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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 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 4. Adopt rules requiring all participants to submit a site 5 23 cleanup assessment to the department prior to the enrollment 5 24 of any property. The site cleanup assessment shall be paid 5 25 for by the participant and completed by a groundwater 5 26 professional certified pursuant to section 455G.18. 5 27 Sec. 6. NEW SECTION. 455H.106 AUTHORITY OF THE 5 28 DEPARTMENT. 5 29 The department shall do all of the following: 5 30 1. Enter into agreements or issue orders in connection 5 31 with the enrollment of property into a program established 5 32 pursuant to this chapter. 5 33 2. Issue no further action letters upon the demonstration 5 34 of compliance with applicable standards for an affected area 5 35 by a participant. 6 1 3. Enter into agreements or issue orders providing for 6 2 institutional and technological controls to assure compliance 6 3 with applicable standards pursuant to this chapter. 6 4 Sec. 7. NEW SECTION. 455H.107 LAND RECYCLING PROGRAM. 6 5 1. A person may enroll property in the land recycling 6 6 program pursuant to this chapter to carry out a response 6 7 action by providing written notice to the department. 6 8 2. The department shall enroll all of the following in the 6 9 land recycling program: 6 10 a. A property for which the department has received 6 11 written notice of enrollment from a participant. 6 12 b. A property for which the department has issued an order 6 13 to enroll the property agreed to by the participant provided 6 14 that the participant has executed a standard agreement with 6 15 the department to carry out the response action. This 6 16 agreement shall include unlimited access to the enrolled site. 6 17 3. All participants shall enter into an agreement with the 6 18 department to reimburse the department for actual costs 6 19 incurred by the department in reviewing documents submitted as 6 20 a part of the enrollment of the site. This fee shall not 6 21 exceed seven thousand five hundred dollars per enrolled site. 6 22 4. All of the following shall not be enrolled in the land 6 23 recycling program: 6 24 a. Property for which corrective action has been taken 6 25 under chapter 455G. 6 26 b. Property for which there has been or will be a removal, 6 27 remedial action, or response under the federal Comprehensive 6 28 Environmental Response, Compensation, and Liability Act, 42 6 29 U.S.C. } 9601 et seq. 6 30 c. Property which has previously been enrolled in the land 6 31 recycling program under this chapter. 6 32 5. If the site cleanup assessment demonstrates that the 6 33 release on the enrolled site has affected additional property, 6 34 all property, which is shown to be affected by the release on 6 35 the enrolled site, shall be enrolled in addition to the 7 1 enrolled site. 7 2 6. Following enrollment of the property in the land 7 3 recycling program, the participant shall proceed on a timely 7 4 basis to carry out response actions in accordance with the 7 5 rules implementing this chapter. 7 6 7. Once the participant has demonstrated the affected area 7 7 is in compliance with the standards described in subchapter 2, 7 8 the department shall proceed on a timely basis and issue a no 7 9 further action letter pursuant to section 455H.302. 7 10 8. The participant may withdraw the enrolled site from 7 11 further participation in the land recycling program at any 7 12 time upon written notice to the department. Any participant 7 13 who withdraws an enrolled site from further participation in 7 14 the program shall not be entitled to any refund or credit for 7 15 the enrollment fee paid pursuant to this section. 7 16 SUBCHAPTER 2 7 17 RESPONSE ACTION STANDARDS AND REVIEW PROCEDURES 7 18 Sec. 8. NEW SECTION. 455H.201 CLEANUP STANDARDS. 7 19 1. A participant carrying out a response action shall take 7 20 such response actions as necessary to assure that conditions 7 21 in the affected area comply with any of the following, as 7 22 applicable: 7 23 a. Background standards established pursuant to section 7 24 455H.202. 7 25 b. Statewide standards established pursuant to section 7 26 455H.203. 7 27 c. Site-specific cleanup standards established pursuant to 7 28 section 455H.204. 7 29 2. A participant may use a combination of these standards 7 30 to implement a site remediation plan and may propose to use 7 31 the site-specific cleanup standards whether or not efforts 7 32 have been made to comply with the background or statewide 7 33 standards. 7 34 3. For the purposes of determining compliance with any one 7 35 or a combination of the standards, the concentration of a 8 1 hazardous substance at the affected area shall not be required 8 2 to be less than the practical quantitation limit for the 8 3 hazardous substance. 8 4 4. Until rules setting out requirements for background 8 5 standards, statewide standards, or site-specific cleanup 8 6 standards are finally adopted by the commission and effective, 8 7 participants may utilize site-specific cleanup standards for 8 8 any hazardous substance utilizing the procedures set out in 8 9 the department's rules implementing risk-based corrective 8 10 action for underground storage tanks and, where relevant, the 8 11 United States environmental protection agency's guidance 8 12 regarding risk assessment for superfund sites. 8 13 5. The standards may be complied with through a 8 14 combination of response actions that may include, but are not 8 15 limited to, treatment, removal, technological or institutional 8 16 controls, and natural attenuation and other natural 8 17 mechanisms, and can include the use of innovative or other 8 18 demonstrated measures. 8 19 Sec. 9. NEW SECTION. 