Text: S03569                            Text: S03571
Text: S03500 - S03599                   Text: S Index
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Senate Amendment 3570

Amendment Text

PAG LIN
  1  1    Amend Senate File 413 as follows:
  1  2    #1.  Page 6, by inserting after line 7 the
  1  3 following:
  1  4    "Sec.    .  Section 455G.2, subsection 15, Code
  1  5 1995, is amended by striking the subsection and
  1  6 inserting in lieu thereof the following:
  1  7    15.  "Responsible person" means any of the
  1  8 following:
  1  9    a.  The owner or operator of the property, site, or
  1 10 facility at which, or an underground storage tank from
  1 11 which, a petroleum release occurred.
  1 12    b.  A person who at the time of a petroleum release
  1 13 owned or operated the property, site, or facility at
  1 14 which, or an underground storage tank from which, the
  1 15 release occurred.
  1 16    c.  A person who owned the property, site, or
  1 17 facility or owned or operated an underground storage
  1 18 tank at the property, site, or facility at any time
  1 19 when released petroleum was present unless the
  1 20 underground storage tank was not operated on the
  1 21 property, site, or facility during the period of that
  1 22 ownership and the owner had no actual knowledge that
  1 23 the underground storage tank had been operated on the
  1 24 property, site, or facility.
  1 25    d.  A person who by contract, agreement, or
  1 26 otherwise arranged for disposal or caused any release
  1 27 of petroleum.
  1 28    e.  A person who caused or contributed to a
  1 29 petroleum release on the property, site, or facility.
  1 30    f.  Successors or assigns of a responsible person."
  1 31    #2.  Page 11, by inserting after line 17 the
  1 32 following:
  1 33    "Sec.    .  Section 455G.13, Code 1995, is amended
  1 34 to read as follows:
  1 35    455G.13  COST RECOVERY ENFORCEMENT.
  1 36    1.  FULL COST RECOVERY SOUGHT FROM OWNER ACTIONS.
  1 37    a.  The board shall seek full recovery, a claimant,
  1 38 or both, may recover from the owner, operator, or
  1 39 other potentially a responsible party liable for the
  1 40 released petroleum which is the subject of a
  1 41 corrective action, for which the fund expends moneys
  1 42 person moneys that have been expended or will be
  1 43 expended in the future for corrective action or and
  1 44 third-party liability, and for all other costs,
  1 45 including reasonable attorney fees and costs of
  1 46 litigation for which moneys are expended by the fund
  1 47 in connection with the release.  The board shall not
  1 48 seek recovery from past or present owners or operators
  1 49 and other responsible persons who are small
  1 50 businesses, except pursuant to subsections 2, 3, and
  2  1 4.
  2  2    b.  When The department of natural resources is
  2  3 authorized to recover federal cleanup funds are
  2  4 recovered, the funds which are to be deposited to in
  2  5 the remedial account of the fund and used solely for
  2  6 the purpose of future cleanup activities.
  2  7    2.  LIMITATION OF LIABILITY OF OWNER OR OPERATOR.
  2  8 Except as provided in subsection 3:
  2  9    a.  The board or the department of natural
  2 10 resources shall not seek recovery for expenses in
  2 11 connection with corrective action for a release under
  2 12 subsection 1 from an owner or operator eligible for
  2 13 regarding any site where the owner or operator
  2 14 receives assistance under the remedial account for
  2 15 that site, except for any unpaid portion of the
  2 16 insurance deductible under section 455G.11 or remedial
  2 17 copayment amounts under section 455G.9, subsection 4.
  2 18 This section does not affect any authorization of the
  2 19 department of natural resources to impose or collect
  2 20 civil or administrative fines or penalties or fees.
  2 21 The remedial account shall not be held liable for any
  2 22 third-party liability.
