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PAG LIN
1 1 SENATE FILE 528
1 2
1 3 AN ACT
1 4 RELATING TO THE CLEANUP AND REUSE OF CONTAMINATED PROPERTY,
1 5 ENVIRONMENTAL REMEDIATION STANDARDS AND REVIEW PROCEDURES,
1 6 PARTICIPATION IN THE REMEDIATION OF CONTAMINATED PROPERTY,
1 7 LIABILITY FOR THE VOLUNTARY CLEANUP OF CONTAMINATED
1 8 PROPERTY, LIABILITY PROTECTIONS, AND ESTABLISHING A LAND
1 9 RECYCLING FUND.
1 10
1 11 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 12
1 13 SUBCHAPTER 1
1 14 GENERAL PROVISIONS
1 15 Section 1. NEW SECTION. 455H.101 SHORT TITLE.
1 16 This chapter shall be known and may be cited as the "Iowa
1 17 Land Recycling and Environmental Remediation Standards Act".
1 18 Sec. 2. NEW SECTION. 455H.102 SCOPE.
1 19 The environmental remediation standards established under
1 20 this chapter shall be used for any response action or other
1 21 site assessment or remediation that is conducted at a site
1 22 enrolled pursuant to this chapter notwithstanding provisions
1 23 regarding water quality in chapter 455B, division III;
1 24 hazardous conditions in chapter 455B, division IV, part 4;
1 25 hazardous waste and substance management in chapter 455B,
1 26 division IV, part 5; underground storage tanks, other than
1 27 petroleum underground storage tanks, in chapter 455B, division
1 28 IV, part 8; contaminated sites in chapter 455B, division VIII;
1 29 and groundwater protection in chapter 455E.
1 30 Sec. 3. NEW SECTION. 455H.103 DEFINITIONS.
1 31 As used in this chapter, unless the context requires
1 32 otherwise:
1 33 1. "Affected area" means any real property affected,
1 34 suspected of being affected, or modeled to be likely affected
1 35 by a release occurring at an enrolled site.
2 1 2. "Affiliate" means a corporate parent, subsidiary, or
2 2 predecessor of a participant, a co-owner or co-operator of a
2 3 participant, a spouse, parent, or child of a participant, an
2 4 affiliated corporation or enterprise of a participant, or any
2 5 other person substantially involved in the legal affairs or
2 6 management of a participant, as defined by the department.
2 7 3. "Background levels" means concentrations of hazardous
2 8 substances naturally occurring and generally present in the
2 9 environment in the vicinity of an enrolled site or an affected
2 10 area and not the result of releases.
2 11 4. "Commission" means the environmental protection
2 12 commission created under section 455A.6.
2 13 5. "Department" means the department of natural resources
2 14 created under section 455A.2.
2 15 6. "Director" means the director of the department of
2 16 natural resources appointed under section 455A.3.
2 17 7. "Enrolled site" means any property which has been or is
2 18 suspected to be the site of or affected by a release and which
2 19 has been enrolled pursuant to this chapter by a participant.
2 20 8. "Hazardous substance" has the same meaning as defined
2 21 in section 455B.381.
2 22 9. "Noncancer health risk" means the potential for adverse
2 23 systemic or toxic effects caused by exposure to
2 24 noncarcinogenic hazardous substances expressed as the hazard
2 25 quotient for a hazardous substance. A hazard quotient is the
2 26 ratio of the level of exposure of a hazardous substance over a
2 27 specified time period to a reference dose for a similar
2 28 exposure period.
2 29 10. "Participant" means any person who enrolls property
2 30 pursuant to this chapter. A participant is a participant only
2 31 to the extent the participant complies with the requirements
2 32 of this chapter.
2 33 11. "Protected groundwater source" means a saturated bed,
2 34 formation, or group of formations which has a hydraulic
2 35 conductivity of at least forty-four-hundredths meters per day
3 1 and a total dissolved solids concentration of less than two
3 2 thousand five hundred milligrams per liter.
3 3 12. "Protected party" means any of the following:
3 4 a. A participant, including, but not limited to, a
3 5 development authority or fiduciary.
3 6 b. A person who develops or otherwise occupies an enrolled
3 7 site after the issuance of a no further action letter.
3 8 c. A successor or assignee of a protected party, as to an
3 9 enrolled site of a protected party.
3 10 d. A lender which practices commercial lending including,
3 11 but not limited to, providing financial services, holding of
3 12 security interests, workout practices, and foreclosure or the
3 13 recovery of funds from the sale of an enrolled site.
3 14 e. A parent corporation or subsidiary of a participant.
3 15 f. A co-owner or co-operator, either by joint tenancy or a
3 16 tenancy in common, or any other party sharing a legal
3 17 relationship with the participant.
3 18 g. A holder of a beneficial interest of a land trust or
3 19 inter vivos trust, whether revocable or irrevocable, as to any
3 20 interests in an enrolled site.
3 21 h. A mortgagee or trustee of a deed of trust existing as
3 22 to an enrolled site as of the date of issuance of a no further
3 23 action letter.
3 24 i. A transferee of the participant whether the transfer is
3 25 by purchase, eminent domain, assignment, bankruptcy
3 26 proceeding, partition, dissolution of marriage, settlement or
3 27 adjudication of any civil action, charitable gift, or bequest,
3 28 in conjunction with the acquisition of title to the enrolled
3 29 site.
3 30 j. An heir or devisee of a participant.
3 31 k. A government agency or political subdivision which
3 32 acquires an enrolled site through voluntary or involuntary
3 33 means, including, but not limited to, abandonment, tax
3 34 foreclosure, eminent domain, or escheat.
3 35 13. "Release" means any spilling, leaking, pumping,
4 1 pouring, emitting, emptying, discharging, injecting, escaping,
4 2 leaching, dumping, or disposing into the environment of a
4 3 hazardous substance, including the abandonment or discarding
4 4 of barrels, containers, and other closed receptacles
4 5 containing any hazardous substance, but excludes all of the
4 6 following:
4 7 a. Any release which results in exposure to persons solely
4 8 within a workplace, with respect to a claim which such persons
4 9 may assert against the employer of such persons.
4 10 b. Emissions from the engine exhaust of a motor vehicle,
4 11 rolling stock, aircraft, vessel, or pipeline pumping station
4 12 engine.
