Iowa Administrative Code › Agency 567 - Environmental Protection Commission › Title IX - Spills and Hazardous Conditions › Chapter 137 - Iowa Land Recycling Program and Response Action Standards › Rule 567-137.11 - No Further Action Classification

Current through Register Vol. 47, No. 3, July 24, 2024
(1)
Eligibility.
An enrolled
				site shall be eligible to obtain a no further action classification, when the
				department determines the participant has met all compliance standards of this
				chapter applicable to the affected area and the hazardous substances actually
				identified and evaluated such that no further response action is required other
				than maintenance of institutional or technological controls or certain
				specified continuing site activities. Upon request of a participant or a
				protected party and compliance with applicable standards, the department will
				issue a no further action letter to each protected party requesting it.
A no further action classification may be conditioned upon
				  the continued maintenance and effectiveness of any applicable institutional or
				  technological control in accordance with rule 137.7(455H).
(2)
No further action
				certificate.
A no further action letter shall be in a form recordable
				in the county real estate records as provided in Iowa Code chapter 558 and
				consistent with the model forms developed by the department. The no further
				action letter may be recorded as provided by law.
(3)
No further action certificates
				conditioned on institutional and technological controls.
A no further
				action certificate conditioned upon the continuing effectiveness and
				maintenance of institutional and technological controls or other continuing
				requirements must be recorded with the consent of the fee titleholder for each
				parcel of affected property subject to the controls and for parcels of property
				for which prevention of exposure is dependent upon the continuing effectiveness
				and maintenance of the controls. If a participant is not able to record the no
				further action letter on a parcel within the affected area due to objections of
				the fee titleholder or other legal restraints, this alone shall not be a basis
				for denying or rescinding the no further action classification or the
				certificate or the legal protections attendant to the no further action
				classification. Any modification or termination of institutional and
				technological controls shall be noted in an amended no further action
				certificate and shall be recorded as to any property subject to an earlier
				recorded certificate or institutional control. If a no further action
				certificate is required to be recorded, the no further action classification is
				not effective until the document is recorded with the county
				recorder.
(4)
Scope of
				liability protection.
Upon issuance of the no further action letter by
				the department, the liability protection provisions contained in Iowa Code
				Supplement chapter 455H, subchapter 3, apply. The scope of the no further
				action classification and the scope of liability protection extend only to that
				area of affected property as defined by actual and modeled contaminant data and
				the specific environmental condition for which a regulatory standard has been
				met and approved by a no further action classification. The scope of protection
				corresponds to the scope of the site assessment conducted by the participant,
				the exposure pathways actually evaluated by the assessment report and reviewed
				by the department, and the hazardous substances identified in that assessment
				for which compliance with a department-approved standard has been achieved.
				Liability protection does not apply to releases, sources of contamination,
				hazardous substances or other environmental conditions not expressly addressed
				in the participant's site assessment, response action or specifically
				referenced in the no further action certificate.
The no further action classification and certificate shall be
				  void if the department demonstrates by clear, satisfactory, and convincing
				  evidence that any approval under this chapter was obtained by fraud or material
				  misrepresentation, knowing failure to disclose material information, or false
				  certification to the department.
(5)
Reopener and reclassification
				conditions.
a. The department shall
				have grounds to reopen and rescind a no further action classification and
				consider reclassification of the affected area if specified conditions of the
				no further action classification and certificate are not maintained, or if
				institutional or technological controls fail to meet their intended purpose or
				are determined to be ineffective and unenforceable. If the conditions upon
				which the no further action classification was issued cannot be corrected or
				reinstated, the department may rescind the classification. The effect of
				termination is to put all parties in the same position as if the no further
				action letter had not been issued.
b. If a no further action certificate is
				issued without conditions or technological and institutional controls and
				conditions should arise which might require further corrective action, the
				department may require further response action by a participant or protected
				party only as provided in Iowa Code Supplement section
				455H301..
				The department may require further response action against a statutorily
				responsible party who is not a participant or a protected party. If the
				participant was a person having control over a hazardous substance, as defined
				in Iowa Code section
				455B381., at the time
				of the release, a no further action certificate may provide or the department
				may require further response action to protect against an imminent and
				substantial threat to public health, safety, and welfare. A protected party who
				was a person having control over a hazardous substance, as defined above, may
				be required by the department to conduct a further response action, where
				appropriate, to protect against an imminent and substantial threat to public
				health, safety, and welfare.