HB0601sam001 94TH GENERAL ASSEMBLY

Sen. John M. Sullivan

Filed: 5/13/2005

09400HB0601sam001 LRB094 03775 JAM 46359 a

AMENDMENT TO HOUSE BILL 601

AMENDMENT NO. ______. Amend House Bill 601 on page 1, by inserting below line 3 the following:

"Section 5. The Use Tax Act is amended by changing Section 2a as follows:

(35 ILCS 105/2a) (from Ch. 120, par. 439.2a)

Sec. 2a. Pollution control facilities.

(a) As used in this subsection (a), "pollution control facilities" means any system, method, construction, device or appliance appurtenant thereto sold or used or intended for the primary purpose of eliminating, preventing, or reducing air and water pollution as the term "air pollution" or "water pollution" is defined in the "Environmental Protection Act", enacted by the 76th General Assembly, or for the primary purpose of treating, pretreating, modifying or disposing of any potential solid, liquid or gaseous pollutant which if released without such treatment, pretreatment, modification or disposal might be harmful, detrimental or offensive to human, plant or animal life, or to property.

Until July 1, 2003, the purchase, employment and transfer of such tangible personal property as pollution control facilities is not a purchase, use or sale of tangible personal property.

(b) Beginning July 1, 2005, tangible personal property that is certified by the Pollution Control Board as a "pollution control facility", as that term is defined in Section 11-10 of the Property Tax Code, is exempt from the tax imposed by this Act if the property is used as part of a livestock management facility or a livestock waste handling facility (i) that has been approved by the Department of Agriculture under the provisions of the Livestock Management Facilities Act and (ii) that is located within an agricultural area established by a county under the Agricultural Areas Conservation and Protection Act.

To document this exemption, a purchaser must provide the retailer with a copy of the certification issued by the Pollution Control Board, along with a certification, verified by the purchaser, that the tangible personal property will be used primarily as a pollution control facility in an approved livestock management facility or livestock waste handling facility located in an agricultural area.

The provisions of this subsection (b) are exempt from Section 3-90.

(Source: P.A. 93-24, eff. 6-20-03.)

Section 10. The Service Use Tax Act is amended by changing Section 2a as follows:

(35 ILCS 110/2a) (from Ch. 120, par. 439.32a)

Sec. 2a. Pollution control facilities.

(a) As used in this subsection (a), "pollution control facilities" means any system, method, construction, device or appliance appurtenant thereto used in this State acquired as an incident to the purchase of a service from a serviceman for the primary purpose of eliminating, preventing, or reducing air and water pollution as the term "air pollution" or "water pollution" is defined in the "Environmental Protection Act", enacted by the 76th General Assembly, or for the primary purpose of treating, pretreating, modifying or disposing of any potential solid, liquid or gaseous pollutant which if released without such treatment, pretreatment, modification or disposal might be harmful, detrimental or offensive to human, plant or animal life, or to property.

Until July 1, 2003, the purchase, employment or transfer of such tangible personal property as pollution control facilities is not a purchase, use or sale of service or of tangible personal property within the meaning of this Act.

(b) Beginning July 1, 2005, tangible personal property that is certified by the Pollution Control Board as a "pollution control facility", as that term is defined in Section 11-10 of the Property Tax Code, is exempt from the tax imposed by this Act if the property is used as part of a livestock management facility or a livestock waste handling facility (i) that has been approved by the Department of Agriculture under the provisions of the Livestock Management Facilities Act and (ii) that is located within an agricultural area established by a county under the Agricultural Areas Conservation and Protection Act.

To document this exemption, a purchaser must provide the retailer with a copy of the certification issued by the Pollution Control Board, along with a certification, verified by the purchaser, that the tangible personal property will be used primarily as a pollution control facility in an approved livestock management facility or livestock waste handling facility located in an agricultural area.

The provisions of this subsection (b) are exempt from Section 3-75.

(Source: P.A. 93-24, eff. 6-20-03.)

Section 15. The Service Occupation Tax Act is amended by changing Section 2a as follows:

(35 ILCS 115/2a) (from Ch. 120, par. 439.102a)

Sec. 2a. Pollution control facilities.

(a) As used in this subsection (a), "pollution control facilities" means any system, method, construction, device or appliance appurtenant thereto transferred by a serviceman for the primary purpose of eliminating, preventing, or reducing air and water pollution as the term "air pollution" or "water pollution" is defined in the "Environmental Protection Act", enacted by the 76th General Assembly, or for the primary purpose of treating, pretreating, modifying or disposing of any potential solid, liquid or gaseous pollutant which if released without such treatment, pretreatment, modification or disposal might be harmful, detrimental or offensive to human, plant or animal life, or to property.

