SF 2242 (LSB 5440SV (4) 83)

SENATE FILE 2242

BY  COMMITTEE ON ENVIRONMENT & ENERGY INDEPENDENCE

(SUCCESSOR TO SSB 3168)

(As Amended and Passed by the Senate 2010-03-23)

A BILL FOR

An Act relating to the Iowa comprehensive petroleum underground storage tank fund and including effective date and retroactive applicability provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

DIVISION I
IOWA COMPREHENSIVE PETROLEUM

UNDERGROUND STORAGE TANK FUND
    Section 1.  Section 455B.474, subsection 1, paragraph d, subparagraph (2), unnumbered paragraph 1, Code Supplement 2009, is amended to read as follows:
   A site shall be classified as either high risk, low risk, or no action required, as determined by a certified groundwater professional.
    Sec. 2.  Section 455B.474, subsection 1, paragraph d, subparagraph (2), subparagraph division (a), unnumbered paragraph 1, Code Supplement 2009, is amended to read as follows:
   A site shall be considered high risk when it is determined a certified groundwater professional determines that contamination from the site presents an unreasonable risk to public health and safety or the environment under any of the following conditions:
    Sec. 3.  Section 455B.474, subsection 1, paragraph d, subparagraph (2), subparagraph division (b), unnumbered paragraph 1, Code Supplement 2009, is amended to read as follows:
   A site shall be considered low risk under any of the following conditions when a certified groundwater professional determines that low risk conditions exist as follows:
    Sec. 4.  Section 455B.474, subsection 1, paragraph d, subparagraph (2), subparagraph divisions (c) and (e), Code Supplement 2009, are amended to read as follows:
   (c)  A site shall be considered no action required if and a no further action certificate shall be issued by the department when a certified groundwater professional determines that contamination is below action level standards and high or low risk conditions do not exist and are not likely to occur.
   (e)  A site cleanup report which classifies a site as either high risk, low risk, or no action required shall be submitted by a groundwater professional to the department with a certification that the report complies with the provisions of this chapter and rules adopted by the department. The report shall be determinative of the appropriate classification of the site. However, if the report is found to be and the site shall be classified as indicated by the groundwater professional unless, within ninety days of receipt by the department, the department identifies material information in the report that is inaccurate or incomplete, and if based upon inaccurate or incomplete information in the report the risk classification of the site cannot be reasonably determined by the department based upon industry standards, the department shall. If the department determines that the site cleanup report is inaccurate or incomplete, the department shall notify the groundwater professional of the inaccurate or incomplete information within ninety days of receipt of the report and shall work with the groundwater professional to obtain the correct information or additional information necessary to appropriately classify the site.  However, from July 1, 2010, through June 30, 2011, the department shall have one hundred twenty days to notify the certified groundwater professional when a report is not accepted based on material information that is found to be inaccurate or incomplete. A groundwater professional who knowingly or intentionally makes a false statement or misrepresentation which results in a mistaken classification of a site shall be guilty of a serious misdemeanor and shall have the groundwater professional’s certification revoked under this section.
    Sec. 5.  Section 455B.474, subsection 1, paragraph f, subparagraphs (5), (6), and (7), Code Supplement 2009, are amended to read as follows:
   (5)  A corrective action design report submitted by a groundwater professional shall be accepted by the department and shall be primarily relied upon by the department to determine the corrective action response requirements of the site. However, if the corrective action design report is found to be within ninety days of receipt of a corrective action design report, the department identifies material information in the corrective action design report that is inaccurate or incomplete, and if based upon information in the report the appropriate corrective action response cannot be reasonably determined by the department based upon industry standards, the department shall notify the groundwater professional that the corrective action design report is not accepted, and the department shall work with the groundwater professional to correct the material information or to obtain the additional information necessary to appropriately determine the corrective action response requirements as soon as practicable.  However, from July 1, 2010, through June 30, 2011, the department shall have one hundred twenty days to notify the certified groundwater professional when a corrective action design report is not accepted based on material information that is found to be inaccurate or incomplete. A groundwater professional who knowingly or intentionally makes a false statement or misrepresentation which results in an improper or incorrect corrective action response shall be guilty of a serious misdemeanor and shall have the groundwater professional’s certification revoked under this section.