  2 23    b.  An owner or operator's liability for a release
  2 24 for which coverage is admitted under the insurance
  2 25 account shall not exceed the amount of the deductible
  2 26 The liability of an owner or operator who is insured
  2 27 under the insurance account for the release for which
  2 28 coverage is admitted shall not exceed the amount of
  2 29 the deductible.
  2 30    c.  The department of natural resources shall not
  2 31 seek recovery from an owner or operator regarding any
  2 32 site where the owner or operator receives assistance
  2 33 under the remedial account for that site.  This
  2 34 section does not affect the department of natural
  2 35 resources' authority to impose or collect civil or
  2 36 administrative fines or penalties or fees.
  2 37    3.  OWNER OR OPERATOR NOT IN COMPLIANCE, SUBJECT TO
  2 38 FULL AND TOTAL COST RECOVERY.  Notwithstanding
  2 39 subsection 2, the liability of an owner or operator
  2 40 shall be the full and total costs of corrective action
  2 41 and bodily injury or property damage to third parties,
  2 42 as specified in subsection 1, if the owner or operator
  2 43 has not complied with the financial responsibility or
  2 44 other underground storage tank rules of the department
  2 45 of natural resources or with this chapter and rules
  2 46 adopted under this chapter.
  2 47    4.  TREBLE DAMAGES FOR CERTAIN VIOLATIONS.
  2 48 Notwithstanding subsections 2 and 3, the owner or
  2 49 operator, or both, of a tank who receive benefits
  2 50 under section 455G.9 are liable to the fund for
  3  1 punitive damages in an amount equal to three times the
  3  2 amount of any cost incurred or moneys expended by the
  3  3 fund as a result of a release of petroleum from the
  3  4 tank recoverable under subsection 1, if the owner or
  3  5 operator did any of the following:
  3  6    a.  Failed, without sufficient cause, to respond to
  3  7 a release of petroleum from the tank upon, or in
  3  8 accordance with, a notice issued by the director of
  3  9 the department of natural resources.
  3 10    b.  After May 5, 1989, failed to perform any of the
  3 11 following:
  3 12    (1)  Failed to register the underground storage
  3 13 tank, which was known to exist or reasonably should
  3 14 have been known to exist.
  3 15    (2)  Intentionally failed to report a known
  3 16 release.
  3 17    The punitive damages imposed under this subsection
  3 18 are in addition to any costs or expenditures recovered
  3 19 from the owner or operator pursuant to this chapter
  3 20 and in addition to any other penalty or relief
  3 21 provided by this chapter or any other law.
  3 22    However, the state, a city, county, or other
  3 23 political subdivision shall not be liable for punitive
  3 24 damages.
  3 25    The provisions of chapter 668A do not apply to this
  3 26 subsection.
  3 27    5.  LIEN ON UNDERGROUND STORAGE TANK SITE.  Any
  3 28 amount for which an owner or operator a claimant is
  3 29 liable to the fund, if not paid when due, by statute,
  3 30 rule, or contract, or determination of liability by
  3 31 the board or department of natural resources after
  3 32 hearing, shall constitute a lien upon the real
  3 33 property where the underground storage tank, which was
  3 34 the subject of corrective action, is situated, and the
  3 35 liability shall be collected in the same manner as the
  3 36 environmental protection charge pursuant to section
  3 37 424.11.
  3 38    6.  JOINDER OF PARTIES.  The department of natural
  3 39 resources has standing in any case or contested action
  3 40 related to the fund or a an underground storage tank
  3 41 to assert any claim that the department may have
  3 42 regarding the underground storage tank at issue in the
  3 43 case or contested action, upon motion and sufficient
  3 44 showing by a party to a cost recovery or subrogation
  3 45 action provided for under this section, the court or
  3 46 the administrative law judge shall join to the action
  3 47 any potentially responsible party who may be liable
  3 48 for costs and expenditures of the type recoverable
  3 49 pursuant to this section.  No other action may be
  3 50 joined with an action brought under subsection 1.