455H.202 BACKGROUND STANDARDS. 8 20 1. Methods to identify background levels shall be jointly 8 21 developed by the department and the technical advisory 8 22 committee. The background standard for the affected area 8 23 shall be the background levels for the affected area. 8 24 2. The demonstration that the affected area meets the 8 25 background standard shall be documented by the participant in 8 26 the following manner: 8 27 a. Compliance with the background standard shall be 8 28 demonstrated by collection and analysis of representative 8 29 samples from environmental media of concern. 8 30 b. A final report that documents compliance with the 8 31 background standard shall be submitted to the department and 8 32 shall include, as appropriate, all of the following: 8 33 (1) A description of procedures and conclusions of the 8 34 site investigation to characterize the nature, extent, 8 35 direction, volume, and composition of hazardous substances. 9 1 (2) The basis for selecting environmental media of 9 2 concern, descriptions of removal or decontamination procedures 9 3 performed in remediation, and summaries of sampling 9 4 methodology and analytical results which demonstrate that the 9 5 background standard has been complied with. 9 6 (3) The basis for determining the background levels. 9 7 Sec. 10. NEW SECTION. 455H.203 STATEWIDE STANDARDS. 9 8 1. Statewide standards shall be jointly developed by the 9 9 department and the technical advisory committee. 9 10 2. In establishing these standards, all of the following 9 11 shall be considered: 9 12 a. Separate standards shall be established for hazardous 9 13 substances in soil, in groundwater which is a protected 9 14 groundwater source, and in groundwater which is not a 9 15 protected groundwater source. 9 16 b. In groundwater which is a protected groundwater source, 9 17 the standards shall be no more protective than the least 9 18 restrictive of the maximum contaminant levels established 9 19 pursuant to the department's drinking water standards, a 9 20 standard reflecting an increased cancer risk of one in one 9 21 million, or a standard reflecting a noncancer health risk of 9 22 one. An affected area shall not be required to be cleaned up 9 23 to concentration levels below or more restrictive than 9 24 background levels. 9 25 c. In groundwater which is not a protected groundwater 9 26 source, the standards shall be no more protective than the 9 27 least restrictive of a standard reflecting an increased cancer 9 28 risk of one in ten thousand or a standard reflecting a 9 29 noncancer health risk of one. An affected area shall not be 9 30 required to be cleaned up to levels below or more restrictive 9 31 than background levels. 9 32 d. In soil, the standards shall be no more protective than 9 33 the least restrictive of a standard reflecting an increased 9 34 cancer risk of one in one million or a standard reflecting a 9 35 noncancer health risk of one. An affected area shall not be 10 1 required to be cleaned up to concentration levels below or 10 2 more restrictive than background levels. 10 3 3. The demonstration that the affected area meets the 10 4 statewide standard shall be documented by the participant, as 10 5 appropriate, in the following manner: 10 6 a. Compliance with cleanup levels shall be demonstrated by 10 7 collection and analysis of representative samples from the 10 8 environmental medium of concern. 10 9 b. A final report that documents compliance with the 10 10 statewide standard shall be submitted to the department which 10 11 includes, as appropriate, the descriptions of procedures and 10 12 conclusions of the site investigation to characterize the 10 13 nature, extent, direction, rate of movement at the site and 10 14 cumulative effects, if any, volume, composition, and 10 15 concentration of hazardous substances in environmental media, 10 16 the basis for selecting environmental media of concern, 10 17 documentation supporting the selection of residential or 10 18 nonresidential exposure factors, descriptions of removal or 10 19 treatment procedures performed in remediation, and summaries 10 20 of sampling methodology and analytical results which 10 21 demonstrate that hazardous substances have been removed or 10 22 treated to applicable levels. 10 23 Sec. 11. NEW SECTION. 455H.204 SITE-SPECIFIC CLEANUP 10 24 STANDARDS. 10 25 1. Procedures to establish site-specific cleanup standards 10 26 shall be jointly developed by the department and the technical 10 27 advisory committee. 10 28 2. Site-specific cleanup standards and appropriate 10 29 response actions shall take into account all of the following 10 30 provided, however, that an affected area shall not be required 10 31 to be cleaned up to levels below or more restrictive than 10 32 background levels, and in groundwater which is not a protected 10 33 groundwater source, to a concentration level which presents an 10 34 increased cancer risk of less than one in ten thousand: 10 35 a. The most appropriate exposure scenarios based on 11 1 current or probable future residential, commercial, 11 2 industrial, or other industry accepted scenarios. 11 3 b. Exposure pathway characterizations including 11 4 contaminant sources, transport mechanisms, and exposure 11 5 pathways. 11 6 c. Affected human or environmental receptors and exposure 11 7 scenarios based on current or probable projected use 11 8 scenarios. 11 9 d. Risk-based corrective action assessment principles 11 10 which identify risks presented to the public health and safety 11 11 or the environment by each released hazardous substance in a 11 12 manner that will protect the public health and safety or the 11 13 environment using a tiered procedure consistent with the 11 14 American society for testing of materials' standards applied 11 15 to nonpetroleum and petroleum hazardous substances. 