   (6)  Low risk sites shall be monitored as deemed necessary by the department consistent with industry standards. Monitoring shall not be required on a site which has received a no further action certificate.  A site that has maintained less than the applicable target level for four consecutive sampling events shall be reclassified as a no action required site regardless of exit monitoring criteria and guidance.
   (7)  An owner or operator may elect to proceed with additional corrective action on the site. However, any action taken in addition to that required pursuant to this paragraph “f” shall be solely at the expense of the owner or operator and shall not be considered corrective action for purposes of section 455G.9, unless otherwise previously agreed to by the board and the owner or operator pursuant to section 455G.9, subsection 7. Corrective action taken by an owner or operator due to the department’s failure to meet the time requirements provided in subparagraph (5), shall be considered corrective action for purposes of section 455G.9.
    Sec. 6.  Section 455B.474, subsection 1, paragraph h, subparagraphs (1) and (3), Code Supplement 2009, are amended to read as follows:
   (1)  A no further action certificate shall be issued by the department for a site which has been classified as a no further action site or which has been reclassified pursuant to completion of a corrective action plan or monitoring plan to be a no further action site by a groundwater professional, unless within ninety days of receipt of the report submitted by the groundwater professional classifying the site, the department notifies the groundwater professional that the report and site classification are not accepted and the department identifies material information in the report that is inaccurate or incomplete which causes the department to be unable to accept the classification of the site. An owner or operator shall not be responsible for additional assessment, monitoring, or corrective action activities at a site that is issued a no further action certificate unless it is determined that the certificate was issued based upon false material statements that were knowingly or intentionally made by a groundwater professional and the false material statements resulted in the incorrect classification of the site.
   (3)  A certificate shall be recorded with the county recorder. The owner or operator of a site who has been issued a certificate under this paragraph “h” or a subsequent purchaser of the site shall not be required to perform further corrective action solely because action standards are changed at a later date. A certificate shall not prevent the department from ordering corrective action of a new release.
    Sec. 7.  Section 455B.479, Code 2009, is amended to read as follows:
   455B.479  Storage tank management fee.

   An owner or operator of an underground storage tank shall pay an annual storage tank management fee of sixty-five dollars per tank of over one thousand one hundred gallons capacity. Twenty-three percent of the The fees collected shall be deposited in the storage tank management account of the groundwater protection fund. Seventy-seven percent of the fees collected shall be deposited in the Iowa comprehensive petroleum underground storage tank fund created in chapter 455G.
    Sec. 8.  Section 455E.11, subsection 2, paragraph d, Code Supplement 2009, is amended to read as follows:
   d.  A storage tank management account.  All fees collected pursuant to section 455B.473, subsection 5, and section 455B.479, shall be deposited in the storage tank management account, except those moneys deposited into the Iowa comprehensive petroleum underground storage tank fund pursuant to section 455B.479. Funds. Moneys deposited in the account shall be expended for the following purposes:
   (1)  One thousand dollars is appropriated annually to the Iowa department of public health to carry out departmental duties under section 135.11, subsections 19 and 20, and section 139A.21.
   (2)  Twenty-three percent of the proceeds of the fees imposed pursuant to section 455B.473, subsection 5, and section 455B.479 shall be deposited in the account annually, up to a maximum of three hundred fifty thousand dollars. If twenty-three percent of the proceeds exceeds three hundred fifty thousand dollars, the excess shall be deposited into the fund created in section 455G.3. Three hundred fifty thousand dollars is The moneys remaining in the account after the appropriation in subparagraph (1) are appropriated from the storage tank management account to the department of natural resources for the administration of a state storage tank program pursuant to chapter 455B, division IV, part 8, and for programs which reduce the potential for harm to the environment and the public health from storage tanks.
