Text: HF00389 Text: HF00391 Text: HF00300 - HF00399 Text: HF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 SUBCHAPTER 1 1 2 GENERAL PROVISIONS 1 3 Section 1. NEW SECTION. 455H.101 SHORT TITLE. 1 4 This chapter shall be known and may be cited as the "Iowa 1 5 Land Recycling and Environmental Remediation Standards Act". 1 6 Sec. 2. NEW SECTION. 455H.102 SCOPE. 1 7 The environmental remediation standards established under 1 8 this chapter shall be used for any response action or other 1 9 site assessment or remediation that is conducted at a site 1 10 enrolled pursuant to this chapter notwithstanding provisions 1 11 regarding water quality in chapter 455B, division III; 1 12 hazardous conditions in chapter 455B, division IV, part 4; 1 13 hazardous waste and substance management in chapter 455B, 1 14 division IV, part 5; underground storage tanks in chapter 1 15 455B, division IV, part 8; contaminated sites in chapter 455B, 1 16 division VIII; and groundwater protection in chapter 455E. 1 17 Sec. 3. NEW SECTION. 455H.103 DEFINITIONS. 1 18 As used in this chapter, unless the context requires 1 19 otherwise: 1 20 1. "Affected area" means any real property affected, 1 21 suspected of being affected, or modeled to be likely affected 1 22 by a release occurring at an enrolled site. 1 23 2. "Background levels" means concentrations of hazardous 1 24 substances that are generally present in the environment in 1 25 the vicinity of an enrolled site or an affected area and not 1 26 the result solely of releases at an enrolled site. 1 27 3. "Commission" means the environmental protection 1 28 commission created under section 455A.6. 1 29 4. "Department" means the department of natural resources 1 30 created under section 455A.2. 1 31 5. "Director" means the director of the department of 1 32 natural resources appointed under section 455A.3. 1 33 6. "Enrolled site" means any property which has been or is 1 34 suspected to be the site of or affected by a release and which 1 35 has been enrolled pursuant to this chapter by a participant. 2 1 7. "Hazardous substance" has the same meaning as defined 2 2 in section 455B.381. 2 3 8. "Noncancer health risk" means the potential for adverse 2 4 systemic or toxic effects caused by exposure to 2 5 noncarcinogenic hazardous substances expressed as the hazard 2 6 quotient for a hazardous substance. A hazard quotient is the 2 7 ratio of the level of exposure of a hazardous substance over a 2 8 specified time period to a reference dose for a similar 2 9 exposure period. 2 10 9. "Participant" means any person who enrolls property 2 11 pursuant to this chapter. 2 12 10. "Protected groundwater source" means a saturated bed, 2 13 formation, or group of formations which has a hydraulic 2 14 conductivity of at least forty-four-hundredths meters per day 2 15 and a total dissolved solids concentration of less than two 2 16 thousand five hundred milligrams per liter. 2 17 11. "Protected party" means any of the following: 2 18 a. A participant, including, but not limited to, a 2 19 development authority or fiduciary. 2 20 b. A person who develops or otherwise occupies an enrolled 2 21 site after the issuance of a no further action letter. 2 22 c. A successor or assignee of a protected party, as to an 2 23 enrolled site of a protected party. 2 24 d. A lender which practices commercial lending including, 2 25 but not limited to, providing financial services, holding of 2 26 security interests, workout practices, and foreclosure or the 2 27 recovery of funds from the sale of an enrolled site. 2 28 e. A parent corporation or subsidiary of a participant. 2 29 f. A co-owner or co-operator, either by joint tenancy or a 2 30 tenancy in common, or any other party sharing a legal 2 31 relationship with the participant. 2 32 g. A holder of a beneficial interest of a land trust or 2 33 inter vivos trust, whether revocable or irrevocable, as to any 2 34 interests in an enrolled site. 2 35 h. A mortgagee or trustee of a deed of trust existing as 3 1 to an enrolled site as of the date of issuance of a no further 3 2 action letter. 3 3 i. A transferee of the participant whether the transfer is 3 4 by assignment, bankruptcy proceeding, partition, dissolution 3 5 of marriage, settlement or adjudication of any civil action, 3 6 charitable gift, or bequest, in conjunction with the 3 7 acquisition of title to the enrolled site. 3 8 j. An heir or devisee of a participant. 3 9 12. "Release" means any spilling, leaking, pumping, 3 10 pouring, emitting, emptying, discharging, injecting, escaping, 3 11 leaching, dumping, or disposing into the environment of a 3 12 hazardous substance, including the abandonment or discarding 3 13 of barrels, containers, and other closed receptacles 3 14 containing any hazardous substance, but excludes all of the 3 15 following: 3 16 a. Any release which results in exposure to persons solely 3 17 within a workplace, with respect to a claim which such persons 3 18 may assert against the employer of such persons. 3 19 b. Emissions from the engine exhaust of a motor vehicle, 3 20 rolling stock, aircraft, vessel, or pipeline pumping station 3 21 engine. 3 22 c. The release of source, by-product, or special nuclear 3 23 material from a nuclear incident, as those terms are defined 3 24 in the federal Atomic Energy Act of 1954, if such release is 3 25 subject to requirements with respect to financial protection 3 26 established by the nuclear regulatory commission under 42 3 27 U.S.C. } 2210 or, for the purposes of 42 U.S.C. } 9604 or any 3 28 other response action, any release of source, by-product, or 3 29 special nuclear material from any processing site designated 3 30 under 42 U.S.C. } 7912(a)(1) or 7942(a). 3 31 d. Any release received by or stored in an anaerobic 3 32 lagoon as defined in section 455B.161 or any release received 3 33 by or stored in a confinement feeding operation structure as 3 34 defined in section 455B.161. 3 35 13. "Response action" means an action taken to reduce, 4 1 minimize, eliminate, clean up, control, assess, or monitor a 4 2 release to protect the public health and safety or the 4 3 environment. "Response action" includes, but is not limited 4 4 to, investigation, excavation, removal, disposal, cleansing of 4 5 groundwaters or surface waters, natural biodegradation, 4 6 institutional controls, technological controls, or site 4 7 management practices. 4 8 14. "Technical advisory committee" means the technical 4 9 advisory committee created under section 455H.502. 4 10 Sec. 4. NEW SECTION. 455H.104 DECLARATION OF POLICY. 