11 16 e. Other relevant site-specific risk-related factors such 11 17 as the feasibility of available technologies, existing 11 18 background levels, current and planned future uses, 11 19 ecological, aesthetic, and other relevant criteria, and the 11 20 applicability and availability of technological and 11 21 institutional controls. 11 22 f. Cleanup shall not be required in an affected area that 11 23 does not present any of the following: 11 24 (1) An increased cancer risk at the point of exposure of 11 25 one in one million for residential areas or one in ten 11 26 thousand for nonresidential areas. 11 27 (2) An increased noncancer health risk at the point of 11 28 exposure of greater than one. 11 29 3. The concentration of a hazardous substance in an 11 30 environmental medium of concern at an affected area where the 11 31 site-specific standard has been selected shall not be required 11 32 to meet the site-specific standard if the site-specific 11 33 standard is numerically less than the background level. In 11 34 such cases, the background level shall apply. 11 35 4. Any participant electing to comply with site-specific 12 1 standards established by this section shall submit, as 12 2 appropriate, all of the following reports and evaluations for 12 3 review and approval by the department: 12 4 a. A site-specific risk assessment report and a cleanup 12 5 plan. The site-specific risk assessment report must include, 12 6 as appropriate, all of the following: 12 7 (1) Documentation and descriptions of procedures and 12 8 conclusions from the site investigation to characterize the 12 9 nature, extent, direction, rate of movement, volume, and 12 10 composition of hazardous substances. 12 11 (2) The concentration of hazardous substances in 12 12 environmental media of concern, including summaries of 12 13 sampling methodology and analytical results. 12 14 (3) A fate and transport analysis to demonstrate that no 12 15 exposure pathways exist. 12 16 If no exposure pathways exist, a risk assessment report and 12 17 a cleanup plan are not required and no remedy is required to 12 18 be proposed or completed. 12 19 b. A final report demonstrating compliance with site- 12 20 specific cleanup standards has been completed in accordance 12 21 with the cleanup plan. 12 22 c. This section does not preclude a participant from 12 23 submitting a site-specific risk assessment report and cleanup 12 24 plan at one time to the department for review. 12 25 5. Upon submission of either a site-specific risk 12 26 assessment report or a cleanup plan to the department, the 12 27 department shall notify the participant of any deficiencies in 12 28 the report or plan in a timely manner. 12 29 6. Owners and operators of underground storage tanks, 12 30 aboveground storage tanks, and pipelines which contain or have 12 31 contained petroleum or hazardous substances may, at their 12 32 election, utilize compliance with the corrective action rules 12 33 issued pursuant to chapter 455B, division IV, part 8, to 12 34 satisfy the requirements of this section. 12 35 Sec. 12. NEW SECTION. 455H.205 VARIANCES. 13 1 1. A participant may apply to the department for a 13 2 variance from any applicable provision of this chapter. 13 3 2. The department shall issue a variance from applicable 13 4 standards only if the participant demonstrates all of the 13 5 following: 13 6 a. The participant demonstrates either of the following: 13 7 (1) It is technically infeasible to comply with the 13 8 applicable standards. 13 9 (2) The cost of complying with the applicable standards 13 10 exceeds the benefits. 13 11 b. The proposed alternative standard or set of standards 13 12 in the terms and conditions set forth in the application will 13 13 result in an improvement of environmental conditions in the 13 14 affected area and ensure that the public health and safety 13 15 will be protected. 13 16 c. The establishment of and compliance with the 13 17 alternative standard or set of standards in the terms and 13 18 conditions is necessary to promote, protect, preserve, or 13 19 enhance employment opportunities or the reuse of the enrolled 13 20 site. 13 21 3. If requested by a participant, the department shall 13 22 issue a variance from any other provision of this chapter if 13 23 the department determines that the variance would be 13 24 consistent with the declaration of policy of this chapter and 13 25 is reasonable under the circumstances. 13 26 Sec. 13. NEW SECTION. 455H.206 INSTITUTIONAL AND 13 27 TECHNOLOGICAL CONTROLS. 13 28 1. In achieving compliance with the cleanup standards 13 29 under this chapter, a participant may use an institutional or 13 30 technological control. 13 31 2. An institutional or technological control includes any 13 32 of the following: 13 33 a. A state or federal law or regulation. 13 34 b. An ordinance of any political subdivision of the state. 13 35 c. A contractual obligation recorded and executed in a 14 1 manner satisfying chapter 558. 14 2 d. A control which the participant can demonstrate reduces 14 3 or manages the risk from a release through the period 14 4 necessary to comply with the applicable standards. 14 5 3. Participants shall obtain an environmental protection 14 6 easement which must provide all of the following: 14 7 a. The easement names this state, acting through the 14 8 department of natural resources, as a grantee. 14 9 b. The easement runs with the land, binding the owner of 14 10 the land and the owner's successors and assigns, and shall be 14 11 enforceable notwithstanding the lack of privity of estate or 14 12 contract or benefit to particular land. 14 13 c. The easement is recorded in the office of the county 14 14 recorder and in any central registry which may be created by 14 15 the director. 