  4  1    7.  STRICT LIABILITY, DEFENSES AND DAMAGES &endash;
  4  2 COMPARATIVE FAULT.  The standard of liability for a
  4  3 release of petroleum or other regulated substance as
  4  4 defined in section 455B.471 is strict liability.
  4  5 Responsible persons are strictly liable for damages
  4  6 and costs recoverable under this section.  The rule of
  4  7 joint and several liability applies in any action
  4  8 brought pursuant to this section.
  4  9    In order to establish the liability of a
  4 10 responsible person who owned, operated, or leased the
  4 11 site or an underground storage tank prior to the
  4 12 claimant, the board or the claimant need only show
  4 13 petroleum contamination was present during the time of
  4 14 ownership, operation, or leasehold of the person.
  4 15    The amount of money expended by the board for
  4 16 corrective action and third-party liability is
  4 17 presumed to be reasonable.
  4 18    8.  THIRD-PARTY CONTRACTS NOT BINDING ON BOARD,
  4 19 PROCEEDINGS AGAINST RESPONSIBLE PARTY NO TRANSFER OF
  4 20 LIABILITY.  An insurance, indemnification, hold
  4 21 harmless, conveyance, or similar risk-sharing or risk-
  4 22 shifting agreement shall not be effective to transfer
  4 23 any liability for costs expenditures recoverable under
  4 24 this section.  The fund, board, or department of
  4 25 natural resources may proceed directly against the
  4 26 owner or operator or other allegedly a responsible
  4 27 party person.  This section does not bar any agreement
  4 28 to insure, hold harmless, or indemnify a party to the
  4 29 agreement for any costs or expenditures under this
  4 30 chapter, and does not modify rights between the
  4 31 parties to an the agreement, except to the extent the
  4 32 agreement shifts liability to an owner or operator
  4 33 eligible for assistance under the remedial account for
  4 34 any damages or other expenses in connection with a
  4 35 corrective action for which another potentially
  4 36 responsible party is or may be liable a claimant.  Any
  4 37 such provision is null and void and of no force or
  4 38 effect.
  4 39    9.  LATER PROCEEDINGS PERMITTED AGAINST OTHER
  4 40 PARTIES.  The entry of judgment against a party to the
  4 41 a cost recovery action does not bar a future action by
  4 42 the board, a claimant, or the department of natural
  4 43 resources against another person who is later alleged
  4 44 to be or discovered to be liable for costs and
  4 45 expenditures paid by the fund recoverable under this
  4 46 section.  Notwithstanding section 668.5 no other
  4 47 potentially responsible party may seek contribution or
  4 48 any other recovery from an owner or operator eligible
  4 49 for assistance under the remedial account for damages
  4 50 or other expenses in connection with corrective action
  5  1 for a release for which the potentially responsible
  5  2 party is or may be liable.  Subsequent successful
  5  3 proceedings against another party shall not modify or
  5  4 reduce the liability of a party against whom judgment
  5  5 has been previously entered.
  5  6    10.  CLAIMS AGAINST POTENTIALLY RESPONSIBLE
  5  7 PARTIES.  Upon payment by the fund for corrective
  5  8 action or third-party liability pursuant to this
  5  9 chapter, the rights of the claimant to recover payment
  5 10 from any potentially responsible party, are assumed by
  5 11 the board to the extent paid by the fund.  A claimant
  5 12 is precluded from receiving double compensation for
  5 13 the same injury.
  5 14    10.  CLAIMANT'S ACTION.  In an action brought by a
  5 15 claimant pursuant to this chapter seeking damages for
  5 16 corrective action or third-party liability section,
  5 17 the court shall permit evidence and argument as to the
  5 18 replacement or indemnification of actual economic
  5 19 losses incurred or to be incurred in the future by the
  5 20 claimant by reason of insurance benefits, governmental
  5 21 benefits or programs, or from any other source.
