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SENATE FLOOR VERSION
April 1, 2024
ENGROSSED HOUSE
BILL NO. 4118 By: Hardin of the House
and
Howard of the Senate
An Act relating to agriculture; amending 2 O.S. 2021,
Section 10-9.7, as amended by Section 1, Chapter 239,
O.S.L. 2022 (2 O.S. S upp. 2023, Section 10 -9.7),
which relates to Nutrient Management Plans; providing
that compliance with a certain Nutrient Management
Plan shall be deemed compliant with Best Management
Practices; modifying requirements of a Nutrient
Management Plan; amending 2 O.S. 2021, Section 10 -
9.11, which relates to violations of the Oklahoma
Registered Poultry Feeding Operations Act;
establishing the exclusive enforcement jurisdiction
of the Oklahoma Department of Agriculture, Food, and
Forestry for acts or omissions relating to the
Oklahoma Registered Poultry Feeding Operations Act;
creating a presumption that compliance with a current
Nutrient Management Plan insulates poultry growers,
operators, integrators, and waste applicators from
any private right of action or any collateral
enforcement; establishing that the Oklahoma
Registered Poultry Feeding Operations Act grants
statutory immunity from nuisance liability; and
declaring an emergency.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 2 O.S. 2021, Section 10 -9.7, as
amended by Section 1, Chapter 239, O.S.L. 2022 (2 O.S. Supp. 2023,
Section 10-9.7), is amended to read as follows:
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Section 10-9.7 A. All poultry feeding operations shall utilize
Best Management Practices and shall meet the conditions and
requirements established by subsection B of this section and by
rules promulgated by the State Board of Agriculture pursuant to the
Oklahoma Registered Poultry Feeding Operations Act. Compliance with
a Nutrient Management Plan developed under subsection B of this
section shall be deemed compliant with the Best Management Practices
prescribed in this subsection, as well as the requirements of
subsection C of this section.
B. The criteria for Best Management Practices shall be
promulgated by rules by the Board and shall include, but not be
limited to, the following when developing Nutrient Management Plans :
1. There shall be no Each Nutrient Management Plan shall
contain measures designed to prevent the discharge of poultry waste
to waters of the state;
2. Stored poultry waste shall be isolated from outside surface
drainage by covers, ditches, dikes, berms, terraces , or other such
structures;
3. No Each Nutrient Management Plan shall contain measures
designed to prevent waters of the state shall come from coming into
direct contact with the poultry confined on the poultry feeding
operation; and
4. Poultry Provisions designed to ensure that poultry waste
handling, treatment, management, and removal shall:
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a. not create an environmental or a public health hazard,
b. not result in the contamination of waters of the
state, and
c. conform to such other handling, treatment , and
management and removal requirements deemed necessary
by the Oklahoma Department of Agricult ure, Food, and
Forestry to implement the Oklahoma Registered Poultry
Feeding Operations Act and rules promulgated pursuant
thereto.
The rules promulgated by the Board pursuant to this section
shall provide for exceptions to the storage requirements for pou ltry
waste in emergency situations. Such exceptions shall include , but
not be limited to, allowing a contract poultry grower to take such
actions as are necessary to meet requirements imposed on a grower by
an integrator. In such situations , growers shall be required to
take all actions feasible to prevent pollution from stored poultry
waste.
C. Every poultry feeding operation shall have a Nutrient
Management Plan which shall in clude at a minimum:
1. A description of poultry waste handling procedures an d
availability of equipment and type of equipment to be used;
2. The calculations and assumptions used for determining land -
application rates if land application is applicable;
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3. All nutrient analysis data for soil and poultry waste
testing;
4. Legal description and latitude and longitude of lands to be
used by an operation for land application;
5. Land-application rates of poultry waste shall be based on
the available nitroge n and phosphorous content of the poultry waste
and shall provide controls for runoff and erosion as appropriate for
site conditions;
6. The procedures documented in the Nutrient Management Plan
shall ensure that the handling and utilization of poultry waste
complies with the following requirements:
a. adequate poultry waste storag e shall be provided
consistent with rules promulgated by the Oklahoma
Department of Agriculture, Food, and Forestry pursuant
to subsection B of this section,
b. poultry waste shall not be applied to land when the
ground is saturated or during rainfall even ts.
