Current through Register Vol. 46, No. 19, March 20, 2024
The board, in addition to measures described to preapprove all
costs, may take other actions to ensure costs are reasonable and to recover
moneys spent at sites that become ineligible. Subrogation and cost recovery
opportunities shall be pursued against any responsible party, as deemed
appropriate by the board to do so.
(1)
Definitions. For purposes of this rule, the following terms
shall have the meanings set forth below:
"Affiliate " means a person who, directly or
indirectly through one or more intermediaries, controls or is controlled by or
is under common control with the person specified. Entities which have one or
more officers or directors in common, whether simultaneously or otherwise,
shall be rebuttably presumed to be affiliates.
"Control, " "controlling, " "controlled by" and "under
common control with" means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies or
day-to-day activities of a person, whether through ownership, by contract, or
otherwise.
"Predecessor" means a person the major portion
of whose business and assets another person acquired in a single succession or
in a series of related successions in which the acquiring person acquired the
major portion of the business and assets of the acquired person.
(2)
Liens on tank sites.
a. The board shall have a lien upon real
property where an underground storage tank, which was the subject of corrective
action, was or is situated and the board has incurred expenses related to the
property.
b. The board's lien shall
be in the amount the owner or operator of the underground storage tank is
liable to the fund.
c. The
liability of an owner or operator shall be no less than the full and total
costs of corrective action and bodily injury or property damage to third
parties, as specified in Iowa Code section
455G.13(1),
if the owner or operator has not complied with the financial responsibility or
other underground storage tank rules of DNR or the fund or with Iowa Code
chapter 455G.
d. The liability of
an owner or operator eligible for assistance under the remedial account shall
be no less than the amount of any unpaid portion of the deductible or
copayment.
e. A lien shall attach
at the later of the following: the date the fund incurs an expense related to
the property or the date the board mails a certified letter, return receipt
requested, to the last-known address of the owner or operator demanding payment
for fund expenses.
f. Liens under
this rule shall continue for ten years from the time the lien attaches unless
sooner released or otherwise discharged. The lien may be extended, within ten
years from the date the lien attaches, by filing for record a notice with the
appropriate county official of the appropriate county and from the time of such
filing, the lien shall be extended to the property in such county for ten
years, unless sooner released or otherwise discharged, with no limit on the
number of extensions.
g. In order
to preserve a lien against subsequent mortgagees, purchasers, or judgment
creditors, for value and without notice of the lien, on any property situated
in a county, the board shall file with the recorder of the county in which the
property is located a notice of the lien. The county recorder of each county
shall record such liens in the index of income tax liens. The recorder shall
endorse on each notice of lien the day, hour, and minute when received and
preserve the notice, and shall immediately index the notice in the index book
and record the lien in the manner provided for recording real estate mortgages,
and the lien shall be effective from the time of indexing.
h. The board shall pay a recording fee as
provided in Iowa Code section
331.604
for the recording of the lien, or for its satisfaction.
i. Upon the payment of the lien as to which
the board has filed notice with a county recorder, the board shall file with
the recorder a satisfaction of the lien and the recorder shall enter said
satisfaction on the notice on file in the recorder's office and indicate that
fact on the index.
(3)
Fraud disqualification of contractors. No contractor or
subcontractor shall be eligible for payment with UST program funds, nor shall
any owner or operator be reimbursed for payments to any contractor or
subcontractor, nor shall any contract between an owner or operator and a
contractor or subcontractor be approved if the administrator determines that
such contractor or subcontractor or any of its predecessors, affiliates,
directors, officers, general partners, or beneficial owners of 10 percent or
more of such contractor or subcontractor:
a.
Has, within the preceding five years, pleaded guilty to, been convicted of, or
received a suspended or deferred judgment for theft, fraud, or any other felony
or misdemeanor involving deceit, attempted deceit, or falsification or
alteration of documents;
b. Is
subject to an order, judgment, or decree of a court of competent jurisdiction
(including probation) or an administrative order of any state or federal
administrative agency entered within the previous five years, which order,
judgment, decree, or administrative order temporarily, preliminarily, or
permanently enjoins or restrains the contractor or subcontractor from engaging
in or continuing the performance of any services relating to underground
storage tanks or the assessment or remediation of petroleum contamination as a
consequence of the contractor's or subcontractor's own misconduct, negligence,
or misfeasance; or
c. Has, within
the previous five years, obtained, or attempted to obtain, UST fund benefits:
(1) By means of any intentional or reckless
misrepresentation;
(2) By means of
any falsified or altered document;
(3) For services which were not performed;
or
(4) By other improper
means.
(4)
Waiver or
modification of disqualification. The administrator may, at the
administrator's discretion, to avoid undue hardship to tank owners or
operators, to the UST program, or to contractors or subcontractors, waive any
disqualification under this rule as to work performed or to be performed for
any or for specified owners or operators. The administrator may also condition
or qualify the eligibility of a person or entity that is subject to
disqualification hereunder to be paid with UST program funds upon such terms
and conditions as the administrator shall, in the administrator's discretion,
deem necessary to protect the integrity of the UST program. A disqualification
under this rule shall cease to exist if:
a.
The basis for the disqualification has been removed by the legislative body,
court, or administrative agency creating it;
b. The court or administrative agency with
primary jurisdiction over the disqualifying event issues a written waiver of
the disqualification;
c. The court
or administrative agency with primary jurisdiction over the disqualifying event
declines in writing to enforce the disqualification; or
d. More than five years have elapsed since
the occurrence of the disqualifying event.
(5)
Notice of disqualification;
reinstatement. Following a determination that a contractor or
subcontractor is disqualified pursuant to this rule, the administrator shall
notify the contractor or subcontractor in writing that it is no longer eligible
to be compensated with fund moneys. The administrator shall also, unless the
disqualification has been waived as to existing clients of the contractor or
subcontractor, notify in writing all known clients of the disqualified
contractor or subcontractor who are participating in UST fund programs of the
disqualification. A disqualified contractor or subcontractor may apply to the
administrator for reinstatement of eligibility. If the disqualification has
ceased to exist, the administrator, upon receiving such an application, shall
reinstate the eligibility of the contractor or subcontractor to be compensated
with fund moneys. If the disqualification has not ceased to exist, the
administrator may, in the administrator's discretion, reinstate the eligibility
of the contractor or subcontractor The administrator shall notify the
contractor or subcontractor who has applied for reinstatement of the
administrator's decision within 45 days. The administrator may condition or
qualify the reinstatement of a contractor's or subcontractor's eligibility to
be compensated with UST fund moneys upon such terms and conditions as the
administrator shall, in the administrator's discretion, deem necessary to
protect the integrity of the UST program.
(6)
Verification of
eligibility. For purposes of implementing this rule, the administrator
may require that, prior to the approval by the board of any contract or budget
for assessment or remedial work, the contractor specified in such contract or
budget, and all subcontractors to perform work thereunder, certify that the
contractor or subcontractor is not subject to disqualification for any of the
reasons specified in subrule 11.5(3). The administrator may develop, and revise
as necessary, a form by which contractors and subcontractors may make such
certification.