4 13 c. The release of source, by-product, or special nuclear
4 14 material from a nuclear incident, as those terms are defined
4 15 in the federal Atomic Energy Act of 1954, if such release is
4 16 subject to requirements with respect to financial protection
4 17 established by the nuclear regulatory commission under 42
4 18 U.S.C. } 2210 or, for the purposes of 42 U.S.C. } 9604 or any
4 19 other response action, any release of source, by-product, or
4 20 special nuclear material from any processing site designated
4 21 under 42 U.S.C. } 7912(a)(1) or 7942(a).
4 22 d. The use of pesticides in accordance with the product
4 23 label.
4 24 14. "Response action" means an action taken to reduce,
4 25 minimize, eliminate, clean up, control, assess, or monitor a
4 26 release to protect the public health and safety or the
4 27 environment. "Response action" includes, but is not limited
4 28 to, investigation, excavation, removal, disposal, cleansing of
4 29 groundwaters or surface waters, natural biodegradation,
4 30 institutional controls, technological controls, or site
4 31 management practices.
4 32 15. "Technical advisory committee" means the technical
4 33 advisory committee created under section 455H.502.
4 34 Sec. 4. NEW SECTION. 455H.104 DECLARATION OF POLICY.
4 35 The general assembly finds and declares all of the
5 1 following:
5 2 1. Some real property in Iowa is not put to its highest
5 3 productive use because it is contaminated or it is perceived
5 4 to be contaminated as a result of past activity on the
5 5 property. The reuse of these sites is an important component
5 6 of a sound land-use policy that will prevent the needless
5 7 development of prime farmland and open-space and natural
5 8 areas, and reduce public expenditures for installing new
5 9 infrastructure.
5 10 2. Incentives should be put in place to encourage capable
5 11 persons to voluntarily develop and implement cleanup plans.
5 12 3. The safe reuse of property should be encouraged through
5 13 the adoption of environmental remediation standards developed
5 14 through an open process which take into account the risks
5 15 associated with any release at the site. Any remediation
5 16 standards adopted by this state must provide for the
5 17 protection of the public health and safety and the
5 18 environment.
5 19 Sec. 5. NEW SECTION. 455H.105 DUTIES OF THE COMMISSION.
5 20 The commission shall do all of the following:
5 21 1. Adopt rules pertaining to the assessment, evaluation,
5 22 and cleanup of the presence of hazardous substances which
5 23 allow participants to carry out response actions using
5 24 background standards, statewide standards, or site-specific
5 25 cleanup standards pursuant to this chapter.
5 26 2. Adopt rules establishing statewide standards and
5 27 criteria for determination of background standards and site
5 28 specific cleanup standards.
5 29 3. Adopt rules establishing a program intended to
5 30 encourage and enhance assessment, evaluation, and cleanup of
5 31 sites which may have been the site of or affected by a
5 32 release.
5 33 4. Adopt rules establishing a program to administer the
5 34 land recycling fund established in section 455H.401.
5 35 5. Adopt rules establishing requirements for the
6 1 submission, performance, and verification of site assessments,
6 2 cleanup plans, and certifications of completion. The rules
6 3 shall provide that all site assessments, cleanup plans, and
6 4 certifications of completion submitted by a participant shall
6 5 be prepared by or under the supervision of an appropriately
6 6 trained professional, including a groundwater professional
6 7 certified pursuant to section 455G.18.
6 8 6. Adopt rules for public notice of the proposed
6 9 verification of a certificate of completion by the department
6 10 where the certificate of completion is conditioned on the use
6 11 of an institutional or technological control.
6 12 Sec. 6. NEW SECTION. 455H.106 AUTHORITY OF THE
6 13 DEPARTMENT.
6 14 The department shall do all of the following:
6 15 1. Enter into agreements or issue orders in connection
6 16 with the enrollment of property into a program established
6 17 pursuant to this chapter.
6 18 2. Issue no further action letters upon the demonstration
6 19 of compliance with applicable standards for an affected area
6 20 by a participant.
6 21 3. Enter into agreements or issue orders providing for
6 22 institutional and technological controls to assure compliance
6 23 with applicable standards pursuant to this chapter.
6 24 4. Take actions necessary, including the revocation,
6 25 suspension, or modification of permits or agreements, the
6 26 issuance of orders, and the initiation of administrative or
6 27 judicial proceedings, to enforce the provisions of this
6 28 chapter and any agreements, covenants, easements, or orders
6 29 issued pursuant to this chapter.
6 30 Sec. 7. NEW SECTION. 455H.107 LAND RECYCLING PROGRAM.
6 31 1. A person may enroll property in the land recycling
6 32 program pursuant to this chapter to carry out a response
6 33 action in accordance with rules adopted by the commission
6 34 which outline the eligibility for enrollment. The eligibility
6 35 rules shall reasonably encourage the enrollment of all sites
7 1 potentially eligible to participate under this chapter and
7 2 shall not take into account any amounts the department may be
7 3 reimbursed under this chapter.
7 4 2. All participants shall enter into an agreement with the
7 5 department to reimburse the department for actual costs
7 6 incurred by the department in reviewing documents submitted as
7 7 a part of the enrollment of the site. This fee shall not
7 8 exceed seven thousand five hundred dollars per enrolled site.
7 9 An agreement entered into under this subsection must allow the
7 10 department access to the enrolled site and must require a
7 11 demonstration of the participant's ability to carry out a
7 12 response action reasonably associated with the enrolled site.
7 13 3. All of the following shall not be enrolled in the land
7 14 recycling program:
7 15 a. Property for which corrective action is needed or has
7 16 been taken for petroleum underground storage tanks under
7 17 chapter 455B, division IV, part 8. However, such property may
7 18 be enrolled to address hazardous substances other than
7 19 petroleum from underground storage tanks.
7 20 b. Property which has been placed or is proposed to be
7 21 included on the national priorities list established pursuant
7 22 to the federal Comprehensive Environmental Response,
7 23 Compensation, and Liability Act, 42 U.S.C. } 9601 et seq.
7 24 c. An animal feeding operation structure as defined in
7 25 section 455B.161.
7 26 4. If the site cleanup assessment demonstrates that the
7 27 release on the enrolled site has affected additional property,
7 28 all property, which is shown to be affected by the release on
7 29 the enrolled site, shall be enrolled in addition to the
7 30 enrolled site.