   (3)  The remaining funds in the account are appropriated annually to the Iowa comprehensive petroleum underground storage tank fund.  Each fiscal year, the department of natural resources shall enter into an agreement with the Iowa comprehensive petroleum underground storage tank fund for the completion of administrative tasks during the fiscal year directly related to the evaluation and modification of risk based corrective action rules as necessary and processes that affect the administration in subparagraph (2).
    Sec. 9.  Section 455G.3, Code 2009, is amended by adding the following new subsections:
   NEW SUBSECTION.  6.  For the fiscal year beginning July 1, 2010, and each fiscal year thereafter, there is appropriated from the Iowa comprehensive petroleum underground storage tank fund to the department of natural resources two hundred thousand dollars for purposes of technical review support to be conducted by nongovernmental entities for leaking underground storage tank assessments.
   NEW SUBSECTION.  7.  For the fiscal year beginning July 1, 2010, there is appropriated from the Iowa comprehensive petroleum underground storage tank fund to the department of natural resources one hundred thousand dollars for purposes of database modifications necessary to accept batched external data regarding underground storage tank inspections conducted by nongovernmental entities.
   NEW SUBSECTION.  8.  For the fiscal year beginning July 1, 2010, and each fiscal year thereafter, there is appropriated from the Iowa comprehensive petroleum underground storage tank fund to the department of agriculture and land stewardship two hundred fifty thousand dollars for the sole and exclusive purpose of inspecting fuel quality at pipeline terminals and renewable fuel production facilities, including salaries, support, maintenance, and miscellaneous purposes.
   NEW SUBSECTION.  9.  Beginning September 1, 2010, the board shall administer safety training, hazardous material training, environmental training, and underground storage tank operator training in the state to be provided by an entity approved by the department of natural resources. The training provided pursuant to this subsection shall be available to any tank operator in the state at an equal and reasonable cost and shall not be conditioned upon any other requirements. Each fiscal year, the board shall not expend more than two hundred fifty thousand dollars from the Iowa comprehensive petroleum underground storage tank fund for purposes of administering this subsection.
    Sec. 10.  Section 455G.4, subsection 1, paragraph a, subparagraphs (3) and (5), Code Supplement 2009, are amended to read as follows:
   (3)  The commissioner of insurance, or the commissioner’s designee.  An employee of the department of management who has been designated as a risk manager by the director of the department of management.
   (5)  Two owners or operators appointed by the governor. One of the owners or operators appointed pursuant to this subparagraph shall have been a petroleum systems insured through the underground storage tank insurance fund as it existed on June 30, 2004, or a successor to the underground storage tank insurance fund and shall have been an insured through the insurance account of the comprehensive petroleum underground storage tank fund on or before October 26, 1990. One of the owners or operators appointed pursuant to this subparagraph shall be self-insured. as follows:
   (a)  One member shall be an owner or operator who is self-insured.
   (b)  One member shall be a member of the petroleum marketers and convenience stores of Iowa or its designee.
    Sec. 11.  Section 455G.8, subsection 3, Code 2009, is amended by striking the subsection.
    Sec. 12.  Section 455G.9, subsection 1, paragraphs d, k, and l, Code 2009, are amended to read as follows:
   d.  One hundred percent of the costs of corrective action and third-party liability for a release situated on property acquired by a county for delinquent taxes pursuant to chapters 445 through 448, for which a responsible owner or operator able to pay, other than the county, cannot be found. A county is not a “responsible party” for a release in connection with property which it acquires in connection with delinquent taxes, and does not become a responsible party by sale or transfer of property so acquired.  In such situations, the board may act as an agent for the county. Actual corrective action on the site shall be overseen by the department, the board, and a certified groundwater professional. Third-party liability specifically excludes any claim, cause of action, or suit, for personal injury including, but not limited to, loss of use or of private enjoyment, mental anguish, false imprisonment, wrongful entry or eviction, humiliation, discrimination, or malicious prosecution.  Reasonable acquisition costs do not include any taxes or costs related to the collection of taxes.