Poultry waste shall not be applied to land when the
ground is frozen except in conformance with the
Nutrient Management Plan,
c. poultry waste shall only be applied to suitable land
at appropriate times and rates. Discharge or runoff
of waste from the application site is prohibited
evidence that the Nutrient Management Plan requires
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revisions. Timing and rate of applications shall be
based on assimilation capacity of the soi l profile,
assuming usual nutrient losses, expected
precipitation, and soil c onditions, and
d. poultry waste application shall be prohibited on land
subject to excessive erosion;
7. Records shall be maintained of all poultry wastes applied on
land owned or controlled by the operator, and sold or given to other
persons:
a. if the poultry waste is sold or given to other persons
for land application or other use, the poultry feeding
operation shall maintain a log of : date of removal
from the poultry feeding o peration;, name of recipient
the poultry waste is sold or given to ;, and amount in
wet tons, dry tons or cubic yards of poultry waste
removed from the poultry feeding operation, and
b. the poultry feeding operation shall make available to
the recipient any nutrient sample analysis of the
poultry waste from that year;
8. Any analysis required by the provisions of the Oklahoma
Registered Poultry Feeding Operations Act or rules promulgated
thereto shall be performed by a qualified environmental testing
laboratory certified by the Department of Environmental Quality and
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approved by the Oklahoma Department of Agriculture, Food, and
Forestry; and
9. Such other information deemed necessary by the Oklahoma
Department of Agriculture, Food, and Forestry to administer the
provisions of the Oklahoma Registered Poultry Feeding Operations Act
and rules promulgated pursuant thereto.
D. 1. The Nutrient Management Plan for new or expanding
poultry feeding operations submitted after July 1, 1998, shall be
prepared by the operator or designee of the operator.
2. After the plan is submitted to the O klahoma Department of
Agriculture, Food, and Forestry for review and approval if the
Department determines that a submitted plan needs or requires any
corrections or modifications, the Department shall return the
Nutrient Management Plan to the operator fo r corrections.
3. For a renewal, if the Department determines the Nutrient
Management Plan needs or requires corrections or modifications, the
Department shall make appropriate c orrections, approve the plan , and
notify the poultry feeding operation of the modifications.
E. 1. Except as otherwise provided in this subsection, a
Nutrient Management Plan for every poultry feeding operation shall
be renewed and an updated plan shall be submitted to the Oklahoma
Department of Agriculture, Food, and Forestry ev ery six (6) years
from the date the initial or previous plan was submitted.
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2. The operator shall have the option to submit the renewed or
updated plan through the Department's w ebsite or a printable online
form designed by the Department.
3. A current operator may submit a one -page amendment to the
most recently submitted plan in lieu of a renewal plan through the
Department's website, if applicable. Poultry feeding operations
submitting an amendment pursuant to this subsection shall still be
subject to the soil and poultry waste testing requirements under
subsections F and G of this section. The amendment shall contain
the following statements:
a. no changes in the Department' s promulgated standards
for land application of poultry waste have occurred
since the most recently submitted Nutrient Management
Plan,
b. there has been no change to the number of poultry
housed since the most recently submitted Nutrient
Management Plan,
c. there has been no expansion in the poultry feeding
operation since the mos t recently submitted Nutrient
Management Plan, and
d. the entirety of the poultry waste is:
(1) removed off-site as provided in the poultry
feeding operation's annual report, as r equired by
subsection J of this section, and will continue
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to be removed off-site for the next six (6)
years, or
(2) land-applied and will continue to be land -applied
for the next six (6) years.
F. Every poultry feeding operation located in a non -nutrient-
limited watershed and non -nutrient-vulnerable groundwaters shall
perform soil testing on each land -application area and poultry waste
testing at least once every three (3) years to determine:
1. Soil pH and plant -available nutrients including, at a
minimum, nitrogen, phosphorous , and potassium;
2. Poultry waste nutrient concentr ations and moisture; and
3. Application rate based upon the Department's standards for
land application for poultry waste as promulgated by rules.
