General Assembly: 83 (2009 Regular GA) - Chapter 16 - Hazardous substance cleanup — costs and reimbursement


Published: 2009-03-19

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22LAWS OF THE EIGHTY-THIRD G.A., 2009 SESSIONCH. 16

CH. 16CH. 16

CHAPTER 16 HAZARDOUS SUBSTANCE CLEANUP —

COSTS AND REIMBURSEMENT

S.F. 328

AN ACT relating to reimbursement of hazardous substance cleanup costs.

Be It Enacted by the General Assembly of the State of Iowa:

Section 1. Section 455B.381, subsection 2, Code 2009, is amended to read as follows: 2. “Cleanup costs” means costs incurred by the state or its political subdivisions or their

agents, or by any other person participating with the approval of the director the agents of the state or a political subdivision in the prevention or mitigation of damages from a hazardous condition or the cleanup of a hazardous substance involved in a hazardous condition.

Sec. 2. Section 455B.381, Code 2009, is amended by adding the following new subsection: NEW SUBSECTION. 7A. “Political subdivision” means any municipality, township, or

county, or district, or authority, or any portion, or combination of two ormore thereof, includ- ingbut not limited to any emergency services and emergencymanagement agency established pursuant to chapter 28E or 29C, and any municipal fire departments and ambulance services and agents thereof.

Sec. 3. Section 455B.392, subsections 1, 5, 6, and 7, Code 2009, are amended to read as fol- lows: 1. Apersonhavingcontrol over ahazardous substance is strictly liable to the stateor apoliti-

cal subdivision for all of the following: a. The reasonable cleanup costs incurredby the state or its political subdivisions, by govern-

mental subdivisions, or by any other persons participating in the prevention or mitigation of damages with the approval of the director, or the agents of the state or a political subdivision as a result of the failure of the person to clean up a hazardous substance involved in a hazard- ous condition caused by that person. b. The reasonable costs incurred by the state or its political subdivisions or the agents of the

state or apolitical subdivision to evacuatepeople from thearea threatenedbyahazardous con- dition caused by the person. c. The reasonable damages to the state for the injury to, destruction of, or loss of natural

resources resulting from a hazardous condition caused by that person including the costs of assessing the injury, destruction, or loss. d. The excessive and extraordinary cost, excluding salaries, incurred by the department

state or its political subdivisions or the agents of the state or a political subdivision in respond- ing at and to the scene of a hazardous condition caused by that person. If the failure iswillful, the person is liable for punitive damages not to exceed triple the clean-

up costs incurred by the state or its political subdivisions or the agents of the state or a political subdivision. Prompt and good faith notification to the director state or a political subdivision by the person having control over a hazardous substance that the person does not have the resources ormanagerial capability to begin or continue cleanup, or a good faith effort to clean up, relieves the person of liability for punitive damages, but not for actual cleanup costs. The director shall keep a record of all expenses incurred in carrying out a project or activity autho- rized by this part. Claims by the state under this subsectionmay be appealed to the commission by the person

filing a written notice of appeal within thirty days after receipt of the bill shall be made by the state agency or the political subdivision that incurred costs or damages under this subsection, and such costs or damages will be subject to administrative and judicial review, including the terms of chapter 17Awhen appropriate. If administrative or judicial review is sought, a politi- cal subdivision making a claim shall submit an advisory request to the department to deter- mine whether the cleanup actions serving as the basis for the cleanup costs were consistent

23 LAWS OF THE EIGHTY-THIRD G.A., 2009 SESSION CH. 16

with this chapter. The department shall respond in writing to a request within thirty days of receiving the request. 5. Money collected by the department pursuant to this section shall be deposited in the haz-

ardous waste remedial fund created in section 455B.423. Moneys shall be used to reimburse governmental subdivisions requested to assist in the cleanup for which the moneys were col- lected. The remainder of themoneys shall be used in themanner permitted for the fund. Mon- eys collected by a state agency other than the department of natural resources pursuant to this section are appropriated to that agency for purposes of reimbursing costs of the agency for emergency response activities described in subsection 1. Moneys collected by a political sub- division pursuant to this section shall be retained by the political subdivision and shall be used forpurposesof reimbursingcosts of thepolitical subdivision for emergency responseactivities described in subsection 1. 6. This section does not deny any person any legal or equitable rights, remedies or defenses

or affect any legal relationship other than the legal relationship between the state or a political subdivision and a person having control over a hazardous substance pursuant to subsection 1. 7. a. There is no liability under this section for a person who has satisfied the requirements

of section 455B.381, subsection 7, unnumbered paragraph 2, regardless of when that person acquired title or right to title to the hazardous condition site, except that a person otherwise exempt from liability under this subsection shall be liable to the state or a political subdivision for the lesser of: (1) The total reasonable cleanup costs incurred by the state to clean up a hazardous sub-

