SF 334 (LSB 1387XS (5) 87)

SENATE FILE 334

BY  D. JOHNSON and TAYLOR

A BILL FOR

An Act providing for a county groundwater pollution control program, and providing for penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 455B.171, Code 2017, is amended by adding the following new subsections:
   NEW SUBSECTION.  1A.  “Agricultural drainage well area” means the same as defined in section 460.101.
   NEW SUBSECTION.  8A.  “Groundwater” means the same as defined in section 455E.2.
   NEW SUBSECTION.  10A.  “Karst terrain” means the same as defined in section 459.102.
   NEW SUBSECTION.  29A.  “Sensitive groundwater access area” means karst terrain or a location that drains into a known sinkhole.
    Sec. 2.  NEW SECTION.  455B.201  Definitions.
   As used in this subpart, unless the context otherwise requires:
   1.  “Board” means a county board of supervisors.
   2.  “County groundwater pollution control program” or “program” means the program conducted by a county board of supervisors as provided in this subpart.
   3.  “State groundwater protection regulations” means the provisions of state law described in section 455B.202.
    Sec. 3.  NEW SECTION.  455B.202  Authorization.
   1.  A county board of supervisors that has been issued a certificate of acceptance by the department pursuant to section 455B.203 may conduct a county groundwater pollution control program.
   2.  If the department issues a certificate of acceptance to a county board of supervisors pursuant to section 455B.203, the department cedes its powers and duties to the county board of supervisors to administer and enforce state groundwater protection regulations that apply to sources that are located in sensitive groundwater access areas in the county. The scope of such state groundwater protection regulations is limited to the provisions of division I and this division, including rules adopted by the department pursuant to such divisions; the provisions of chapter 459, subchapter III, including rules adopted by the department pursuant to that subchapter; chapter 459A, including rules adopted by the department pursuant to that chapter; chapter 459B, including rules adopted by the department pursuant to that chapter; and chapter 460, including rules adopted by the department pursuant to that chapter.
    Sec. 4.  NEW SECTION.  455B.203  Certificate of acceptance —— request and approval.
   1.  In order to conduct a county groundwater pollution control program, a county board of supervisors must make a request to the department. The request shall include a resolution adopted by the board and any supporting documentation required by the department relating to the board’s implementation and administration of the program.
   2.  The department shall approve or disapprove a request submitted by a county board of supervisors based on a determination of whether the board is capable of conducting the program in lieu of the department administering and enforcing state groundwater protection regulations as provided in section 455B.202.
   3.  In evaluating a request submitted by a county board of supervisors under this section, the department shall consider all of the following:
   a.  The types of ordinances, rules, or standards that the board plans to adopt in order to conduct the program. The ordinances, rules, or standards must be consistent with or more strict than state law.
   b.  The county’s administrative organization, staff, and financial or other resources available to effectively conduct the program.
   c.  The location of monitoring devices that may provide a reasonably consistent measurement of groundwater contamination in compliance with uniform state standards that shall be adopted by the department.
   4.  The department may conduct a public hearing before approving or disapproving a request submitted by a county board of supervisors under this section.
   5.  The department shall notify a county board of supervisors of the department’s decision in regard to a request within one hundred eighty days of the date that it received the request. Once the department approves a request, it shall issue a certificate of acceptance to the board. The department may limit or qualify the certificate of acceptance as necessary in order to perform duties reserved by law to the department or to perform concurrent functions with the board, including the issuance of permits. The department shall not reduce the scope of the certificate of acceptance so that it cedes less than the requested authority to conduct the program. The department shall continue to administer and enforce the state groundwater protection regulations within the county that are not ceded to the county board of supervisors.
    Sec. 5.  NEW SECTION.  455B.204  Suspension or revocation of certificate of acceptance.
   The department may determine at any time that a county board of supervisors is not conducting a county groundwater pollution control program in a manner consistent with its certificate of acceptance. Upon making the determination, the department shall notify the county board of supervisors, citing all inconsistencies and corrective measures required to be completed by the board within a reasonable amount of time. If the board does not implement corrective measures within the reasonable amount of time, the department shall suspend or revoke the certificate of acceptance. The department's suspension may reduce the scope of the certificate of acceptance so that it cedes less authority to conduct the program to the board. Upon receipt of evidence that the board has taken corrective action, the department may reinstate a suspended certificate of acceptance with or without limitation, and the board shall resume conducting the county groundwater pollution control program as provided by the reinstated certificate of acceptance. The department shall temporarily administer and enforce the state groundwater protection regulations until the matter is concluded.
    Sec. 6.  NEW SECTION.  455B.205  Contest of departmental action.
   A board of supervisors may contest a decision by the department as provided in this subpart. The board shall contest the decision as a contested case proceeding conducted by the department of inspections and appeals pursuant to chapter 17A. The burden of proof shall be on the board.
    Sec. 7.  NEW SECTION.  455B.206  Attorney general.
   The department’s issuance of a certificate of acceptance pursuant to section 455B.203 does not limit the authority of the attorney general to enforce state groundwater protection regulations.
    Sec. 8.  NEW SECTION.  455B.207  Prosecution —— criminal penalties.
   A county board of supervisors conducting a county groundwater pollution control program may refer any matter requiring enforcement of state groundwater protection regulations that has been ceded to the board to the attorney general for a civil or criminal action, in the same manner as the department. The board may also refer the matter to the county attorney for civil or criminal action. Moneys collected in fines and civil penalties shall be credited to the state in the same manner as if the fines or civil penalties were collected by the attorney general.
