Senate File 2414 - Enrolled
Senate File 2414
AN ACT
RELATING TO UNDERGROUND STORAGE TANKS, INCLUDING REPEALING
THE IOWA COMPREHENSIVE PETROLEUM UNDERGROUND STORAGE TANK
FUND AND ELIMINATING THE IOWA COMPREHENSIVE PETROLEUM
UNDERGROUND STORAGE TANK FUND BOARD, MAKING APPROPRIATIONS,
AND INCLUDING EFFECTIVE DATE AND TRANSITION PROVISIONS.
7 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 DIVISION I
2 STORAGE TANK MANAGEMENT ACCOUNT
3 Section 1. Section 455B.471, subsections 1 and 3, Code 2024,
4 are amended by striking the subsections.
5 Sec. 2. Section 455B.471, Code 2024, is amended by adding
6 the following new subsections:
7 NEW SUBSECTION. 1A. “Account” means the storage tank
8 management account created in the groundwater protection fund
9 created in section 455E.11.
10 NEW SUBSECTION. 1B. “Claimant” means an owner or operator
11 who has filed a claim for assistance under the account, and
12 that claim has been approved by the department, or the Iowa
13 comprehensive petroleum underground storage tank fund created
14 in section 455G.3, Code 2024.
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15 NEW SUBSECTION. 1C. “Community remediation” means a
16 curriculum of coordinated testing, planning, or remediation
17 involving two or more tank sites potentially connected with a
18 continuous contaminated area, pursuant to rules adopted by the
19 commission under section 455B.474. A community remediation
20 does not expand the scope of coverage otherwise available or
21 relieve liability otherwise imposed under state or federal law.
22 NEW SUBSECTION. 2A. “Costs” means all costs, charges,
23 expenses, or other indebtedness incurred by a claimant that
24 are determined by the department to be reasonable for carrying
25 out all works and undertakings necessary or incidental to the
26 accomplishment of any project. “Costs” includes reasonable
27 attorney fees and costs of litigation for which moneys are
28 expended from the account in connection with a release.
29 NEW SUBSECTION. 3A. “Insurance” means any form of financial
30 assistance or showing of financial responsibility sufficient
31 to comply with the federal Resource Conservation and Recovery
32 Act, 42 U.S.C. §6901 et seq., or the department’s underground
33 storage tank financial responsibility rules.
34 NEW SUBSECTION. 7A. “Potentially responsible party” means a
35 person who may be responsible or liable for a release for which
1 payments from the account were made for corrective action or
2 third-party liability.
3 NEW SUBSECTION. 7B. “Program” means the storage tank
4 management account financing program created pursuant to
5 section 455B.472A.
6 NEW SUBSECTION. 10A. “Third-party liability” means any of
7 the following:
8 a. Property damage including physical injury to tangible
9 property, but not including loss of use. Property damage does
10 not include costs to remediate.
11 b. Bodily injury including sickness, physical injury, or
12 death.
13 Sec. 3. NEW SECTION. 455B.472A Storage tank management
14 account financing program.
15 1. The department shall establish and administer a storage
16 tank management account financing program for the purpose of
17 reimbursing eligible claimants for all or part of the costs of
18 corrective action for petroleum releases previously eligible
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19 for payment from the Iowa comprehensive petroleum underground
20 storage tank fund pursuant to chapter 455G, Code 2024.
21 2. The department may enter into any agreements and provide
22 any documents, instruments, certificates, data, or information
23 necessary in connection with the operation, administration,
24 and financing of the program consistent with this part 8 of
25 subchapter IV, the federal Resource Conservation and Recovery
26 Act, 42 U.S.C. §6901 et seq., the rules of the commission, and
27 other applicable federal and state law.
28 3. The department may act to conform the program to the
29 applicable guidance and regulations adopted by the United
30 States environmental protection agency.
31 4. The department shall administer the moneys in the account
32 transferred pursuant to this Act to carry out the purposes
33 of the program and shall manage the revenue, administration,
34 restrictions, and disposition of the moneys in the account
35 transferred pursuant to this Act.
1 5. Moneys in the account transferred pursuant to this Act
2 are appropriated to the department for the purposes set forth
3 in section 455E.11, subsection 2, paragraph “d”, subparagraph
4 (1A).
5 6. Payments for reimbursement or other costs relating to any
6 claim or cause of action in connection with a tank not owned or
7 operated by the state or an agency of the state shall be made
8 solely from the moneys in the account transferred pursuant to
9 this Act and no liability is otherwise imposed upon the state.
