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Senate File 409 - IntroducedA Bill ForAn Act 1relating to administrative procedures within the
2department of natural resources.
3BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1DIVISION I
2ADMINISTRATIVE APPEALS TIMELINE
3 Section 1. NEW SECTION. 455B.110 Administrative appeal
4orders — deadline.
51. An order issued by the director or the department
6pursuant to authority granted in this chapter may be appealed,
7resulting in the scheduling of a contested case hearing as
8provided for in chapter 17A. The appeal must be received
9by the director within the applicable timeframe established
10in this section. If the appeal is not received within the
11applicable timeframe, the appeal is not timely and the order
12is final agency action.
132. For a person that holds a permit issued by the
14department, an appeal must be received by the director within
15sixty days of the issuance of the order to the address of
16the person identified in the permit and the address of the
17responsible party listed in the permit, if any.
183. For a person that is required to maintain a registered
19agent or a registered office in the state and does not hold a
20permit issued by the department, an appeal must be received by
21the director within sixty days of the issuance of the order
22to the official registered agent address on file with the
23secretary of state.
244. For any other person, an appeal must be received by
25the director within sixty days of issuance to the last known
26address.
275. The director or the department shall provide a copy of
28the order by ordinary mail or electronic mail to the person’s
29attorney if the attorney has been identified to the department
30as representing the person.
316. a. For the purposes of this section, the date of
32issuance of an order by the director or the department is the
33postmarked date that the order is sent by the department to the
34registered agent or party by certified mail. For the purposes
35of this section, the date of receipt by the director is the
-1-1postmarked date that the appeal was sent to the director.
2 Sec. 2. Section 455B.138, subsection 1, Code 2019, is
3amended to read as follows:
41. When the director has evidence that a violation of
5any provision of division II of this chapter or chapter 459,
6subchapter II, or rule, standard or permit established or
7issued under division II or chapter 459, subchapter II, has
8occurred, the director shall notify the alleged violator and,
9by informal negotiation, attempt to resolve the problem.
10If the negotiations fail to resolve the problem within a
11reasonable period of time, the director shall issue an order
12directing the violator to prevent, abate or control the
13emissions or air pollution involved. The order shall prescribe
14the date by which the violation shall cease and may prescribe
15timetables for necessary action to prevent, abate or control
16the emissions of air pollution. The order may be appealed to
17the commission. The applicable timeframes for the issuance and
18appeal of the order are defined in section 455B.110.
19 Sec. 3. Section 455B.175, subsection 1, paragraph a, Code
202019, is amended to read as follows:
21a. The director may issue an order directing the person
22to desist in the practice which constitutes the violation or
23to take such corrective action as may be necessary to ensure
24that the violation will cease. The person to whom such order
25is issued may cause to be commenced a contested case within
26the meaning of the Iowa administrative procedure Act, chapter
2717A, by filing with the director within thirty days a notice
28of appeal to the commission. The applicable timeframes for
29the issuance and appeal of the order are defined in section
30455B.110. On appeal the commission may affirm, modify or
31vacate the order of the director; or
32 Sec. 4. Section 455B.183, Code 2019, is amended by adding
33the following new subsection:
34 NEW SUBSECTION. 9. A rural water association organized
35under chapter 357A or chapter 504 that employs or retains
-2-1a licensed engineer shall be considered to have met the
2permitting requirements of this section for the purposes
3of sewer extensions and water supply distribution system
4extensions. The department shall not disqualify a rural
5water system if the system’s hydraulic modeling complies with
6standards for water supply distribution systems adopted by the
7commission pursuant to this chapter.
8 Sec. 5. Section 455B.279, subsection 1, Code 2019, is
9amended to read as follows:
101. The director may issue any order necessary to secure
11compliance with or prevent a violation of this part or the
12rules adopted pursuant to this part. Within thirty days of
13issuance, the The order may be appealed to the commission by
14filing a notice of appeal with the director. The appeal shall
15be conducted as a contested case pursuant to chapter 17A and
16the commission may affirm, modify, or revoke the order. The
17department may request legal services as required from the
18attorney general, including any legal proceeding necessary to
19obtain compliance with this part and rules and orders issued
20under this part. The applicable timeframes for the issuance
21and appeal of an order are defined in section 455B.110.
22 Sec. 6. Section 455B.308, Code 2019, is amended to read as
23follows:
24455B.308 Appeal from order.