7 31 5. Following enrollment of the property in the land
7 32 recycling program, the participant shall proceed on a timely
7 33 basis to carry out response actions in accordance with the
7 34 rules implementing this chapter.
7 35 6. Once the participant has demonstrated the affected area
8 1 is in compliance with the standards described in subchapter 2,
8 2 the department shall proceed on a timely basis and issue a no
8 3 further action letter pursuant to section 455H.301.
8 4 7. The participant may withdraw the enrolled site from
8 5 further participation in the land recycling program at any
8 6 time upon written notice to the department. Any participant
8 7 who withdraws an enrolled site from further participation in
8 8 the program shall not be entitled to any refund or credit for
8 9 the enrollment fee paid pursuant to this section and shall,
8 10 subject to the limitation on fees in subsection 2, be liable
8 11 for any costs actually incurred by the department. The
8 12 department or court may determine that a participant who
8 13 withdraws prior to completion of all response actions
8 14 identified for the enrolled site forfeits all benefits and
8 15 immunities provided by this chapter as to the enrolled site.
8 16 If it is deemed necessary and appropriate by the department, a
8 17 participant who withdraws shall stabilize the enrolled site in
8 18 accordance with a plan approved by the department.
8 19 SUBCHAPTER 2
8 20 RESPONSE ACTION STANDARDS AND REVIEW PROCEDURES
8 21 Sec. 8. NEW SECTION. 455H.201 CLEANUP STANDARDS.
8 22 1. A participant carrying out a response action shall take
8 23 such response actions as necessary to assure that conditions
8 24 in the affected area comply with any of the following, as
8 25 applicable:
8 26 a. Background standards established pursuant to section
8 27 455H.202.
8 28 b. Statewide standards established pursuant to section
8 29 455H.203.
8 30 c. Site-specific cleanup standards established pursuant to
8 31 section 455H.204.
8 32 Any remediation standard which is applied must provide for
8 33 the protection of the public health and safety and the
8 34 environment.
8 35 2. A participant may use a combination of these standards
9 1 to implement a site remediation plan and may propose to use
9 2 the site-specific cleanup standards whether or not efforts
9 3 have been made to comply with the background or statewide
9 4 standards.
9 5 3. Until rules setting out requirements for background
9 6 standards, statewide standards, or site-specific cleanup
9 7 standards are finally adopted by the commission and effective,
9 8 participants may utilize site-specific cleanup standards for
9 9 any hazardous substance utilizing the procedures set out in
9 10 the department's rules implementing risk-based corrective
9 11 action for underground storage tanks and, where relevant, the
9 12 United States environmental protection agency's guidance
9 13 regarding risk assessment for superfund sites.
9 14 4. The standards may be complied with through a
9 15 combination of response actions that may include, but are not
9 16 limited to, treatment, removal, technological or institutional
9 17 controls, and natural attenuation and other natural
9 18 mechanisms, and can include the use of innovative or other
9 19 demonstrated measures.
9 20 Sec. 9. NEW SECTION. 455H.202 BACKGROUND STANDARDS.
9 21 1. Methods to identify background standards shall be
9 22 adopted by the commission after consideration of the joint
9 23 recommendations of the department and the technical advisory
9 24 committee.
9 25 2. The demonstration that the affected area meets the
9 26 background standard shall be documented by the participant in
9 27 the following manner:
9 28 a. Compliance with the background standard shall be
9 29 demonstrated by collection and analysis of representative
9 30 samples from environmental media of concern.
9 31 b. A final report that documents compliance with the
9 32 background standard shall be submitted to the department and
9 33 shall include, as appropriate, all of the following:
9 34 (1) A description of procedures and conclusions of the
9 35 site investigation to characterize the nature, extent,
10 1 direction, volume, and composition of hazardous substances.
10 2 (2) The basis for selecting environmental media of
10 3 concern, descriptions of removal or decontamination procedures
10 4 performed in remediation, and summaries of sampling
10 5 methodology and analytical results which demonstrate that the
10 6 background standard has been complied with.
10 7 (3) The basis for determining the background levels.
10 8 Sec. 10. NEW SECTION. 455H.203 STATEWIDE STANDARDS.
10 9 1. Statewide standards shall be adopted by the commission
10 10 after consideration of the joint recommendations of the
10 11 department and the technical advisory committee. The
10 12 standards must provide for the protection of the public health
10 13 and safety and the environment.
10 14 2. In establishing these standards, all of the following
10 15 shall be considered:
10 16 a. Separate standards shall be established for hazardous
10 17 substances in soil, in groundwater which is a protected
10 18 groundwater source, and in groundwater which is not a
10 19 protected groundwater source.
10 20 b. In groundwater which is a protected groundwater source,
10 21 the standards shall be no more protective than the least
10 22 restrictive of the maximum contaminant levels established
10 23 pursuant to the department's drinking water standards, a
10 24 standard reflecting an increased cancer risk of one in one
10 25 million, or a standard reflecting a noncancer health risk of
10 26 one. An affected area shall not be required to be cleaned up
10 27 to concentration levels below or more restrictive than
10 28 background levels.
10 29 c. In groundwater which is not a protected groundwater
10 30 source, the standards shall be no more protective than the
10 31 least restrictive of a standard reflecting an increased cancer
10 32 risk of one in ten thousand or a standard reflecting a
10 33 noncancer health risk of one. An affected area shall not be
10 34 required to be cleaned up to levels below or more restrictive
10 35 than background levels.
11 1 d. In soil, the standards shall be no more protective than
11 2 the least restrictive of a standard reflecting an increased
11 3 cancer risk of one in one million or a standard reflecting a
11 4 noncancer health risk of one. An affected area shall not be
11 5 required to be cleaned up to concentration levels below or
11 6 more restrictive than background levels.
11 7 3. The demonstration that the affected area meets the
11 8 statewide standard shall be documented by the participant, as
11 9 appropriate, in the following manner:
11 10 a. Compliance with cleanup levels shall be demonstrated by
11 11 collection and analysis of representative samples from the
11 12 environmental medium of concern.
