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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
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