14 16 d. The easement limits the use of the property to 14 17 industrial or commercial use. 14 18 4. If the use of an institutional or technological control 14 19 is confirmed in a no further action letter issued pursuant to 14 20 section 455H.302, the institutional or technological control 14 21 may be enforced in district court by the department, a 14 22 political subdivision of this state, the participant, or any 14 23 successor in interest to the participant. 14 24 5. An institutional or technological control, except for 14 25 an environmental protection easement, may be removed, 14 26 discontinued, or terminated by the participant or a successor 14 27 in interest to the participant upon a demonstration that the 14 28 control no longer is required to assure compliance with the 14 29 applicable standard. Upon such a demonstration, the 14 30 department shall amend its no further action letter to 14 31 eliminate the reference to the no-longer used institutional or 14 32 technological control. 14 33 6. The department may approve the removal, discontinuance, 14 34 or termination of an environmental protection easement upon 14 35 sufficient demonstration by the owner or the owner's 15 1 successors and assigns that a voluntary response action has 15 2 been taken which resulted in the applicable standards being 15 3 significantly exceeded. Upon such a demonstration, the 15 4 department shall amend its no further action letter to 15 5 eliminate the reference to the environmental protection 15 6 easement. 15 7 Sec. 14. NEW SECTION. 455H.207 RESPONSE ACTION 15 8 PERMITTING REQUIREMENTS. 15 9 1. A participant who would be otherwise required to obtain 15 10 a permit, license, plan approval, or other approval from the 15 11 department under any provision of the Code may obtain a 15 12 consolidated standards permit for the activities in connection 15 13 with the response action for which the permit, license, plan 15 14 approval, or other approval is required. The consolidated 15 15 standards permit shall encompass all the substantive 15 16 requirements applicable to those activities under any 15 17 applicable federal or state statute, rule, or regulation and 15 18 any agreements the director had entered into with the United 15 19 States environmental protection agency under those statutes, 15 20 rules, or regulations. 15 21 2. In addition to any other notice requirements of 15 22 relevant chapters, at least ten days prior to issuing a permit 15 23 under this section, the director shall publish a notice of the 15 24 proposed permit which contains a general description of the 15 25 activities to be conducted in the affected area under the 15 26 permit. The notice shall be published in the official 15 27 newspaper, as designated by the county board of supervisors 15 28 pursuant to section 349.1, of the county in which the site is 15 29 located. A person may submit written or oral comments on or 15 30 objections to the permit. After considering the comments and 15 31 objections, the director shall approve or deny the application 15 32 for the consolidated standards permit. 15 33 3. A participant issued a consolidated standards permit 15 34 under this section in connection with a particular activity is 15 35 not required to obtain a permit, license, plan approval, or 16 1 other approval in connection with any activity under the 16 2 applicable provisions of the Code or rules. A participant who 16 3 obtains a consolidated standards permit for a particular 16 4 activity is deemed to be in compliance with the requirement to 16 5 obtain a permit, license, plan approval, or other approval in 16 6 connection with the activity under the applicable provisions 16 7 of the Code or rules. 16 8 SUBCHAPTER 3 16 9 EFFECTS OF PARTICIPATION 16 10 Sec. 15. NEW SECTION. 455H.301 EFFECTS OF PARTICIPATION 16 11 – GENERALLY. 16 12 A participant who undertakes a response action pursuant to 16 13 this chapter and demonstrates that the affected area complies 16 14 with applicable standards is entitled to all of the following: 16 15 1. A no further action letter issued by the department 16 16 pursuant to section 455H.302. 16 17 2. The benefits of a covenant not to sue arising as 16 18 provided in section 455H.303. 16 19 3. The benefits of the cessation of statutory liability as 16 20 provided in section 455H.304. 16 21 4. The other protections and benefits of this chapter. 16 22 Sec. 16. NEW SECTION. 455H.302 NO FURTHER ACTION 16 23 LETTERS. 16 24 1. Once a participant demonstrates that an affected area 16 25 meets applicable standards, the department shall promptly 16 26 issue a no further action letter to the participant. 16 27 2. The no further action letter must provide that the 16 28 participant and the protected parties are not required to 16 29 perform any further response action under the chapter or 16 30 similar action under any other statute on account of the 16 31 conditions addressed by the response action. The no further 16 32 action letter shall be invalidated if the department 16 33 demonstrates by clear, satisfactory, and convincing evidence 16 34 that fraud was committed in demonstrating compliance with a 16 35 standard at the affected area that resulted in avoiding the 17 1 need for further cleanup of the affected area. 17 2 3. The department shall provide, upon request, a no 17 3 further action letter as to the affected area to each 17 4 protected party. 17 5 4. The department shall condition the no further action 17 6 letter upon compliance with any institutional or technological 17 7 controls relied upon by the participant to demonstrate 17 8 compliance with the applicable standards. 17 9 5. A no further action letter shall be in a form 17 10 recordable in county real estate records as provided in 17 11 chapter 558. 17 12 Sec. 17. NEW SECTION. 