11 13 b. A final report that documents compliance with the
11 14 statewide standard shall be submitted to the department which
11 15 includes, as appropriate, the descriptions of procedures and
11 16 conclusions of the site investigation to characterize the
11 17 nature, extent, direction, rate of movement at the site and
11 18 cumulative effects, if any, volume, composition, and
11 19 concentration of hazardous substances in environmental media,
11 20 the basis for selecting environmental media of concern,
11 21 documentation supporting the selection of residential or
11 22 nonresidential exposure factors, descriptions of removal or
11 23 treatment procedures performed in remediation, and summaries
11 24 of sampling methodology and analytical results which
11 25 demonstrate that hazardous substances have been removed or
11 26 treated to applicable levels.
11 27 Sec. 11. NEW SECTION. 455H.204 SITE-SPECIFIC CLEANUP
11 28 STANDARDS.
11 29 1. Procedures to establish site-specific cleanup standards
11 30 shall be adopted by the commission after consideration of the
11 31 joint recommendations of the department and the technical
11 32 advisory committee. Site-specific cleanup standards must
11 33 provide for the protection of the public health and safety and
11 34 the environment.
11 35 2. Site-specific cleanup standards and appropriate
12 1 response actions shall take into account all of the following
12 2 provided, however, that an affected area shall not be required
12 3 to be cleaned up to levels below or more restrictive than
12 4 background levels, and in groundwater which is not a protected
12 5 groundwater source, to a concentration level which presents an
12 6 increased cancer risk of less than one in ten thousand:
12 7 a. The most appropriate exposure scenarios based on
12 8 current or probable future residential, commercial,
12 9 industrial, or other industry accepted scenarios.
12 10 b. Exposure pathway characterizations including
12 11 contaminant sources, transport mechanisms, and exposure
12 12 pathways.
12 13 c. Affected human or environmental receptors and exposure
12 14 scenarios based on current or probable projected use
12 15 scenarios.
12 16 d. Risk-based corrective action assessment principles
12 17 which identify risks presented to the public health and safety
12 18 or the environment by each released hazardous substance in a
12 19 manner that will protect the public health and safety or the
12 20 environment using a tiered procedure consistent with the
12 21 American society for testing of materials' standards applied
12 22 to nonpetroleum and petroleum hazardous substances.
12 23 e. Other relevant site-specific risk-related factors such
12 24 as the feasibility of available technologies, existing
12 25 background levels, current and planned future uses,
12 26 ecological, aesthetic, and other relevant criteria, and the
12 27 applicability and availability of technological and
12 28 institutional controls.
12 29 f. Cleanup shall not be required in an affected area that
12 30 does not present any of the following:
12 31 (1) An increased cancer risk at the point of exposure of
12 32 one in one million for residential areas or one in ten
12 33 thousand for nonresidential areas.
12 34 (2) An increased noncancer health risk at the point of
12 35 exposure of greater than one.
13 1 3. The concentration of a hazardous substance in an
13 2 environmental medium of concern at an affected area where the
13 3 site-specific standard has been selected shall not be required
13 4 to meet the site-specific standard if the site-specific
13 5 standard is numerically less than the background level. In
13 6 such cases, the background level shall apply.
13 7 4. Any participant electing to comply with site-specific
13 8 standards established by this section shall submit, as
13 9 appropriate, all of the following reports and evaluations for
13 10 review and approval by the department:
13 11 a. A site-specific risk assessment report and a cleanup
13 12 plan. The site-specific risk assessment report must include,
13 13 as appropriate, all of the following:
13 14 (1) Documentation and descriptions of procedures and
13 15 conclusions from the site investigation to characterize the
13 16 nature, extent, direction, rate of movement, volume, and
13 17 composition of hazardous substances.
13 18 (2) The concentration of hazardous substances in
13 19 environmental media of concern, including summaries of
13 20 sampling methodology and analytical results.
13 21 (3) A fate and transport analysis to demonstrate that no
13 22 exposure pathways exist.
13 23 If no exposure pathways exist, a risk assessment report and
13 24 a cleanup plan are not required and no remedy is required to
13 25 be proposed or completed.
13 26 b. A final report demonstrating compliance with site-
13 27 specific cleanup standards has been completed in accordance
13 28 with the cleanup plan.
13 29 c. This section does not preclude a participant from
13 30 submitting a site-specific risk assessment report and cleanup
13 31 plan at one time to the department for review.
13 32 5. Upon submission of either a site-specific risk
13 33 assessment report or a cleanup plan to the department, the
13 34 department shall notify the participant of any deficiencies in
13 35 the report or plan in a timely manner.
14 1 6. Owners and operators of underground storage tanks other
14 2 than petroleum underground storage tanks, aboveground storage
14 3 tanks, and pipelines which contain or have contained petroleum
14 4 shall comply with the corrective action rules issued pursuant
14 5 to chapter 455B, division IV, part 8, to satisfy the
14 6 requirements of this section.
14 7 Sec. 12. NEW SECTION. 455H.205 VARIANCES.
14 8 1. A participant may apply to the department for a
14 9 variance from any applicable provision of this chapter.
14 10 2. The department may issue a variance from applicable
14 11 standards only if the participant demonstrates all of the
14 12 following:
14 13 a. The participant demonstrates either of the following:
14 14 (1) It is technically infeasible to comply with the
14 15 applicable standards.
14 16 (2) The cost of complying with the applicable standards
14 17 exceeds the benefits.
14 18 b. The proposed alternative standard or set of standards
14 19 in the terms and conditions set forth in the application will
14 20 result in an improvement of environmental conditions in the
14 21 affected area and ensure that the public health and safety
14 22 will be protected.
14 23 c. The establishment of and compliance with the
14 24 alternative standard or set of standards in the terms and
14 25 conditions is necessary to promote, protect, preserve, or
14 26 enhance employment opportunities or the reuse of the enrolled
14 27 site.
14 28 3. If requested by a participant, the department may issue
14 29 a variance from any other provision of this chapter if the
14 30 department determines that the variance would be consistent
14 31 with the declaration of policy of this chapter and is
14 32 reasonable under the circumstances.
14 33 Sec. 13. NEW SECTION. 455H.206 INSTITUTIONAL AND
14 34 TECHNOLOGICAL CONTROLS.
14 35 1. In achieving compliance with the cleanup standards
15 1 under this chapter, a participant may use an institutional or
15 2 technological control. The director may require reasonable
15 3 proof of financial assurance where necessary to assure a
15 4 technological control remains effective.
15 5 2. An institutional or technological control includes any
15 6 of the following:
15 7 a. A state or federal law or regulation.
