Bill Text: MI SB0437 | 2009-2010 | 95th Legislature | Engrossed

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Bill Title: Environmental protection; cleanups; clean-up standards; provide for. Amends secs. 20101 & 20120a of 1994 PA 451 (MCL 324.20101 & 324.20120a). TIE BAR WITH: HB 6360'10, HB 6363'10, SB 1345'10, SB 1346'10, SB 1348'10

Spectrum: Partisan Bill (Republican 11-0)

Status: (Engrossed - Dead) 2010-11-10 - Referred To Second Reading [SB0437 Detail]

Download: Michigan-2009-SB0437-Engrossed.html

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SB-0437, As Passed Senate, August 17, 2010

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

SENATE BILL NO. 437

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

by amending sections 20126 and 20126a (MCL 324.20126 and

 

324.20126a), section 20126 as amended by 1999 PA 196 and section

 

20126a as added by 1995 PA 71, and by adding section 20114e.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 20114e. (1) The director shall establish a response

 

activity review panel to advise him or her on technical or

 

scientific disputes, including disputes regarding assessment of

 

risk, concerning response activity plans and no further action

 

reports.

 

     (2) The panel shall consist of 15 individuals, appointed by

 

the director. Each member of the panel shall meet all of the

 

following minimum requirements:

 

     (a) Meet 1 or more of the following:

 

     (i) Hold a current professional engineer's or professional

 

geologist's license or registration from a state, tribe, or United

 

States territory, or the Commonwealth of Puerto Rico, and have the

 

equivalent of 6 years of full-time relevant experience.

 

     (ii) Have a baccalaureate degree from an accredited institution

 

of higher education in a discipline of engineering or science and

 

the equivalent of 10 years of full-time relevant experience.

 

     (iii) Have a master's degree from an accredited institution of

 

higher education in a discipline of engineering or science and the

 

equivalent of 8 years of full-time relevant experience.

 

     (b) Remain current in his or her field through participation

 

in continuing education or other activities.

 

     (3) An individual is not eligible to be a member of the panel

 

if any 1 of the following is true:

 

     (a) The individual is a current employee of any office,

 

department, or agency of the state.

 

     (b) The individual is a party to 1 or more contracts with the

 

department and the compensation paid under those contracts

 

represented more than 5% of the individual's annual gross revenue

 

in any of the preceding 3 years.

 

     (c) The individual is employed by an entity that is a party to

 

1 or more contracts with the department and the compensation paid

 

to the individual's employer under these contracts represented more

 

than 5% of the employer's annual gross revenue in any of the

 

preceding 3 years.

 

     (d) The individual was employed by the department within the

 

preceding 3 years.

 

     (4) An individual appointed to the panel shall serve for a

 

term of 3 years and may be reappointed for 1 additional 3-year

 

term. After serving 2 consecutive terms, the individual may not be

 

a member of the panel for a period of at least 2 years before being

 

eligible to be appointed to the panel again. The terms for members

 

first appointed shall be staggered so that not more than 5

 

vacancies are scheduled to occur in a single year. Individuals

 

appointed to the panel shall serve without compensation. However,

 

members of the panel may be reimbursed for their actual and

 

necessary expenses incurred in the performance of their official

 

duties as members of the panel.

 

     (5) A vacancy on the panel shall be filled in the same manner

 

as the original appointment.

 

     (6) The business that the panel may perform shall be conducted

 

at a public meeting of the panel held in compliance with the open

 

meetings act, 1976 PA 267, MCL 15.261 to 15.275.

 

     (7) A person who submitted a response activity plan or a no

 

further action report may appeal a decision made by the department

 

regarding a technical or scientific dispute, including a dispute

 

regarding assessment of risk, concerning the response activity plan

 

or no further action report by submitting a petition to the

 

director. The petition shall include the issues in dispute, the

 

relevant facts upon which the dispute is based, factual data,

 

analysis, opinion, and supporting documentation for the

 

petitioner's position. The petitioner shall also submit a fee of

 

$3,500.00. If the director believes that the dispute may be able to

 

be resolved without convening the panel, the director may contact

 

the petitioner regarding the issues in dispute and may negotiate a

 

resolution of the dispute. This negotiation period shall not exceed

 

45 days. If the dispute is resolved without convening the panel,

 

any fee that is submitted with the petition shall be returned.

