Senate Study Bill 3208 SENATE FILE BY (PROPOSED COMMITTEE ON AGRICULTURE BILL BY CO=CHAIRPERSON JOHNSON) Passed Senate, Date Passed House, Date Vote: Ayes Nays Vote: Ayes Nays Approved A BILL FOR 1 An Act precluding certain enforcement actions by the department 2 of natural resources or the attorney general based on 3 detrimental reliance. 4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 5 TLSB 6140SK 81 6 da/gg/14 PAG LIN 1 1 Section 1. Section 455B.109, Code Supplement 2005, is 1 2 amended to read as follows: 1 3 NEW SUBSECTION. 6. The department is precluded from 1 4 taking an enforcement action against a person for failing to 1 5 comply with a requirement if the person has detrimentally 1 6 relied upon the department's binding explanation of the 1 7 requirement as provided in section 455B.110. 1 8 Sec. 2. NEW SECTION. 455B.110 ENFORCEMENT ACTION == 1 9 PRECLUSION BASED ON DETRIMENTAL RELIANCE. 1 10 1. As used in this section, unless the context otherwise 1 11 requires: 1 12 a. "Department representative" means an official or 1 13 employee of the department or an agent of the department, 1 14 including a contractor who holds themselves out as acting on 1 15 behalf of the department. 1 16 b. "Enforcement action" means any of the following: 1 17 (1) For the department, issuing an order, initiating or 1 18 acting as a party in a contested case proceeding, or rendering 1 19 a proposed or final decision as provided in chapter 17A, for 1 20 purposes of imposing, assessing, or collecting a civil penalty 1 21 under section 455B.109 or 455B.191. 1 22 (2) For the attorney general, bringing a judicial 1 23 proceeding, or acting as a party in a judicial proceeding, 1 24 including a civil or criminal action, to the extent authorized 1 25 by section 455B.112, 455B.146, 455B.146A, or 455B.191. 1 26 2. a. The department is precluded from taking an 1 27 enforcement action to impose, assess, or collect a civil 1 28 penalty against a person who has detrimentally relied upon a 1 29 binding explanation by the department which erroneously 1 30 advises the person how to comply with a requirement of a 1 31 statute or departmental rule, including by performing or 1 32 refraining from performing an act. 1 33 b. The attorney general is precluded from taking an 1 34 enforcement action to obtain a criminal judgment or impose, 1 35 assess, or collect a civil penalty against a person who has 2 1 detrimentally relied upon a binding explanation by the 2 2 department as provided in paragraph "a". 2 3 3. The department's explanation may be provided to a 2 4 person who may have violated this chapter in writing or 2 5 verbally, including by a departmental representative. If the 2 6 department's explanation is provided in writing, it shall be a 2 7 binding explanation. If the department's explanation is 2 8 provided verbally, it shall become binding as follows: 2 9 a. The person must deliver a request for confirmation to 2 10 the department at an address established by the department for 2 11 the purpose of receiving requests for confirmation. The 2 12 person's request for confirmation must be in writing and 2 13 delivered to the department within fourteen days after the 2 14 department's explanation was verbally provided to the person. 2 15 The person's request for confirmation must include all of the 2 16 following: 2 17 (1) A return address for the department to deliver a 2 18 response to the person. 2 19 (2) The explanation sought to be confirmed. 2 20 (3) The date that the department's explanation was 2 21 provided. 2 22 (4) The name of the department representative who provided 2 23 the explanation. 2 24 b. The department may deliver a response to the person's 2 25 return address as provided in the request for confirmation. 2 26 The department's response shall do one of the following: 2 27 (1) Confirm that the department's explanation provided 2 28 verbally to the person is binding. The department may deliver 2 29 the response to the person at any time. 2 30 (2) Deny that the department's explanation is binding. 2 31 The department may include a binding explanation in writing. 2 32 The department's response must be delivered to the person 2 33 within thirty days after the person delivers the request for 2 34 confirmation to the department. If the department fails to 2 35 deliver a timely response to the person, the explanation 3 1 sought to be confirmed by the person as provided in the 3 2 person's request for confirmation shall be the binding 3 3 explanation. 3 4 4. The department's explanation, the person's request for 3 5 confirmation, and the department's response may be transmitted 3 6 in an electronic format, including but not limited to the 3 7 internet, and shall be deemed written. 