4 11 The general assembly finds and declares all of the 4 12 following: 4 13 1. Some real property in Iowa is not put to its highest 4 14 productive use because it is contaminated or it is perceived 4 15 to be contaminated as a result of past activity on the 4 16 property. The reuse of these sites is an important component 4 17 of a sound land-use policy that will prevent the needless 4 18 development of prime farmland and open-space and natural 4 19 areas, and reduce public expenditures for installing new 4 20 infrastructure. 4 21 2. Incentives should be put in place to encourage capable 4 22 persons to voluntarily develop and implement cleanup plans 4 23 without the need for adversarial enforcement actions which may 4 24 serve to delay cleanups and increase their cost. 4 25 3. The safe reuse of property should be encouraged and 4 26 nurtured with clear, predictable environmental remediation 4 27 standards developed through an open process which take into 4 28 account the risks associated with any release at the site. 4 29 Any remediation standards adopted by this state must provide 4 30 for the protection of the public health and safety and the 4 31 environment. 4 32 4. It is necessary for the general assembly to adopt a 4 33 statute which establishes environmental remediation standards 4 34 to provide a uniform framework for cleanup decisions and to 4 35 avoid potentially conflicting and confusing environmental 5 1 standards. 5 2 5. Cleanup plans should be based on the actual risk that 5 3 contamination on the site may pose to the public health and 5 4 safety or the environment, taking into account its current and 5 5 probable future use and the degree to which contamination can 5 6 spread off-site and expose the public health and safety or the 5 7 environment to risk, not on cleanup policies requiring every 5 8 site in Iowa to be returned to a pristine condition. 5 9 Sec. 5. NEW SECTION. 455H.105 DUTIES OF THE COMMISSION. 5 10 The commission shall do all of the following: 5 11 1. Adopt rules pertaining to the assessment, evaluation, 5 12 and cleanup of the presence of hazardous substances which 5 13 allow participants to carry out response actions using 5 14 background standards, statewide standards, or site-specific 5 15 cleanup standards pursuant to this chapter. 5 16 2. Adopt rules establishing a program intended to 5 17 encourage and enhance assessment, evaluation, and cleanup of 5 18 sites which may have been the site of or affected by a 5 19 release. 5 20 3. Adopt rules establishing a program to administer the 5 21 land recycling fund established in section 455H.401. 5 22 Sec. 6. NEW SECTION. 455H.106 AUTHORITY OF THE 5 23 DEPARTMENT. 5 24 The department shall do both of the following: 5 25 1. Enter into agreements or issue orders in connection 5 26 with the enrollment of property into a program established 5 27 pursuant to this chapter. 5 28 2. Issue no further action letters upon the demonstration 5 29 of compliance with applicable standards for an affected area 5 30 by a participant. 5 31 3. Enter into agreements or issue orders providing for 5 32 institutional and technological controls to assure compliance 5 33 with applicable standards pursuant to this chapter. 5 34 Sec. 7. NEW SECTION. 455H.107 LAND RECYCLING PROGRAM. 5 35 1. A person may enroll property in the land recycling 6 1 program pursuant to this chapter to carry out a response 6 2 action by providing written notice to the department. 6 3 2. The department shall enroll all of the following in the 6 4 land recycling program: 6 5 a. A property for which the department has received 6 6 written notice of enrollment from a participant. 6 7 b. A property for which the department has issued an order 6 8 to enroll the property agreed to by the participant provided 6 9 that both of the following occur: 6 10 (1) The participant has executed a standard agreement with 6 11 the department to carry out the response action. This 6 12 agreement shall include unlimited access to the enrolled site. 6 13 (2) There is an agreement by the participant to reimburse 6 14 the department for actual costs incurred by the department in 6 15 reviewing documents submitted as a part of the enrollment of 6 16 the site. This fee shall not exceed seven thousand five 6 17 hundred dollars per enrolled site. 6 18 3. Following enrollment of the property in the land 6 19 recycling program, the participant shall proceed on a timely 6 20 basis to carry out response actions in accordance with the 6 21 rules implementing this chapter. 6 22 4. Once the participant has demonstrated the affected area 6 23 is in compliance with the standards described in subchapter 2, 6 24 the department shall promptly issue a no further action letter 6 25 pursuant to section 455H.302. 6 26 5. The participant may withdraw the enrolled site from 6 27 further participation in the land recycling program at any 6 28 time upon written notice to the department. Any participant 6 29 who withdraws an enrolled site from further participation in 6 30 the program shall not be entitled to any refund or credit for 6 31 the enrollment fee paid pursuant to this section. 6 32 SUBCHAPTER 2 6 33 RESPONSE ACTION STANDARDS AND REVIEW PROCEDURES 6 34 Sec. 8. NEW SECTION. 455H.201 CLEANUP STANDARDS. 6 35 1. A participant carrying out a response action shall take 7 1 such response actions as necessary to assure that conditions 7 2 in the affected area comply with any of the following, as 7 3 applicable: 7 4 a. Background standards established pursuant to section 7 5 455H.202. 7 6 b. Statewide standards established pursuant to section 7 7 455H.203. 7 8 c. Site-specific cleanup standards established pursuant to 7 9 section 455H.204. 7 10 2. A participant may use a combination of these standards 7 11 to implement a site remediation plan and may propose to use 7 12 the site-specific cleanup standards whether or not efforts 7 13 have been made to comply with the background or statewide 7 14 standards. 7 15 3. For the purposes of determining compliance with any one 7 16 or a combination of the standards, the concentration of a 7 17 hazardous substance at the affected area shall not be required 7 18 to be less than the practical quantitation limit for the 7 19 hazardous substance. 7 20 4. Until rules setting out requirements for background 7 21 standards, statewide standards, or site-specific cleanup 7 22 standards are finally adopted by the commission and effective, 7 23 participants may utilize site-specific cleanup standards for 7 24 any hazardous substance utilizing the procedures set out in 7 25 the department's rules implementing risk-based corrective 7 26 action for underground storage tanks and, where relevant, the 7 27 United States environmental protection agency's guidance 7 28 regarding risk assessment for superfund sites. 