 

     (8) If a dispute is not resolved pursuant to subsection (7),

 

the director shall schedule a meeting of 5 members of the panel,

 

selected on the basis of their relevant expertise, within 45 days

 

after receiving the original petition. A member selected for the

 

dispute resolution process shall agree not to accept employment by

 

the person bringing the dispute before the panel, or to undertake

 

any employment concerning the facility in question for a period of

 

1 year after the decision has been rendered on the matter if that

 

employment would represent more than 5% of the member's gross

 

revenue in any of the preceding 3 years. The director shall provide

 

a copy of all supporting documentation to members of the panel who

 

will hear the dispute. An alternative member may be selected by the

 

director to replace a member who is unable to participate in the

 

dispute resolution process. Any action by the members selected to

 

hear the dispute shall require a majority of the votes cast. The

 

members selected for the dispute resolution process shall elect a

 

chairperson of the dispute resolution process. At a meeting

 

scheduled to hear the dispute, representatives of the petitioner

 

and the department shall each be afforded an opportunity to present

 

their positions to the panel. The fee that is received by the

 

director along with the petition shall be forwarded to the state

 

treasurer for deposit into the fund.

 

     (9) Within 45 days after hearing the dispute, the members of

 

the panel who were selected for and participated in the dispute

 

resolution process shall make a recommendation regarding the

 

petition and provide written notice of the recommendation to the

 

director of the department and the petitioner. The written

 

recommendation shall include the specific scientific or technical

 

rationale for the recommendation. The panel's recommendation

 

regarding the petition may be to adopt, modify, or reverse, in

 

whole or in part, the department's decision that is the subject of

 

the petition. If the panel does not make its recommendation within

 

this 45-day time period, the decision of the department is the

 

final decision of the director.

 

     (10) Within 60 days after receiving written notice of the

 

panel's recommendation, the director shall issue a final decision,

 

in writing, regarding the petition. However, this time period may

 

be extended by written agreement between the director and the

 

petitioner. If the director agrees with the recommendation of the

 

panel, the department shall incorporate the recommendation into its

 

response to the response activity plan or the no further action

 

report. If the director rejects the recommendation of the panel,

 

the director shall issue a written decision to the petitioner with

 

a specific rationale for rejecting the recommendation of the panel.

 

If the director fails to issue a final decision within the time

 

period provided for in this subsection, the recommendation of the

 

panel shall be considered the final decision of the director. The

 

final decision of the director under this subsection is subject to

 

review pursuant to section 631 of the revised judicature act of

 

1961, 1961 PA 236, MCL 600.631.

 

     (11) Upon request of the director, the panel shall make a

 

recommendation to the department on whether a member should be

 

removed from the panel. Prior to making this recommendation, the

 

panel may convene a peer review panel to evaluate the conduct of

 

the member with regard to compliance with this part.

 

     (12) A member of the panel shall not participate in the

 

dispute resolution process for any appeal in which that member has

 

a conflict of interest. The director shall select a member of the

 

panel to replace a member who has a conflict of interest under this

 

subsection. For purposes of this subsection, a member has a

 

conflict of interest if a petitioner has hired that member or the

 

member's employer on any environmental matter within the preceding

 

3 years.

 

     (13) As used in this section, "relevant experience" means

 

active participation in the preparation, design, implementation,

 

and assessment of remedial investigations, feasibility studies,

 

interim response activities, and remedial actions under this part.

 

This experience must demonstrate the exercise of sound professional

 

judgment and knowledge of the requirements of this part.

 

     Sec. 20126. (1) Notwithstanding any other provision or rule of

 

law and except as provided in subsections (2), (3), (4), and (5)

 

and section 20128, the following persons are liable under this

 

part:

 

     (a) The owner or operator of a facility if the owner or

 

operator is responsible for an activity causing a release or threat

 

of release.

 

     (b) The owner or operator of a facility at the time of

 

disposal of a hazardous substance if the owner or operator is

 

responsible for an activity causing a release or threat of release.

 

     (c) An owner or operator of a facility who becomes an owner or

 

operator on or after June 5, 1995, unless the owner or operator

 

complies with both of the following:

 

     (i) A baseline environmental assessment is conducted prior to

 

or within 45 days after the earlier of the date of purchase,

 

occupancy, or foreclosure. For purposes of this section, assessing

 

property to conduct a baseline environmental assessment does not

 

constitute occupancy.

