House File 2337 - Introduced
HOUSE FILE 2337
BY COMMITTEE ON APPROPRIATIONS
(SUCCESSOR TO HF 840)
(SUCCESSOR TO HF 645)
(SUCCESSOR TO HSB 135)
A BILL FOR
1 An Act relating to underground storage tanks, including by
2 creating the Iowa tanks fund and Iowa tanks fund financing
3 program, repealing the Iowa comprehensive petroleum
4 underground storage tank fund, and eliminating the Iowa
5 comprehensive petroleum underground storage tank fund board,
6 requiring a study, making appropriations, and including
7 effective date and transition provisions.
8 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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1 DIVISION I
2 IOWA TANKS FUND
3 Section 1. Section 455B.471, subsection 1, Code 2022, is
4 amended by striking the subsection.
5 Sec. 2. Section 455B.471, Code 2022, is amended by adding
6 the following new subsections:
7 NEW SUBSECTION. 1A. “Claimant” means an owner or operator
8 who has received assistance under the Iowa tanks fund or its
9 predecessor, the Iowa comprehensive petroleum underground
10 storage tank fund created in section 455G.3, Code 2022.
11 NEW SUBSECTION. 1B. “Community remediation” means a
12 curriculum of coordinated testing, planning, or remediation
13 involving two or more tank sites potentially connected with a
14 continuous contaminated area, pursuant to rules adopted by the
15 commission under section 455B.474. A community remediation
16 does not expand the scope of coverage otherwise available or
17 relieve liability otherwise imposed under state or federal law.
18 NEW SUBSECTION. 2A. “Costs” means all costs, charges,
19 expenses, or other indebtedness incurred by a claimant that
20 are determined by the department to be reasonable for carrying
21 out all works and undertakings necessary or incidental to the
22 accomplishment of any project. “Costs” includes reasonable
23 attorney fees and costs of litigation for which moneys are
24 expended from the fund in connection with a release.
25 NEW SUBSECTION. 3A. “Insurance” means any form of financial
26 assistance or showing of financial responsibility sufficient
27 to comply with the federal Resource Conservation and Recovery
28 Act, 42 U.S.C. §6901 et seq., or the department’s underground
29 storage tank financial responsibility rules.
30 NEW SUBSECTION. 7A. “Potentially responsible party” means
31 a person who may be responsible or liable for a release for
32 which payments from the fund were made for corrective action or
33 third-party liability.
34 NEW SUBSECTION. 7B. “Program” means the Iowa tanks fund
35 financing program created pursuant to section 455B.472A.
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1 NEW SUBSECTION. 10A. “Third-party liability” means any of
2 the following:
3 a. Property damage including physical injury to tangible
4 property, but not including loss of use. Property damage does
5 not include costs to remediate.
6 b. Bodily injury including sickness, physical injury, or
7 death.
8 Sec. 3. Section 455B.471, subsection 3, Code 2022, is
9 amended to read as follows:
10 3. “Fund” means the Iowa comprehensive petroleum underground
11 storage tank tanks fund created in section 455B.472A.
12 Sec. 4. Section 455B.472, Code 2022, is amended to read as
13 follows:
14 455B.472 Declaration of policy.
15 The general assembly finds that the release of regulated
16 substances from underground storage tanks constitutes a
17 threat to the public health and safety and to the natural
18 resources of the state, and that existing regulatory programs
19 of the department and other agencies do not adequately or
20 appropriately address this substantial public concern.
21 Additionally, the general assembly recognizes that because the
22 appropriation of moneys to the Iowa comprehensive petroleum
23 underground storage tank fund created in section 455G.3, Code
24 2022, ended on December 31, 2016, it is in the public interest
25 to expeditiously use any remaining moneys from the Iowa
26 comprehensive petroleum underground storage tank fund to assist
27 as many owners as possible with financing all or part of the
28 costs of corrective action for petroleum releases from leaking
29 underground storage tanks through the establishment of the Iowa
30 tanks fund financing program. The financing program shall last
31 as long as moneys remain available, and the general assembly
32 recognizes that moneys available for the financing program will
33 eventually be depleted.
34 Sec. 5. NEW SECTION. 455B.472A Iowa tanks fund financing
35 program —— fund created.
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1 1. The department shall establish and administer an Iowa
2 tanks fund financing program for the purpose of reimbursing
3 eligible claimants for all or part of the costs of corrective
4 action for petroleum releases previously eligible for payment
5 from the Iowa comprehensive petroleum underground storage tank
6 fund pursuant to chapter 455G, Code 2022.