   k.  Pursuant to an agreement between the board and the department of natural resources, assessment and corrective action arising out of releases at sites for which a no further action certificate has been issued pursuant to section 455B.474, when the department determines that an unreasonable risk to public health and safety may still exist or that previously reported upon applicable target levels have been exceeded. At a minimum, the agreement shall address eligible costs, contracting for services, and conditions under which sites may be reevaluated.
   l.  Costs Up to fifteen thousand dollars for the permanent closure of an underground storage tank system that was in place on the date an eligible claim was submitted under paragraph “a” that does not meet performance standards for new or upgraded tanks or is otherwise required to be closed pursuant to rules adopted by the environmental protection commission pursuant to section 455B.474. Reimbursement is limited to costs approved by the board prior to the closure activities.
    Sec. 13.  Section 455G.9, subsection 4, Code 2009, is amended to read as follows:
   4.  Minimum copayment schedule.
   a.  An owner or operator shall be required to pay the greater of five thousand dollars or eighteen percent of the first eighty thousand dollars of the total costs of corrective action for that release, except for claims pursuant to section 455G.21, where the claimant is not a responsible party or potentially responsible party for the site for which the claim is filed.
   b.  If a site’s actual expenses exceed eighty thousand dollars, the remedial account shall pay the remainder, as required by federal regulations, of the total costs of the corrective action for that release, not to exceed one million dollars, except that a county shall not be required to pay a copayment in connection with a release situated on property acquired in connection with delinquent taxes, as provided in subsection 1, paragraph “d”, unless subsequent to acquisition the county actively operates a tank on the property for purposes other than risk assessment, risk management, or tank closure.
    Sec. 14.  Section 455G.9, subsection 7, Code 2009, is amended to read as follows:
   7.  Expenses of cleanup not required.  When an owner or operator who is eligible for benefits under this chapter is allowed by the department of natural resources to monitor in place, the expenses incurred for cleanup beyond the level required by the department of natural resources are not may be covered under any of the accounts established under the fund only if approved by the board as cost-effective relative to the department accepted monitoring plan or relative to the repeal date specified in section 424.19. The cleanup expenses incurred for work completed beyond what is required is the responsibility of the person contracting for the excess cleanup.  The board shall seek to terminate the responsible party’s environmental liabilities at such sites prior to the board ceasing operation.
    Sec. 15.  Section 455G.9, subsection 10, Code 2009, is amended to read as follows:
   10.  Expenses incurred by governmental subdivisions and public works utilities.  The board may shall adopt rules for reimbursement for reasonable expenses incurred by a governmental subdivision or public works utility for sampling, treating, handling, or disposing, as required by the department, of petroleum-contaminated soil and groundwater encountered in a public right-of-way during installation, maintenance, or repair of a utility or public improvement. The board may seek full recovery from a responsible party liable for the release for such expenses and for all other costs and reasonable attorney fees and costs of litigation for which moneys are expended by the fund. Any expense described in this subsection incurred by the fund constitutes a lien upon the property from which the release occurred. A lien shall be recorded and an expense shall be collected in the same manner as provided in section 424.11.
    Sec. 16.  EFFECTIVE UPON ENACTMENT AND RETROACTIVE APPLICABILITY.  The section of this division of this Act amending section 455G.9, subsection 4, being deemed of immediate importance, takes effect upon enactment and applies retroactively to January 1, 2010.

DIVISION II
BONDING AUTHORITY
    Sec. 17.  Section 455G.2, subsection 1, Code 2009, is amended by striking the subsection.
