIONAL ENGINEER OR A QUALIFIED CONSULTANT APPROVED BY THE DIVISION, THAT GIVES DUE CONSIDERATION FOR THE LONG­TERM SUSTAINABLE ECONOMIC USE OF THE LAND, EMPLOYS THE BEST WASTE MANAGEMENT PRACTICES THEN EXISTING, AND PROVIDES FOR REMEDIATION OF RESIDUAL SOIL AND GROUNDWATER CONTAMINATION. THE OWNER AND THE PROFESSIONAL ENGINEER OR QUALIFIED CONSULTANT SHALL CERTIFY THAT THE PLAN COMPLIES WITH ALL APPLICABLE FEDERAL, STATE, AND LOCAL LAWS AND REGULATIONS AND THAT THE HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION IS BUILT TO THE SPECIFICATIONS OF SUCH PLAN. UNDER THE WASTE MANAGEMENT PLAN, DISPOSAL OF SOLID OR LIQUID WASTE TO THE SOIL MAY NOT EXCEED AGRONOMIC RATES OF APPLICATION.

(b)  THAT ANY HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION MANURE OR PROCESS WASTEWATER IMPOUNDMENT, INCLUDING, BUT NOT LIMITED TO, AERATION TANKS AND TREATMENT OR STORAGE LAGOONS CONSTRUCTED AFTER JULY 1, 1998, AND ANY SPRAY IRRIGATION SITE WHERE WASTEWATER IS APPLIED TO THE LAND, SHALL NOT BE LOCATED LESS THAN:

(I)  ONE THOUSAND FEET FROM ANOTHER HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION MANURE OR PROCESS WASTEWATER IMPOUNDMENT;

(II)  ONE MILE FROM THE PROPERTY BOUNDARY OF ANY ADJOINING LANDOWNER UNLESS THE LANDOWNER HAS GIVEN PERMISSION; AND

(III)  ONE­HALF MILE FROM ANY SURFACE STREAM, RESERVOIR, OR WATER WELL;

(c)  THAT THE OWNER OR OPERATOR OF THE HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION SHALL PROVIDE FINANCIAL ASSURANCES FOR THE FINAL CLOSURE OF THE HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION, THE CONDUCT OF ANY NECESSARY POSTCLOSURE ACTIVITIES, THE UNDERTAKING OF ANY CORRECTIVE ACTION MADE NECESSARY BY THE MIGRATION OF CONTAMINANTS FROM THE HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION INTO THE SOIL AND GROUNDWATER, OR CLEANUP OF ANY SPILL OR BREACH;

(d)  THAT THE OWNER OR OPERATOR OF THE OF THE HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION SHALL PROVIDE TO THE DIVISION DETAILED ESTIMATES CONCERNING THE COST TO HIRE A THIRD PARTY TO UNDERTAKE THE FINAL CLOSURE OF THE HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION, TO PERFORM ANY NECESSARY POSTCLOSURE ACTIVITY, TO REMEDIATE THE SOIL AND GROUNDWATER CONTAMINATION, AND TO CLEAN UP ANY SPILL OR BREACH;

(e)  THAT THE AMOUNT OF THE FINANCIAL ASSURANCES SHALL BE DETERMINED BY THE DIVISION PURSUANT TO RULES ESTABLISHED BY THE COMMISSION. THE AMOUNT SHALL BE BASED UPON THE VERIFIABLE COST ESTIMATES PROVIDED BY THE OWNER OR OPERATOR PURSUANT TO PARAGRAPH (d) OF THIS SUBSECTION (7) AND AFTER CONSIDERATION OF THE LONG­TERM SUSTAINABLE ECONOMIC USE OF THE LAND AND BEST WASTE MANAGEMENT PRACTICES THEN EXISTING.

(f)  THAT ANY SPILL OR CONTAMINATION BY A HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION SHALL BE REPORTED IMMEDIATELY TO THE DIVISION AND THE COUNTY HEALTH DEPARTMENT FOR THE COUNTY IN WHICH THE HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION IS CONDUCTED AND, WITHIN TWENTY­FOUR HOURS AFTER THE SPILL OR CONTAMINATION, THAT A WRITTEN REPORT SHALL BE FILED WITH THE DIVISION AND THE COUNTY HEALTH DEPARTMENT FOR THE COUNTY IN WHICH THE HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION IS CONDUCTED;

(g)  THAT THE OWNER OR OPERATOR SHALL DRILL AT LEAST ONE MONITORING WELL UP­GRADIENT AND ONE MONITORING WELL DOWN­GRADIENT FROM EACH HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION APPLICATION SITE. THE DIVISION MAY REQUIRE ADDITIONAL WELLS AS IT DETERMINES ARE NECESSARY.

(h)  SPECIFIC REQUIREMENTS FOR THE CONTENT OF THE MONITORING REPORT AND AGRONOMIC ANALYSIS PREPARED PURSUANT TO PARAGRAPH (a) OF SUBSECTION (6) OF THIS SECTION. THE DIVISION MAY REQUIRE THE SAMPLING AND MONITORING OF CHEMICAL AND BIOLOGICAL PARAMETERS IN ADDITION TO NITROGEN AND PHOSPHORUS IF IT DETERMINES IT NECESSARY TO PROTECT WATER QUALITY OR EXISTING OR FUTURE BENEFICIAL USES OF GROUNDWATER.