15 8 b. An ordinance of any political subdivision of the state.
15 9 c. A contractual obligation recorded and executed in a
15 10 manner satisfying chapter 558.
15 11 d. A control which the participant can demonstrate reduces
15 12 or manages the risk from a release through the period
15 13 necessary to comply with the applicable standards.
15 14 e. An environmental protection easement.
15 15 3. If the department's determination of compliance with
15 16 applicable standards pursuant to subchapter 3 is conditioned
15 17 on a restriction in the use of any real estate in the affected
15 18 area, the participant must utilize an institutional control.
15 19 If the restriction in use is to limit the use to
15 20 nonresidential use, the participant must use an environmental
15 21 protection easement as the institutional control.
15 22 Environmental protection easements may also be used to
15 23 implement other institutional or technological controls. An
15 24 environmental protection easement must be granted by the fee
15 25 title owners of the relevant real estate. The participant
15 26 shall furnish to the department abstracts of title and other
15 27 documents sufficient to enable the department to determine
15 28 that the easements will be enforceable. An environmental
15 29 protection easement shall be in a form provided by rule of the
15 30 department. An environmental protection easement must provide
15 31 all of the following:
15 32 a. The easement names the state, acting through the
15 33 department, as grantee.
15 34 b. The easement identifies the activity either being
15 35 restricted or required through the institutional or
16 1 technological control.
16 2 c. The easement runs with the land, binding the owner of
16 3 the land and the owner's successors and assigns.
16 4 d. The easement shall include an acknowledgment by the
16 5 director of acceptance of the easement by the department.
16 6 e. The easement is filed in the office of the recorder of
16 7 the county in which the real estate is located and in any
16 8 central registry which may be created by the director.
16 9 4. If the use of an institutional or technological control
16 10 is confirmed in a no further action letter issued pursuant to
16 11 section 455H.301, the institutional or technological control
16 12 may be enforced in district court by the department, a
16 13 political subdivision of this state, the participant, or any
16 14 successor in interest to the participant. An environmental
16 15 protection easement granted pursuant to subsection 3 shall be
16 16 enforceable in perpetuity notwithstanding sections 614.24
16 17 through 614.38. After the recording of the easement, each
16 18 instrument transferring an interest in the area affected by
16 19 the easement shall include a specific reference to the
16 20 recorded easement. If a transfer instrument fails to include
16 21 a specific reference to the recorded easement, the transferor
16 22 may lose any of the benefits provided by this chapter.
16 23 5. An institutional or technological control, except for
16 24 an environmental protection easement, may be removed,
16 25 discontinued, modified, or terminated by the participant or a
16 26 successor in interest to the participant upon a demonstration
16 27 that the control no longer is required to assure compliance
16 28 with the applicable standard. Upon review and approval by the
16 29 department, the department shall issue an amendment to its no
16 30 further action letter approving the removal, discontinuance,
16 31 modification, or termination of an institutional or
16 32 technological control which is no longer needed.
16 33 6. An environmental protection easement granted pursuant
16 34 to subsection 3 may be released or amended only by a release
16 35 or amendment of the easement executed by the director and
17 1 filed with the county recorder. The department may determine
17 2 that any person who intentionally violates an environmental
17 3 protection easement or other technological or institutional
17 4 control contained in a no further action letter loses any of
17 5 the benefits provided by this chapter as to the affected area.
17 6 In the event the technological or institutional controls fail
17 7 to achieve compliance with the applicable standards, the
17 8 participant shall undertake an additional response action
17 9 sufficient to demonstrate to the department compliance with
17 10 applicable standards. Failure to proceed in a timely manner
17 11 in performing the additional response action may result in
17 12 termination of the participant's enrollment in the land
17 13 recycling program.
17 14 Sec. 14. NEW SECTION. 455H.207 RESPONSE ACTION
17 15 PERMITTING REQUIREMENTS.
17 16 1. A participant who would be otherwise required to obtain
17 17 a permit, license, plan approval, or other approval from the
17 18 department under any provision of the Code may obtain a
17 19 consolidated standards permit for the activities in connection
17 20 with the response action for which the permit, license, plan
17 21 approval, or other approval is required. The consolidated
17 22 standards permit shall encompass all the substantive
17 23 requirements applicable to those activities under any
17 24 applicable federal or state statute, rule, or regulation and
17 25 any agreements the director had entered into with the United
17 26 States environmental protection agency under those statutes,
17 27 rules, or regulations.
17 28 2. In addition to any other notice or hearing requirements
17 29 of relevant chapters, at least ten days prior to issuing a
17 30 permit under this section, the director shall publish a notice
17 31 of the proposed permit which contains a general description of
17 32 the activities to be conducted in the affected area under the
17 33 permit. The notice shall be published in the official
17 34 newspaper, as designated by the county board of supervisors
17 35 pursuant to section 349.1, of the county in which the site is
18 1 located. A person may submit written or oral comments on or
18 2 objections to the permit. After considering the comments and
18 3 objections, the director shall approve or deny the application
18 4 for the consolidated standards permit.
18 5 3. A participant issued a consolidated standards permit
18 6 under this section in connection with a particular activity is
18 7 not required to obtain a permit, license, plan approval, or
18 8 other approval from the department in connection with any
18 9 activity under the applicable provisions of the Code or rules.
18 10 A participant who obtains a consolidated standards permit for
18 11 a particular activity is deemed to be in compliance with the
18 12 requirement to obtain from the department a permit, license,
18 13 plan approval, or other approval in connection with the
18 14 activity under the applicable provisions of the Code or rules.
18 15 A violation of the conditions of the consolidated standards
18 16 permit shall be deemed to be a violation of the applicable
18 17 statute, rule, or regulation under which approval of
18 18 activities in connection with a response action would have
18 19 been required and is subject to enforcement in the same manner
18 20 and to the same extent as a violation of the applicable
18 21 statute, rule, or regulation would have been.
18 22 SUBCHAPTER 3
18 23 EFFECTS OF PARTICIPATION
18 24 Sec. 15. NEW SECTION. 455H.301 NO FURTHER ACTION
18 25 LETTERS.
18 26 1. Once a participant demonstrates that an affected area
18 27 meets applicable standards and the department has certified
18 28 that the participant has met all requirements for completion,
18 29 the department shall promptly issue a no further action letter
18 30 to the participant.