 

     (ii) The owner or operator discloses the results of provides a

 

baseline environmental assessment to the department and subsequent

 

purchaser or transferee if the baseline environmental assessment

 

confirms that the property is a facility. within 6 months after the

 

earlier of the date of purchase, occupancy, or foreclosure.

 

     (d) A person who by contract, agreement, or otherwise arranged

 

for disposal or treatment, or arranged with a transporter for

 

transport for disposal or treatment, of a hazardous substance owned

 

or possessed by the person, by any other person, at a facility

 

owned or operated by another person and containing the hazardous

 

substance. This subdivision does not include any of the following:

 

     (i) A person who, on or after June 5, 1995, arranges for the

 

sale or transport of a secondary material for use in producing a

 

new product. As used in this subparagraph, secondary material means

 

scrap metal, paper, plastic, glass, textiles, or rubber, which has

 

demonstrated reuse or recycling potential and has been separated or

 

removed from the solid waste stream for reuse or recycling, whether

 

or not subsequent separation and processing is required, if

 

substantial amounts of the material are consistently used in the

 

manufacture of products which may otherwise be produced from a raw

 

or virgin material.

 

     (ii) A person who, prior to June 5, 1995, arranges for the sale

 

or transport of a secondary material for use in producing a new

 

product unless the state has incurred response activity costs

 

associated with these secondary materials prior to the effective

 

date of the 1999 amendments to this section December 17, 1999. As

 

used in this subparagraph, secondary material means scrap metal,

 

paper, plastic, glass, textiles, or rubber, which has demonstrated

 

reuse or recycling potential and has been separated or removed from

 

the solid waste stream for reuse or recycling, whether or not

 

subsequent separation and processing is required, if substantial

 

amounts of the material are consistently used in the manufacture of

 

products which may otherwise be produced from a raw or virgin

 

material.

 

     (iii) A person who arranges the lawful transport or disposal of

 

any product or container commonly used in a residential household,

 

which is in a quantity commonly used in a residential household,

 

and which was used in the person's residential household.

 

     (e) A person who accepts or accepted any hazardous substance

 

for transport to a facility selected by that person.

 

     (f) The estate or trust of a person described in subdivisions

 

(a) to (e).

 

     (2) Subject to section 20107a, an owner or operator who

 

complies with subsection (1)(c) is not liable for contamination

 

existing at the facility at the earlier of the date of purchase,

 

occupancy, or foreclosure, unless the person is responsible for an

 

activity causing the contamination existing at the facility.

 

Subsection (1)(c) does not alter a person's liability with regard

 

to a subsequent release or threat of release at a facility if the

 

person is responsible for an activity causing the subsequent

 

release or threat of release.

 

     (3) Notwithstanding subsection (1), the following persons are

 

not liable under this part with respect to contamination at a

 

facility resulting from a release or threat of release unless the

 

person is responsible for an activity causing a that release at the

 

facility or threat of release:

 

     (a) The state or a local unit of government that acquired

 

ownership or control of a facility involuntarily through

 

bankruptcy, tax delinquency, abandonment, a transfer from a lender

 

pursuant to subsection (7), or other circumstances in which the

 

government involuntarily acquires title or control by virtue of its

 

governmental function or as provided in this part, a local unit of

 

government to which ownership or control of a facility is

 

transferred by the state or by another local unit of government

 

that is not liable under subsection (1), or the state or a local

 

unit of government that acquired ownership or control of a facility

 

by seizure, receivership, or forfeiture pursuant to the operation

 

of law or by court order.

 

     (b) A state or local unit of government that holds or acquires

 

an easement interest in a facility, holds or acquires an interest

 

Senate Bill No. 437 as amended July 28, 2010

 

in a facility by dedication in a plat, or by dedication pursuant to

 

1909 PA 283, MCL 220.1 to 239.6, or otherwise holds or acquires an

 

interest in a facility for a transportation or utility corridor<<,

including sewers, pipes, and pipelines,>> or

 

public right of way.

 

     (c) A person who holds an easement interest in a facility or

 

holds a utility franchise to provide service, for the purpose of

 

conveying or providing goods or services, including, but not

 

limited to, utilities, sewers, roads, railways, and pipelines; or a

 

person that acquires access through an easement.