7 29 5. The standards may be complied with through a 7 30 combination of response actions that may include, but are not 7 31 limited to, treatment, removal, technological or institutional 7 32 controls, and natural attenuation and other natural 7 33 mechanisms, and can include the use of innovative or other 7 34 demonstrated measures. 7 35 Sec. 9. NEW SECTION. 455H.202 BACKGROUND STANDARDS. 8 1 1. Methods to identify background levels shall be jointly 8 2 developed by the department and the technical advisory 8 3 committee. The background standard for the affected area 8 4 shall be the background levels for the affected area. 8 5 2. The demonstration that the affected area meets the 8 6 background standard shall be documented by the participant in 8 7 the following manner: 8 8 a. Compliance with the background standard shall be 8 9 demonstrated by collection and analysis of representative 8 10 samples from environmental media of concern. 8 11 b. A final report that documents compliance with the 8 12 background standard shall be submitted to the department and 8 13 shall include, as appropriate, all of the following: 8 14 (1) A description of procedures and conclusions of the 8 15 site investigation to characterize the nature, extent, 8 16 direction, volume, and composition of hazardous substances. 8 17 (2) The basis for selecting environmental media of 8 18 concern, descriptions of removal or decontamination procedures 8 19 performed in remediation, and summaries of sampling 8 20 methodology and analytical results which demonstrate that the 8 21 background standard has been complied with. 8 22 (3) The basis for determining the background levels. 8 23 Sec. 10. NEW SECTION. 455H.203 STATEWIDE STANDARDS. 8 24 1. Statewide standards shall be jointly developed by the 8 25 department and the technical advisory committee. 8 26 2. In establishing these standards, all of the following 8 27 shall be considered: 8 28 a. Separate standards shall be established for hazardous 8 29 substances in soil, in groundwater which is a protected 8 30 groundwater source, and in groundwater which is not a 8 31 protected groundwater source. 8 32 b. In groundwater which is a protected groundwater source, 8 33 the standards shall be no more protective than the least 8 34 restrictive of the maximum contaminant levels established 8 35 pursuant to the department's drinking water standards, a 9 1 standard reflecting an increased cancer risk of one in one 9 2 million, or a standard reflecting a noncancer health risk of 9 3 one. An affected area shall not be required to be cleaned up 9 4 to concentration levels below or more restrictive than 9 5 background levels. 9 6 c. In groundwater which is not a protected groundwater 9 7 source, the standards shall be no more protective than the 9 8 least restrictive of a standard reflecting an increased cancer 9 9 risk of one in ten thousand or a standard reflecting a 9 10 noncancer health risk of one. An affected area shall not be 9 11 required to be cleaned up to levels below or more restrictive 9 12 than background levels. 9 13 d. In soil, the standards shall be no more protective than 9 14 the least restrictive of a standard reflecting an increased 9 15 cancer risk of one in one million or a standard reflecting a 9 16 noncancer health risk of one. An affected area shall not be 9 17 required to be cleaned up to concentration levels below or 9 18 more restrictive than background levels. 9 19 3. The demonstration that the affected area meets the 9 20 statewide standard shall be documented by the participant, as 9 21 appropriate, in the following manner: 9 22 a. Compliance with cleanup levels shall be demonstrated by 9 23 collection and analysis of representative samples from the 9 24 environmental medium of concern. 9 25 b. A final report that documents compliance with the 9 26 statewide standard shall be submitted to the department which 9 27 includes, as appropriate, the descriptions of procedures and 9 28 conclusions of the site investigation to characterize the 9 29 nature, extent, direction, rate of movement at the site and 9 30 cumulative effects, if any, volume, composition, and 9 31 concentration of hazardous substances in environmental media, 9 32 the basis for selecting environmental media of concern, 9 33 documentation supporting the selection of residential or 9 34 nonresidential exposure factors, descriptions of removal or 9 35 treatment procedures performed in remediation, and summaries 10 1 of sampling methodology and analytical results which 10 2 demonstrate that hazardous substances have been removed or 10 3 treated to applicable levels. 10 4 Sec. 11. NEW SECTION. 455H.204 SITE-SPECIFIC CLEANUP 10 5 STANDARDS. 10 6 1. Procedures to establish site-specific cleanup standards 10 7 shall be jointly developed by the department and the technical 10 8 advisory committee. 10 9 2. Site-specific cleanup standards and appropriate 10 10 response actions shall take into account all of the following 10 11 provided, however, that an affected area shall not be required 10 12 to be cleaned up to levels below or more restrictive than 10 13 background levels, and in groundwater which is not a protected 10 14 groundwater source, to a concentration level which presents an 10 15 increased cancer risk of less than one in ten thousand: 10 16 a. The most appropriate exposure scenarios based on 10 17 current or probable future residential, commercial, 10 18 industrial, or other industry accepted scenarios. 10 19 b. Exposure pathway characterizations including 10 20 contaminant sources, transport mechanisms, and exposure 10 21 pathways. 10 22 c. Affected human or environmental receptors and exposure 10 23 scenarios based on current or probable projected use 10 24 scenarios. 10 25 d. Risk-based corrective action assessment principles 10 26 which identify risk presented to the public health and safety 10 27 or the environment by each released hazardous substance in a 10 28 manner that will protect the public health and safety or the 10 29 environment using a tiered procedure consistent with American 10 30 society for testing of materials' standards applied to 10 31 nonpetroleum and petroleum hazardous substances. 10 32 e. Other relevant site-specific risk-related factors such 10 33 as the feasibility of available technologies, existing 10 34 background levels, current and planned future uses, 10 35 ecological, aesthetic, and other relevant criteria, and the 11 1 applicability and availability of technological and 11 2 institutional controls. 11 3 f. Cleanup shall not be required in an affected area that 11 4 does not present any of the following: 11 5 (1) An increased cancer risk at the point of exposure of 11 6 one in one million for residential areas or one in ten 11 7 thousand for nonresidential areas. 