G. Every poultry feeding operation located in a nutrient -
limited watershed and nutrient -vulnerable groundwater shall perform
an annual soil test on each land -application area prior to the first
application of the calendar year. Poultry waste testing shall be
performed annually prior t o the first application of the calendar
year. Soil and poultry waste testing shall be performed to
determine:
1. Soil pH and plant -available nutrients including at least
nitrogen, phosphorous , and potassium;
2. Poultry waste nutrient concentrations and moisture; and
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3. Application rate based upon the Department's standards for
land application of poultry waste as promulgated by rules.
H. 1. Soil and poultry waste analysis data shall be retained
by the poultry feeding operation for a minimum of six (6) years.
2. All soil and poultry waste analysis data shall be dated
prior to land application.
I. 1. Poultry feeding operations shall develop a plan for the
disposal of carcasses associated with normal mortality.
2. In the event there is an outbreak of a major disease or
other emergency resulting in deaths significantly higher t han normal
mortality rates, the Oklahoma Department of Agriculture, Food, and
Forestry may approve, in writing, an alternate method of disposal of
carcasses or the storage of poul try waste during the emergency
period.
J. Every poultry feeding operation sh all file by September 1 of
each year an annual report with the Department regarding all poultry
waste removed from or land -applied by the facility for the period
from July 1 of the previous year through June 30 of that year. The
report shall contain the f ollowing information:
1. The date and amount of poultry waste removed from or land -
applied at the facility;
2. The type of poultry waste removed or land -applied, whether a
cake out, full clean out, in -house windrow or compost, poultry waste
stack shed, or other type;
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3. The county and, if applicable, the name of the Nutrient
Limited Watershed where the poultry waste was produced; and
4. The location where the poultry waste is removed to:
a. if land-applied on-site, provide the following:
(1) the date of the land application,
(2) the total amount of poultry waste land -applied in
wet tons, dry tons, or cubic yards,
(3) the name, mailing address, and telephone number
of the poultry waste applicator, and
(4) the number of acres under the control of the
poultry feeding operation for land application of
poultry waste, or
b. if removed off-site, provide the following:
(1) the date of the removal off -site,
(2) the amount of poultry waste removed in wet tons,
dry tons, or cubic yards,
(3) the name, mailing address , and telephone number
of the person the poultry waste is sold or
transferred to,
(4) the name, mailing address, telephone number, and
poultry waste applicator license number of t he
poultry waste applicator, if known, and
(5) the name, mailing address, and telephone number
of the hauler of the poultry waste.
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SECTION 2. AMENDATORY 2 O.S. 2021, Section 10 -9.11, is
amended to read as follows:
Section 10-9.11 A. 1. Any person violating the provisions of
the Oklahoma Registered Poult ry Feeding Operations Act shall, upon
conviction, be guilty of a misdemeanor and may be punished by a fine
not to exceed Two Hundred Dollars ($200.00).
2. The Attorney General or the district attorney of the
appropriate district court of Oklahoma may brin g an action in a
court of competent criminal jurisdiction for the prosecution of a
violation by any person of a provision of the Oklahoma Registered
Poultry Feeding Operations Act or any rule promulgated thereunder.
B. 1. In addition to the criminal pena lties specified by this
section, the Oklahoma Department of Agriculture, Food, and Forestry
may:
a. assess an administrative penalty of not more than Two
Hundred Dollars ($200.00) per day of noncompliance, or
b. bring an action for injunctive relief grante d by a
district court.
2. A district court may grant injunctive relief to prevent a
violation of, or to compel compliance with, any of the provisions of
the Oklahoma Registered Poultry Feeding Operations Act or any rule
promulgated thereunder or order, re gistrations, and certificates
issued pursuant to the Oklahoma Registered Poultry Feeding
Operations Act.
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3. Nothing in this section shall preclude the Department from
seeking penalties in district court in the maximum amount allowed by
law. The assessment of penalties in an administrative enforcement
proceeding shall not prevent the subsequent assessment by a court of
the maximum criminal penalties for violations of the Oklahoma
Registered Poultry Feeding Operations Act.
