All claims eligible for benefits under Iowa Code sections
455G.9 and
455G.21 will
be subject to available funding. In order to be eligible for reimbursement
under any claim type, the claimant must prove either that the release was
reported by October 26,1990, or that the release occurred prior to October 26,
1990. Releases that cannot be proven to have occurred prior to October 26,
1990, must be addressed using the owners' or operators' chosen financial
responsibility mechanism. Failure to carry an adequate financial responsibility
mechanism, such as continuous insurance, is deemed to be self-insurance. The
provisions of these rules do not confer a right upon any party.
(1)
Financial responsibility
required. To be eligible for benefits under Iowa Code sections
455G.9 and
455G.2I, any owner or operator applying for such benefits shall demonstrate
that such owner or operator had continuous financial responsibility coverage in
effect using a method provided for under 567-Chapter 136, beginning no later
than October 26, 1990. If an owner or operator is unable to demonstrate
financial responsibility coverage, or there is a lapse in the financial
responsibility coverage for any period after October 26, 1990, the owner or
operator will no longer be eligible for benefits if the site for which benefits
are being requested had active tanks during the time the owner or operator was
unable to demonstrate financial responsibility or if there is a lapse of
financial responsibility coverage subject to the following limitation:
a. The financial responsibility coverage
requirement shall not be required on temporarily closed tanks consistent with
subrule 11.2(3).
b. An owner or
operator who has had a lapse of financial responsibility coverage shall be
allowed to remain eligible for remedial benefits if the following conditions
are met:
(1) The owner or operator applies
for reinstatement of remedial benefits and submits a reinstatement fee
according to the following table:
Years for Which
Financial
Per-Tank
Responsibihty Not
Demonstrated
Reinstatement Fee
July 1, 1991, through June 30, 1992 $330
July 1, 1992, through June 30, 1993 $415
July 1, 1993, through June 30, 1994 $495
July 1, 1994, through June 30, 1995 $575
July 1, 1995, through present $450
For each fiscal year in which the owner or operator lacked
financial responsibility coverage, such owner or operator shall pay the
per-tank reinstatement fee for such fiscal year, as set forth above, for each
active tank. The reinstatement fees above are for full years and shall be
prorated on a per-month basis for each month or portion of a month for which
there was a lapse of financial responsibility coverage. There is a minimum
reinstatement fee of $500 per site per lapse of coverage.
(2) At the time of the application for
reinstatement of remedial benefits, all active tanks must be in compliance with
all state and federal technical and financial responsibility
requirements.
(3) The owner or
operator is in compliance with all other requirements of this chapter
(4) An owner or operator is only eligible for
reinstatement of remedial benefits one time per site. The one-time
reinstatement may remedy multiple past lapses in financial responsibility. If
there is subsequent lapse of financial responsibility coverage on any active
tank on site after remedial benefits have been reinstated, the owner or
operator will lose eligibility for remedial benefits and will be subject to
cost recovery pursuant to Iowa Code section
455G.13.
c. A claim for benefits under any portion of
591-Chapter 11 that has been deemed ineligible due to a failure to maintain
financial responsibility on a tank or tanks may be eligible, notwithstanding
the failure to maintain financial responsibility, under the following
conditions:
(1) The release for which the
claim is made occurred prior to October 26, 1990; and
(2) The claimant is in compliance with all
other requirements of this chapter; and
(3) The claimant pays a reinstatement fee
equal to the reinstatement fee provided for in 591-paragraph 11.2(1) "b. " The
amount of $150 per tank shall be used to calculate the charge for reinstatement
for the period from October 26, 1990, to July 1, 1991; and
(4) The application for reinstatement
complies with 591-subparagraph 11.2(1)"b"(4).