455H.303 COVENANTS NOT TO SUE. 17 13 Upon issuance of a no further action letter pursuant to 17 14 section 455H.302, a covenant not to sue arises by operation of 17 15 law. The covenant releases the participant and each protected 17 16 party from all civil liability to the state to perform 17 17 additional assessment, remedial activity, response action, or 17 18 other activities at the affected area. 17 19 Sec. 18. NEW SECTION. 455H.304 CESSATION OF STATUTORY 17 20 LIABILITY. 17 21 Upon issuance of the no further action letter pursuant to 17 22 section 455H.302, the participant and each protected party 17 23 shall no longer have liability to the state or any other 17 24 person under chapters 455A, 455B, 455D, 455E, and 455G as to 17 25 any condition at the affected area associated with the release 17 26 of a hazardous substance which has been the subject of the 17 27 response action. 17 28 Sec. 19. NEW SECTION. 455H.305 LIMITATION OF LIABILITY. 17 29 1. As used in this section, unless the context requires 17 30 otherwise: 17 31 a. "Environmental harm" means injury, death, loss, or 17 32 threatened loss to a person or property caused by exposure to 17 33 or the release of a hazardous substance. 17 34 b. "Environmental claim" means a civil action for damages 17 35 for environmental harm and includes a civil action under this 18 1 chapter for recovery of the costs of conducting a response 18 2 action, but does not include a civil action for damages for a 18 3 breach of contract or another agreement between persons or for 18 4 a breach of a warranty that exists pursuant to the Code or 18 5 common law of this state. 18 6 2. Except as may be required in accordance with 18 7 obligations incurred pursuant to participation in the land 18 8 recycling program established in this chapter, all of the 18 9 following, or any officer or employee thereof, are relieved of 18 10 any further liability for any environmental claim resulting 18 11 from the presence of hazardous substances at, or the release 18 12 of hazardous substances from, an enrolled site where a 18 13 response action is being or has been conducted under this 18 14 chapter, unless an action or omission of the person, state 18 15 agency, political subdivision, or public utility, or an 18 16 officer or employee thereof, constitutes willful or wanton 18 17 misconduct or intentionally tortious conduct: 18 18 a. A contractor working for another person in conducting 18 19 any response action under this chapter. 18 20 b. A state agency or political subdivision that is 18 21 conducting a voluntary response action or a maintenance 18 22 activity on lands, easements, or rights-of-way owned, leased, 18 23 or otherwise held by the state agency or political 18 24 subdivision. 18 25 c. A state agency when an officer or employee of the state 18 26 agency provides technical assistance to a participant 18 27 undertaking a response action under this chapter or rules 18 28 adopted pursuant to this chapter, or to a contractor, officer, 18 29 or employee of the agency, in connection with the response 18 30 action. 18 31 d. A public utility, as defined in section 476.1, which is 18 32 performing work in any of the following: 18 33 (1) An easement or right-of-way of a public utility across 18 34 an affected area where a response action is being or has been 18 35 conducted and where the public utility is constructing or has 19 1 main or distribution lines above or below the surface of the 19 2 ground for purposes of maintaining the easement or right-of- 19 3 way for construction, repair, or replacement of any of the 19 4 following: 19 5 (a) Main or distribution lines above or below the surface 19 6 of the ground. 19 7 (b) Poles, towers, foundations, or other structures 19 8 supporting or sustaining any such lines. 19 9 (c) Appurtenances to poles, towers, foundations, or other 19 10 structures supporting or sustaining any such lines. 19 11 (2) An affected area where a response action is being 19 12 conducted that is necessary to establish or maintain utility 19 13 service to the property, including, without limitation, the 19 14 construction, repair, or replacement of any of the following: 19 15 (a) Main or distribution lines above or below the surface 19 16 of the ground. 19 17 (b) Poles, towers, foundations, or other structures 19 18 supporting or sustaining any such lines. 19 19 (c) Appurtenances to poles, towers, foundations, or other 19 20 structures supporting or sustaining any such lines. 19 21 3. This section does not create, and shall not be 19 22 construed to create, a new cause of action against or 19 23 substantive legal right against a person, state agency, 19 24 political subdivision, or public utility, or an officer or 19 25 employee thereof. 19 26 4. This section does not affect, and shall not be 19 27 construed as affecting, any immunities from civil liability or 19 28 defenses established by another section of the Code or 19 29 available at common law, to which a person, state agency, 19 30 political subdivision, or public utility, or officer or 19 31 employee thereof, may be entitled under circumstances not 19 32 covered by this section. 19 33 Sec. 20. NEW SECTION. 455H.306 PARTICIPATION NOT DEEMED 19 34 AN ADMISSION OF LIABILITY. 19 35 1. Enrolling a site pursuant to this chapter or 20 1 participating in a response action does not constitute an 20 2 admission of liability under the statutes of this state, the 20 3 rules adopted pursuant to the statutes, or the ordinances and 20 4 resolutions of a political subdivision, or an admission of 20 5 civil liability under the Code or common law of this state. 20 6 2. The fact that a person has become a participant in a 20 7 response action under this chapter is not admissible in any 20 8 civil, criminal, or administrative proceeding initiated or 20 9 brought under any law of this state other than to enforce this 20 10 chapter. 