25Any person aggrieved by an order of the director may appeal
26the order by filing a written notice of appeal with the
27director within thirty days of the issuance of the order in
28accordance with section 455B.110. The director shall schedule
29a hearing for the purpose of hearing the arguments of the
30aggrieved person within thirty days of the filing of the notice
31of appeal. The hearing may be held before the commission
32or its designee. A complete record shall be made of the
33proceedings. The director shall issue the findings in writing
34to the aggrieved person within thirty days of the conclusion
35of the hearing. Judicial review may be sought of actions
-3-1of the commission in accordance with the terms of the Iowa
2administrative procedure Act, chapter 17A. Notwithstanding the
3terms of the Act, petitions for judicial review may be filed
4in the district court of the county where the acts in issue
5occurred.
6 Sec. 7. Section 455B.476, subsection 1, Code 2019, is
7amended to read as follows:
81. If there is substantial evidence that a person has
9violated or is violating a provision of this part or a
10rule adopted under this part the director may issue an
11order directing the person to desist in the practice which
12constitutes the violation, and to take corrective action as
13necessary to ensure that the violation will cease, and may
14impose appropriate administrative penalties pursuant to section
15455B.109. The person to whom the order is issued may appeal
16the order to the commission as provided in chapter 17A. On
17appeal, the commission may affirm, modify or vacate the order
18of the director. The applicable timeframes for the issuance
19and appeal of the order are defined in section 455B.110.
20 Sec. 8. Section 455D.23, Code 2019, is amended to read as
21follows:
22455D.23 Administrative enforcement — compliance orders.
23The director may issue any order necessary to secure
24compliance with or prevent a violation of the provisions of
25this chapter or any rule adopted or permit or order issued
26pursuant to this chapter. Any order issued to enforce section
27455D.4A may include a requirement to remove and properly
28dispose of materials being accumulated speculatively from a
29property and impose costs and penalties as determined by the
30department by rule. The person to whom such compliance order
31is issued may cause to be commenced a contested case within the
32meaning of chapter 17A by filing within thirty days a notice
33of appeal to the commission. On appeal, the commission may
34affirm, modify, or vacate the order of the director. The
35applicable timeframes for the issuance and appeal of the order
-4-1are defined in section 455B.110.
2 Sec. 9. Section 458A.11, subsection 2, Code 2019, is amended
3to read as follows:
42. An order or amendment of an order, except in an
5emergency, shall not be made by the department without a
6public hearing upon at least ten days’ notice. The public
7hearing shall be held at the time and place prescribed by the
8department, and any interested person is entitled to be heard.
9The applicable timeframes for the issuance and appeal of the
10order are defined in section 455B.110.
11DIVISION II
12ADMINISTRATIVE CHANGES FOR WASTE DISPOSAL SYSTEMS AND PUBLIC
13WATER SUPPLY SYSTEMS
14 Sec. 10. Section 455B.183, subsection 1, paragraph c, Code
152019, is amended to read as follows:
16c. The operation of any waste disposal system or public
17water supply system or any part of or extension or addition
18to the system. This provision paragraph does not apply to a
19pretreatment system, the effluent of which is to be discharged
20directly to another disposal system for final treatment and
21disposal; a semipublic sewage disposal system, the construction
22of which has been approved by the department and which that
23 does not discharge into a water of the state; or a private
24sewage disposal system which that does not discharge into
25a water of the state. The commission may adopt additional
26exemptions for a class of disposal systems that do not
27discharge into a water of the state or the director may waive
28the permit requirement for an individual system that does
29not discharge into a water of the state. The commission or
30director shall consider the volume, location, frequency, and
31nature of disposal from a system or class of systems before
32granting a waiver or exemption. Sludge from a semipublic
33or private sewage disposal system shall be disposed of in
34accordance with the rules adopted by the department pursuant to
35chapter 17A. The exemption of this paragraph shall not apply
-5-1to any industrial waste discharges.
2 Sec. 11. Section 455B.265, subsection 5, Code 2019, is
3amended to read as follows:
45. Prior to the issuance of a new permit or modification
5of a permit under this section to a community public water
6supply, the department shall publish a notice of recommendation
7to grant a permit. The notice shall include a brief summary
8of the proposed permit and shall be published in a newspaper
9of general circulation within the county of the proposed
10water source as provided in section 618.3. If the newspaper
11of general circulation is not the newspaper of the nearest
12locality to the proposed water source that publishes a
13newspaper, the notice shall also be published in the newspaper
14of the nearest locality to the proposed water source that
15publishes a newspaper and the department may charge the
16applicant for the expenses associated with publishing the
17notice in the second newspaper.