(2)
Impact of
insurance on remedial account benefits. If owners or operators have
insurance to cover corrective action costs for their underground storage tanks
after January 1, 1985, other than pursuant to Iowa Code section
455G.11 or other
than pursuant to
40 CFR
280.95,
280.96,
280.99,
280.101,
280.102, and
280.103, the
remedial account is available to eligible owners and operators only as follows:
a. The remedial account will pay the
deductible amount applicable to such insurance for owners and operators who are
eligible for remedial account benefits, subject to the applicable remedial
account deductible and copayment provisions.
b. Except for payments made pursuant to
11.2(2)"a," remedial account benefits are secondary to all
such insurance.
c. Remedial account
benefits shall not be used to reimburse insurance companies for proceeds paid
by those companies pursuant to the terms of such insurance.
d. In the event of a dispute between the
insurance company and the owner or operator or the board regarding insurance
coverage, otherwise eligible owners and operators will receive remedial account
benefits upon assigning their interest in such insurance to the
board.
(3)
Technical requirements. An owner or operator eligible for
remedial benefits who complied with 11.2(1) by using program insurance
authorized pursuant to Iowa Code section 45 5 G. 11 will remain eligible for
remedial benefits even though the insured tanks were not upgraded by December
22, 1998, under the following conditions:
a.
The owner or operator temporarily closed the tanks in compliance with the
closure requirements of the environmental protection commission 567-subrule
135.9(1) while the tanks were still insured under Iowa Code section 4550.11;
and
b. The owner or operator
certifies that the tanks continuously had financial responsibility coverage
acceptable under 567-Chapter 136 from October 26, 1990, until the temporary
closure; and
c. The owner or
operator establishes that the tanks were empty and were not used during the
entire period of the temporary closure. "Empty" means all materials have been
removed from the tanks using commonly approved practices so that no more than
2.5 centimeters (1 inch) of residue, or 0.3 percent of weight of the total
capacity of the tank system, remain in the tank system; and
d. The owner or operator establishes that,
during the entire period of the temporary closure, vent lines were left open
and functioning and all other lines, pumps, manways, and ancillary equipment
were capped and secured; and
e. The
owner or operator certifies that, within one year from the time the tanks were
temporarily closed, the tanks were either permanently closed, removed and
replaced, or upgraded; and
f. The
owner or operator certifies that the upgraded tanks and replacement tanks meet
the new tank or upgrade standards of the environmental protection commission
rule
567-135.3
(455B); and
g. Financial
responsibility for the tanks, using a method provided for under 567-Chapter
136, was in effect; and
h. The
owner or operator meets all other applicable requirements pertaining to
remedial benefits. An owner or operator receiving remedial account benefits
pursuant to this subrule will be subject to cost recovery pursuant to Iowa Code
section
455G.13
in the event the owner or operator does not comply with all of the conditions
of this subrule, the provisions of the certifications required by this subrule,
and applicable statutes and rules of the environmental protection commission
and the board.
(4)
Compliance with report submittal deadlines. To be eligible for
remedial or innocent landowner benefits, claimants must comply with all
department of natural resources (DNR) deadlines for submittal of Tier 1, Tier 2
and corrective action design report (CADR) requirements as published in
567-Chapter 135, and must, by June 30,2000, or 180 days after confirmation of a
release from the site, whichever is later, provide a copy of an executed
contract with a certified groundwater professional, which contract must include
a timetable that meets DNR deadlines for completion of a Tier 1 and Tier 2 if
required.
(5)
Tanks and
sites not eligible. The following underground storage tanks are not
eligible for remedial account benefits:
a.
Tanks that were taken out of use prior to January 1, 1974. For purposesofthis
rule, tanks taken out of use are tanks which have not actually been used by
either depositing petroleum in the tanks or by pumping petroleum from the
tanks.
b. Underground storage tanks
which were removed from the ground prior to July 1, 1985.
c. Underground storage tanks which were
closed prior to July 1, 1985.
d.
Underground storage tanks which do not contain petroleum. For the purposes of
this subrule, petroleum means petroleum, including crude oil or any fraction of
crude oil which is liquid at standard conditions of temperature and pressure
(60° F and 14.7 pounds per square inch absolute). The following two
categories of substances are not petroleum:
(1) Substances which are regulated as
hazardous waste under
42 U.S.C.
6921 et seq.
