DNR Suspends Chapter 133 Revision.

In 2013 the Iowa Department of Natural Resources launched an effort to revise Chapter 133 of section 567 of the Iowa Administrative Code. Chapter 133 is a woefully out of date remediation rule that predates all of the advances in environmental regulations, including risk-based corrective action standards, background standards, vapor intrusion, and, most importantly, the modern understanding that complete removal of all contaminates is not only unnecessary but frequently impossible.  So, the effort to rewrite Chapter 133 was, in my opinion, long overdue and welcome.  Unfortunately, it was apparent from the beginning that certain industry or ag groups were apprehensive and distrustful of the reform process.  I don’t understand why, as the current system is akin to having a death penalty for going one mile over the speed limit. Who wouldn’t welcome something that makes more sense?  Perhaps it is the knowledge that the current system is so unworkable that the DNR does not even pretend to try to enforce the regulation as written. But that is not a good excuse. As long as the regulation is on the books, anti-industry and anti-farm groups have a weapon that they can wield to force expensive and impossible cleanup standards.  Luckily, they have not done that yet.

One acknowledged weakness of the proposed rule is that they do not address vapor intrusion. Understanding vapor intrusion is a necessary part of implementing a successful risk-based corrective action standard. The reason given for not including vapor intrusion was that the DNR had no real understanding of vapor intrusion and really did not want to try to understand it at this point. Of course, vapor intrusion has turned out to be very difficult to understand as site conditions, soil types, obstructions, preferential pathways, water tables, and the different transmissive aspects of the hundreds of different chemicals that can be involved each have an impact on a successful vapor intrusion analysis.  It was perhaps the acknowledgment that no rewrite of Chapter 133 could be successful unless it included vapor intrusion that led to the effort’s demise.

On November 8, 2013 the Iowa Department of Natural Resources sent an e-mail stating that “DNR has decided to suspend the current effort on the major rewrite of Chapter 133 of the DNR rules.”  No promise was made that this effort would be picked up in the future. On that same day, another e-mail, also sent by Cal Lundberg, stated that

Over the last several years the landscape in which the Contaminated Sites Section has operated has undergone some significant changes. During the last several months it has become apparent that these changes may significantly impact the way in which we operate. It is our opinion that a period of evaluation is warranted in the light of what had been proposed for Chapter 133.

The e-mail went on to note that vapor intrusion was now included in the EPA’s new Phase I all appropriate inquiry standard. Perhaps this is a sign that the DNR will first try to get a handle on vapor intrusion in other regulatory arenas before addressing further changes to Chapter 133.

Proposed Rule: Chapter 133 Revision draft 4-12-13 (00616069)

Redraft of Rule:Chapter 133 Revision Draft 8-19-13 (00616083)

Redline: Chapter 133 Revision – Redline (00616085)

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About James Pray

Attorney with BrownWinick Law Firm in Des Moines, Iowa.
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