18 Sec. 12. Section 455B.265, subsection 6, paragraphs a and c,
19Code 2019, are amended to read as follows:
20a. The amount of a fee shall be based on the department’s
21reasonable cost of reviewing applications, issuing permits,
22ensuring compliance with the terms of the permits, and
23resolving water interference complaints. The commission shall
24calculate the fees to produce total revenues of not more than
25five hundred thousand dollars for each fiscal year, commencing
26with the fiscal year beginning July 1, 2009, and ending June
2730, 2010.
28c. The commission shall annually review the amount of moneys
29generated by the fees, the balance in the water use permit
30fund, and the anticipated expenses for the succeeding fiscal
31year years.
32EXPLANATION
33The inclusion of this explanation does not constitute agreement with
34the explanation’s substance by the members of the general assembly.
35This bill affects administrative procedures within the
-6-1department of natural resources.
2Division I of the bill creates a 60-day period during which
3an entity may appeal an order issued by the director or the
4department pursuant to the department’s authority in Code
5chapter 455B. The start of the 60-day period is contingent
6on what type of entity seeks an appeal. Division I makes
7conforming changes throughout Code chapter 455B. The issuance
8and appeal of an order pursuant to Code chapters 455D (waste
9volume reduction and recycling) and 458A (oil, gas, and other
10minerals) also conform to the new 60-day period.
11Division I of the bill also provides that a rural water
12association organized under Code chapter 357A or 504 shall
13be considered to have met permitting requirements for sewer
14extensions and water supply distribution systems if the rural
15water association employs or retains a licensed engineer.
16Division II of the bill allows the environmental protection
17commission to exempt from permit requirements a class of waste
18disposal systems that do not discharge into water of the state
19and are not currently exempt. Division II also allows the
20director to waive the permit requirement of an individual
21system that does not discharge into a water of the state. To
22issue such an exemption or waiver, the commission or director
23must first consider the volume, location, frequency, and nature
24of the system or class of systems. Finally, Division II
25eliminates the requirement that notice of a recommendation to
26grant a permit to a community public water supply be published
27in a newspaper of general circulation within the county and
28removes out-of-date language.
-7-js/tm
2department of natural resources.
3BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1DIVISION I
2ADMINISTRATIVE APPEALS TIMELINE
3 Section 1. NEW SECTION. 455B.110 Administrative appeal
4orders — deadline.
51. An order issued by the director or the department
6pursuant to authority granted in this chapter may be appealed,
7resulting in the scheduling of a contested case hearing as
8provided for in chapter 17A. The appeal must be received
9by the director within the applicable timeframe established
10in this section. If the appeal is not received within the
11applicable timeframe, the appeal is not timely and the order
12is final agency action.
132. For a person that holds a permit issued by the
14department, an appeal must be received by the director within
15sixty days of the issuance of the order to the address of
16the person identified in the permit and the address of the
17responsible party listed in the permit, if any.
183. For a person that is required to maintain a registered
19agent or a registered office in the state and does not hold a
20permit issued by the department, an appeal must be received by
21the director within sixty days of the issuance of the order
22to the official registered agent address on file with the
23secretary of state.
244. For any other person, an appeal must be received by
25the director within sixty days of issuance to the last known
26address.
275. The director or the department shall provide a copy of
28the order by ordinary mail or electronic mail to the person’s
29attorney if the attorney has been identified to the department
30as representing the person.
316. a. For the purposes of this section, the date of
32issuance of an order by the director or the department is the
33postmarked date that the order is sent by the department to the
34registered agent or party by certified mail. For the purposes
35of this section, the date of receipt by the director is the
-1-1postmarked date that the appeal was sent to the director.
2 Sec. 2. Section 455B.138, subsection 1, Code 2019, is
3amended to read as follows:
41. When the director has evidence that a violation of
5any provision of division II of this chapter or chapter 459,
6subchapter II, or rule, standard or permit established or
7issued under division II or chapter 459, subchapter II, has
8occurred, the director shall notify the alleged violator and,
9by informal negotiation, attempt to resolve the problem.
10If the negotiations fail to resolve the problem within a
11reasonable period of time, the director shall issue an order
12directing the violator to prevent, abate or control the
13emissions or air pollution involved. The order shall prescribe
14the date by which the violation shall cease and may prescribe
15timetables for necessary action to prevent, abate or control
16the emissions of air pollution. The order may be appealed to
17the commission. The applicable timeframes for the issuance and
18appeal of the order are defined in section 455B.110.