Until July 1, 2003, the purchase, employment and transfer of such tangible personal property as pollution control facilities shall not be deemed to be a purchase, use or sale of service or of tangible personal property, but shall be deemed to be intangible personal property.

(b) Beginning July 1, 2005, tangible personal property that is certified by the Pollution Control Board as a "pollution control facility", as that term is defined in Section 11-10 of the Property Tax Code, is exempt from the tax imposed by this Act if the property is used as part of a livestock management facility or a livestock waste handling facility (i) that has been approved by the Department of Agriculture under the provisions of the Livestock Management Facilities Act and (ii) that is located within an agricultural area established by a county under the Agricultural Areas Conservation and Protection Act.

To document this exemption, a purchaser must provide the retailer with a copy of the certification issued by the Pollution Control Board, along with a certification, verified by the purchaser, that the tangible personal property will be used primarily as a pollution control facility in an approved livestock management facility or livestock waste handling facility located in an agricultural area.

The provisions of this subsection (b) are exempt from Section 3-55.

(Source: P.A. 93-24, eff. 6-20-03.)

Section 20. The Retailers' Occupation Tax Act is amended by changing Sections 1a and 5k as follows:

(35 ILCS 120/1a) (from Ch. 120, par. 440a)

Sec. 1a. Pollution control facilities.

(a) As used in this subsection (a), "pollution control facilities" means any system, method, construction, device or appliance appurtenant thereto sold or used or intended for the primary purpose of eliminating, preventing, or reducing air and water pollution as the term "air pollution" or "water pollution" is defined in the "Environmental Protection Act", enacted by the 76th General Assembly, or for the primary purpose of treating, pretreating, modifying or disposing of any potential solid, liquid or gaseous pollutant which if released without such treatment, pretreatment, modification or disposal might be harmful, detrimental or offensive to human, plant or animal life, or to property.

Until July 1, 2003, the purchase, employment and transfer of such tangible personal property as pollution control facilities is not a purchase, use or sale of tangible personal property.

(b) Beginning July 1, 2005, tangible personal property that is certified by the Pollution Control Board as a "pollution control facility", as that term is defined in Section 11-10 of the Property Tax Code, is exempt from the tax imposed by this Act if the property is used as part of a livestock management facility or a livestock waste handling facility (i) that has been approved by the Department of Agriculture under the provisions of the Livestock Management Facilities Act and (ii) that is located within an agricultural area established by a county under the Agricultural Areas Conservation and Protection Act.

To document this exemption, a purchaser must provide the retailer with a copy of the certification issued by the Pollution Control Board, along with a certification, verified by the purchaser, that the tangible personal property will be used primarily as a pollution control facility in an approved livestock management facility or livestock waste handling facility located in an agricultural area.

The provisions of this subsection (b) are exempt from Section 2-70.

(Source: P.A. 93-24, eff. 6-20-03.)

(35 ILCS 120/5k) (from Ch. 120, par. 444k)

Sec. 5k. Building materials exemption; enterprise zones and agricultural areas.

(a) Each retailer who makes a qualified sale of building materials to be incorporated into real estate in an enterprise zone established by a county or municipality under the Illinois Enterprise Zone Act by remodeling, rehabilitation or new construction, may deduct receipts from such sales when calculating the tax imposed by this Act. For purposes of this Section, "qualified sale" means a sale of building materials that will be incorporated into real estate as part of a building project for which a Certificate of Eligibility for Sales Tax Exemption has been issued by the administrator of the enterprise zone in which the building project is located. To document the exemption allowed under this Section, the retailer must obtain from the purchaser a copy of the Certificate of Eligibility for Sales Tax Exemption issued by the administrator of the enterprise zone into which the building materials will be incorporated. The Certificate of Eligibility for Sales Tax Exemption must contain:

(1) a statement that the building project identified in the Certificate meets all the requirements for the building material exemption contained in the enterprise zone ordinance of the jurisdiction in which the building project is located;

(2) the location or address of the building project; and

(3) the signature of the administrator of the enterprise zone in which the building project is located.