(i)  THAT THE DIVISION SHALL REQUIRE ANY HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION THAT LAND­APPLIES WASTE ON ANY STATE LANDS, IN ADDITION TO THE OTHER REQUIREMENTS OF THIS SECTION, TO SUBMIT TO THE DIVISION FOR APPROVAL A MONITORING PLAN DESIGNED TO ENSURE THAT THE LAND AND WATER RESOURCES ON AND UNDERLYING THE LAND ARE PROTECTED FROM OVER­APPLICATION OF WASTE. SUCH MONITORING PLAN SHALL INCLUDE QUARTERLY SAMPLING AND ANALYSIS BY AN INDEPENDENT CONSULTANT OF THE APPLIED WASTE, OF THE RECEIVING SOILS ABOVE THE ROOT ZONE, AT REGULAR INTERVALS THROUGHOUT THE VADOSE ZONE, AND OF THE GROUNDWATER UNDERLYING EACH SITE, IN ORDER TO CONFIRM THAT THE HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION IS APPLYING WASTE AT NO GREATER THAN AGRONOMIC RATES AND THAT NO DISCHARGE TO THE GROUNDWATER HAS OCCURRED OR IS LIKELY TO OCCUR. THE SAMPLING AND MONITORING PLAN SHALL, AT A MINIMUM, TEST FOR NITROGEN, PHOSPHORUS, SALTS, HEAVY METALS, AND ANY OTHER CHEMICAL OR BIOLOGICAL PARAMETERS DEEMED NECESSARY BY THE DIVISION FOR THE STATE AGENCY THAT OWNS THE LAND. FOR NEW HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATIONS, SUCH A MONITORING PLAN MUST BE APPROVED BY THE DIVISION AND IMPLEMENTED BEFORE THE OPERATION COMMENCES. EXISTING HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATIONS MUST HAVE SUCH A PLAN APPROVED BY THE DIVISION AND IMPLEMENTED WITHIN FORTY­FIVE DAYS AFTER THE EFFECTIVE DATE OF THE RULE IMPLEMENTING THIS SECTION IN ORDER TO CONTINUE OPERATING LAWFULLY.

(8)  THE DIVISION SHALL ENTER INTO AGREEMENTS WITH THE LOCAL GOVERNING BODY TO ASSIST WITH THE INSPECTIONS AND ENFORCEMENT REQUIRED BY THIS SECTION.

(9) (a)  THE DIVISION SHALL ASSESS A HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION AN ANNUAL PERMIT FEE, NOT TO EXCEED       CENTS PER ANIMAL, BASED ON THE OPERATION'S WORKING CAPACITY. AS USED IN THIS PARAGRAPH (a), "WORKING CAPACITY" MEANS THE NUMBER OF SWINE THAT THE HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION IS CAPABLE OF HOUSING AT ONE TIME.

(b)  ALL FEES COLLECTED PURSUANT TO PARAGRAPH (a) OF THIS SUBSECTION (9) SHALL BE TRANSMITTED TO THE STATE TREASURER, WHO SHALL CREDIT THE SAME TO THE WATER QUALITY CONTROL FUND CREATED IN SECTION 25­8­502 (1) (c).

SECTION 2.  25­8­504, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read:

25­8­504.  Agricultural wastes. (4)  NOTHING IN THIS SECTION SHALL BE CONSTRUED TO AFFECT THE REQUIREMENT OF PERMITS FOR HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATIONS PURSUANT TO SECTION 25­8­501.1.

SECTION 3.  Part 1 of article 7 of title 25, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read:

25­7­138.  Housed commercial swine confined feeding operations ­ waste impoundments ­ odor emissions. (1)  ALL NEW PROCESS WASTEWATER VESSELS AND IMPOUNDMENTS, INCLUDING, BUT NOT LIMITED TO, AERATION TANKS AND TREATMENT OR STORAGE LAGOONS, CONSTRUCTED FOR USE IN CONNECTION WITH A HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION AS DEFINED IN SECTION 25­8­501.1 (2) (b) SHALL BE COVERED AND ALL ODOROUS GASES PRODUCED THEREFROM SHALL BE CAPTURED, RECOVERED, INCINERATED, OR OTHERWISE MANAGED SO THAT SUCH ODOROUS GASES SHALL NOT BE EMITTED INTO THE ATMOSPHERE.

(2)  ON OR BEFORE JANUARY 1, 1999, ALL EXISTING PROCESS WASTEWATER VESSELS AND IMPOUNDMENTS, INCLUDING, BUT NOT LIMITED TO, AERATION TANKS AND TREATMENT OR STORAGE LAGOONS, OWNED OR OPERATED FOR USE IN CONNECTION WITH A HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION AS DEFINED IN SECTION 25­8­501.1 (2) (b) SHALL BE COVERED AND ALL ODOROUS GASES PRODUCED THEREFROM SHALL BE CAPTURED, RECOVERED, INCINERATED, OR OTHERWISE MANAGED SO AS NOT TO BE EMITTED INTO THE ATMOSPHERE.

(3)  NO HOUSED COMMERCIAL SWINE CONFINED FEEDING OPERATION SHALL SPRAY­APPLY WASTEWATER WITHIN ONE MILE OF THE PROPERTY BOUNDARY OF AN ADJOINING LANDOWNER.

(4)  THE DIVISION SHALL ENFORCE THE PROVISIONS OF THIS SECTION.

SECTION 4.  Effective date ­ applicability. This act shall take effect July 1, 1998, and shall apply to all housed commercial swine confined feeding operations that are in operation, constructed, or being constructed or expanded on or after said date.

SECTION 5.  Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.