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PAG LIN
1 1 Section 1. Section 455G.13, subsection 1, Code 1995, is
1 2 amended by striking the subsection and inserting in lieu
1 3 thereof the following:
1 4 1. FULL RECOVERY SOUGHT BY BOARD.
1 5 a. The board shall seek recovery from all owners,
1 6 operators, and other potentially responsible parties who may
1 7 be liable for all or any portion of the released petroleum
1 8 which is the subject of a corrective action at any site. A
1 9 corrective action proceeding shall be a single action filed
1 10 within the county where the site is located. A party against
1 11 whom the board has brought an action for recovery may notify
1 12 the board of other potentially responsible parties. The board
1 13 shall include in the proceeding all owners, operators, or
1 14 potentially responsible parties who may be liable for the
1 15 total cost of corrective action as specified in subsection 3.
1 16 Each party shall be liable to the board for its share only, as
1 17 determined by the party's proven proportionate contribution to
1 18 the release, of the board's incurred and reasonable
1 19 anticipated cost recovery expenditures plus attorney's fees
1 20 and costs of litigation as provided in paragraph "d". This
1 21 subsection shall not affect the rights of the department of
1 22 natural resources or any party to join a party pursuant to
1 23 subsection 6.
1 24 b. Prior to filing a cost recovery action, the board shall
1 25 do all of the following:
1 26 (1) Provide all parties to the action with the following
1 27 information:
1 28 (a) A listing of all owners, operators, and other
1 29 potentially responsible parties.
1 30 (b) The basis for the board's belief that each party is a
1 31 subject of the proposed cost recovery action.
1 32 (c) The board's belief as to each party's proportionate
1 33 contribution to the release. Absent a reasonable basis for a
1 34 different allocation, the shares for which parties are liable
1 35 shall be assumed to be equal.
2 1 (d) The total amount of moneys the fund has expended and
2 2 reasonably anticipates expending on corrective action at the
2 3 site.
2 4 (e) Evidence to support a determination that passive
2 5 bioremediation will not substantively remedy the threat from
2 6 leaking underground storage tanks.
2 7 (2) Make a settlement offer to each party for the party's
2 8 proposed share of incurred and reasonable anticipated cost
2 9 recovery expenditures including attorney's fees. If a party
2 10 accepts the offer within sixty days of its delivery, the party
2 11 shall be released from liability under this section. A cost
2 12 recovery action under this section shall not be brought until
2 13 all required offers have been made and all responses have been
2 14 received or sixty days has elapsed from the time the offer was
2 15 made and a response has not been received.
2 16 c. Any owner, operator, or other potentially responsible
2 17 party who has not entered into a settlement agreement with the
2 18 board pursuant to paragraph "b", subparagraph (2), shall be
2 19 named as a party in a cost recovery action under this section.
2 20 d. The board shall not seek and shall not collect in the
2 21 aggregate, from all parties more than one hundred percent of
2 22 the incurred and reasonable anticipated cost recovery
2 23 expenditures plus attorney's fees and costs of litigation as
2 24 provided in paragraph "e".
2 25 e. If a cost recovery action proceeds and the board is
2 26 awarded less than ninety percent of the amount of the
2 27 settlement agreement proffered by the board pursuant to
2 28 paragraph "b", subparagraph (2), the board shall not be
2 29 entitled to be awarded reasonable attorney's fees and costs of
2 30 litigation against the other party. In all other cases, the
2 31 board shall be entitled to recover from each party that
2 32 party's determined proportionate share of the board's
2 33 reasonable attorney's fees and costs of litigation incurred in
2 34 the action, but in any event, not to exceed fifty percent of
2 35 the amount of cost recovery liability awarded against that
3 1 party in the action.
3 2 f. The board may be represented by private attorneys
3 3 selected by the board in cost recovery actions under this
3 4 section. The board shall determine the criteria for selection
3 5 of private attorneys which shall include acceptance of a fee
3 6 structure capped in all circumstances at fifty percent of the
3 7 amount of cost recovery actually collected.
3 8 g. Any federal cleanup funds received are to be deposited
3 9 in the remedial account of the fund and used solely for the
3 10 purpose of future cleanup activities.