3 8 5. a. If a binding explanation concerns a requirement 3 9 subject to a variance as provided in section 455B.143, or 3 10 otherwise as a waiver or variance as provided in section 3 11 17A.9A, the binding explanation shall be deemed to be a waiver 3 12 or variance as provided in those sections. 3 13 b. If a binding explanation concerns a requirement that is 3 14 not subject to a variance or waiver as provided in section 3 15 455B.143 or 17A.9A, the department shall deliver a notice to 3 16 the person who has been precluded from being subjected to an 3 17 enforcement action. The notice shall provide that the person 3 18 may be subject to an enforcement action on or after a future 3 19 date. The department shall establish a future date which 3 20 allows the person a reasonable period to comply with the 3 21 requirement. However, the department shall not nullify a 3 22 binding explanation if it would result in undue hardship to 3 23 the person including but not limited to requiring the person 3 24 to move, demolish, or rebuild a structure which was 3 25 constructed or expanded in reliance on the department's 3 26 binding explanation. 3 27 6. The department or attorney general may take an 3 28 enforcement action against a person regardless of a binding 3 29 explanation if any of the following applies: 3 30 a. The person obtains the binding explanation in bad 3 31 faith, having actual knowledge that the explanation was 3 32 erroneous. 3 33 b. The binding explanation concerns a requirement in a 3 34 statute or departmental rule that has been superseded by a 3 35 requirement in a statute enacted or rule adopted after the 4 1 explanation becomes binding. 4 2 7. Nothing in this section prevents the department from 4 3 conducting an investigation or issuing a subpoena requiring 4 4 the attendance of a witness or the production of evidence 4 5 pertinent to a hearing. 4 6 Sec. 3. Section 455B.112, Code Supplement 2005, is amended 4 7 to read as follows: 4 8 455B.112 ACTIONS BY ATTORNEY GENERAL. 4 9 1. In addition to the duty to commence legal proceedings 4 10 at the request of the director or commission under this 4 11 chapter; chapter 459, subchapters I, II, III, IV, and VI; or 4 12 chapter 459A, the attorney general may institute civil or 4 13 criminal proceedings, including an action for injunction, to 4 14 enforce the provisions of this chapter; chapter 459, 4 15 subchapters I, II, III, IV, and VI; or chapter 459A, including 4 16 orders or permits issued or rules adopted under this chapter; 4 17 chapter 459, subchapters I, II, III, IV, and VI; or chapter 4 18 459A. 4 19 2. However, the attorney general is precluded from taking 4 20 an enforcement action against a person for failing to comply 4 21 with a requirement if the person has detrimentally relied upon 4 22 the department's binding explanation of the requirement as 4 23 provided in section 455B.110. 4 24 Sec. 4. Section 455B.146, Code 2005, is amended to read as 4 25 follows: 4 26 455B.146 CIVIL ACTION FOR COMPLIANCE == LOCAL PROGRAM 4 27 ACTIONS. 4 28 1. If any order, permit, or rule of the department is 4 29 being violated, the attorney general shall, at the request of 4 30 the department or the director, institute a civil action in 4 31 any district court for injunctive relief to prevent any 4 32 further violation of the order, permit, or rule, or for the 4 33 assessment of a civil penalty as determined by the court, not 4 34 to exceed ten thousand dollars per day for each day such 4 35 violation continues, or both such injunctive relief and civil 5 1 penalty. 5 2 2. However, the attorney general is precluded from taking 5 3 an enforcement action against a person for failing to comply 5 4 with a requirement if the person has detrimentally relied upon 5 5 the department's binding explanation of the requirement as 5 6 provided in section 455B.110. 5 7 3. Notwithstanding sections 331.302 and 331.307, a city or 5 8 county which maintains air pollution control programs 5 9 authorized by certificate of acceptance under this division 5 10 may provide civil penalties consistent with the amount 5 11 established for such penalties under this division. 5 12 Sec. 5. Section 455B.146A, Code 2005, is amended by adding 5 13 the following new subsection: 5 14 NEW SUBSECTION. 6. The attorney general is precluded from 5 15 taking an enforcement action against a person for failing to 5 16 comply with a requirement if the person has detrimentally 5 17 relied upon the department's binding explanation of the 5 18 requirement as provided in section 455B.110. 5 19 Sec. 6. Section 455B.191, Code 2005, is amended by adding 5 20 the following new subsection: 5 21 NEW SUBSECTION. 7. The department or the attorney general 5 22 is precluded from taking an enforcement action against a 5 23 person for failing to comply with a requirement if the person 5 24 has detrimentally relied upon the department's binding 5 25 explanation of the requirement as provided in section 5 26 455B.110. 