20 11 3. All information, documents, reports, data produced, and 20 12 any sample collected as a result of enrolling any property 20 13 under this chapter are not admissible against the person 20 14 undertaking the response action, and are not discoverable in 20 15 any civil or administrative proceeding against the participant 20 16 undertaking the response action except in a judicial or 20 17 administrative proceeding initiated to enforce this chapter in 20 18 connection with an alleged violation thereof. This 20 19 prohibition against admissibility does not apply to any person 20 20 whose covenant not to sue has been revoked under this chapter. 20 21 4. Enrolling a site pursuant to this chapter or 20 22 participating in a response action shall not be construed to 20 23 be an acknowledgment that the conditions at the affected area 20 24 identified and addressed by the response action constitute a 20 25 threat or danger to public health or safety or the 20 26 environment. 20 27 Sec. 21. NEW SECTION. 455H.307 LIABILITY PROTECTIONS. 20 28 The protections from liability afforded under this chapter 20 29 shall be in addition to the exclusions to any liability 20 30 protections afforded participants under any other provision of 20 31 the Code. 20 32 Sec. 22. NEW SECTION. 455H.308 LIABILITY FOR NEW 20 33 RELEASE. 20 34 Protections afforded in this chapter shall not relieve a 20 35 person from liability for a release of a hazardous substance 21 1 occurring at the enrolled site after the issuance of a no 21 2 further action letter. 21 3 SUBCHAPTER 4 21 4 LAND RECYCLING FUND 21 5 Sec. 23. NEW SECTION. 455H.401 LAND RECYCLING FUND. 21 6 1. A land recycling fund is created within the state 21 7 treasury under the control of the commission. Moneys received 21 8 from fees, general revenue, federal funds, gifts, bequests, 21 9 donations, or other moneys so designated shall be deposited in 21 10 the fund. Any unexpended balance in the land recycling fund 21 11 at the end of each fiscal year shall be retained in the fund, 21 12 notwithstanding section 8.33. 21 13 2. The commission may use the land recycling fund to 21 14 provide for all of the following: 21 15 a. Financial assistance to political subdivisions of the 21 16 state for activities related to an enrolled site. 21 17 b. Financial assistance and incentives for qualifying 21 18 enrolled sites. 21 19 c. Funding for any other purpose consistent with this 21 20 chapter and deemed appropriate by the commission. 21 21 SUBCHAPTER 5 21 22 MISCELLANEOUS PROVISIONS 21 23 Sec. 24. NEW SECTION. 455H.501 RULEMAKING. 21 24 In developing rules to implement this chapter, the 21 25 commission shall do all of the following: 21 26 1. Direct the department to work jointly with the 21 27 technical advisory committee. 21 28 2. Require that by July 1, 1998, the department and the 21 29 technical advisory committee submit rules to implement this 21 30 chapter and a report describing those rules to the commission. 21 31 3. Adopt rules to implement and administer this chapter by 21 32 October 1, 1998. 21 33 Sec. 25. NEW SECTION. 455H.502 TECHNICAL ADVISORY 21 34 COMMITTEE. 21 35 1. The technical advisory committee shall consist of a 22 1 representative of each of the following organizations: 22 2 a. The Iowa environmental council. 22 3 b. The consulting engineers council. 22 4 c. The Iowa association of business and industry. 22 5 d. The agribusiness association of Iowa. 22 6 e. The Iowa league of cities. 22 7 f. The department of economic development. 22 8 g. The center for health effects of environmental 22 9 contamination. 22 10 h. The Iowa state university of science and technology 22 11 college of engineering. 22 12 i. The groundwater professional association. 22 13 2. The technical advisory committee shall do all of the 22 14 following: 22 15 a. Work jointly with the department to develop rules to 22 16 implement this chapter. The rules shall include, but not be 22 17 limited to, rules relating to the prioritization of enrolled 22 18 sites. 22 19 b. Prepare with the department a joint report by January 22 20 1, 1998, for the general assembly regarding the status of the 22 21 rule drafting. 22 22 c. Prepare a joint report with the department regarding 22 23 the proposed rules to be submitted to the commission. 22 24 d. Select a chairperson and vice chairperson from among 22 25 its members to preside at its meetings. 22 26 e. Cease functioning once rules fully implementing this 22 27 chapter are in effect. 22 28 3. The members of the technical advisory committee shall 22 29 be reimbursed for their actual expenses in accordance with 22 30 section 7E.6, subsection 2, for performing the official duties 22 31 of the advisory committee. 22 32 Sec. 26. NEW SECTION. 455H.503 RECORDKEEPING 22 33 REQUIREMENTS. 22 34 The director shall maintain a record of the affected areas 22 35 or portion of affected areas for which no further action 23 1 letters were issued under section 455H.303 and which involve 23 2 institutional or technological controls that restrict the use 23 3 of any of the enrolled sites to comply with applicable 23 4 standards. The records pertaining to those sites shall 23 5 indicate the applicable use restrictions. 23 6 Sec. 27. NEW SECTION. 455H.504 TRANSFERABILITY OF 23 7 PARTICIPATION BENEFITS. 23 8 A no further action letter, a covenant not to sue, and any 23 9 agreement authorized to be entered into and entered into under 23 10 this chapter and the rules adopted pursuant to this chapter 23 11 may be transferred by the participant or a later recipient to 23 12 any other person by assignment or in conjunction with the 23 13 acquisition of title to the enrolled site to which the 23 14 document applies. 23 15 Sec. 28. NEW SECTION. 