19 Sec. 3. Section 455B.175, subsection 1, paragraph a, Code
202019, is amended to read as follows:
21a. The director may issue an order directing the person
22to desist in the practice which constitutes the violation or
23to take such corrective action as may be necessary to ensure
24that the violation will cease. The person to whom such order
25is issued may cause to be commenced a contested case within
26the meaning of the Iowa administrative procedure Act, chapter
2717A, by filing with the director within thirty days a notice
28of appeal to the commission. The applicable timeframes for
29the issuance and appeal of the order are defined in section
30455B.110. On appeal the commission may affirm, modify or
31vacate the order of the director; or
32 Sec. 4. Section 455B.183, Code 2019, is amended by adding
33the following new subsection:
34 NEW SUBSECTION. 9. A rural water association organized
35under chapter 357A or chapter 504 that employs or retains
-2-1a licensed engineer shall be considered to have met the
2permitting requirements of this section for the purposes
3of sewer extensions and water supply distribution system
4extensions. The department shall not disqualify a rural
5water system if the system’s hydraulic modeling complies with
6standards for water supply distribution systems adopted by the
7commission pursuant to this chapter.
8 Sec. 5. Section 455B.279, subsection 1, Code 2019, is
9amended to read as follows:
101. The director may issue any order necessary to secure
11compliance with or prevent a violation of this part or the
12rules adopted pursuant to this part. Within thirty days of
13issuance, the The order may be appealed to the commission by
14filing a notice of appeal with the director. The appeal shall
15be conducted as a contested case pursuant to chapter 17A and
16the commission may affirm, modify, or revoke the order. The
17department may request legal services as required from the
18attorney general, including any legal proceeding necessary to
19obtain compliance with this part and rules and orders issued
20under this part. The applicable timeframes for the issuance
21and appeal of an order are defined in section 455B.110.
22 Sec. 6. Section 455B.308, Code 2019, is amended to read as
23follows:
24455B.308 Appeal from order.
25Any person aggrieved by an order of the director may appeal
26the order by filing a written notice of appeal with the
27director within thirty days of the issuance of the order in
28accordance with section 455B.110. The director shall schedule
29a hearing for the purpose of hearing the arguments of the
30aggrieved person within thirty days of the filing of the notice
31of appeal. The hearing may be held before the commission
32or its designee. A complete record shall be made of the
33proceedings. The director shall issue the findings in writing
34to the aggrieved person within thirty days of the conclusion
35of the hearing. Judicial review may be sought of actions
-3-1of the commission in accordance with the terms of the Iowa
2administrative procedure Act, chapter 17A. Notwithstanding the
3terms of the Act, petitions for judicial review may be filed
4in the district court of the county where the acts in issue
5occurred.
6 Sec. 7. Section 455B.476, subsection 1, Code 2019, is
7amended to read as follows:
81. If there is substantial evidence that a person has
9violated or is violating a provision of this part or a
10rule adopted under this part the director may issue an
11order directing the person to desist in the practice which
12constitutes the violation, and to take corrective action as
13necessary to ensure that the violation will cease, and may
14impose appropriate administrative penalties pursuant to section
15455B.109. The person to whom the order is issued may appeal
16the order to the commission as provided in chapter 17A. On
17appeal, the commission may affirm, modify or vacate the order
18of the director. The applicable timeframes for the issuance
19and appeal of the order are defined in section 455B.110.
20 Sec. 8. Section 455D.23, Code 2019, is amended to read as
21follows:
22455D.23 Administrative enforcement — compliance orders.
23The director may issue any order necessary to secure
24compliance with or prevent a violation of the provisions of
25this chapter or any rule adopted or permit or order issued
26pursuant to this chapter. Any order issued to enforce section
27455D.4A may include a requirement to remove and properly
28dispose of materials being accumulated speculatively from a
29property and impose costs and penalties as determined by the
30department by rule. The person to whom such compliance order
31is issued may cause to be commenced a contested case within the
32meaning of chapter 17A by filing within thirty days a notice
33of appeal to the commission. On appeal, the commission may
34affirm, modify, or vacate the order of the director. The
35applicable timeframes for the issuance and appeal of the order
-4-1are defined in section 455B.110.