11 8 (2) An increased noncancer health risk at the point of 11 9 exposure of greater than one. 11 10 3. The concentration of a hazardous substance in an 11 11 environmental medium of concern at an affected area where the 11 12 site-specific standard has been selected shall not be required 11 13 to meet the site-specific standard if the site-specific 11 14 standard is numerically less than the background level. In 11 15 such cases, the background level shall apply. 11 16 4. Any participant electing to comply with site-specific 11 17 standards established by this section shall submit, as 11 18 appropriate, all of the following reports and evaluations for 11 19 review and approval by the department: 11 20 a. A site-specific risk assessment report and a cleanup 11 21 plan. The site-specific risk assessment report must include, 11 22 as appropriate, all of the following: 11 23 (1) Documentation and descriptions of procedures and 11 24 conclusions from the site investigation to characterize the 11 25 nature, extent, direction, rate of movement, volume, and 11 26 composition of hazardous substances. 11 27 (2) The concentration of hazardous substances in 11 28 environmental media of concern, including summaries of 11 29 sampling methodology and analytical results. 11 30 (3) A fate and transport analysis to demonstrate that no 11 31 exposure pathways exist. 11 32 If no exposure pathways exist, a risk assessment report and 11 33 a cleanup plan are not required and no remedy is required to 11 34 be proposed or completed. 11 35 b. A final report demonstrating compliance with site- 12 1 specific cleanup standards has been completed in accordance 12 2 with the cleanup plan. 12 3 c. This section does not preclude a participant from 12 4 submitting a site-specific risk assessment report and cleanup 12 5 plan at one time to the department for review. 12 6 5. Upon submission of either a site-specific risk 12 7 assessment report or a cleanup plan to the department, the 12 8 department shall notify the participant of any deficiencies in 12 9 the report or plan in a timely manner. 12 10 6. Owners and operators of underground storage tanks, 12 11 aboveground storage tanks, and pipelines which contain or have 12 12 contained petroleum or hazardous substances may, at their 12 13 election, utilize compliance with the corrective action rules 12 14 issued pursuant to chapter 455B, division IV, part 8, to 12 15 satisfy the requirements of this section. 12 16 Sec. 12. NEW SECTION. 455H.205 VARIANCES. 12 17 1. A participant may apply to the department for a 12 18 variance from any applicable provision of this chapter. 12 19 2. The department shall issue a variance from applicable 12 20 standards only if the participant demonstrates all of the 12 21 following: 12 22 a. The participant demonstrates either of the following: 12 23 (1) It is technically infeasible to comply with the 12 24 applicable standards. 12 25 (2) The cost of complying with the applicable standards 12 26 exceeds the benefits. 12 27 b. The proposed alternative standard or set of standards 12 28 in the terms and conditions set forth in the application will 12 29 result in an improvement of environmental conditions in the 12 30 affected area and ensure that the public health and safety 12 31 will be protected. 12 32 c. The establishment of and compliance with the 12 33 alternative standard or set of standards in the terms and 12 34 conditions is necessary to promote, protect, preserve, or 12 35 enhance employment opportunities or the reuse of the enrolled 13 1 site. 13 2 3. If requested by a participant, the department shall 13 3 issue a variance from any other provision of this chapter if 13 4 the department determines that the variance would be 13 5 consistent with the declaration of policy of this chapter and 13 6 is reasonable under the circumstances. 13 7 Sec. 13. NEW SECTION. 455H.206 INSTITUTIONAL AND 13 8 TECHNOLOGICAL CONTROLS. 13 9 1. In achieving compliance with the cleanup standards 13 10 under this chapter, a participant may use an institutional or 13 11 technological control. 13 12 2. An institutional or technological control includes any 13 13 of the following: 13 14 a. A state or federal law or regulation. 13 15 b. An ordinance of any political subdivision of the state. 13 16 c. A contractual obligation recorded and executed in a 13 17 manner satisfying chapter 558. 13 18 d. A control which the participant can demonstrate reduces 13 19 or manages the risk from a release through the period 13 20 necessary to comply with the applicable standards. 13 21 e. An environmental protection easement provided all of 13 22 the following occur: 13 23 (1) The easement names this state, acting through the 13 24 department of natural resources, as a grantee. 13 25 (2) The easement runs with the land, binding the owner of 13 26 the land and the owner's successors and assigns, and shall be 13 27 enforceable notwithstanding the lack of privity of estate or 13 28 contract or benefit to particular land. 13 29 (3) The easement is recorded in the office of the county 13 30 recorder and in any central registry which may be created by 13 31 the director. 13 32 3. If the use of an institutional or technological control 13 33 is confirmed in a no further action letter issued pursuant to 13 34 section 455H.302, the institutional or technological control 13 35 may be enforced in district court by the department, a 14 1 political subdivision of this state, the participant, or any 14 2 successor in interest to the participant. 14 3 4. An institutional or technological control may be 14 4 removed, discontinued, or terminated by the participant or a 14 5 successor in interest to the participant upon a demonstration 14 6 that the control no longer is required to assure that the 14 7 applicable standard is complied with. Upon such a 14 8 demonstration, the department shall amend its no further 14 9 action letter to eliminate the reference to the no-longer used 14 10 institutional or technological control. 14 11 Sec. 14. NEW SECTION. 455H.207 RESPONSE ACTION 14 12 PERMITTING REQUIREMENTS. 14 13 1. A participant who would be otherwise required to obtain 14 14 a permit, license, plan approval, or other approval from the 14 15 department under any provision of the Code may obtain a 14 16 consolidated standards permit for the activities in connection 14 17 with the response action for which the permit, license, plan 14 18 approval, or other approval is required. The consolidated 14 19 standards permit shall encompass all the substantive 14 20 requirements applicable to those activities under any 14 21 applicable federal or state statute, rule, or regulation and 14 22 any agreements the director had entered into with the United 14 23 States environmental protection agency under those statutes, 14 24 rules, or regulations. 