House Study Bill 135 - Introduced
SENATE/HOUSE FILE _____
BY (PROPOSED UNDERGROUND
STORAGE TANK FUND BOARD
BILL)
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
6 board, requiring a study, and including effective date and
7 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 2021, is
4 amended by striking the subsection.
5 Sec. 2. Section 455B.471, Code 2021, 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 2020.
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 2021, 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 2021, 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 2020, 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 2020.
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 and provide any agreements,
13 documents, instruments, certificates, data, or information
14 necessary in connection with the operation, administration, and
15 financing of the program consistent with this part, the federal
16 Resource Conservation and Recovery Act, 42 U.S.C. §6901 et
17 seq., the rules of the commission, and other applicable federal
18 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 shall be used to reimburse tank owners
3 for all or part of the costs of a corrective action for a
4 petroleum release and for permanent closure of an underground
5 storage tank system under the program, for additional
6 assessment and corrective action arising out of releases at
7 sites for which a certificate of no further action has been
8 issued, for tank operator training, and for administrative
9 costs of the department associated with the program.
10 8. a. For the fiscal year beginning July 1, 2022, and for
11 each fiscal year thereafter through the fiscal year beginning
12 July 1, 2026, two hundred fifty thousand dollars per year of
13 the moneys in the fund are appropriated to the department of
14 agriculture and land stewardship for the sole and exclusive
15 purpose of inspecting fuel quality at pipeline terminals and
16 renewable fuel production facilities, including associated
17 salaries, support, maintenance, and miscellaneous purposes.
18 b. Notwithstanding section 8.33, moneys appropriated in this
19 subsection that remain unencumbered or unobligated at the close
20 of a fiscal year shall not revert but shall remain available
21 for expenditure for the purposes designated until the close of
22 the succeeding fiscal year.
23 9. Moneys in the fund are not considered part of the general
24 fund of the state and are not subject to appropriation for any
25 other purpose by the general assembly. The fund is a separate
26 dedicated fund under the administration and control of the
27 department.
28 10. Payments for reimbursement or other costs relating to
29 any claim or cause of action in connection with a tank not
30 owned or operated by the state or an agency of the state shall
31 be made solely from the fund and no liability is otherwise
32 imposed upon the state. Moneys from the fund are limited
33 to the extent of coverage provided by the applicable account
34 within the fund under which a claim is submitted, subject
35 to the terms and conditions of that coverage. A court, an
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1 administrative law judge, the department, or the commission
2 shall not order or approve a remedy that would require the
3 fund to exceed the fund’s then current funding limitations to
4 satisfy an award or that would restrict the availability of
5 moneys for higher priority sites. The state is not otherwise
6 liable for a claim related to the fund and moneys from the
7 general fund shall not be used to pay for reimbursement
8 or other costs relating to any claim or cause of action in
9 connection with a tank not owned or operated by the state or an
10 agency of the state.
11 Sec. 6. NEW SECTION. 455B.472B Cost recovery enforcement.
12 1. Full recovery sought by department. The department
13 may seek full recovery from an owner, operator, or other
14 potentially responsible party liable for a release that is the
15 subject of a corrective action for which moneys from the fund
16 are expended, or for which moneys from the Iowa comprehensive
17 petroleum underground storage tank fund created in section
18 455G.3, Code 2020, were expended, including for third-party
19 liability and for all other costs. If federal cleanup moneys
20 are recovered, the federal cleanup moneys shall be used solely
21 for the purpose of future cleanup activities.
22 2. Limitation of liability of owner or operator. Except
23 as provided in subsection 3, the department shall not seek
24 recovery for expenses in connection with corrective action for
25 a release from an owner or operator eligible for assistance
26 under the program, except for any unpaid portion of the
27 deductible or copayment. This section does not affect any
28 authorization of the department to impose or collect civil or
29 administrative fines, penalties, or fees. Moneys from the fund
30 shall not be used to pay for any third-party liability.
31 3. Owner or operator not in compliance. Notwithstanding
32 subsection 2, the liability of an owner or operator shall be
33 the full and total costs of corrective action and bodily injury
34 or property damage to third parties, as specified in subsection
35 1, if the owner or operator has not complied with the financial
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1 responsibility or other underground storage tank rules of the
2 department or with this part or rules adopted under this part.