455H.505 EMERGENCY RESPONSE. 23 16 The provisions of this chapter shall not prevent or impede 23 17 the immediate response of the department or a participant to 23 18 an emergency which involves an imminent or actual release of a 23 19 hazardous substance which threatens public health and safety 23 20 or the environment. The emergency response action taken by 23 21 the participant shall comply with the provisions of this 23 22 chapter and the participant shall not be prejudiced by the 23 23 mitigation measures undertaken to that point. 23 24 Sec. 29. NEW SECTION. 455H.506 INTERIM RESPONSE. 23 25 The provisions of this chapter shall not prevent or impede 23 26 a participant from undertaking mitigation measures to prevent 23 27 significant impacts on human health or the environment. A 23 28 response action for the site shall not be prejudiced by the 23 29 mitigation measures undertaken prior to enrolling a property 23 30 in the land recycling program. The effects of any interim 23 31 mitigation measure shall be taken into account in the 23 32 department's evaluation of the participant's compliance with 23 33 applicable standards. 23 34 Sec. 30. NEW SECTION. 455H.507 TRANSITION FROM EXISTING 23 35 PROGRAMS. 24 1 Except for any enrolled site which is the subject of an 24 2 enforcement action by an agency of the state or the federal 24 3 government prior to the effective date of this Act, for any 24 4 property where actions similar to a response action have 24 5 commenced pursuant to any provision of chapter 455B prior to 24 6 the effective date of this Act, the person carrying out the 24 7 action shall elect within ninety days following the final 24 8 adoption of rules implementing this chapter to either continue 24 9 to proceed in accordance with the laws and rules in effect 24 10 prior to the effective date of this Act or to proceed pursuant 24 11 to this chapter. 24 12 Sec. 31. NEW SECTION. 455H.508 PARTICIPANT SHIELD. 24 13 A participant shall not be subject to either a civil 24 14 enforcement action by an agency of this state or a political 24 15 subdivision of this state, or an action filed pursuant to 24 16 section 455B.112 regarding any release, response action, or 24 17 condition which is the subject of the response action. This 24 18 protection is contingent on the participant proceeding on a 24 19 due and timely basis to carry out the response action. 24 20 Sec. 32. NEW SECTION. 455H.509 REMOVAL OF A SITE FROM 24 21 THE REGISTRY LISTING. 24 22 An enrolled site listed on the registry of confirmed 24 23 hazardous waste or hazardous substance disposal sites, 24 24 established pursuant to section 455B.426, which has completed 24 25 a response action as to the conditions which led to its 24 26 original listing on the registry, shall be removed from the 24 27 registry listing, once a letter of no further action has been 24 28 issued pursuant to section 455H.302. 24 29 Sec. 33. NEW SECTION. 455H.510 RELATIONSHIP TO FEDERAL 24 30 PROGRAMS. 24 31 The provisions of this chapter shall not prevent the 24 32 department from enforcing both specific numerical cleanup 24 33 standards and monitoring of compliance requirements 24 34 specifically required to be enforced by the federal government 24 35 as a condition of the receipt of program authorization, 25 1 delegation, primacy, or federal funds. 25 2 Sec. 34. NEW SECTION. 455H.511 FEDERAL STRINGENCY. 25 3 Any rules or standards established pursuant to this chapter 25 4 shall be no more stringent than those required under any 25 5 comparable federal law or regulation. 25 6 EXPLANATION 25 7 This bill creates a new chapter 455H in the Code to be 25 8 known as the "Iowa Land Recycling and Environmental 25 9 Remediation Standards Act". The chapter is divided into five 25 10 subchapters. 25 11 In subchapter one, the bill states, as a declaration of 25 12 policy, all of the following: 25 13 1. There is real property in Iowa which is contaminated 25 14 and which could be cleaned up and reused. 25 15 2. There should be incentives to encourage the voluntary 25 16 cleanup of such property. 25 17 3. After the remediation of such property, safe reuse of 25 18 the property should be encouraged. 25 19 4. The general assembly needs to address these goals 25 20 through legislation. 25 21 5. Cleanup plans should be based on the actual risk that 25 22 contamination on the site may pose to the public health and 25 23 safety or the environment, not on cleanup policies which 25 24 require every site in Iowa to be returned to a pristine 25 25 condition. 25 26 Under the bill, the environmental protection commission is 25 27 required to adopt rules to administer the chapter. The 25 28 department of natural resources is required to do all of the 25 29 following: 25 30 1. Enter into agreements or issue orders in connection 25 31 with the enrollment of property into a program. 25 32 2. Issue no further action letters upon the demonstration 25 33 of compliance with applicable standards. 25 34 3. Enter into agreements or issue orders providing 25 35 institutional and technological controls to assure compliance 26 1 with applicable standards. 