14 25 2. In addition to any other notice requirements of 14 26 relevant chapters, at least ten days prior to issuing a permit 14 27 under this section, the director shall publish a notice of the 14 28 proposed permit which contains a general description of the 14 29 activities to be conducted in the affected area under the 14 30 permit. The notice shall be published in the official 14 31 newspaper, as designated by the county board of supervisors 14 32 pursuant to section 349.1, of the county in which the site is 14 33 located. A person may submit written or oral comments on or 14 34 objections to the permit. After considering the comments and 14 35 objections, the director shall approve or deny the application 15 1 for the consolidated standards permit. 15 2 3. A participant issued a consolidated standards permit 15 3 under this section in connection with a particular activity is 15 4 not required to obtain a permit, license, plan approval, or 15 5 other approval in connection with any activity under the 15 6 applicable provisions of the Code or rules. A participant who 15 7 obtains a consolidated standards permit for a particular 15 8 activity is deemed to be in compliance with the requirement to 15 9 obtain a permit, license, plan approval, or other approval in 15 10 connection with the activity under the applicable provisions 15 11 of the Code or rules. 15 12 SUBCHAPTER 3 15 13 EFFECTS OF PARTICIPATION 15 14 Sec. 15. NEW SECTION. 455H.301 EFFECTS OF PARTICIPATION 15 15 – GENERALLY. 15 16 A participant who undertakes a response action pursuant to 15 17 this chapter and demonstrates that the affected area complies 15 18 with applicable standards is entitled to all of the following: 15 19 1. A no further action letter issued by the department 15 20 pursuant to section 455H.302. 15 21 2. The benefits of a covenant not to sue arising as 15 22 provided in section 455H.303. 15 23 3. The benefits of the cessation of statutory liability as 15 24 provided in section 455H.304. 15 25 4. The other protections and benefits of this chapter. 15 26 Sec. 16. NEW SECTION. 455H.302 NO FURTHER ACTION 15 27 LETTERS. 15 28 1. Once a participant demonstrates that an affected area 15 29 meets applicable standards, the department shall promptly 15 30 issue a no further action letter to the participant. 15 31 2. The no further action letter must provide that the 15 32 participant and the protected parties are not required to 15 33 perform any further response action under the chapter or 15 34 similar action under any other statute on account of the 15 35 conditions addressed by the response action. The no further 16 1 action letter shall be invalidated if the department 16 2 demonstrates by clear, satisfactory, and convincing evidence 16 3 that fraud was committed in demonstrating compliance with a 16 4 standard at the affected area that resulted in avoiding the 16 5 need for further cleanup of the affected area. 16 6 3. The department shall provide, upon request, a no 16 7 further action letter as to the affected area to each 16 8 protected party. 16 9 4. The department shall condition the no further action 16 10 letter upon compliance with any institutional or technological 16 11 controls relied upon by the participant to demonstrate 16 12 compliance with the applicable standards. 16 13 5. A no further action letter shall be in a form 16 14 recordable in county real estate records as provided in 16 15 chapter 558. 16 16 Sec. 17. NEW SECTION. 455H.303 COVENANTS NOT TO SUE. 16 17 Upon issuance of a no further action letter pursuant to 16 18 section 455H.302, a covenant not to sue arises by operation of 16 19 law. The covenant releases the participant and each protected 16 20 party from all civil liability to the state to perform 16 21 additional assessment, remedial activity, response action, or 16 22 other activities at the affected area. 16 23 Sec. 18. NEW SECTION. 455H.304 CESSATION OF STATUTORY 16 24 LIABILITY. 16 25 Upon issuance of the no further action letter pursuant to 16 26 section 455H.302, the participant and each protected party 16 27 shall no longer have liability to the state or any other 16 28 person under chapters 455A, 455B, 455D, 455E, and 455G as to 16 29 any condition at the affected area associated with the release 16 30 of a hazardous substance which has been the subject of the 16 31 response action. 16 32 Sec. 19. NEW SECTION. 455H.305 LIMITATION OF LIABILITY. 16 33 1. As used in this section, unless the context requires 16 34 otherwise: 16 35 a. "Environmental harm" means injury, death, loss, or 17 1 threatened loss to a person or property caused by exposure to 17 2 or the release of a hazardous substance. 17 3 b. "Environmental claim" means a civil action for damages 17 4 for environmental harm and includes a civil action under this 17 5 chapter for recovery of the costs of conducting a response 17 6 action, but does not include a civil action for damages for a 17 7 breach of contract or another agreement between persons or for 17 8 a breach of a warranty that exists pursuant to the Code or 17 9 common law of this state. 17 10 2. Except as may be required in accordance with 17 11 obligations incurred pursuant to participation in the land 17 12 recycling program established in this chapter, all of the 17 13 following, or any officer or employee thereof, are relieved of 17 14 any further liability for any environmental claim resulting 17 15 from the presence of hazardous substances at, or the release 17 16 of hazardous substances from, an enrolled site where a 17 17 response action is being or has been conducted under this 17 18 chapter, unless an action or omission of the person, state 17 19 agency, political subdivision, or public utility, or an 17 20 officer or employee thereof, constitutes willful or wanton 17 21 misconduct or intentionally tortious conduct: 17 22 a. A contractor working for another person in conducting 17 23 any response action under this chapter. 17 24 b. A state agency or political subdivision that is 17 25 conducting a voluntary response action or a maintenance 17 26 activity on lands, easements, or rights-of-way owned, leased, 17 27 or otherwise held by the state agency or political 17 28 subdivision. 17 29 c. A state agency when an officer or employee of the state 17 30 agency provides technical assistance to a participant 17 31 undertaking a response action under this chapter or rules 17 32 adopted pursuant to this chapter, or to a contractor, officer, 17 33 or employee of the agency, in connection with the response 17 34 action. 