18 31 2. A no further action letter shall state that the
18 32 participant and any protected party are not required to take
18 33 any further action at the site related to any hazardous
18 34 substance for which compliance with applicable standards is
18 35 demonstrated by the participant in accordance with applicable
19 1 standards, except for continuing requirements specified in the
19 2 no further action letter. If the participant was a person
19 3 having control over a hazardous substance, as that phrase is
19 4 defined in section 455B.381, at the time of the release, a no
19 5 further action letter may provide that a further response
19 6 action may be required, where appropriate, to protect against
19 7 an imminent and substantial threat to public health, safety,
19 8 and welfare. A protected party who was a person having
19 9 control over a hazardous substance, as that phrase is defined
19 10 in section 455B.381, at the time of the release, may be
19 11 required by the department to conduct a further response
19 12 action, where appropriate, to protect against an imminent and
19 13 substantial threat to public health, safety, and welfare.
19 14 If a person transfers property to an affiliate in order for
19 15 that person or the affiliate to obtain a benefit to which the
19 16 transferor would not otherwise be eligible under this chapter
19 17 or to avoid an obligation under this chapter, the affiliate
19 18 shall be subject to the same obligations and obtain the same
19 19 level of benefits as those available to the transferor under
19 20 this chapter.
19 21 A no further action letter shall be void if the department
19 22 demonstrates by clear, satisfactory, and convincing evidence
19 23 that any approval under this chapter was obtained by fraud or
19 24 material misrepresentation, knowing failure to disclose
19 25 material information, or false certification to the
19 26 department.
19 27 3. The department shall provide, upon request, a no
19 28 further action letter as to the affected area to each
19 29 protected party.
19 30 4. The department shall condition the no further action
19 31 letter upon compliance with any institutional or technological
19 32 controls relied upon by the participant to demonstrate
19 33 compliance with the applicable standards.
19 34 5. A no further action letter shall be in a form
19 35 recordable in county real estate records as provided in
20 1 chapter 558.
20 2 Sec. 16. NEW SECTION. 455H.302 COVENANTS NOT TO SUE.
20 3 Upon issuance of a no further action letter pursuant to
20 4 section 455H.301, a covenant not to sue arises by operation of
20 5 law. The covenant releases the participant and each protected
20 6 party from liability to the state, in the state's capacity as
20 7 a regulator administering environmental programs, to perform
20 8 additional environmental assessment, remedial activity, or
20 9 response action with regard to the release of a hazardous
20 10 substance for which the participant and each protected party
20 11 has complied with the requirements of this chapter.
20 12 Sec. 17. NEW SECTION. 455H.303 CESSATION OF STATUTORY
20 13 LIABILITY.
20 14 Upon issuance of a no further action letter pursuant to
20 15 section 455H.301, except as provided in that section, the
20 16 participant and each protected party shall no longer have
20 17 liability under chapter 455A, under chapter 455B other than
20 18 liability for petroleum underground storage tanks, or under
20 19 chapters 455D and 455E to the state or to any other person as
20 20 to any condition at the affected area with regard to hazardous
20 21 substances for which compliance with applicable standards was
20 22 demonstrated by the participant in accordance with this
20 23 chapter and for which the department has provided a
20 24 certificate of completion.
20 25 Sec. 18. NEW SECTION. 455H.304 LIMITATION OF LIABILITY.
20 26 1. As used in this section, unless the context requires
20 27 otherwise:
20 28 a. "Environmental harm" means injury, death, loss, or
20 29 threatened loss to a person or property caused by exposure to
20 30 or the release of a hazardous substance.
20 31 b. "Environmental claim" means a civil action for damages
20 32 for environmental harm and includes a civil action under this
20 33 chapter for recovery of the costs of conducting a response
20 34 action, but does not include a civil action for damages for a
20 35 breach of contract or another agreement between persons or for
21 1 a breach of a warranty that exists pursuant to the Code or
21 2 common law of this state.
21 3 2. Except as may be required in accordance with
21 4 obligations incurred pursuant to participation in the land
21 5 recycling program established in this chapter, all of the
21 6 following, or any officer or employee thereof, are relieved of
21 7 any further liability for any environmental claim resulting
21 8 from the presence of hazardous substances at, or the release
21 9 of hazardous substances from, an enrolled site where a
21 10 response action is being or has been conducted under this
21 11 chapter, unless an action or omission of the person, state
21 12 agency, political subdivision, or public utility, or an
21 13 officer or employee thereof, constitutes willful or wanton
21 14 misconduct or intentionally tortious conduct:
21 15 a. A contractor working for another person in conducting
21 16 any response action under this chapter.
21 17 b. A state agency or political subdivision that is
21 18 conducting a voluntary response action or a maintenance
21 19 activity on lands, easements, or rights-of-way owned, leased,
21 20 or otherwise held by the state agency or political
21 21 subdivision.
21 22 c. A state agency when an officer or employee of the state
21 23 agency provides technical assistance to a participant
21 24 undertaking a response action under this chapter or rules
21 25 adopted pursuant to this chapter, or to a contractor, officer,
21 26 or employee of the agency, in connection with the response
21 27 action.
21 28 d. A public utility, as defined in section 476.1, which is
21 29 performing work in any of the following:
21 30 (1) An easement or right-of-way of a public utility across
21 31 an affected area where a response action is being or has been
21 32 conducted and where the public utility is constructing or has
21 33 main or distribution lines above or below the surface of the
21 34 ground for purposes of maintaining the easement or right-of-
21 35 way for construction, repair, or replacement of any of the
22 1 following:
22 2 (a) Main or distribution lines above or below the surface
22 3 of the ground.
22 4 (b) Poles, towers, foundations, or other structures
22 5 supporting or sustaining any such lines.
22 6 (c) Appurtenances to poles, towers, foundations, or other
22 7 structures supporting or sustaining any such lines.
22 8 (2) An affected area where a response action is being
22 9 conducted that is necessary to establish or maintain utility
22 10 service to the property, including, without limitation, the
22 11 construction, repair, or replacement of any of the following:
22 12 (a) Main or distribution lines above or below the surface
22 13 of the ground.
22 14 (b) Poles, towers, foundations, or other structures
22 15 supporting or sustaining any such lines.
22 16 (c) Appurtenances to poles, towers, foundations, or other
22 17 structures supporting or sustaining any such lines.
