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