7 2. The department shall distribute financial assistance, up
8 to one million dollars total, for work conducted by eligible
9 entities that comply with the requirements of the program. The
10 department shall determine if work completed is eligible for
11 reimbursement under the program.
12 3. The department may enter into any agreements and provide
13 any documents, instruments, certificates, data, or information
14 necessary in connection with the operation, administration,
15 and financing of the program consistent with this part 8 of
16 subchapter IV, the federal Resource Conservation and Recovery
17 Act, 42 U.S.C. §6901 et seq., the rules of the commission, and
18 other applicable federal and state law.
19 4. The department may act to conform the program to the
20 applicable guidance and regulations adopted by the United
21 States environmental protection agency.
22 5. The Iowa tanks fund is created in the state treasury
23 under the control of the department. The fund shall consist
24 of moneys appropriated or transferred to the fund, interest
25 attributable to moneys in the fund, moneys in the form of
26 a devise, gift, bequest, donation, federal or other grant,
27 reimbursement, repayment, judgment, or payment from any source
28 intended to be used for the purposes of the fund, all receipts
29 by the fund, and any other moneys credited to the fund from
30 any public or private source. Notwithstanding section 8.33,
31 any moneys in the fund shall not revert to any other fund.
32 Notwithstanding section 12C.7, subsection 2, interest or
33 earnings on moneys in the fund shall be credited to the fund.
34 6. The department shall administer the fund to carry out
35 the purposes of the program and shall manage the revenue,
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1 administration, restrictions, and disposition of the fund.
2 7. Moneys in the fund are appropriated to the department for
3 all of the following purposes:
4 a. Reimbursement to tank owners for all or part of the
5 costs of a corrective action for a petroleum release under the
6 program.
7 b. Permanent closure of an underground storage tank system
8 under the program, additional assessment and corrective action
9 arising out of a release at a site for which a certificate of
10 no further action has been issued, and tank operator training.
11 Of the moneys not used for purposes specified in paragraphs “a”
12 and “c”, not less than four million dollars shall be used for
13 these purposes.
14 c. Administrative costs of the department associated with
15 the program. Not more than one hundred fifty thousand dollars
16 per year shall be used for this purpose.
17 8. a. For the fiscal year beginning July 1, 2023, and for
18 each fiscal year thereafter, there is appropriated from the
19 general fund of the state to the department of agriculture
20 and land stewardship for the sole purpose of inspecting
21 fuel quality at pipeline terminals and renewable fuel
22 production facilities, including associated salaries, support,
23 maintenance, and miscellaneous purposes, two hundred fifty
24 thousand dollars.
25 b. Notwithstanding section 8.33, moneys appropriated in this
26 subsection that remain unencumbered or unobligated at the close
27 of a fiscal year shall not revert but shall remain available
28 for expenditure for the purposes designated until the close of
29 the succeeding fiscal year.
30 9. Moneys in the fund are not considered part of the general
31 fund of the state and are not subject to appropriation for any
32 other purpose by the general assembly. The fund is a separate
33 dedicated fund under the administration and control of the
34 department.
35 10. Payments for reimbursement or other costs relating to
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1 any claim or cause of action in connection with a tank not
2 owned or operated by the state or an agency of the state shall
3 be made solely from the fund and no liability is otherwise
4 imposed upon the state. Moneys from the fund are limited
5 to the extent of coverage provided by the applicable account
6 within the fund under which a claim is submitted, subject
7 to the terms and conditions of that coverage. A court, an
8 administrative law judge, the department, or the commission
9 shall not order or approve a remedy that would require the
10 fund to exceed the fund’s then current funding limitations to
11 satisfy an award or that would restrict the availability of
12 moneys for higher priority sites. The state is not otherwise
13 liable for a claim related to the fund and moneys from the
14 general fund shall not be used to pay for reimbursement
15 or other costs relating to any claim or cause of action in
16 connection with a tank not owned or operated by the state or an
17 agency of the state.
18 Sec. 6. NEW SECTION. 455B.472B Cost recovery enforcement.
19 1. Full recovery sought by department. The department
20 may seek full recovery from an owner, operator, or other
21 potentially responsible party liable for a release that is the
22 subject of a corrective action for which moneys from the fund
23 are expended, or for which moneys from the Iowa comprehensive
24 petroleum underground storage tank fund created in section
25 455G.3, Code 2022, were expended, including for third-party
26 liability and for all other costs. If federal cleanup moneys
27 are recovered, the federal cleanup moneys shall be used solely
28 for the purpose of future cleanup activities.