22 18 3. This section does not create, and shall not be
22 19 construed to create, a new cause of action against or
22 20 substantive legal right against a person, state agency,
22 21 political subdivision, or public utility, or an officer or
22 22 employee thereof.
22 23 4. This section does not affect, and shall not be
22 24 construed as affecting, any immunities from civil liability or
22 25 defenses established by another section of the Code or
22 26 available at common law, to which a person, state agency,
22 27 political subdivision, or public utility, or officer or
22 28 employee thereof, may be entitled under circumstances not
22 29 covered by this section.
22 30 Sec. 19. NEW SECTION. 455H.305 PARTICIPATION NOT DEEMED
22 31 AN ADMISSION OF LIABILITY.
22 32 1. Enrolling a site pursuant to this chapter or
22 33 participating in a response action does not constitute an
22 34 admission of liability under the statutes of this state, the
22 35 rules adopted pursuant to the statutes, or the ordinances and
23 1 resolutions of a political subdivision, or an admission of
23 2 civil liability under the Code or common law of this state.
23 3 2. The fact that a person has become a participant in a
23 4 response action under this chapter is not admissible in any
23 5 civil, criminal, or administrative proceeding initiated or
23 6 brought under any law of this state other than to enforce this
23 7 chapter.
23 8 3. All information, documents, reports, data produced, and
23 9 any sample collected as a result of enrolling any property
23 10 under this chapter are not admissible against the person
23 11 undertaking the response action, and are not discoverable in
23 12 any civil or administrative proceeding against the participant
23 13 undertaking the response action except in a judicial or
23 14 administrative proceeding initiated to enforce this chapter in
23 15 connection with an alleged violation thereof. This
23 16 prohibition against admissibility does not apply to any person
23 17 whose covenant not to sue has been revoked under this chapter.
23 18 4. Enrolling a site pursuant to this chapter or
23 19 participating in a response action shall not be construed to
23 20 be an acknowledgment that the conditions at the affected area
23 21 identified and addressed by the response action constitute a
23 22 threat or danger to public health or safety or the
23 23 environment.
23 24 Sec. 20. NEW SECTION. 455H.306 LIABILITY PROTECTIONS.
23 25 The protections from liability afforded under this chapter
23 26 shall be in addition to the exclusions to any liability
23 27 protections afforded participants under any other provision of
23 28 the Code.
23 29 Sec. 21. NEW SECTION. 455H.307 LIABILITY FOR NEW RELEASE
23 30 OR BEYOND AFFECTED AREA.
23 31 Protections afforded in this chapter shall not relieve a
23 32 person from liability for a release of a hazardous substance
23 33 occurring at the enrolled site after the issuance of a no
23 34 further action letter or from liability for any condition
23 35 outside the affected area addressed in the cleanup plan and no
24 1 further action letter.
24 2 Sec. 22. NEW SECTION. 455H.308 RELATIONSHIP TO FEDERAL
24 3 LAW.
24 4 The liability protection and immunities afforded under this
24 5 chapter extend only to liability or potential liability
24 6 arising under state law. It is not intended to provide any
24 7 relief as to liability or potential liability arising under
24 8 federal law. This section shall not be construed as
24 9 precluding any agreement with a federal agency by which it
24 10 agrees to provide liability protection based on participation
24 11 and completion of a cleanup plan under this chapter.
24 12 Sec. 23. NEW SECTION. 455H.309 INCREMENTAL PROPERTY
24 13 TAXES.
24 14 1. To encourage economic development and the recycling of
24 15 contaminated land to promote the purposes of this chapter,
24 16 cities and counties may provide by ordinance that the costs of
24 17 carrying out response actions under this chapter are to be
24 18 reimbursed, in whole or in part, by incremental property taxes
24 19 over a six-year period. A city or county which implements the
24 20 option provided for under this section shall provide that
24 21 taxes levied on property enrolled in the land recycling
24 22 program under this chapter each year by or for the benefit of
24 23 the state, city, county, school district, or other taxing
24 24 district shall be divided as provided in section 403.19,
24 25 subsections 1 and 2, in the same manner as if the enrolled
24 26 property was taxable property in an urban renewal project.
24 27 Incremental property taxes collected under this section shall
24 28 be placed in a special fund of the city or county. A
24 29 participant shall be reimbursed with moneys from the special
24 30 fund for costs associated with carrying out a response action
24 31 in accordance with rules adopted by the commission. Beginning
24 32 in the fourth of the six years of collecting incremental
24 33 property taxes, the city or county shall begin decreasing by
24 34 twenty-five percent each year the amount of incremental
24 35 property taxes computed under this section.
25 1 SUBCHAPTER 4
25 2 LAND RECYCLING FUND
25 3 Sec. 24. NEW SECTION. 455H.401 LAND RECYCLING FUND.
25 4 1. A land recycling fund is created within the state
25 5 treasury under the control of the commission. Moneys received
25 6 from fees, general revenue, federal funds, gifts, bequests,
25 7 donations, or other moneys so designated shall be deposited in
25 8 the fund. Any unexpended balance in the land recycling fund
25 9 at the end of each fiscal year shall be retained in the fund,
25 10 notwithstanding section 8.33.
25 11 2. The commission may use the land recycling fund to
25 12 provide for all of the following:
25 13 a. Financial assistance to political subdivisions of the
25 14 state for activities related to an enrolled site.
25 15 b. Financial assistance and incentives for qualifying
25 16 enrolled sites.
25 17 c. Funding for any other purpose consistent with this
25 18 chapter and deemed appropriate by the commission.
25 19 SUBCHAPTER 5
25 20 MISCELLANEOUS PROVISIONS
25 21 Sec. 25. NEW SECTION. 455H.501 RULEMAKING.
25 22 In developing rules to implement this chapter, the
25 23 commission shall do all of the following:
25 24 1. Direct the department to work jointly with the
25 25 technical advisory committee.
25 26 2. Require that by July 1, 1998, the department and the
25 27 technical advisory committee submit rules to implement this
25 28 chapter and a report describing those rules to the commission.
25 29 3. Adopt rules to implement and administer this chapter by
25 30 October 1, 1998.
25 31 Sec. 26. NEW SECTION. 455H.502 TECHNICAL ADVISORY
25 32 COMMITTEE.
25 33 1. The technical advisory committee shall consist of a
25 34 representative of each of the following organizations:
25 35 a. The Iowa environmental council.