    Sec. 18.  Section 455G.2, subsection 3, Code 2009, is amended to read as follows:
   3.  “Bond” means a bond, note, or other obligation issued by the authority treasurer of state for the fund and the purposes of this chapter.
    Sec. 19.  Section 455G.3, subsection 2, Code 2009, is amended to read as follows:
   2.  The board shall assist Iowa’s owners and operators of petroleum underground storage tanks in complying with federal environmental protection agency technical and financial responsibility regulations by establishment of the Iowa comprehensive petroleum underground storage tank fund. The authority treasurer of state may issue its bonds, or series of bonds, to assist the board, as provided in this chapter.
    Sec. 20.  Section 455G.6, subsections 7 through 9, Code Supplement 2009, are amended to read as follows:
   7.  The board may contract with the authority treasurer of state for the authority treasurer of state to issue bonds and do all things necessary with respect to the purposes of the fund, as set out in the contract between the board and the authority treasurer of state. The board may delegate to the authority treasurer of state and the authority treasurer of state shall then have all of the powers of the board which are necessary to issue and secure bonds and carry out the purposes of the fund, to the extent provided in the contract between the board and the authority treasurer of state. The authority treasurer of state may issue the authority’s treasurer of state’s bonds in principal amounts which, in the opinion of the board, are necessary to provide sufficient funds for the fund, the payment of interest on the bonds, the establishment of reserves to secure the bonds, the costs of issuance of the bonds, other expenditures of the authority treasurer of state incident to and necessary or convenient to carry out the bond issue for the fund, and all other expenditures of the board necessary or convenient to administer the fund. The bonds are investment securities and negotiable instruments within the meaning of and for purposes of the uniform commercial code, chapter 554.
   8.  Bonds issued under this section are payable solely and only out of the moneys, assets, or revenues of the fund, all of which may be deposited with trustees or depositories in accordance with bond or security documents and pledged by the board to the payment thereof, and are not an indebtedness of this state or the authority, or a charge against the general credit or general fund of the state or the authority, and the state shall not be liable for any financial undertakings with respect to the fund. Bonds issued under this chapter shall contain on their face a statement that the bonds do not constitute an indebtedness of the state or the authority.
   9.  The proceeds of bonds issued by the authority treasurer of state and not required for immediate disbursement may be deposited with a trustee or depository as provided in the bond documents and invested in any investment approved by the authority treasurer of state and specified in the trust indenture, resolution, or other instrument pursuant to which the bonds are issued without regard to any limitation otherwise provided by law.
    Sec. 21.  Section 455G.6, subsection 10, paragraph b, Code Supplement 2009, is amended to read as follows:
   b.  Negotiable instruments under the laws of the state and may be sold at prices, at public or private sale, and in a manner, as prescribed by the authority treasurer of state. Chapters 73A, 74, 74A and 75 do not apply to their sale or issuance of the bonds.
    Sec. 22.  Section 455G.6, subsection 12, Code Supplement 2009, is amended to read as follows:
   12.  Bonds must be authorized by a trust indenture, resolution, or other instrument of the authority treasurer of state, approved by the board. However, a trust indenture, resolution, or other instrument authorizing the issuance of bonds may delegate to an officer of the issuer the power to negotiate and fix the details of an issue of bonds.
    Sec. 23.  Section 455G.7, Code Supplement 2009, is amended to read as follows:
   455G.7  Security for bonds —— capital reserve fund —— irrevocable contracts.