3 4. Lien on tank site. Any amount for which an owner or
4 operator is required to pay to the fund by statute, rule,
5 contract, or determination of liability by the department after
6 hearing, if not paid when due, shall constitute a lien upon the
7 real property where the tank that was the subject of corrective
8 action is located, and the payment shall be collected in the
9 same manner as the environmental protection charge pursuant to
10 section 424.11, Code 2016.
11 5. Joinder of parties. The department has standing in
12 any case or contested action related to the fund or a tank
13 to assert any claim that the department may have regarding
14 the tank at issue in the case or contested action. Upon
15 motion and sufficient showing by a party to a cost recovery or
16 subrogation action provided for under this section, the court
17 or the administrative law judge shall join to the action any
18 potentially responsible party who may be liable for costs and
19 expenditures of the type recoverable pursuant to this section.
20 6. Third-party contracts. An insurance, indemnification,
21 hold-harmless, conveyance, or similar risk-sharing or
22 risk-shifting agreement shall not be effective to transfer
23 any liability for costs recoverable under this section. The
24 department may proceed directly against the owner, operator, or
25 other potentially responsible party. This section does not bar
26 any agreement to insure, hold harmless, or indemnify a party to
27 the agreement for any costs or expenditures under this part,
28 and does not modify rights between the parties to an agreement,
29 except to the extent the agreement shifts liability to an owner
30 or operator eligible for assistance under the program for any
31 damages or other costs in connection with a corrective action
32 for which another potentially responsible party is or may be
33 liable. Any such provision is void and of no further force and
34 effect.
35 7. Later proceedings permitted against other parties. The
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1 entry of judgment against a party to the action does not
2 bar a future action by the department against another person
3 who is later alleged to be or discovered to be liable for
4 costs and expenditures paid from the fund. Notwithstanding
5 section 668.5, a potentially responsible party shall not seek
6 contribution or any other recovery from an owner or operator
7 eligible for assistance under the program for damages or other
8 costs in connection with corrective action for a release for
9 which the potentially responsible party is or may be liable.
10 Subsequent successful proceedings against another party shall
11 not modify or reduce the liability of a party against whom
12 judgment has been previously entered.
13 8. Claims against potentially responsible parties.
14 a. Upon payment from the fund for corrective action or
15 third-party liability pursuant to this part, the rights of the
16 claimant to recover payment from any potentially responsible
17 party are assumed by the department to the extent paid from the
18 fund. A claimant shall not receive double compensation for the
19 same injury.
20 b. In an action brought pursuant to this part seeking
21 damages for corrective action or third-party liability, the
22 court shall allow evidence and argument as to the replacement
23 or indemnification of actual economic losses incurred or to be
24 incurred in the future by the claimant by reason of insurance
25 benefits, governmental benefits or programs, or other sources.
26 c. A claimant may elect to authorize the department
27 to pursue the claimant’s cause of action for any injury
28 not compensated from the fund against any potentially
29 responsible party, provided the attorney general determines
30 such representation would not be a conflict of interest. If
31 a claimant so elects, the department’s litigation expenses
32 shall be shared on a pro rata basis with the claimant, but the
33 claimant’s share of litigation expenses is payable exclusively
34 from any share of the settlement or judgment payable to the
35 claimant.
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1 9. Exclusion of punitive damages. Moneys from the fund
2 shall not be used to pay punitive damages.
3 Sec. 7. NEW SECTION. 455B.472C Discretionary rulemaking.
4 1. The commission may adopt rules pursuant to chapter
5 17A conditioning receipt of moneys from the fund to those
6 petroleum-contaminated properties that present a higher degree
7 of risk to the public health and safety or the environment and
8 providing for denial of moneys from the fund to a person who
9 did not make a good-faith attempt to comply with this part.
10 This subsection does not confer a legal right to an owner of a
11 petroleum-contaminated property, or an owner or operator of an
12 underground storage tank located on the property, for receipt
13 of moneys under this part.
14 2. The commission may adopt rules pursuant to chapter