26 1 b. The consulting engineers council.
26 2 c. The Iowa association of business and industry.
26 3 d. The agribusiness association of Iowa.
26 4 e. An engineer employed by a city or county which is
26 5 appointed jointly by the Iowa league of cities and Iowa state
26 6 association of counties.
26 7 f. The department of economic development.
26 8 g. The center for health effects of environmental
26 9 contamination.
26 10 h. The Iowa state university of science and technology
26 11 college of engineering.
26 12 i. The groundwater professional association.
26 13 2. The technical advisory committee shall do all of the
26 14 following:
26 15 a. Work jointly with the department to develop rules to
26 16 implement this chapter. The rules shall include, but not be
26 17 limited to, rules relating to the prioritization of enrolled
26 18 sites.
26 19 b. Prepare with the department a joint report by January
26 20 1, 1998, for the general assembly regarding the status of the
26 21 rule drafting.
26 22 c. Prepare a joint report with the department regarding
26 23 the proposed rules to be submitted to the commission.
26 24 d. Select a chairperson and vice chairperson from among
26 25 its members to preside at its meetings.
26 26 e. Cease functioning once rules fully implementing this
26 27 chapter are in effect.
26 28 3. The members of the technical advisory committee shall
26 29 be reimbursed for their actual expenses in accordance with
26 30 section 7E.6, subsection 2, for performing the official duties
26 31 of the advisory committee.
26 32 Sec. 27. NEW SECTION. 455H.503 RECORDKEEPING
26 33 REQUIREMENTS.
26 34 The director shall maintain a record of the affected areas
26 35 or portion of affected areas for which no further action
27 1 letters were issued under section 455H.301 and which involve
27 2 institutional or technological controls that restrict the use
27 3 of any of the enrolled sites to comply with applicable
27 4 standards. The records pertaining to those sites shall
27 5 indicate the applicable use restrictions.
27 6 Sec. 28. NEW SECTION. 455H.504 TRANSFERABILITY OF
27 7 PARTICIPATION BENEFITS.
27 8 A no further action letter, a covenant not to sue, and any
27 9 agreement authorized to be entered into and entered into under
27 10 this chapter and the rules adopted pursuant to this chapter
27 11 may be transferred by the participant or a later recipient to
27 12 any other person by assignment or in conjunction with the
27 13 acquisition of title to the enrolled site to which the
27 14 document applies.
27 15 Sec. 29. NEW SECTION. 455H.505 EMERGENCY RESPONSE.
27 16 The provisions of this chapter shall not prevent or impede
27 17 the immediate response of the department or a participant to
27 18 an emergency which involves an imminent or actual release of a
27 19 hazardous substance which threatens public health and safety
27 20 or the environment. The emergency response action taken by
27 21 the participant shall comply with the provisions of this
27 22 chapter and the participant shall not be prejudiced by the
27 23 mitigation measures undertaken to that point.
27 24 Sec. 30. NEW SECTION. 455H.506 INTERIM RESPONSE.
27 25 The provisions of this chapter shall not prevent or impede
27 26 a participant from undertaking mitigation measures to prevent
27 27 significant impacts on human health or the environment. A
27 28 response action for the site shall not be prejudiced by the
27 29 mitigation measures undertaken prior to enrolling a property
27 30 in the land recycling program. The effects of any interim
27 31 mitigation measure shall be taken into account in the
27 32 department's evaluation of the participant's compliance with
27 33 applicable standards.
27 34 Sec. 31. NEW SECTION. 455H.507 TRANSITION FROM EXISTING
27 35 PROGRAMS.
28 1 Except for any enrolled site which is the subject of an
28 2 enforcement action by an agency of the state or the federal
28 3 government prior to the effective date of this Act, for any
28 4 property where actions similar to a response action have
28 5 commenced pursuant to any provision of chapter 455B prior to
28 6 the effective date of this Act, the person carrying out the
28 7 action shall elect within ninety days following the final
28 8 adoption of rules implementing this chapter to either continue
28 9 to proceed in accordance with the laws and rules in effect
28 10 prior to the effective date of this Act or to proceed pursuant
28 11 to this chapter.
28 12 Sec. 32. NEW SECTION. 455H.508 PARTICIPANT SHIELD.
28 13 A participant shall not be subject to either a civil
28 14 enforcement action by an agency of this state or a political
28 15 subdivision of this state, or an action filed pursuant to
28 16 section 455B.112 regarding any release, response action, or
28 17 condition which is the subject of the response action. This
28 18 protection is contingent on the participant proceeding on a
28 19 due and timely basis to carry out the response action.
28 20 Sec. 33. NEW SECTION. 455H.509 REMOVAL OF A SITE FROM
28 21 THE REGISTRY LISTING.
28 22 An enrolled site listed on the registry of confirmed
28 23 hazardous waste or hazardous substance disposal sites,
28 24 established pursuant to section 455B.426, which has completed
28 25 a response action as to the conditions which led to its
28 26 original listing on the registry, shall be removed from the
28 27 registry listing, once a letter of no further action has been
28 28 issued pursuant to section 455H.301.
28 29 Sec. 34. NEW SECTION. 455H.510 RELATIONSHIP TO FEDERAL
28 30 PROGRAMS.
28 31 The provisions of this chapter shall not prevent the
28 32 department from enforcing both specific numerical cleanup
28 33 standards and monitoring of compliance requirements
28 34 specifically required to be enforced by the federal government
28 35 as a condition of the receipt of program authorization,
29 1 delegation, primacy, or federal funds.
29 2 Sec. 35. NEW SECTION. 455H.511 FEDERAL STRINGENCY.
29 3 Any rules or standards established pursuant to this chapter
29 4 shall be no more stringent than those required under any
29 5 comparable federal law or regulation.
29 6
29 7
29 8
29 9 MARY E. KRAMER
29 10 President of the Senate
29 11
29 12
29 13
29 14 RON J. CORBETT
29 15 Speaker of the House
29 16
29 17 I hereby certify that this bill originated in the Senate and
29 18 is known as Senate File 528, Seventy-seventh General Assembly.
29 19
29 20
29 21
29 22 MARY PAT GUNDERSON
29 23 Secretary of the Senate
29 24 Approved , 1997
29 25
29 26
29 27
29 28 TERRY E. BRANSTAD
29 29 Governor
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