(2) Substances which would be regulated under
42
U.S.C.
9601 et seq., if the substance were to
leak from a tank, related piping, other part of the system or from spills or
releases into the environment, including lands, waters and air
(6)
Retroactive
claims.
a. Retroactive claims are:
(1) Claims which were filed with the board
prior to January 31, 1990, for releases reported to the DNR after July 1, 1987,
but prior to May 5, 1989; and
(2)
If filed by a city or county, claims which were filed with the board prior to
September 1, 1990, for releases reported to DNR after July 1, 1987, but prior
to May 5, 1989; and
(3) Claims
filed with the board prior to September 1, 1990, for releases reported to the
DNR after January 1, 1984, but prior to July 1, 1987.
b. Retroactive claims shall be eligible for
reimbursement if all of the following criteria are met:
(1) The claim has been verified and all
supporting materials have been supplied to the administrator for review;
and
(2) A signed and notarized
claim form is submitted to the board; and
(3) The claimant is not a person whose method
of showing proof of financial responsibility sufficient to comply with the
federal Resource Conservation and Recovery Act or the Iowa environmental
protection commission's underground storage tank financial responsibility
rules, 567-Chapter 136, is one in which the ultimate financial responsibility
for corrective action costs is not shifted from the owner or operator;
and
(4) The claimant satisfies the
copayment requirements of Iowa Code section
455G.9(4);
and
(5) The claimant has not filed
bankruptcy anytime after:
1. July 1, 1987, if
the release was reported to DNR prior to May 5, 1989, but after July 1, 1987;
or
2. January 1, 1985, if the
release was reported to DNR prior to July 1, 1987, but after January 1,
1984.
(7)
Remedial claims.
Remedial claims are claims filed with the board prior to February 26, 1994, for
releases reported to DNR after May 5, 1989, and on or before October 26, 1990.
Remedial claims shall be eligible for reimbursement if all of the following
criteria are met:
a. A signed and notarized
claim form is submitted to the board.
b. All bills and estimates pertinent to the
submitted claim are received by the board, along with any contracts, any
remedial plans and correspondence for budget approval on the work required by
DNR.
c. The work is complete or, if
ongoing, is approved by the administrator and in accordance with priority
rules.
d. The owner or operator has
met all relevant deadlines and DNR's technical requirements for cleanup. To be
eligible, corrective action costs must be reasonable and necessary to complete
the work required by DNR. The board shall reimburse or pay only those
corrective action costs which will cover the work as mandated by Iowa Code
sections
455B.471 to
455B.479.
e. The claimant satisfies the copayment
requirements of Iowa Code section
455G.9(4).
(8)
Innocent landowner
claims. Consistent with Iowa Code chapter 455G, the board may
reimburse an owner of petroleum-contaminated property, or an owner or operator
of an underground storage tank located on such property, who, but for this rule
because of the date the release was reported, because of the date the claim was
filed, because the tank(s) in question was removed from service prior to
January 1, 1974, or because the tank(s) in question was removed or permanently
closed prior to July 1, 1985, would not be eligible to receive benefits under
Iowa Code section
455G.9. Eligible
expenses shall not exceed the benefits such claimant would otherwise receive if
such claimant were eligible under Iowa Code section
4550.9(1)
"a"(1) to (3). All such reimbursements shall be
subject to:
* The copayment requirements of Iowa Code section 455G.9(4);
claims filed that meet the priority in paragraph"b"
or"d" of this subrule shall not incur any copayment for costs
incurred after January 1, 2010;
* The requirements of 11.2(1); and
* The available funding and limitations of the innocent
landowner fund created by Iowa Code section 455G.2I(2) "a" for corrective
action.
In the event the innocent landowner fund lacks sufficient funds
to pay all claims submitted, innocent landowner claims shall be subject to the
following priority:
a.