17 35 d. A public utility, as defined in section 476.1, which is 18 1 performing work in any of the following: 18 2 (1) An easement or right-of-way of a public utility across 18 3 an affected area where a response action is being or has been 18 4 conducted and where the public utility is constructing or has 18 5 main or distribution lines above or below the surface of the 18 6 ground for purposes of maintaining the easement or right-of- 18 7 way for construction, repair, or replacement of any of the 18 8 following: 18 9 (a) Main or distribution lines above or below the surface 18 10 of the ground. 18 11 (b) Poles, towers, foundations, or other structures 18 12 supporting or sustaining any such lines. 18 13 (c) Appurtenances to poles, towers, foundations, or other 18 14 structures supporting or sustaining any such lines. 18 15 (2) An affected area where a response action is being 18 16 conducted that is necessary to establish or maintain utility 18 17 service to the property, including, without limitation, the 18 18 construction, repair, or replacement of any of the following: 18 19 (a) Main or distribution lines above or below the surface 18 20 of the ground. 18 21 (b) Poles, towers, foundations, or other structures 18 22 supporting or sustaining any such lines. 18 23 (c) Appurtenances to poles, towers, foundations, or other 18 24 structures supporting or sustaining any such lines. 18 25 3. This section does not create, and shall not be 18 26 construed to create, a new cause of action against or 18 27 substantive legal right against a person, state agency, 18 28 political subdivision, or public utility, or an officer or 18 29 employee thereof. 18 30 4. This section does not affect, and shall not be 18 31 construed as affecting, any immunities from civil liability or 18 32 defenses established by another section of the Code or 18 33 available at common law, to which a person, state agency, 18 34 political subdivision, or public utility, or officer or 18 35 employee thereof, may be entitled under circumstances not 19 1 covered by this section. 19 2 Sec. 20. NEW SECTION. 455H.306 PARTICIPATION NOT DEEMED 19 3 AN ADMISSION OF LIABILITY. 19 4 1. Enrolling a site pursuant to this chapter or 19 5 participating in a response action does not constitute an 19 6 admission of liability under the statutes of this state, the 19 7 rules adopted pursuant to the statutes, or the ordinances and 19 8 resolutions of a political subdivision, or an admission of 19 9 civil liability under the Code or common law of this state. 19 10 2. The fact that a person has become a participant in a 19 11 response action under this chapter is not admissible in any 19 12 civil, criminal, or administrative proceeding initiated or 19 13 brought under any law of this state other than to enforce this 19 14 chapter. 19 15 3. All information, documents, reports, data produced, and 19 16 any sample collected as a result of enrolling any property 19 17 under this chapter are not admissible against the person 19 18 undertaking the response action, and are not discoverable in 19 19 any civil or administrative proceeding against the participant 19 20 undertaking the response action except in a judicial or 19 21 administrative proceeding initiated to enforce this chapter in 19 22 connection with an alleged violation thereof. This 19 23 prohibition against admissibility does not apply to any person 19 24 whose covenant not to sue has been revoked under this chapter. 19 25 4. Enrolling a site pursuant to this chapter or 19 26 participating in a response action shall not be construed to 19 27 be an acknowledgment that the conditions at the affected area 19 28 identified and addressed by the response action constitute a 19 29 threat or danger to public health or safety or the 19 30 environment. 19 31 Sec. 21. NEW SECTION. 455H.307 LIABILITY PROTECTIONS. 19 32 The protections from liability afforded under this chapter 19 33 shall be in addition to the exclusions to any liability 19 34 protections afforded participants under any other provision of 19 35 the Code. 20 1 Sec. 22. NEW SECTION. 455H.308 LIABILITY FOR NEW 20 2 RELEASE. 20 3 Protections afforded in this chapter shall not relieve a 20 4 person from liability for a release of a hazardous substance 20 5 occurring at the enrolled site after the issuance of a no 20 6 further action letter. 20 7 SUBCHAPTER 4 20 8 LAND RECYCLING FUND 20 9 Sec. 23. NEW SECTION. 455H.401 LAND RECYCLING FUND. 20 10 1. A land recycling fund is created within the state 20 11 treasury under the control of the commission. Moneys received 20 12 from fees, general revenue, federal funds, gifts, bequests, 20 13 donations, or other moneys so designated shall be deposited in 20 14 the fund. Any unexpended balance in the land recycling fund 20 15 at the end of each fiscal year shall be retained in the fund, 20 16 notwithstanding section 8.33. 20 17 2. The commission may use the land recycling fund to 20 18 provide for all of the following: 20 19 a. Financial assistance to political subdivisions of the 20 20 state for activities related to an enrolled site. 20 21 b. Financial assistance and incentives for qualifying 20 22 enrolled sites. 20 23 c. Funding for any other purpose consistent with this 20 24 chapter and deemed appropriate by the commission. 20 25 SUBCHAPTER 5 20 26 MISCELLANEOUS PROVISIONS 20 27 Sec. 24. NEW SECTION. 455H.501 RULEMAKING. 20 28 In developing rules to implement this chapter, the 20 29 commission shall do all of the following: 20 30 1. Direct the department to work jointly with the 20 31 technical advisory committee. 20 32 2. Require that by July 1, 1998, the department and the 20 33 technical advisory committee submit rules to implement this 20 34 chapter and a report describing those rules to the commission. 20 35 3. Adopt rules to implement and administer this chapter by 21 1 October 1, 1998. 21 2 Sec. 25. NEW SECTION. 455H.502 TECHNICAL ADVISORY 21 3 COMMITTEE. 21 4 1. The technical advisory committee shall consist of all 21 5 of the following: 21 6 a. The chairperson of the Iowa environmental council or 21 7 the chairperson's designee. 21 8 b. The executive director of the consulting engineers 21 9 council or the executive director's designee. 21 10 c. The executive director of the Iowa association of 21 11 business and industry or the executive director's designee. 21 12 d. The executive director of the Iowa bankers association 21 13 or the executive director's designee. 21 14 e. The executive director of the agribusiness association 21 15 of Iowa or the executive director's designee. 21 16 f. The executive director of the Iowa association of 21 17 realtors or the executive director's designee. 21 18 g. The executive director of the Iowa league of cities or 21 19 the executive director's designee. 