stance at the hazardous condition site; or (2) The amount representing the postcleanup fair market value of the property comprising

the hazardous condition site. b. Liability under this subsection shall only be imposed when the person holds title to the

hazardous condition site at the time the state or apolitical subdivision incurs reasonable clean- up costs. c. For purposes of this subsection, “postcleanup fair market value” means the actual

amount of consideration received by suchpersonupon sale or transfer of the hazardous condi- tion site which has been cleaned up by the state or a political subdivision to a bona fide pur- chaser for value. d. Cleanup expenses incurred by the state or a political subdivision shall be a lien upon the

real estate constituting the hazardous condition site, recordable and collectable in the same manner as provided for in section 424.11, subject to the terms of this subsection. The lien shall attach at the time the state or a political subdivision incurs expenses to clean up the hazardous condition site. The lien shall be valid as against subsequent mortgagees, purchasers, or judg- ment creditors, for value and without notice of the lien, only when a notice of the lien is filed with the recorder of the county in which the property is located. Upon payment by the person to the state or a political subdivision, of the amount specified in this subsection, the state or a political subdivision shall release the lien. If no lien has been recorded at the time the person sells or transfers theproperty, then theperson shall not be liable for anycleanup costs incurred by the state or a political subdivision.

Sec. 4. Section 455B.396, Code 2009, is amended to read as follows: 455B.396 CLAIM OF STATE. Liability to the state under this part or part 5 of this division is a debt to the state. Liability

to a political subdivision under this part of this division is a debt to the political subdivision. The debt, together with interest on the debt at the maximum lawful rate of interest permitted pursuant to section 535.2, subsection 3, paragraph “a” from the date costs and expenses are incurred by the department state or a political subdivision is a lien on real property, except single andmultifamily residential property, onwhich the department incurs costs and expens- es creating a liability and owned by the persons liable under this part or part 5. To perfect the lien a statement of claim describing the property subject to the lien, signed by the director and approved by the commission must be filed within one hundred twenty days after the incur-

24LAWS OF THE EIGHTY-THIRD G.A., 2009 SESSIONCH. 16

rence of costs and expenses by the department state or a political subdivision. The statement shall be filed with, accepted by, and recorded by the county recorder in the county in which the property subject to the lien is located. The statement of claimmay be amended to include subsequent liabilities. To be effective the statement of claim shall be amended and filedwithin one hundred twenty days after the occurrence of the event resulting in the amendment. The lien may be dissolved by filing with the appropriate recording officials a certificate,

signed by the director, that the debt for which the lien is attached, together with interest and costs on the debt, has been paid or legally abated.

Approved March 19, 2009

_________________________

CH. 17CH. 17

CHAPTER 17 GRAIN DEPOSITORS AND SELLERS INDEMNITY FUND —

FEES AND CLAIMS

H.F. 374

ANACT relating to the grain depositors and sellers indemnity fund, andproviding for an effec- tive date and retroactive applicability.

Be It Enacted by the General Assembly of the State of Iowa:

Section 1. Section 203D.5, subsection 2, Code 2009, is amended to read as follows: 2. If, at the end of any three-month period, the assets of the fund exceed six eight million

dollars, less any encumbered balances or pending or unsettled claims, the per-bushel fee re- quired under section 203D.3, subsection 2, and the dealer-warehouse fee required under sec- tion 203D.3, subsection 3, shall bewaived and the fees are not assessable or owing. The board shall reinstate the fees if the assets of the fund, less any unencumbered balances or pending or unsettled claims, are three million dollars or less.

Sec. 2. Section 203D.6, subsection 1, Code 2009, is amended to read as follows: 1. PERSONSWHOMAY FILE CLAIMS—TIMEOF FILING. A depositor or seller may file

a claimwith the department for indemnification of a loss from the grain depositors and sellers indemnity fund. A claim shall be filed in the manner prescribed by the board. A claim shall not be filed prior to the 1A. TIME OF FILING CLAIM. a. As used in this subsection, an incurrence date, which is the earlier is when either of the

following occurs: a. (1) The revocation, termination, or cancellation of the license of the grain dealer orware-

house operator. b. (2) The filing of a petition in bankruptcy by a licensedgrain dealer or licensedwarehouse

operator. b. To be timely, a claim shall must be filed within a claim period beginning on either incur-

rence date and ending one hundred twenty days of the after that incurrence date, regardless of whether a previous claim period has expired.

Sec. 3. Section 203D.6, subsection 3, paragraph d, Code 2009, is amended to read as fol- lows: d. That the claim derives from a covered transaction. For purposes of this paragraph, a

claim derives from a covered transaction if the claimant is a seller who transferred title to the