  5 22    If evidence and argument regarding previous
  5 23 payments or future rights of payment is permitted
  5 24 pursuant to this subsection, the court shall also
  5 25 permit evidence and argument as to the costs to the
  5 26 claimant of procuring the previous payments or future
  5 27 rights of payment and as to any existing rights of
  5 28 indemnification or subrogation relating to the
  5 29 previous payments or future rights of payment.
  5 30    If evidence or argument is permitted pursuant to
  5 31 this subsection, the court shall, unless otherwise
  5 32 agreed to by all parties, except the board, instruct
  5 33 the jury to answer special interrogatories or, if
  5 34 there is no jury, shall make findings indicating the
  5 35 effect of such evidence or argument on the verdict.
  5 36    A claimant may elect to permit the board to pursue
  5 37 the claimant's cause of action for any injury not
  5 38 compensated by the fund against any potentially
  5 39 responsible party moneys expended by the claimant
  5 40 recoverable under this section, provided the attorney
  5 41 general determines such representation would not be a
  5 42 conflict of interest.  If a claimant so elects, the
  5 43 board's litigation expenses shall be shared on a pro
  5 44 rata proportionate basis with the claimant, but the
  5 45 claimant's share of litigation expenses are payable
  5 46 exclusively from any share of the settlement or
  5 47 judgment payable to the claimant.
  5 48    11.  EXCLUSION OF PUNITIVE DAMAGES.  The fund shall
  5 49 not be liable in any case for punitive damages.
  5 50    12.  RECOVERY OR SUBROGATION &endash; INSTALLERS AND
  6  1 INSPECTORS.  Notwithstanding any other provision
  6  2 contained in this chapter, the board or a person
  6  3 insured under the insurance account has no right of
  6  4 recovery or right of subrogation against an installer
  6  5 or an inspector insured by the fund for at the time of
  6  6 the installation or inspection of the underground
  6  7 storage tank giving rise to the liability other than
  6  8 for recovery of any deductibles paid.
  6  9    13.  CONTRIBUTION.  A defendant to a cost recovery
  6 10 action under this section shall not seek contribution,
  6 11 fault allocation, or any recovery from the board or a
  6 12 claimant in an action allowed under this section.
  6 13    14.  LIMITATIONS OF ACTIONS.  A suit brought under
  6 14 this section for the recovery of moneys expended under
  6 15 the remedial account must be commenced no later than
  6 16 five years after the last payment for corrective
  6 17 action.
  6 18    15.  RIGHT TO JURY TRIAL.  Any party to an action
  6 19 brought pursuant to this section is entitled to a jury
  6 20 trial upon demand.
  6 21    16.  DEFINITIONS.  For purposes of this section:
  6 22    a.  "Operator" means a person who has or had
  6 23 control of or the responsibility for the operation of
  6 24 an underground storage tank or the property, site, or
  6 25 facility where the underground storage tank is or was
  6 26 situated.
  6 27    b.  "Owner" means the person who owns or owned the
  6 28 underground storage tank or the property, site, or
  6 29 facility where the underground storage tank is or was
  6 30 situated.
  6 31    c.  "Underground storage tank" means as defined in
  6 32 section 455B.471, subsection 11, notwithstanding the
  6 33 requirement to maintain proof of financial
  6 34 responsibility under federal or state law.
  6 35    17.  RETROACTIVE APPLICATION.  This section applies
  6 36 to any release whether existing before or after the
  6 37 effective date of this section of this Act."
  6 38    #3.  Title page, line 7, by inserting after the
  6 39 word "benefits," the following:  "expanding cost
  6 40 recovery enforcement,".
  6 41    #4.  By renumbering as necessary.  
  6 42 
  6 43 
  6 44                              
  6 45 MICHAEL E. GRONSTAL
  6 46 SF 413.502 76
  6 47 js/jw

Text: S03569                            Text: S03571
Text: S03500 - S03599                   Text: S Index
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