Late
filed retroactive claims. For releases reported to DNR on or after
January I, 1984, but prior to May 5, 1989:
(1)
Claims must be filed with the board by February 26, 1994.
(2) All costs incurred on or after July 10,
1996, must be preapproved by the board to be eligible for
reimbursement.
b.
Preregulation claims. For releases from petroleum underground
storage tanks (USTs) which are not eligible for remedial accoimt benefits under
Iowa Code section 4550.9(1) "a"(1) to (3) only because the USTs were taken out
of use prior to January 1, 1974, or permanently closed or removed before July
I, 1985:
(1) Claims must be filed with the
board by December 1, 1997.
(2) USTs
must not have been operated on the site since the time the tanks were taken out
of use or permanently closed.
(3)
All costs incurred after July 10, 1996, must be preapproved by the board to be
eligible for reimbursement.
(4) The
owner cannot have claimed bankruptcy on or after the date of the reported
release.
c.
Late
filed remedial claims. For releases reported by owners of
petroleum-contaminated property as defined under Iowa Code section
455G.9(8)
who did not comply with the reporting or
filing deadlines identified in this chapter, with priority to those owners who
did not have knowledge of the USTs or did not have control over the property:
(1) Claims must be filed with the board by
December I, 1997.
(2) The owner or
operator must have reported a known release to DNR consistent with DNR
requirements.
(3) The owner did not
have knowledge of the UST or of a release impacting the property prior to
acquisition of the property if the property was acquired on or after October
26,1990, or, if the owner did have such knowledge, the acquisition was
necessary to protect a security interest.
(4) All costs incurred on or after July 10,
1996, must be approved by the board to be eligible for reimbursement.
(5) The owner cannot have claimed bankruptcy
on or after the date of the reported release.
d. Acquired properties. For
releases reported by owners of petroleum-contaminated property as defined under
Iowa Code section
455G.9(8)
who acquired the petroleum-contaminated
property after October 26,1990, and who did not comply with the reporting or
filing deadlines identified in this chapter:
(1) Claims must be filed with the board by
December 1, 1997.
(2) The owner or
operator must have reported a known release to the DNR consistent with DNR
requirements.
(3) The owner could
not have been the owner or operator of the UST system which caused the release
prior to acquiring the property after October 26, 1990.
(4) All costs incurred on or after December
1, 1996, must be preapproved by the board to be eligible for
reimbursement.
(5) For claims
submitted under this paragraph, the precorrective action value shall be the
purchase price paid by the owner after October 26, 1990.
(6) For claims submitted under this
paragraph, the purchase must have been an arm's-length transaction.
(7) The owner cannot have claimed bankruptcy
on or after the date of the reported release.
e.
Other innocent landowner
claims. Claims for releases submitted to the board after December 1,
1997, which would have been eligible for benefits pursuant to
paragraphs"a" through"d" of this subrule if
filed by December 1, 1997, will be eligible for reimbursement subject to a
first-in, first-out priority and the funding limitations of the innocent
landowner fund. The owner must demonstrate that the owner has met all other
requirements of this subrule in order to receive benefits.
(9)
County tax deed claims.
The board shall pay 100 percent of the costs of corrective action and
third-party liability for a release situated on property acquired by a county
for delinquent taxes pursuant to Iowa Code chapters 445 through 448, for which
a responsible owner or operator able to pay, other than the county, cannot be
found. A county is not a "responsible party" for a release in connection with
property which it acquires in connection with delinquent taxes, and does not
become a responsible party by sale or transfer of property so acquired.
Third-party liability specifically excludes any claim, cause of action, or suit
for personal injury including, but not limited to, loss of use or of private
enjoyment, mental anguish, false imprisonment, wrongful entry or eviction,
humiliation, discrimination, or malicious prosecution.
