What is Chapter 133? - Iowa Department of Natural Resources

Iowa Administrative Code (IAC) Chapter 567-133
Rules for Determining Cleanup Actions and Responsible Parties
Stakeholder Rule Review & Input Meeting – April 30, 2013
Contaminated Sites Section
Iowa Department of
Natural Resources

Purpose of Today’s Meeting
Overview - What is Chapter 133 and why rewrite it
Stakeholder Input – Questions, Comments, Identify
issues
Further Analysis on Topics
Plan follow-up activities

What is Chapter 133?
Groundwater cleanup rules for point sources of contamination
Offshoot of 1987 Groundwater Protection Act
Prescribes universal groundwater cleanup standards:
groundwater “action levels”
Allows alternative cleanup approaches
Prescribes Polluter Pays liability with joint & several provision
Directs DNR to identify parties responsible for contamination
Compensation for damages to natural resources (2010 add-on)

Situations Under the Purview of Chapter 133
(or handled under statutory authority)
General: Contamination not the result of a permitted discharge

Situations Under the Purview of Chapter 133
Waste disposal prior to regulation, e.g., old city dumps

Situations Under the Purview of Chapter 133
Leaking underground storage tanks not under UST program

Situations Under the Purview of Chapter 133
Contaminant releases associated with above-ground storage tanks

Situations Under the Purview of Chapter 133
Fill material from industrial waste, e.g., foundry sand & fly ash

Situations Under the Purview of Chapter 133
Incidental leaks & spills of solvents, e.g., dry cleaners, printers,
platers, maintenance shops, industrial metal degreasing

Situations Under the Purview of Chapter 133
Former manufactured gas plants

Situations Under the Purview of Chapter 133
Areas near surfaces painted with lead-based paints

Situations Under the Purview of Chapter 133
Roadsides with fallout from vehicle emissions

Situations Under the Purview of Chapter 133
Areas where products have been overused

Situations Under the Purview of Chapter 133
Areas near railroads and railroad ties (treated lumber)

Situations Under the Purview of Chapter 133
Businesses handling bulk quantities of chemicals, e.g., ag-chem dealers

Who Is Affected by Chapter 133?
Any business that handles chemicals or has handled chemicals,
especially in large quantities
Property owners who conduct Phase 2 Environmental
Assessments and all associated parties, e.g., lenders, realtors,
developers, environmental consultants, attorneys.
Parties who are responsible for (i.e., caused, contributed to, or
exacerbated) otherwise unregulated contamination.
Residents and property owners adjacent to properties on which
contamination has been identified.
Drinking water supplies impacted by point sources of
contamination

Types of Environmental Regulation
Permitted discharge/controlled release/ (not applicable to 133)
Non-degradation, a.k.a. prevention (cleanup goal of current 133)
Universal cleanup standards (current 133) :
• Chemical-specific & media-specific
• Applies everywhere, e.g., every drop of groundwater, ounce of
soil, or breath of air
Risk-based cleanup standards (RBCA) (proposed 133):
• Cumulative risk from exposure to multiple chemicals in
multiple media (more protective)
• Applies only at the location where exposure to the media
containing the contaminants occurs (less stringent)

Regulation
Contaminated Site Regulation in Iowa
Scope
Prevention
Component
Cleanup
Approach
Federal
Basis
Fed CERCLA Worst hazardous sites in nation No ≈Risk-Based Yes
Fed RCRA Management of hazardous waste Yes ≈Risk-Based Yes
IA Chapter 113 Solid waste disposal Yes Universal Yes
IA Chapter 131
Hazardous conditions (ER)
especially recent spills
No
Not
Applicable
IA Chapter 135 Underground storage tank-related Yes Risk-Based Yes
IA Chapter 137 Land Recycling Program (VCP) No Risk-Based Indirectly
No
IA Chapter 133
Existing
Groundwater-related contamination
(not from UST)
No Universal +
Risk-Based
No

Regulation
Contaminated Site Regulation in Iowa
Scope
Prevention
Component
Cleanup
Approach
Federal
Basis
Fed CERCLA Worst hazardous sites in nation No ≈Risk-Based Yes
Fed RCRA Management of hazardous waste Yes ≈Risk-Based Yes
IA Chapter 113 Solid waste disposal Yes Universal Yes
IA Chapter 131
Hazardous conditions (ER)
especially recent spills
No
Not
Applicable
IA Chapter 135 Underground storage tank-related Yes Risk-Based Yes
IA Chapter 137 Land Recycling Program (VCP) No Risk-Based Indirectly
No
IA Chapter 133
Proposed
Groundwater, surface water, soil and
vapor intrusion (not under other program)
No
Risk-Based
only
No

Contaminated Sites by Program
UST
Sites Not Yet
Identified
Note: Based on rough estimates

Federal/State Coordination?

Federal/State Coordination? Not in this case.
Chapter 133 rules do not implement a federal program.

Statutory Basis for Chapter 133
Iowa Code 455B, Division IV, Part 4: Hazardous Conditions
(1979-1986)
Iowa Code 455E.5 (5): 1987 Groundwater Protection Act

Statutory Authority
Iowa Code Chapter 455B, Division IV, Part 4
Hazardous Conditions
455B.381(4) " Hazardous condition" means any situation involving the
actual, imminent, or probable spillage, leakage, or release of a
hazardous substance onto the land, into a water of the state, or into the
atmosphere, which creates an immediate or potential danger to the
public health or safety or to the environment.
455B.381(5) "Hazardous substance" means any substance or mixture
of substances that presents a danger to the public health or safety and
includes but is not limited to a substance that is toxic, corrosive, or
flammable, or that is an irritant or that generates pressure through
decomposition, heat, or other means.