4. Any person assessed an adminis trative penalty may be
required to pay, in addition to such penalty amount and interest
thereon, attorney fees and costs associated with the collection of
such penalties.
C. 1. Any action for injunctive relief to redress or restrain
a violation by any pe rson of the Oklahoma Registered Poultry Feeding
Operations Act, or for any rule promulgated thereunder, or order
issued pursuant thereto, or recovery of any administrative penalty
assessed pursuant to the Oklahoma Registered Poultry Feeding
Operations Act may be brought by:
a. the district attorney of the appropriate district
court of the State of Oklahoma,
b. the Attorney General on behalf of the State of
Oklahoma, or
c. the Department on behalf of the State of Oklahoma.
2. The court shall have jurisdicti on to determine the action,
and to grant the necessary or appropriate relief, including , but not
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limited to, mandatory or prohibitive injunctive relief , interim
equitable relief, and punitive damages .
3. It shall be the duty of the Attorney General and di strict
attorney if requested by the Commissioner of Agriculture to bring
such actions.
D. Except as otherwise provided by law, administrative and
civil penalties shall be paid in to the State Department of
Agriculture Regulation Revolving Fund.
E. For the purposes of the Oklahoma Registered Poultry Feeding
Operations Act, each day upon which a violation is committed or is
permitted to continue shall be deemed a separate offense.
F. Any contract poultry grower determined after notice and
opportunity for a hearing by the Department as flagrantly
disregarding Best Management Practices shall result in the
Department notifying the integrator in writing.
G. The Department shall notify all integrators of any
violations assessed against an operator who is under a contract
growing arrangement with that integrator and, upon the written
request of the integrator, notify that integrator of all violations
assessed against an operator with whom the integrator contemplates
entering into a contract.
H. In addition to oth er penalties as may be imposed by law, any
person who knowingly makes any false statement, representation or
certification form, notice or report, or who knowingly renders
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inaccurate any monitoring device or method required to be maintained
by any rule promulgated by the Board, shall, upon conviction, be
guilty of a misdemeanor and may be subject to a fine of not more
than Five Thousand Dollars ($5,000.00) for each such violation.
I. Land application of poultry litter in compliance with a
current Nutrient Management Plan shall not be the basis for criminal
or civil liability in Oklahoma, whether relating to that single
plan, or aggregated with the application of poultry waste pursu ant
to other Nutrient Management Plans, nor shall an administrative
violation be the basis for a criminal or civil action, nor shall any
alleged violation be the basis for any private right of action, nor
any action other than enforcement of the terms of the Nutrient
Management Plan and other sections of this title by the Oklahoma
Department of Agriculture, Food, and Forestry. A current plan means
a plan approved by the Oklahoma Department of Agriculture, Food, and
Forestry and not yet revoked or rescinded by the state or suspended
by a more recent plan.
1. This provision shall ap ply both directly and vicariously to
the integrator with whom a contract poultry grower contracts, as
well as to any poultry grower, operator, contractor of, or employee
for a certified poultry waste applicator or a poultry waste owner's
agent, so long as the land application is performed pursuant to and
in compliance with the current Nutrient Management Plan.
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2. Compliance with a current Nutrient Management Plan, as
determined by the Oklahoma Department of Agriculture, Food, and
Forestry, shall create a p resumption that no violation of this
section has occurred and shall insulate the poultry grower,
integrator, and waste applicator from any private right of action
and shall constitute "express authority" for purposes of this title
and Section 4 of Title 50 of the Oklahoma Statutes.
3. Nothing in this subsection shall restrict the Oklahoma
Department of Agriculture, Food, and Forestry's exclusive authority
from enforcing the terms of Nutrient Management Plans or their
authority to enforce the Oklahoma Regis tered Poultry Feeding
Operations Act and the Oklahoma Certified Poultry Waste Applicators
Act.
SECTION 3. It being immediately necessary for the preservation
of the public peace, health or safety, an emergency is hereby
declared to exist, by reason whereof this act shall take effect and
be in full force from and after its passage and approval.
COMMITTEE REPORT BY: COMMITTEE ON AGRICULTURE AND RURAL AFFAIRS
April 1, 2024 - DO PASS