 

     (d) A person who owns severed subsurface mineral rights or

 

severed subsurface formations or who leases subsurface mineral

 

rights or formations.

 

     (e) The state or a local unit of government that leases

 

property to a person if the state or the local unit of government

 

is not liable under this part for environmental contamination at

 

the property.

 

     (f) A person who owns or occupies residential real property if

 

hazardous substance use at the property is consistent with

 

residential use.

 

     (g) A person who acquires a facility as a result of the death

 

of the prior owner or operator of the facility, whether by

 

inheritance, devise, or transfer from an inter vivos or

 

testamentary trust.

 

     (h) A person who did not know and had no reason to know that

 

the property was a facility. To establish that the person did not

 

know and did not have a reason to know that the property was a

 

facility, the person shall have undertaken at the time of

 

acquisition all appropriate inquiry into the previous ownership and

 

uses of the property consistent with good commercial or customary

 

practice. A determination of liability under this section shall

 

take into account any specialized knowledge or experience on the

 

part of the person, the relationship of the purchase price to the

 

value of the property if uncontaminated by a hazardous substance,

 

commonly known or reasonable ascertainable information about the

 

property, the obviousness of the presence or likely presence of a

 

release or threat of release at the property, and the ability to

 

detect a release or threat of release by appropriate inspection.

 

     (i) A utility performing normal construction, maintenance, and

 

repair activities in the normal course of its utility service

 

business. This subsection does not apply to property owned by the

 

utility.

 

     (j) A lessee who uses the leased property for a retail,

 

office, or commercial purpose regardless of the level of the

 

lessee's hazardous substance use.

 

     (4) Notwithstanding subsection (1), the following persons are

 

not liable under this part:

 

     (a) The owner or operator of a hazardous waste treatment,

 

storage, or disposal facility regulated pursuant to part 111 from

 

which there is a release or threat of release solely from the

 

treatment, storage, or disposal facility, or a waste management

 

unit at the facility and the release or threat of release is

 

subject to corrective action under part 111.

 

     (b) A lender that engages in or conducts a lawful marshalling

 

or liquidation of personal property if the lender does not cause or

 

contribute to the environmental contamination. This includes

 

holding a sale of personal property on a portion of the facility.

 

     (c) The owner or operator of property onto which contamination

 

has migrated unless that person is responsible for an activity

 

causing the release that is the source of the contamination.

 

     (d) A person who owns or operates a facility in which the

 

release or threat of release was caused solely by 1 or more of the

 

following:

 

     (i) An act of God.

 

     (ii) An act of war.

 

     (iii) An act or omission of a third party other than an employee

 

or agent of the person or a person in a contractual relationship

 

existing either directly or indirectly with a person who is liable

 

under this section.

 

     (e) Any person for environmental contamination addressed in a

 

no further action report that is approved by the department or is

 

considered approved under section 20114d. Notwithstanding this

 

subdivision, a person may be liable under this part for the

 

following:

 

     (i) A subsequent release not addressed in the no further action

 

report if the person is otherwise liable under this part for that

 

release.

 

     (ii) Environmental contamination that is not addressed in the

 

no further action report and for which the person is otherwise

 

liable under this part.

 

     (iii) If the no further action report relies on land use or

 

resource use restrictions, an owner or operator who desires to

 

change those restrictions is responsible for any response

 

activities necessary to comply with this part for any land use or

 

resource use other than the land use or resource use that was the

 

basis for the no further action report.

 

     (iv) If the no further action report relies on monitoring

 

necessary to assure the effectiveness and integrity of the remedial

 

action, an owner or operator who is otherwise liable for

 

environmental contamination addressed in a no further action report

 

is liable under this part for additional response activities

 

necessary to address any potential exposure to the environmental

 

contamination demonstrated by the monitoring in excess of the

 

levels relied on in the no further action report.

 

     (v) If the remedial actions that were the basis for the no

 

further action report fail to meet performance objectives that are

 

identified in the no further action report, an owner or operator

 

who is otherwise liable for environmental contamination addressed

 

in the no further action report is liable under this part for

 

response activities necessary to satisfy the performance objectives

 

or otherwise comply with this part.