10 Moneys from the account transferred pursuant to this Act are
11 limited to the extent of coverage provided by the provisions
12 set forth in section 455E.11, subsection 2, paragraph “d”,
13 subparagraph (1A). A court, an administrative law judge, the
14 department, or the commission shall not order or approve a
15 remedy that would require the account to exceed the account’s
16 then current funding limitations to satisfy an award or that
17 would restrict the availability of moneys for higher priority
18 purposes described in section 455E.11, subsection 2, paragraph
19 “d”, subparagraph (1A), subparagraph division (c). The state
20 is not otherwise liable for a claim related to the account
21 and moneys from the general fund shall not be used to pay for
22 reimbursement or other costs relating to any claim or cause of
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23 action in connection with a tank not owned or operated by the
24 state or an agency of the state.
25 Sec. 4. NEW SECTION. 455B.472B Cost recovery enforcement.
26 1. Full recovery sought by department. The department
27 may seek full recovery from an owner, operator, or other
28 potentially responsible party liable for a release that is
29 the subject of a corrective action for which moneys from
30 the account are expended, or for which moneys from the Iowa
31 comprehensive petroleum underground storage tank fund created
32 in section 455G.3, Code 2024, were expended, including for
33 third-party liability and for all other costs. If federal
34 cleanup moneys are recovered, the federal cleanup moneys shall
35 be used solely for the purpose of future cleanup activities.
1 2. Limitation of liability of owner or operator. Except
2 as provided in subsection 3, the department shall not seek
3 recovery for expenses in connection with corrective action for
4 a release from an owner or operator eligible for assistance
5 under the program, except for any unpaid portion of the
6 deductible or copayment. This subsection does not affect any
7 authorization of the department to impose or collect civil or
8 administrative fines, penalties, or fees. Moneys from the
9 account shall not be used to pay for any third-party liability.
10 3. Owner or operator not in compliance. Notwithstanding
11 subsection 2, the liability of an owner or operator shall be
12 the full and total costs of corrective action and bodily injury
13 or property damage to third parties, as specified in subsection
14 1, if the owner or operator has not complied with the financial
15 responsibility or other underground storage tank rules of
16 the department or with this part 8 of subchapter IV or rules
17 adopted under this part.
18 4. Lien on tank site. Any amount for which an owner or
19 operator is required to pay to the account by statute, rule,
20 contract, or determination of liability by the department after
21 hearing, if not paid when due, shall constitute a lien upon the
22 real property where the tank that was the subject of corrective
23 action is located, and the payment shall be collected in the
24 same manner as the environmental protection charge pursuant to
25 section 424.11, Code 2016.
26 5. Joinder of parties. The department has standing in
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27 any case or contested action related to the account or a tank
28 to assert any claim that the department may have regarding
29 the tank at issue in the case or contested action. Upon
30 motion and sufficient showing by a party to a cost recovery or
31 subrogation action provided for under this section, the court
32 or the administrative law judge shall join to the action any
33 potentially responsible party who may be liable for costs and
34 expenditures of the type recoverable pursuant to this section.
35 6. Third-party contracts. An insurance, indemnification,
1 hold-harmless, conveyance, or similar risk-sharing or
2 risk-shifting agreement shall not be effective to transfer
3 any liability for costs recoverable under this section. The
4 department may proceed directly against the owner, operator,
5 or other potentially responsible party. This subsection does
6 not bar any agreement to insure, hold harmless, or indemnify
7 a party to the agreement for any costs or expenditures under
8 this part 8 of subchapter IV, and does not modify rights
9 between the parties to an agreement, except to the extent the
10 agreement shifts liability to an owner or operator eligible
11 for assistance under the program for any damages or other
12 costs in connection with a corrective action for which another
13 potentially responsible party is or may be liable. Any such
14 provision is void and of no further force and effect.
15 7. Later proceedings permitted against other parties. The
16 entry of judgment against a party to the action does not bar
17 a future action by the department against another person who
18 is later alleged to be or discovered to be liable for costs
19 and expenditures paid from the account. Notwithstanding
20 section 668.5, a potentially responsible party shall not seek
21 contribution or any other recovery from an owner or operator
22 eligible for assistance under the program for damages or other
23 costs in connection with corrective action for a release for
24 which the potentially responsible party is or may be liable.
25 Subsequent successful proceedings against another party shall
26 not modify or reduce the liability of a party against whom
27 judgment has been previously entered.
28 8. Claims against potentially responsible parties.
29 a. Upon payment from the account for corrective action or
30 third-party liability pursuant to this part 8 of subchapter
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31 IV, the rights of the claimant to recover payment from any
32 potentially responsible party are assumed by the department to
33 the extent paid from the account. A claimant shall not receive
34 double compensation for the same injury.
35 b. In an action brought pursuant to this part 8 of
1 subchapter IV seeking damages for corrective action or
2 third-party liability, the court shall allow evidence and
3 argument as to the replacement or indemnification of actual
4 economic losses incurred or to be incurred in the future by the
5 claimant by reason of insurance benefits, governmental benefits
6 or programs, or other sources.