   1.  a.  For the purpose of securing one or more issues of bonds for the fund, the authority treasurer of state, with the approval of the board, may authorize the establishment of one or more special funds, called “capital reserve funds”. The authority treasurer of state may pay into the capital reserve funds the proceeds of the sale of its bonds and other money which may be made available to the authority treasurer of state from other sources for the purposes of the capital reserve funds. Except as provided in this section, money in a capital reserve fund shall be used only as required for any of the following:
   a.  (1)  The payment of the principal of and interest on bonds or of the sinking fund payments with respect to those bonds.
   b.  (2)  The purchase or redemption of the bonds.
   c.  (3)  The payment of a redemption premium required to be paid when the bonds are redeemed before maturity.
   b.  However, money in a capital reserve fund shall not be withdrawn if the withdrawal would reduce the amount in the capital reserve fund to less than the capital reserve fund requirement, except for the purpose of making payment, when due, of principal, interest, redemption premiums on the bonds, and making sinking fund payments when other money pledged to the payment of the bonds is not available for the payments. Income or interest earned by, or increment to, a capital reserve fund from the investment of all or part of the capital reserve fund may be transferred by the authority treasurer of state to other accounts of the fund if the transfer does not reduce the amount of the capital reserve fund below the capital reserve fund requirement.
   2.  If the authority treasurer of state decides to issue bonds secured by a capital reserve fund, the bonds shall not be issued if the amount in the capital reserve fund is less than the capital reserve fund requirement, unless at the time of issuance of the bonds the authority treasurer of state deposits in the capital reserve fund from the proceeds of the bonds to be issued or from other sources, an amount which, together with the amount then in the capital reserve fund, is not less than the capital reserve fund requirement.
   3.  In computing the amount of a capital reserve fund for the purpose of this section, securities in which all or a portion of the capital reserve fund is invested shall be valued by a reasonable method established by the authority treasurer of state. Valuation shall include the amount of interest earned or accrued as of the date of valuation.
   4.  In this section, “capital reserve fund requirement” means the amount required to be on deposit in the capital reserve fund as of the date of computation.
   5.  To assure maintenance of the capital reserve funds, the authority treasurer of state shall, on or before July 1 of each calendar year, make and deliver to the governor the authority’s treasurer of state’s certificate stating the sum, if any, required to restore each capital reserve fund to the capital reserve fund requirement for that fund. Within thirty days after the beginning of the session of the general assembly next following the delivery of the certificate, the governor may submit to both houses printed copies of a budget including the sum, if any, required to restore each capital reserve fund to the capital reserve fund requirement for that fund. Any sums appropriated by the general assembly and paid to the authority treasurer of state pursuant to this section shall be deposited in the applicable capital reserve fund.
   6.  All amounts paid by the state pursuant to this section shall be considered advances by the state and, subject to the rights of the holders of any bonds of the authority treasurer of state that have previously been issued or will be issued, shall be repaid to the state without interest from all available revenues of the fund in excess of amounts required for the payment of bonds of the authority treasurer of state, the capital reserve fund, and operating expenses.
   7.  If any amount deposited in a capital reserve fund is withdrawn for payment of principal, premium, or interest on the bonds or sinking fund payments with respect to bonds thus reducing the amount of that fund to less than the capital reserve fund requirement, the authority treasurer of state shall immediately notify the governor and the general assembly of this event and shall take steps to restore the capital reserve fund to the capital reserve fund requirement for that fund from any amounts designated as being available for such purpose.
    Sec. 24.  Section 455G.8, subsection 2, Code 2009, is amended to read as follows:
   2.  Statutory allocations fund.  The moneys credited from the statutory allocations fund under section 321.145, subsection 2, paragraph “a”, shall be allocated, consistent with this chapter, among the fund’s accounts, for debt service and other fund expenses, according to the fund budget, resolution, trust agreement, or other instrument prepared or entered into by the board or authority treasurer of state under direction of the board.
    Sec. 25.  REPEAL.  Section 16.151, Code 2009, is repealed.
    Sec. 26.  REPEAL.  1989 Iowa Acts, chapter 131, section 63, as amended by 2009 Iowa Acts, chapter 184, section 39, is repealed.
    Sec. 27.  EFFECTIVE UPON ENACTMENT.  This division of this Act, being deemed of immediate importance, takes effect upon enactment.