29 2. Limitation of liability of owner or operator. Except
30 as provided in subsection 3, the department shall not seek
31 recovery for expenses in connection with corrective action for
32 a release from an owner or operator eligible for assistance
33 under the program, except for any unpaid portion of the
34 deductible or copayment. This subsection does not affect any
35 authorization of the department to impose or collect civil or
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1 administrative fines, penalties, or fees. Moneys from the fund
2 shall not be used to pay for any third-party liability.
3 3. Owner or operator not in compliance. Notwithstanding
4 subsection 2, the liability of an owner or operator shall be
5 the full and total costs of corrective action and bodily injury
6 or property damage to third parties, as specified in subsection
7 1, if the owner or operator has not complied with the financial
8 responsibility or other underground storage tank rules of
9 the department or with this part 8 of subchapter IV or rules
10 adopted under this part.
11 4. Lien on tank site. Any amount for which an owner or
12 operator is required to pay to the fund by statute, rule,
13 contract, or determination of liability by the department after
14 hearing, if not paid when due, shall constitute a lien upon the
15 real property where the tank that was the subject of corrective
16 action is located, and the payment shall be collected in the
17 same manner as the environmental protection charge pursuant to
18 section 424.11, Code 2016.
19 5. Joinder of parties. The department has standing in
20 any case or contested action related to the fund or a tank
21 to assert any claim that the department may have regarding
22 the tank at issue in the case or contested action. Upon
23 motion and sufficient showing by a party to a cost recovery or
24 subrogation action provided for under this section, the court
25 or the administrative law judge shall join to the action any
26 potentially responsible party who may be liable for costs and
27 expenditures of the type recoverable pursuant to this section.
28 6. Third-party contracts. An insurance, indemnification,
29 hold-harmless, conveyance, or similar risk-sharing or
30 risk-shifting agreement shall not be effective to transfer
31 any liability for costs recoverable under this section. The
32 department may proceed directly against the owner, operator,
33 or other potentially responsible party. This subsection does
34 not bar any agreement to insure, hold harmless, or indemnify
35 a party to the agreement for any costs or expenditures under
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1 this part 8 of subchapter IV, and does not modify rights
2 between the parties to an agreement, except to the extent the
3 agreement shifts liability to an owner or operator eligible
4 for assistance under the program for any damages or other
5 costs in connection with a corrective action for which another
6 potentially responsible party is or may be liable. Any such
7 provision is void and of no further force and effect.
8 7. Later proceedings permitted against other parties. The
9 entry of judgment against a party to the action does not
10 bar a future action by the department against another person
11 who is later alleged to be or discovered to be liable for
12 costs and expenditures paid from the fund. Notwithstanding
13 section 668.5, a potentially responsible party shall not seek
14 contribution or any other recovery from an owner or operator
15 eligible for assistance under the program for damages or other
16 costs in connection with corrective action for a release for
17 which the potentially responsible party is or may be liable.
18 Subsequent successful proceedings against another party shall
19 not modify or reduce the liability of a party against whom
20 judgment has been previously entered.
21 8. Claims against potentially responsible parties.
22 a. Upon payment from the fund for corrective action or
23 third-party liability pursuant to this part 8 of subchapter
24 IV, the rights of the claimant to recover payment from any
25 potentially responsible party are assumed by the department to
26 the extent paid from the fund. A claimant shall not receive
27 double compensation for the same injury.
28 b. In an action brought pursuant to this part 8 of
29 subchapter IV seeking damages for corrective action or
30 third-party liability, the court shall allow evidence and
31 argument as to the replacement or indemnification of actual
32 economic losses incurred or to be incurred in the future by the
33 claimant by reason of insurance benefits, governmental benefits
34 or programs, or other sources.
35 c. A claimant may elect to authorize the department
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1 to pursue the claimant’s cause of action for any injury
2 not compensated from the fund against any potentially
3 responsible party, provided the attorney general determines
4 such representation would not be a conflict of interest. If
5 a claimant so elects, the department’s litigation expenses
6 shall be shared on a pro rata basis with the claimant, but the
7 claimant’s share of litigation expenses is payable exclusively
8 from any share of the settlement or judgment payable to the
9 claimant.
10 9. Exclusion of punitive damages. Moneys from the fund
11 shall not be used to pay punitive damages.
12 Sec. 7. NEW SECTION. 455B.472C Discretionary rulemaking.
13 1. The commission may adopt rules pursuant to chapter
14 17A conditioning receipt of moneys from the fund to those
15 petroleum-contaminated properties that present a higher degree
16 of risk to the public heal