7 c. A claimant may elect to authorize the department
8 to pursue the claimant’s cause of action for any injury
9 not compensated from the fund against any potentially
10 responsible party, provided the attorney general determines
11 such representation would not be a conflict of interest. If
12 a claimant so elects, the department’s litigation expenses
13 shall be shared on a pro rata basis with the claimant, but the
14 claimant’s share of litigation expenses is payable exclusively
15 from any share of the settlement or judgment payable to the
16 claimant.
17 9. Exclusion of punitive damages. Moneys from the account
18 shall not be used to pay punitive damages.
19 Sec. 5. NEW SECTION. 455B.472C Discretionary rulemaking.
20 1. The commission may adopt rules pursuant to chapter 17A
21 conditioning receipt of moneys from the account transferred
22 pursuant to this Act to those petroleum-contaminated properties
23 that present a higher degree of risk to the public health and
24 safety or the environment and providing for denial of moneys
25 from the account transferred pursuant to this Act to a person
26 who did not make a good-faith attempt to comply with this part
27 8 of subchapter IV. This subsection does not confer a legal
28 right to an owner of a petroleum-contaminated property, or an
29 owner or operator of an underground storage tank located on the
30 property, for receipt of moneys under this part 8 of subchapter
31 IV.
32 2. The commission may adopt rules pursuant to chapter
33 17A providing for the transfer of all or a portion of the
34 liabilities relating to the account. Notwithstanding any other
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35 provision to the contrary, the department, upon such transfer,
1 shall not maintain any duty to reimburse claimants for those
2 liabilities transferred.
3 Sec. 6. Section 455B.474, subsection 1, paragraph a,
4 subparagraph (6), subparagraph divisions (g), (i), and (j),
5 Code 2024, are amended to read as follows:
6 (g) An owner or operator may elect to proceed with
7 additional corrective action on the site. However, any
8 action taken in addition to that required pursuant to this
9 subparagraph (6), shall be solely at the expense of the owner
10 or operator and shall not be considered corrective action
11 for purposes of section 455G.9 455B.472A, unless otherwise
12 previously agreed to by the board department and the owner or
13 operator pursuant to section 455G.9, subsection 7 455B.472A.
14 Corrective action taken by an owner or operator due to the
15 department’s failure to meet the time requirements provided in
16 subparagraph division (e) shall be considered corrective action
17 for purposes of section 455G.9 455B.472A.
18 (i) Replacement or upgrade of a tank on a site classified
19 as a high or low risk site shall be equipped with a secondary
20 containment system with monitoring of the space between the
21 primary and secondary containment structures or other board
22 approved tank system or methodology approved by the department.
23 (j) The commission and the board department shall cooperate
24 to ensure that remedial measures required by the corrective
25 action rules adopted pursuant to this subparagraph (6) are
26 reasonably cost-effective and shall, to the fullest extent
27 possible, avoid duplicating and conflicting requirements.
28 Sec. 7. Section 455B.474, subsection 9, paragraph d, Code
29 2024, is amended to read as follows:
30 d. The certification of groundwater professionals shall
31 not impose liability on the board, the department, or the
32 fund account for any claim or cause of action of any nature,
33 based on the action or inaction of a groundwater professional
34 certified pursuant to this subsection.
35 Sec. 8. Section 455B.474, Code 2024, is amended by adding
1 the following new subsection:
2 NEW SUBSECTION. 11. Department practices and procedures
3 for implementing and administering the storage tank management
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4 account financing program. The rules shall include but
5 are not limited to requirements for program eligibility,
6 investigating and settling claims made against the account,
7 appeal procedures, community remediation, prioritization of
8 account moneys, funding for tank operator training, additional
9 assessment and corrective action arising out of releases at
10 sites for which a certificate of no further action has been
11 issued, and reimbursement for the permanent closure of an
12 underground storage tank system.
13 Sec. 9. Section 455B.477, subsection 7, Code 2024, is
14 amended to read as follows:
15 7. The civil penalties or other damages or moneys recovered
16 by the state or the petroleum underground storage tank fund in
17 connection with a petroleum underground storage tank under this
18 part 8 of subchapter IV or chapter 455G shall be credited to
19 the fund created in section 455G.3 and allocated between fund
20 accounts according to the fund budget. Any federal moneys,
21 including but not limited to federal underground storage tank
22 trust fund moneys, received by the state or the department of
23 natural resources in connection with a release occurring on
24 or after May 5, 1989, or received generally for underground
25 storage tank programs on or after May 5, 1989, shall be
26 credited to the fund account created in section 455G.3 and
27 allocated between fund accounts according to the fund budget
28 455E.11, subsection 2, paragraph “d”, unless such use would
29 be contrary to federal law. The department shall cooperate
30 with the board of the Iowa comprehensive petroleum underground
31 storage tank fund to maximize the state’s eligibility for and
32 receipt of federal funds for underground storage tank related
33 purposes.
34 Sec. 10. Section 455E.11, subsection 2, paragraph d,
35 unnumbered parag