    Sec. 9.  NEW SECTION.  455B.208  Civil penalties.
   Notwithstanding sections 331.302 and 331.307, a county board of supervisors conducting a county groundwater pollution control program may administratively establish, assess, and collect civil penalties consistent with state groundwater protection regulations. Civil penalties shall be credited to the state in the same manner as civil penalties collected by the department for the same violation.
    Sec. 10.  NEW SECTION.  455B.301B  County groundwater pollution control program.
   A county board of supervisors issued a certificate of acceptance to conduct a county groundwater pollution control program by the department pursuant to division III, part 1, of this chapter may administer and enforce the provisions of this division within sensitive groundwater access areas located in the county.
    Sec. 11.  NEW SECTION.  459.302A  County groundwater pollution control program.
   A county board of supervisors issued a certificate of acceptance to conduct a county groundwater pollution control program by the department pursuant to chapter 455B, division III, part 1, may administer and enforce the provisions of this subchapter within sensitive groundwater access areas located in the county.
    Sec. 12.  NEW SECTION.  459A.106  County groundwater pollution control program.
   A county board of supervisors issued a certificate of acceptance to conduct a county groundwater pollution control program by the department pursuant to chapter 455B, division III, part 1, may administer and enforce the provisions of this chapter within sensitive groundwater access areas located in the county.
    Sec. 13.  NEW SECTION.  459B.105  County groundwater pollution control program.
   A county board of supervisors issued a certificate of acceptance to conduct a county groundwater pollution control program by the department pursuant to chapter 455B, division III, part 1, may administer and enforce the provisions of this chapter within sensitive groundwater access areas located in the county.
    Sec. 14.  NEW SECTION.  460.102  County groundwater pollution control program.
   A county board of supervisors issued a certificate of acceptance to conduct a county groundwater pollution control program by the department pursuant to chapter 455B, division III, part 1, may administer and enforce the provisions of this chapter within sensitive groundwater access areas located in the county.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   GENERAL. This bill authorizes the department of natural resources to cede some of its authority to administer certain environmental statutes and its rules to a county board of supervisors upon the board’s request. A board that has been granted such authority conducts a county groundwater pollution control program according to the terms of a certificate of acceptance issued by the department.
   CERTIFICATE OF ACCEPTANCE —— ISSUANCE. A certificate of acceptance allows a county board of supervisors to administer and enforce state groundwater protection regulations that apply to sources that are located in sensitive groundwater access areas (where there is karst terrain, or land where there is located an agricultural drainage well area, or known sinkhole). The regulations are limited to those in statute or rule under Code chapter 455B, division I and division III (providing general authority and water quality regulations); Code chapter 459, subchapter III, and Code chapters 459, 459A, and 459B (providing for water quality regulation applicable to animal feeding operations); and Code chapter 460 (regulating sources that may contaminate groundwater from agricultural drainage wells). The department may approve or disapprove a request but cannot limit or qualify the certificate of acceptance or reduce the scope of the certificate of acceptance so that it cedes less authority to conduct the program than requested by the board. A county board of supervisors may adopt ordinances, rules, or standards either consistent with or more strict than state law.
   CERTIFICATE OF ACCEPTANCE —— SUSPENSION OR REVOCATION.  The bill provides that the department may suspend or revoke a certificate of acceptance if it determines that the board is not conducting the program in a manner consistent with the certificate of acceptance. If a certificate is suspended or revoked, a county may take measures to correct the inconsistencies and the department may reinstate the certificate with or without limitation. The board may contest a departmental decision by bringing a contested case proceeding to be decided by the department of inspections and appeals.
   ENFORCEMENT. The department’s issuance of a certificate of acceptance does not limit the authority of the attorney general to enforce state groundwater protection regulations, and the board may refer any matter requiring enforcement to the attorney general or a county attorney for judicial enforcement.
   VIOLATIONS AND PENALTIES. The bill provides for both administrative and judicial enforcement of violations of state groundwater protection regulations. The board may assess, impose, and collect civil penalties up to $10,000 (Code section 455B.109). The board may also seek judicial enforcement of civil penalties not to exceed $5,000 per each day of a violation (Code section 455B.191). A person who fails to prevent surface water from draining into an agricultural drainage well is subject to a civil penalty of not more than $1,000 (Code sections 460.202, 460.203, and 460.206), and a person who constructs or expands an earthen storage structure within an agricultural drainage well area is subject to a civil penalty of not more than $5,000 for each day of the violation (Code sections 460.205 and 460.206).
   Criminal penalties also apply. A person who negligently or knowingly disposes of a pollutant in a water of the state is guilty of a serious misdemeanor or an aggravated misdemeanor depending on the type of violation, punishable by a range of fines and imprisonment (Code sections 455B.186 and 455B.191).
   Moneys assessed as part of an administrative or civil proceeding are to be credited to the state in the same manner as if the department had not issued a certificate of acceptance. Civil penalties assessed by the department must be deposited in the general fund of the state (Code section 455B.109). Moneys from civil penalties assessed for violations involving animal feeding operations are to be credited to the Iowa nutrient research fund created in section 466B.46 (Code sections 459.602, 459.603, 459A.502, and 459B.402). Moneys from civil penalties for violations involving contamination of groundwater from agricultural drainage wells are credited to the livestock remediation fund (Code section 459.501). Moneys from criminal fines and restitution awarded to the attorney general as part of a judgment in an environmental criminal case are credited to the environmental crimes investigation and prosecution fund (Code section 455B.112A).