26 2 The bill also establishes the land recycling program. Any 26 3 person may enroll property in the program to carry out a 26 4 response action. The department shall enroll property for 26 5 which it has received notification of enrollment. The 26 6 department shall also enroll property for which there has been 26 7 an agreed-upon order issued, provided that the participant has 26 8 executed a standard agreement with the department to carry out 26 9 the response action. All participants shall enter into an 26 10 agreement with the department to reimburse the department for 26 11 actual costs incurred by the department in reviewing documents 26 12 submitted as a part of the enrollment of the site, not to 26 13 exceed $7,500 per site. The bill also enumerates certain 26 14 properties that shall not be enrolled in the program, and 26 15 stipulates when other affected property must be enrolled. The 26 16 department shall issue a no further action letter when 26 17 compliance is completed. Upon notification by the 26 18 participant, an enrolled site may be withdrawn from the 26 19 program at any time. 26 20 In subchapter 2, the bill provides that a participant must 26 21 carry out response actions which assure that conditions in the 26 22 affected area comply with any of the following standards: 26 23 background standards, statewide standards, or site-specific 26 24 cleanup standards. All standards are to be jointly developed 26 25 by the department and the technical advisory committee. A 26 26 participant may use any combination of the standards and may 26 27 propose to use the site-specific cleanup standards only. 26 28 Until the standards are adopted by the commission, the bill 26 29 provides that a participant may use the procedures set out in 26 30 the department's rules implementing risk-based corrective 26 31 action for underground storage tanks and, where relevant, the 26 32 United States environmental protection agency's guidance 26 33 regarding risk assessment for superfund sites. The bill 26 34 provides for how compliance with these standards will be 26 35 documented. 27 1 The bill provides for factors to be considered in the 27 2 development of site-specific cleanup standards, including 27 3 exposure scenarios, exposure pathway characterizations, risk- 27 4 based corrective action assessment principles, and other 27 5 relevant site-specific factors. A variance from an applicable 27 6 standard may be granted by the department if the participant 27 7 meets certain specified requirements. Institutional and 27 8 technological controls may be used by a participant to comply 27 9 with cleanup standards. The bill provides that all 27 10 participants shall obtain an environmental protection easement 27 11 which shall run with the land, be recorded, and limit use of 27 12 the property to industrial or commercial use. The bill also 27 13 provides that a participant who is otherwise required to 27 14 obtain a permit, license, plan approval, or other approval 27 15 under the Code may obtain a consolidated standards permit for 27 16 which those permits, licenses, plan approvals, or other 27 17 approvals are required. 27 18 In subchapter 3, the bill provides that when a participant 27 19 demonstrates that the affected area meets applicable 27 20 standards, the department is required to issue a no further 27 21 action letter. This letter shall include a statement that no 27 22 further response action is necessary. The letter shall be 27 23 invalidated if the department demonstrates by clear, 27 24 satisfactory, and convincing evidence that fraud was committed 27 25 in demonstrating compliance with a standard. Institutional or 27 26 technological controls relied upon by the participant shall be 27 27 identified in the letter. The letter shall be recorded in the 27 28 county real estate records. The participant is entitled to a 27 29 covenant not to sue by operation of law upon the issuance of a 27 30 no further action letter. A no further action letter also 27 31 entitles the participant to a cessation of statutory liability 27 32 as to any condition at the affected area associated with the 27 33 release of a hazardous substance which has been the subject of 27 34 the response action. 27 35 The bill defines certain liability protections and defines 28 1 the circumstances under which those protections are not 28 2 available. The bill also limits both the admissibility of 28 3 participation in a response action and the ability to discover 28 4 any information produced during participation in any civil, 28 5 criminal, or administrative proceeding. 28 6 In subchapter 4, the bill establishes a land recycling fund 28 7 within the state treasury. The fund shall consist of moneys 28 8 received from fees, general revenue, federal funds, gifts, 28 9 bequests, donations, or other moneys so designated. 28 10 Unexpended balances in the fund at the end of a fiscal year 28 11 are retained in the fund. The bill provides that the fund may 28 12 be used to provide for all of the following: 28 13 1. Financial assistance to political subdivisions of the 28 14 state for activities related to an enrolled site. 28 15 2. Financial assistance and incentives for qualifying 28 16 enrolled sites. 28 17 3. Funding for any other purpose consistent with the 28 18 chapter. 28 19 In subchapter 5, the bill establishes the technical 28 20 advisory committee and provides that it is to work jointly 28 21 with the department to prepare rules to implement the chapter. 28 22 Submission to the commission of the rules and a joint report 28 23 describing the rules is required by July 1, 1998. 28 24 The bill includes provisions regarding recordkeeping and 28 25 the ability of a recipient to transfer a no further action 28 26 letter, a covenant not to sue, and any other agreement entered 28 27 into under this chapter. The bill also provides miscellaneous 28 28 provisions relating to emergency response, interim response, 28 29 transition from existing programs, protection of a participant 28 30 from enforcement actions by the state, removal of a site from 28 31 the registry of confirmed hazardous waste or hazardous 28 32 substance disposal sites listing, the relationship of the 28 33 chapter to federal programs and funding, and federal 28 34 stringency. 28 35 LSB 2305SV 77 29 1 tm/jw/5.1
Text: SF00474 Text: SF00476 Text: SF00400 - SF00499 Text: SF Index Bills and Amendments: General Index Bill History: General Index
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