5 27 EXPLANATION 5 28 This bill amends the first three divisions of Code chapter 5 29 455B, which provides authority to the department of natural 5 30 resources and in some cases the attorney general to bring an 5 31 enforcement action against persons who violate provisions 5 32 regulating environmental quality (air and water quality). 5 33 BACKGROUND. Division I of Code chapter 455B provides the 5 34 department with general regulatory authority. The department 5 35 may establish a range of civil penalties for violations of the 6 1 Code chapter (Code section 455B.109). The attorney general is 6 2 authorized to institute civil or criminal judicial proceedings 6 3 necessary to enforce provisions of the Code chapter (Code 6 4 section 455B.112). 6 5 Division II of Code chapter 455B regulates air quality. 6 6 The attorney general at the request of the department may 6 7 institute a civil action in court to obtain injunctive relief 6 8 or impose a civil penalty of up to $10,000 for a violation of 6 9 the division (Code section 455B.146). A person who knowingly 6 10 violates any provision of the division is guilty of an 6 11 aggravated misdemeanor (Code section 455B.146A). An 6 12 aggravated misdemeanor is punishable by confinement for not 6 13 more than two years and a fine of at least $500 but not more 6 14 than $5,000. A conviction for a subsequent violation is 6 15 punishable by imprisonment for not more than four years and a 6 16 fine of not more than $20,000 (Code section 455B.146A). 6 17 Division III of Code chapter 455B regulates water quality. 6 18 Generally, a person who violates a provision of the division 6 19 is subject to a civil penalty of not more than $5,000 (Code 6 20 section 455B.191). The Code section does not expressly 6 21 provide whether the department or the attorney general may 6 22 enforce the provision. 6 23 The department and the attorney general are required to 6 24 enforce the provisions of Code chapter 459 regulating animal 6 25 feeding operations and specifically confinement feeding 6 26 operations and open feedlot operations in the same manner as 6 27 provided in Code chapter 455B, division I (Code sections 6 28 459.103 and 459A.501). A person who violates an air quality 6 29 standard in Code chapter 459 is subject to a civil penalty 6 30 which is established, assessed, and collected in the same 6 31 manner as provided in Code section 455B.109. A person who 6 32 violates a water quality regulation which applies to a 6 33 confinement feeding operation or open feedlot operation is 6 34 subject to a civil penalty which is established, assessed, and 6 35 collected in the same manner as provided in Code section 7 1 455B.191. There are increased civil penalties for persons 7 2 classified as habitual violators which may be up to $25,000 7 3 (Code section 459.604). 7 4 BILL'S PROVISIONS. The bill relates enforcement actions 7 5 brought and carried out by the department or the attorney 7 6 general under the provisions described herein. The bill 7 7 provides that the department is precluded from taking an 7 8 enforcement action to impose, assess, or collect a civil 7 9 penalty against a person who has detrimentally relied upon a 7 10 binding explanation by the department which erroneously 7 11 advises the person how to comply with a requirement of a 7 12 statute or departmental rule, including by performing or 7 13 refraining from performing an act. The bill provides that the 7 14 attorney general is precluded from taking an enforcement 7 15 action to obtain a criminal judgment or impose, assess, or 7 16 collect a civil penalty against a person who has detrimentally 7 17 relied upon such a binding explanation by the department. 7 18 In order to be binding, the department's explanation must 7 19 be in writing. If the department's explanation is made 7 20 verbally, it may become binding if the department confirms the 7 21 earlier verbal explanation as requested by the person who 7 22 would benefit from the confirmation. If the department does 7 23 not confirm the earlier verbal explanation or issue a new 7 24 written and binding explanation, the binding explanation is 7 25 that version contained in the person's request for 7 26 confirmation. The binding explanation may be treated as a 7 27 waiver or variance (see Code sections 455B.143 and 17A.9A). 7 28 Otherwise, the department must deliver a notice to the person 7 29 stating that the requirement will become applicable on a 7 30 future date, unless this would result in undue hardship on the 7 31 person who has relied upon the binding explanation. A binding 7 32 explanation does not apply if the person obtained it in bad 7 33 faith or a later enacted statute or adopted rule supersedes 7 34 it. 7 35 LSB 6140SK 81 8 1 da:nh/gg/14