2 Sec. 9. Section 458A.11, subsection 2, Code 2019, is amended
3to read as follows:
42. An order or amendment of an order, except in an
5emergency, shall not be made by the department without a
6public hearing upon at least ten days’ notice. The public
7hearing shall be held at the time and place prescribed by the
8department, and any interested person is entitled to be heard.
9The applicable timeframes for the issuance and appeal of the
10order are defined in section 455B.110.
11DIVISION II
12ADMINISTRATIVE CHANGES FOR WASTE DISPOSAL SYSTEMS AND PUBLIC
13WATER SUPPLY SYSTEMS
14 Sec. 10. Section 455B.183, subsection 1, paragraph c, Code
152019, is amended to read as follows:
16c. The operation of any waste disposal system or public
17water supply system or any part of or extension or addition
18to the system. This provision paragraph does not apply to a
19pretreatment system, the effluent of which is to be discharged
20directly to another disposal system for final treatment and
21disposal; a semipublic sewage disposal system, the construction
22of which has been approved by the department and which that
23 does not discharge into a water of the state; or a private
24sewage disposal system which that does not discharge into
25a water of the state. The commission may adopt additional
26exemptions for a class of disposal systems that do not
27discharge into a water of the state or the director may waive
28the permit requirement for an individual system that does
29not discharge into a water of the state. The commission or
30director shall consider the volume, location, frequency, and
31nature of disposal from a system or class of systems before
32granting a waiver or exemption. Sludge from a semipublic
33or private sewage disposal system shall be disposed of in
34accordance with the rules adopted by the department pursuant to
35chapter 17A. The exemption of this paragraph shall not apply
-5-1to any industrial waste discharges.
2 Sec. 11. Section 455B.265, subsection 5, Code 2019, is
3amended to read as follows:
45. Prior to the issuance of a new permit or modification
5of a permit under this section to a community public water
6supply, the department shall publish a notice of recommendation
7to grant a permit. The notice shall include a brief summary
8of the proposed permit and shall be published in a newspaper
9of general circulation within the county of the proposed
10water source as provided in section 618.3. If the newspaper
11of general circulation is not the newspaper of the nearest
12locality to the proposed water source that publishes a
13newspaper, the notice shall also be published in the newspaper
14of the nearest locality to the proposed water source that
15publishes a newspaper and the department may charge the
16applicant for the expenses associated with publishing the
17notice in the second newspaper.
18 Sec. 12. Section 455B.265, subsection 6, paragraphs a and c,
19Code 2019, are amended to read as follows:
20a. The amount of a fee shall be based on the department’s
21reasonable cost of reviewing applications, issuing permits,
22ensuring compliance with the terms of the permits, and
23resolving water interference complaints. The commission shall
24calculate the fees to produce total revenues of not more than
25five hundred thousand dollars for each fiscal year, commencing
26with the fiscal year beginning July 1, 2009, and ending June
2730, 2010.
28c. The commission shall annually review the amount of moneys
29generated by the fees, the balance in the water use permit
30fund, and the anticipated expenses for the succeeding fiscal
31year years.
32EXPLANATION
33The inclusion of this explanation does not constitute agreement with
34the explanation’s substance by the members of the general assembly.
35This bill affects administrative procedures within the
-6-1department of natural resources.
2Division I of the bill creates a 60-day period during which
3an entity may appeal an order issued by the director or the
4department pursuant to the department’s authority in Code
5chapter 455B. The start of the 60-day period is contingent
6on what type of entity seeks an appeal. Division I makes
7conforming changes throughout Code chapter 455B. The issuance
8and appeal of an order pursuant to Code chapters 455D (waste
9volume reduction and recycling) and 458A (oil, gas, and other
10minerals) also conform to the new 60-day period.
11Division I of the bill also provides that a rural water
12association organized under Code chapter 357A or 504 shall
13be considered to have met permitting requirements for sewer
14extensions and water supply distribution systems if the rural
15water association employs or retains a licensed engineer.
16Division II of the bill allows the environmental protection
17commission to exempt from permit requirements a class of waste
18disposal systems that do not discharge into water of the state
19and are not currently exempt. Division II also allows the
20director to waive the permit requirement of an individual
21system that does not discharge into a water of the state. To
22issue such an exemption or waiver, the commission or director
23must first consider the volume, location, frequency, and nature
24of the system or class of systems. Finally, Division II
25eliminates the requirement that notice of a recommendation to
26grant a permit to a community public water supply be published
27in a newspaper of general circulation within the county and
28removes out-of-date language.
-7-js/tm