3 11 Sec. 2. Section 455G.13, subsection 9, Code 1995, is
3 12 amended to read as follows:
3 13 9. LATER PROCEEDINGS PERMITTED AGAINST OTHER PARTIES. The
3 14 entry of judgment against a party to the action does not bar a
3 15 future action by the board or the department of natural
3 16 resources against another person who is later alleged to be or
3 17 discovered to be liable for costs and expenditures paid by the
3 18 fund. However, a subsequent action shall only be brought
3 19 against a party if the board was unaware of the party's
3 20 existence during the initial cost recovery proceeding under
3 21 subsection 1, and only to the extent of any remaining
3 22 deficiency. Notwithstanding section 668.5 no other
3 23 potentially responsible party may seek contribution or any
3 24 other recovery from an owner or operator eligible for
3 25 assistance under the remedial account for damages or other
3 26 expenses in connection with corrective action for a release
3 27 for which the potentially responsible party is or may be
3 28 liable. Subsequent successful proceedings against another
3 29 party shall not modify or reduce the liability of a party
3 30 against whom judgment has been previously entered.
3 31 Sec. 3. EFFECTIVE DATE. This Act, being deemed of
3 32 immediate importance, takes effect upon enactment.
3 33 Sec. 4. APPLICABILITY. The provisions of this Act which
3 34 enacts section 455G.13, subsection 1, paragraph "a", apply to
3 35 cost recovery actions filed on or after January 1, 1995.
4 1 EXPLANATION
4 2 This bill amends the process for the Iowa comprehensive
4 3 petroleum underground storage tank fund board to proceed in an
4 4 action to recover costs for cleanup moneys expended from the
4 5 underground storage tank fund.
4 6 The bill requires that before filing an action the board
4 7 must send to the parties all of the following information:
4 8 1. A listing of all owners, operators, and other
4 9 potentially responsible parties.
4 10 2. The basis for the board's belief that each party is
4 11 properly the subject of the proposed cost recovery action.
4 12 3. The board's reasonable belief as to each party's
4 13 proportionate contribution to the release, and absent a
4 14 reasonable basis for a different allocation, that all
4 15 liability shares shall be assumed to be equal.
4 16 4. The total amount of moneys the fund has expended and
4 17 reasonably anticipates expending on corrective action at the
4 18 site.
4 19 5. Evidence supporting a determination that passive
4 20 bioremediation will not substantively remedy the threat from
4 21 leaking underground storage tanks.
4 22 The board is then required to make a settlement offer to
4 23 each party regarding the party's proposed cost recovery
4 24 liability at the site for that party's share of incurred and
4 25 reasonably anticipated cost recovery expenditures. If a party
4 26 accepts the offer within 60 days of its delivery, the party is
4 27 released from any further liability.
4 28 If the parties do not choose to settle, the board may
4 29 proceed with filing a cost recovery action. This bill changes
4 30 the nature of the action by requiring that a single action be
4 31 filed within the county where the site is located, allowing a
4 32 party against whom the board has brought an action for
4 33 recovery to notify the board of other potentially responsible
4 34 parties, and requiring the board to include all potentially
4 35 liable owners or operators in the cost recovery action. The
5 1 bill states that each party named in a cost recovery action is
5 2 liable to the board for its share of costs only, as determined
5 3 by the party's proven proportionate contribution to the
5 4 release.
5 5 The bill provides that the board shall not seek, nor
5 6 collect in the aggregate, more than 100 percent of the
5 7 incurred and reasonably anticipated cost recovery expenditures
5 8 plus attorney's fees. If a cost recovery action proceeds and
5 9 the board is awarded less than 90 percent of the amount of the
5 10 settlement agreement proffered by the board, the board is not
5 11 entitled to attorney's fees and costs of litigation against
5 12 the other party. In other cases, the board is entitled to
5 13 recover each party's proportionate share of the board's
5 14 reasonable attorney's fees and costs of litigation, but not to
5 15 exceed 50 percent of the amount of cost recovery liability
5 16 awarded against that party in the action.
5 17 The bill requires that when the board is represented in
5 18 cost recovery actions by private attorneys, the board must
5 19 determine the criteria for selection of private attorneys,
5 20 which must include acceptance of a fee structure capped in all
5 21 circumstances at 50 percent of the amount of cost recovery
5 22 actually collected.
5 23 The bill provides that a subsequent action can only be
5 24 brought if the board was unaware of the existence of the party
5 25 during the initial cost recovery proceeding and can only be
5 26 maintained for the amount of the deficient payments remaining.
5 27 Finally, the new provisions contained in section 455G.13,
5 28 subsection 1, paragraph "a", are applicable to cost recovery
5 29 actions filed on or after January 1, 1995. The bill is
5 30 effective upon enactment.
5 31 LSB 4303YC 76
5 32 js/sc/14
Text: HSB00661 Text: HSB00663 Text: HSB00600 - HSB00699 Text: HSB Index Bills and Amendments: General Index Bill History: General Index
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