(10)
Hardship funding
claims. The board shall pay 100 percent of corrective action costs and
third-party liability not to exceed $1 million for a release for which the
eligible claimant, pursuant to Iowa Code section
455G.9, is
subject to financial hardship if all of the following conditions are met:
a. The claimant has completed the claim form,
had it notarized, and submitted it to the board on or before December 1,
1996.
b. The claimant is a small
business as defined in Iowa Code section
455G.2(18) and
has submitted self-certification forms documenting small business
status.
c. The claimant does not
have a net worth of $ 15,000 or greater and has submitted documentation of net
worth in accordance with Iowa Code section 4550.10(4) and
591-12.6 (455G) or
the claimant is an individual who is financially unable to pay copayments
associated with the cost of corrective action as determined by using the DNR's
evaluation of ability to pay found at
567-135.17
(455B).
d. The release for which
the claim has been made occurred prior to October 26, 1990.
e. The release for which the claim has been
made was reported to DNR on or before December 1, 1996.
f. The site for which the claim is made is in
compliance with all technical requirements of 567-Chapters 135 and
136.
g. The site for which the
claim is made shall not be deeded or quitclaimed to the state or board in lieu
of cleanup.
h. Property taxes shall
not be delinquent, unpaid or otherwise overdue.
i. A responsible party with the ability to
pay corrective action expenses cannot be found.
j. The release for which the claim is made is
one for which the federal Underground Storage Tank Trust Fund or other federal
moneys do not provide coverage.
k.
The work is complete or, if ongoing, is approved by the administrator or the
board pursuant to the cost containment provisions of Iowa Code section
455G.12A.
l.All claims and payments are subject to
prioritization guidelines as may be published by the board at the time of
payment.
(11)
Governmental subdivision claims. The board shall pay 100
percent of the costs of corrective action for a governmental subdivision in
connection with a tank, where the release occurred, if the governmental
subdivision did not own or operate the tank from which the release occurred,
and the property was acquired pursuant to eminent domain after the release
occurred. A governmental subdivision which acquires property pursuant to
eminent domain in order to obtain benefits under this paragraph is not a
responsible party for a release in connection with property which the
governmental subdivision acquired, and does not become a responsible party by
sale or transfer of property so acquired.
Also, the board shall pay 100 percent of the costs of
corrective action for a governmental subdivision in connection with a tank
which was in place on the date the release was discovered or reported if the
governmental subdivision did not own or operate the tank which caused the
release and if the governmental subdivision did not obtain the property upon
which the tank giving rise to the release is located on or after May 3, 1991.
Property acquired pursuant to eminent domain in connection with a United States
Department of Housing and Urban Development-approved urban renewal project is
eligible for payment of costs under this subrule whether or not the property
was acquired on or after May 3, 1991.
(12)
Inheritance claims. The
board may pay claims for corrective action for the costs of a release if the
claimant proves that all of the following conditions are met:
a. The property upon which the tank causing
the release was situated was transferred by inheritance, devise, or
bequest.
b. The property upon which
the tank causing the release was situated has not been used to store or
dispense petroleum since December 31, 1975.
c. The person who received the property by
inheritance, devise, or bequest was not the owner of the property during the
period of time when the release which is the subject of the corrective action
occurred.
d. The release was
reported to the board by October 26, 1991.
(13)
Financial institution
claims. Reserved.
(14)
State agency or department claims. Reserved.
(15)
No further action
claims. The board shall pay for corrective action in response to a
high-risk condition caused by a release from an underground storage tank
located on a site for which the department of natural resources, after January
31, 1997, has issued a no further action certificate under Iowa Code section
455B.474.
As a condition of receiving benefits under this subrule, the department of
natural resources must determine that the condition necessitating the
corrective action was not a result of a release that occurred after the
issuance of the no further action certificate, and that the site qualified for
remedial benefits under Iowa Code section
455G.9 prior to
the issuance of the no further action certificate. No more than $100,000 per
site may be used for the costs of a corrective action under this subrule. This
subrule does not confer a legal right on an owner or operator of
petroleum-contaminated property or on any other person to receive benefits
under this subrule.