Statutory Authority
Iowa Code Chapter 455B, Division IV, Part 4
Hazardous Conditions
455B.382: The department shall be the agency of the state to prevent,
abate, and control the exposure of the citizens of the state to hazardous
conditions
455B.383(1): The department shall establish such rules as are
necessary to protect the public from unnecessary exposure to
hazardous substances.

Statutory Authority
Iowa Code Chapter 455E
Groundwater Protection Act
455E.4 Groundwater Protection Goal:
“The intent of the state is to prevent contamination of groundwater
from point and nonpoint sources of contamination to the maximum
extent practical, and if necessary to restore the groundwater to a
potable state, regardless of present condition, use, or characteristics.”

Statutory Authority
Iowa Code Chapter 455E
Groundwater Protection Act
455E.5(5) Groundwater Protection Policy:
“Documentation of any contaminant which presents a significant risk
to human health, the environment, or the quality of life shall result in
either passive or active cleanup. In both cases, the best technology
available or best management practices shall be utilized. The
department shall adopt rules which specify the general guidelines for
determining the cleanup actions necessary to meet the goals of the
state and the general procedures for determining the parties
responsible by July 1, 1989.”

Statutory Authority
Summary
Statutes adopted >25 years ago when major contaminated
sites were in the news
Statutes provide broad authority to address potentially
problematic contamination (not limited to groundwater)
Groundwater emphasis on prevention
Universal cleanup standards preferred for groundwater, but
risk-based cleanup standards allowed
Problematic contamination vaguely defined by statute,
i.e., any contaminant which poses a significant risk to
human health (Details left to rulemaking)

Current Chapter 133
“The goal of groundwater cleanup is use of best available
technology and best management practices as long as it is
reasonable and practical to remove all contaminants, and
in any event until water contamination remains below the
action level for any contaminant, and the department
determines that the contamination is not likely to increase
and no longer presents a significant risk. Where site
conditions and available technology are such that
attainment of these goals would be impractical, the
department may establish an alternative cleanup level or
levels, including such other conditions as will adequately
protect the public health, safety, environment, and quality
of life.”

Current Chapter 133
“Significant risk” means:
• The presence in groundwater of a contaminant in excess
of an action level
• The presence of a contaminant in the soils, surface water,
or other environment in proximity to groundwater which
may reasonably be expected to contaminate the
groundwater to an action level
“Action level” generally defined to be equal to or more
stringent than drinking-water standards

Current Chapter 133
Summary
Addresses only groundwater-related contamination
Addresses groundwater cleanup, not prevention
Preference for universal cleanup standards implied; however,
alternative risk-based cleanup approach allowed
Wide open to interpretation
Problematic contamination (i.e., “significant risk”) is specified
broadly to include any contaminant in groundwater or
potentially in groundwater above a “groundwater action level”
• Groundwater action level ≤ drinking-water standards
Net result: problematic contamination now similarly defined
in statute and rule

Implementation of Current Chapter 133
Chapter 137 statewide soil and groundwater standards used as
triggers for further action; usually just more investigation
Most reports of contamination come from phase 2 environmental
assessments conducted to facilitate property transfers
• Many not reported due to vague reporting requirements???
• No proactive program to look for contamination
Contaminated Sites staff assess contaminant findings in context of
site location
• Likely source of contaminants
• Magnitude, extent, toxicity & mobility of contaminants
• Potential exposure to contaminants, e.g., location of DW wells
Most sites minor and remedial actions not required
SUMMARY: informal risk-based approach utilized (accepted)

Reasons to Rewrite Chapter 133
The nature of contaminated sites concerns has changed from few
large, nasty Superfund sites to many commonplace situations
Problematic contamination is commonplace based on current
regulations, creating many undo brownfield concerns
Environmental regulatory concerns have expanded to included
contaminants in soil and vapor intrusion
The 1995 Iowa Supreme Court “Blue Chip” decision struck down
joint and several liability
Enforcement of universal cleanup standards has proven
impractical; alternative (risk-based) cleanup approaches have
taken their place , e.g., more recent Chapters 135 and 137
Need to formally adopt an approach to ensure consistency and
provide a clear pathway for the regulated public

Potential Benefits from Rewriting Chapter 133
More consistency in addressing contaminated sites
No need to default to other, more stringent standards
Fewer uncertainties as to what is problematic contamination
Fewer brownfield concerns, such as:
• Difficulty in transferring property
• Devalued, underutilized, and abandoned properties
• Added costs for redevelopment
• Suburban sprawl

Goals of Rewriting Chapter 133
Define problematic contamination to ensure a high degree of
protection to human health and the environment without
being unduly over-protective

Universe of Sites
per Chapter 137
Universe of Contaminated
Sites Current Chapter 133
“Real” Problem Sites
Universe of Contaminated
Sites Proposed Chapter 133

Goals of Rewriting Chapter 133
Define problematic contamination to ensure a high degree of
protection to human health and the environment without
being unduly overly protective
Specify objective criteria for addressing problematic
contamination (to the extent reasonable to do so)
Attempt to avoid onerous burdens of proof respecting the
apparent non-existence of problematic contamination
VS.

Stakeholder Input
Name
Name of organization you are representing
Does Chapter 133 impact you or your organization?
Do you agree with the proposal to rewrite Chapter 133?
• Yes
• No (why?)
• Unsure (why?)
Major concerns with the proposed rewrite of Chapter 133