21 20 h. The director of the department of economic development 21 21 or the director's designee. 21 22 i. The executive director of the utility association or 21 23 the executive director's designee. 21 24 j. The executive director of the professional developers 21 25 of Iowa or the executive director's designee. 21 26 2. The technical advisory committee shall do all of the 21 27 following: 21 28 a. Work jointly with the department to develop rules to 21 29 implement this chapter. 21 30 b. Prepare with the department a joint report by January 21 31 1, 1998, for the general assembly regarding the status of the 21 32 rule drafting. 21 33 c. Prepare a joint report with the department regarding 21 34 the proposed rules to be submitted to the commission. 21 35 d. Select a chairperson and vice chairperson from among 22 1 its members to preside at its meetings. 22 2 e. Cease functioning once rules fully implementing this 22 3 chapter are in effect. 22 4 3. The members of the technical advisory committee shall 22 5 be reimbursed for their actual expenses in accordance with 22 6 section 7E.6, subsection 2, for performing the official duties 22 7 of the advisory committee. 22 8 Sec. 26. NEW SECTION. 455H.503 RECORDKEEPING 22 9 REQUIREMENTS. 22 10 The director shall maintain a record of the affected areas 22 11 or portion of affected areas for which no further action 22 12 letters were issued under section 455H.303 and which involve 22 13 institutional or technological controls that restrict the use 22 14 of any of the enrolled sites to comply with applicable 22 15 standards. The records pertaining to those sites shall 22 16 indicate the applicable use restrictions. 22 17 Sec. 27. NEW SECTION. 455H.504 TRANSFERABILITY OF 22 18 PARTICIPATION BENEFITS. 22 19 A no further action letter, a covenant not to sue, and any 22 20 agreement authorized to be entered into and entered into under 22 21 this chapter and the rules adopted pursuant to this chapter 22 22 may be transferred by the participant or a later recipient to 22 23 any other person by assignment or in conjunction with the 22 24 acquisition of title to the enrolled site to which the 22 25 document applies. 22 26 Sec. 28. NEW SECTION. 455H.505 EMERGENCY RESPONSE. 22 27 The provisions of this chapter shall not prevent or impede 22 28 the immediate response of the department or a participant to 22 29 an emergency which involves an imminent or actual release of a 22 30 hazardous substance which threatens public health and safety 22 31 or the environment. The emergency response action taken by 22 32 the participant shall comply with the provisions of this 22 33 chapter and the participant shall not be prejudiced by the 22 34 mitigation measures undertaken to that point. 22 35 Sec. 29. NEW SECTION. 455H.506 INTERIM RESPONSE. 23 1 The provisions of this chapter shall not prevent or impede 23 2 a participant from undertaking mitigation measures to prevent 23 3 significant impacts on human health or the environment. A 23 4 response action for the site shall not be prejudiced by the 23 5 mitigation measures undertaken prior to enrolling a property 23 6 in the land recycling program. The effects of any interim 23 7 mitigation measure shall be taken into account in the 23 8 department's evaluation of the participant's compliance with 23 9 applicable standards. 23 10 Sec. 30. NEW SECTION. 455H.507 TRANSITION FROM EXISTING 23 11 PROGRAMS. 23 12 Except for any enrolled site which is the subject of an 23 13 enforcement action by an agency of the state or the federal 23 14 government prior to the effective date of this Act, for any 23 15 property where actions similar to a response action have 23 16 commenced pursuant to any provision of chapter 455B prior to 23 17 the effective date of this Act, the person carrying out the 23 18 action shall elect within ninety days following the final 23 19 adoption of rules implementing this chapter to either continue 23 20 to proceed in accordance with the laws and rules in effect 23 21 prior to the effective date of this Act or to proceed pursuant 23 22 to this chapter. 23 23 Sec. 31. NEW SECTION. 455H.508 PARTICIPANT SHIELD. 23 24 A participant shall not be subject to either a civil 23 25 enforcement action by an agency of this state or a political 23 26 subdivision of this state, or an action filed pursuant to 23 27 section 455B.112 regarding any release, response action, or 23 28 condition which is the subject of the response action. This 23 29 protection is contingent on the participant proceeding on a 23 30 due and timely basis to carry out the response action. 23 31 Sec. 32. NEW SECTION. 455H.509 REMOVAL OF A SITE FROM 23 32 THE REGISTRY LISTING. 23 33 An enrolled site listed on the registry of confirmed 23 34 hazardous waste or hazardous substance disposal sites, 23 35 established pursuant to section 455B.426, which has completed 24 1 a response action as to the conditions which led to its 24 2 original listing on the registry, shall be removed from the 24 3 registry listing, once a letter of no further action has been 24 4 issued pursuant to section 455H.302. 24 5 Sec. 33. NEW SECTION. 455H.510 RELATIONSHIP TO FEDERAL 24 6 PROGRAMS. 24 7 The provisions of this chapter shall not prevent the 24 8 department from enforcing both specific numerical cleanup 24 9 standards and monitoring of compliance requirements 24 10 specifically required to be enforced by the federal government 24 11 as a condition of the receipt of program authorization, 24 12 delegation, primacy, or federal funds. 24 13 Sec. 34. NEW SECTION. 455H.511 FEDERAL STRINGENCY. 24 14 Any rules or standards established pursuant to this chapter 24 15 shall be no more stringent than those required under any 24 16 comparable federal law or regulation. 24 17 Sec. 35. NEW SECTION. 455H.512 STATUTORY CONSTRUCTION. 24 18 The terms and provisions of this chapter shall be construed 24 19 liberally to effect the intentions of the chapter in a manner 24 20 to enhance the economic and social well-being of the people of 24 21 the state. 24 22 EXPLANATION 24 23 This bill creates a new chapter 455H in the Code to be 24 24 known as the "Iowa Land Recycling and Environmental 24 25 Remediation Standards Act". The chapter is divided into five 24 26 subchapters. 24 27 In subchapter one, the bill states, as a declaration of 24 28 policy, all of the following: 24 29 1. There is real property in Iowa which is contaminated 24 30 and which could be cleaned up and reused. 24 31 2. There should be incentives to encourage the voluntary 24 32 cleanup of such property. 24 33 3. After the remediation of such property, safe reuse of 24 34 the property should be encouraged. 24 35 4. The general assembly needs to address these goals 25 1 through legislation. 