In addition, the retailer must obtain certification from the purchaser that contains:

(1) a statement that the building materials are being purchased for incorporation into real estate located in an Illinois enterprise zone;

(2) the location or address of the real estate into which the building materials will be incorporated;

(3) the name of the enterprise zone in which that real estate is located;

(4) a description of the building materials being purchased; and

(5) the purchaser's signature and date of purchase.

The deduction allowed by this Section for the sale of building materials may be limited, to the extent authorized by ordinance, adopted after the effective date of this amendatory Act of 1992, by the municipality or county that created the enterprise zone into which the building materials will be incorporated. The ordinance, however, may neither require nor prohibit the purchase of building materials from any retailer or class of retailers in order to qualify for the exemption allowed under this Section.

(b) Beginning July 1, 2005, each retailer who makes a qualified sale of building materials to be incorporated into real estate as part of a livestock management facility, livestock pasture operation, or livestock waste handling facility located in an agricultural area established by a county under the Agricultural Areas Conservation and Protection Act by new construction, may deduct receipts from those sales when calculating the tax imposed by this Act. For purposes of this subsection, "qualified sale" means a sale of building materials that will be incorporated into real estate (i) in a livestock management facility or livestock waste handling facility that has been approved by the Department of Agriculture under the provisions of the Livestock Management Facilities Act or (ii) in a livestock pasture operation that is not subject to the Livestock Management Facilities Act, as provided in the definition of "livestock management facility" in that Act. For purposes of this subsection, the terms "livestock management facility" and "livestock waste handling facility" have the meanings set forth in Sections 10.30 and 10.40 of the Livestock Management Facilities Act.

To be eligible for the exemption under this subsection, the livestock management facility, livestock pasture operation, or livestock waste handling facility must be located within an agricultural area established by a county pursuant to the provisions of the Agricultural Areas Conservation and Protection Act. To document the exemption allowed under this subsection, the retailer must obtain from the purchaser a copy of a Certificate of Eligibility for Sales Tax Exemption issued by the Department of Agriculture, based on information provided to the Department of Agriculture by the county board governing the agricultural area into which the building materials will be incorporated. The Certificate of Eligibility for Sales Tax Exemption must contain:

(1) a certification by the Department of Agriculture (i) that the livestock management facility, livestock pasture operation, or livestock waste handling facility has been approved by the Department of Agriculture under the provisions of the Livestock Management Facilities Act or (ii) that the facility is otherwise exempt from such approval;

(2) the location or address of the livestock management facility, livestock pasture operation, or livestock waste handling facility; and

(3) a certification by the Department of Agriculture that the livestock management facility, livestock pasture operation, or livestock waste handling facility is located within an agricultural area established by a county under the provisions of the Agricultural Areas Conservation and Protection Act and reported by the county to the Department of Agriculture. In addition, the retailer must obtain certification from the purchaser that contains:

(1) a statement that the building materials are being purchased for incorporation into real estate at a livestock management facility, livestock pasture operation, or livestock waste handling facility that has been approved by the Department of Agriculture or that is exempt from approval and that is located in an Illinois agricultural area;

(2) the location or address of the livestock management facility, livestock pasture operation, or livestock waste handling facility into which the building materials will be incorporated;

(3) the name of the agricultural area in which the livestock management facility, livestock pasture operation, or livestock waste handling facility is located;

(4) a description of the building materials being purchased; and

(5) the purchaser's signature and date of purchase.

(c) The provisions of this Section are exempt from Section 2-70.

(Source: P.A. 91-51, eff. 6-30-99; 91-954, eff. 1-1-02; 92-484, eff. 8-23-01; 92-779, eff. 8-6-02.)"; and

on page 1, in line 4, by renumbering Section 5 as Section 30; and

on page 2, by inserting below line 25 the following:

"Section 35. The Livestock Management Facilities Act is amended by changing Sections 11, 13, 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: (i) 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; and (ii) determine whether the proposed livestock management facility or livestock waste handling facility is located within an agricultural area established pursuant to the Agricultural Areas Conservation and Protection Act.

(a-5) A livestock management facility or livestock waste handling facility serving less than 50 animal units shall be exempt from subsections (b), (c), (e), and (f) of 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 subsections (b), (c), (e), and (f) of this Section.

(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.

(e) Any owner or operator who fails to file 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.

(f) 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.

(g) Penalties imposed pursuant to subsections (d), (e), and (f) of this Section not paid within 60 days after notice from the Department shall be submitted to the Attorney General's office or an approved private collection agency.

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

(510 ILCS 77/13)

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 less than 50 animal units shall be exempt from the requirements of 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.

(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 77/35)

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.)

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