25 2 5. Cleanup plans should be based on the actual risk that 25 3 contamination on the site may pose to the public health and 25 4 safety or the environment, not on cleanup policies which 25 5 require every site in Iowa to be returned to a pristine 25 6 condition. 25 7 Under the bill, the environmental protection commission is 25 8 required to adopt rules to administer the chapter. The 25 9 department of natural resources is required to do both of the 25 10 following: 25 11 1. Enter into agreements or issue orders in connection 25 12 with the enrollment of property into a program. 25 13 2. Issue no further action letters upon the demonstration 25 14 of compliance with applicable standards. 25 15 The bill also establishes the land recycling program. Any 25 16 person may enroll property in the program to carry out a 25 17 response action. The department shall enroll property for 25 18 which it has received notification of enrollment. The 25 19 department shall also enroll property for which there has been 25 20 an agreed-upon order issued, provided that the participant has 25 21 agreed to carry out a response action and to reimburse the 25 22 department for actual costs incurred by the department in 25 23 reviewing documents submitted as a part of the enrollment of 25 24 the site, not to exceed $7,500 per site. The department shall 25 25 issue a no further action letter when compliance is completed. 25 26 Upon notification by the participant, an enrolled site may be 25 27 withdrawn from the program at any time. 25 28 In subchapter 2, the bill provides that a participant must 25 29 carry out response actions which assure that conditions in the 25 30 affected area comply with any of the following standards: 25 31 background standards, statewide standards, or site-specific 25 32 cleanup standards. All standards are to be jointly developed 25 33 by the department and the technical advisory committee. A 25 34 participant may use any combination of the standards and may 25 35 propose to use the site-specific cleanup standards only. 26 1 Until the standards are adopted by the commission, the bill 26 2 provides that a participant may use the procedures set out in 26 3 the department's rules implementing risk-based corrective 26 4 action for underground storage tanks and, where relevant, the 26 5 United States environmental protection agency's guidance 26 6 regarding risk assessment for superfund sites. The bill 26 7 provides for how compliance with these standards will be 26 8 documented. 26 9 The bill provides for factors to be considered in the 26 10 development of site-specific cleanup standards, including 26 11 exposure scenarios, exposure pathway characterizations, risk- 26 12 based corrective action assessment principles, and other 26 13 relevant site-specific factors. A variance from an applicable 26 14 standard may be granted by the department if the participant 26 15 meets certain specified requirements. Institutional and 26 16 technological controls may be used by a participant to comply 26 17 with cleanup standards. The bill also provides that a 26 18 participant who is otherwise required to obtain a permit, 26 19 license, plan approval, or other approval under the Code may 26 20 obtain a consolidated standards permit for which those 26 21 permits, licenses, plan approvals, or other approvals are 26 22 required. 26 23 In subchapter 3, the bill provides that when a participant 26 24 demonstrates that the affected area meets applicable 26 25 standards, the department is required to issue a no further 26 26 action letter. This letter shall include a statement that no 26 27 further response action is necessary. The letter shall be 26 28 invalidated if the department demonstrates by clear, 26 29 satisfactory, and convincing evidence that fraud was committed 26 30 in demonstrating compliance with a standard. Institutional or 26 31 technological controls relied upon by the participant shall be 26 32 identified in the letter. The letter shall be recorded in the 26 33 county real estate records. The participant is entitled to a 26 34 covenant not to sue by operation of law upon the issuance of a 26 35 no further action letter. A no further action letter also 27 1 entitles the participant to a cessation of statutory liability 27 2 as to any condition at the affected area associated with the 27 3 release of a hazardous substance which has been the subject of 27 4 the response action. 27 5 The bill defines certain liability protections and defines 27 6 the circumstances under which those protections are not 27 7 available. The bill also limits both the admissibility of 27 8 participation in a response action and the ability to discover 27 9 any information produced during participation in any civil, 27 10 criminal, or administrative proceeding. 27 11 In subchapter 4, the bill establishes a land recycling fund 27 12 within the state treasury. The fund shall consist of moneys 27 13 received from fees, general revenue, federal funds, gifts, 27 14 bequests, donations, or other moneys so designated. 27 15 Unexpended balances in the fund at the end of a fiscal year 27 16 are retained in the fund. The bill provides that the fund may 27 17 be used to provide for all of the following: 27 18 1. Financial assistance to political subdivisions of the 27 19 state for activities related to an enrolled site. 27 20 2. Financial assistance and incentives for qualifying 27 21 enrolled sites. 27 22 3. Funding for any other purpose consistent with the 27 23 chapter. 27 24 In subchapter 5, the bill establishes the technical 27 25 advisory committee and provides that it is to work jointly 27 26 with the department to prepare rules to implement the chapter. 27 27 Submission to the commission of the rules and a joint report 27 28 describing the rules is required by July 1, 1998. 27 29 The bill includes provisions regarding recordkeeping and 27 30 the ability of a recipient to transfer a no further action 27 31 letter, a covenant not to sue, and any other agreement entered 27 32 into under this chapter. The bill also provides miscellaneous 27 33 provisions relating to emergency response, interim response, 27 34 transition from existing programs, protection of a participant 27 35 from enforcement actions by the state, removal of a site from 28 1 the registry of confirmed hazardous waste or hazardous 28 2 substance disposal sites listing, the relationship of the 28 3 chapter to federal programs and funding, federal stringency, 28 4 and statutory construction. 28 5 LSB 2305YH 77 28 6 tm/jw/5
Text: HF00389 Text: HF00391 Text: HF00300 - HF00399 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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