 

     (5) Notwithstanding any other provision of this part, the

 

state or a local unit of government or a lender who has not

 

participated in the management of the facility is not liable under

 

this part for costs or damages as a result of response activity

 

taken in response to a release or threat of release. For a lender,

 

this subsection applies only to response activity undertaken prior

 

to foreclosure. This subsection does not preclude liability for

 

costs or damages as a result of gross negligence, including

 

reckless, willful, or wanton misconduct, or intentional misconduct

 

by the state or local unit of government.

 

     (6) In establishing liability under this section, the

 

department bears the burden of proof. If the department proves a

 

prima facie case against a person, the person shall bear the burden

 

of showing by a preponderance of the evidence that he or she is not

 

liable under this section.

 

     (7) A lender that is not responsible for an activity causing a

 

release at a facility and that establishes that it has met the

 

requirements of subsection (1)(c) with respect to that facility may

 

immediately transfer to the state the property on which there has

 

been a release or a threat of a release if the lender complies with

 

all of the following:

 

     (a) Within 9 months following foreclosure and for a period of

 

at least 120 days, the lender either lists the facility with a

 

broker, dealer, or agent who deals with the type of property in

 

question, or advertises the facility as being for sale or

 

disposition on at least a monthly basis in either a real estate

 

publication, a trade or other publication suitable for the facility

 

in question, or a newspaper of general circulation of over 10,000

 

covering the area where the property is located.

 

     (b) The lender has taken reasonable care in maintaining and

 

preserving the real estate and permanent fixtures.

 

     (c) The lender provides to the department all environmental

 

information related to the facility that is available to the

 

lender.

 

     (d) If the department has issued an order pursuant to section

 

20119, the lender has complied with the order to the department's

 

satisfaction.

 

     (e) If conditions on the property pose a threat of fire or

 

explosion or present an imminent hazard through direct contact with

 

hazardous substances, the lender has undertaken appropriate

 

response activities to abate the threat or hazard.

 

     (7) (8) The department shall establish minimum technical

 

standards for baseline environmental assessments conducted under

 

this section in guidelines pursuant to the administrative

 

procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.

 

Beginning on the effective date of the 2010 amendatory act that

 

amended this section, the department shall not implement or enforce

 

R 299.5901 to R 299.5919 of the Michigan administrative code,

 

except the department may implement and enforce the following

 

rules:

 

     (a) Subrules (2), (6), (8), and (9) of rule 903, R 299.5903 of

 

the Michigan administrative code.

 

     (b) Subrules (2) through (6) of rule 905, R 299.5905 of the

 

Michigan administrative code.

 

     (c) Rule 919, R 299.5919 of the Michigan administrative code.

 

     (8) (9) Notwithstanding subsection (1)(c), if the owner or

 

operator of the facility became the owner or operator of the

 

facility on or after June 5, 1995 and prior to March 6, 1996, and

 

the facility contains an underground storage tank system as defined

 

in part 213, that owner or operator is liable under this part only

 

if the owner or operator is responsible for an activity causing a

 

release or threat of release.

 

     (9) An owner or operator who was in compliance with subsection

 

(1)(c) prior to the effective date of the amendatory act that added

 

this subsection, is considered to be in compliance with subsection

 

(1)(c).

 

     Sec. 20126a. (1) Except as provided in section 20126(2), a

 

person who is liable under section 20126 is jointly and severally

 

liable for all of the following:

 

     (a) All costs of response activity lawfully incurred by the

 

state relating to the selection and implementation of response

 

activity under this part.

 

     (b) Any other necessary costs of response activity reasonably

 

incurred under the circumstances by any other person. consistent

 

with rules relating to the selection and implementation of response

 

activity promulgated under this part.

 

     (c) Damages for the full value of injury to, destruction of,

 

or loss of natural resources, including the reasonable costs of

 

assessing the injury, destruction, or loss resulting from the

 

release.

 

     (2) The costs of response activity recoverable under

 

subsection (1) shall also include all of the following:

 

     (a) All costs of response activity reasonably incurred by the

 

state prior to the promulgation of rules relating to the selection

 

and implementation of response activity under this part, excepting

 

those cases where cost recovery actions have been filed before July

 

12, 1990. A person challenging the recovery of costs under this

 

subdivision has the burden of establishing that the costs were not

 

reasonably incurred under the circumstances that existed at the

 

time the costs were incurred. Recoverable costs include costs

 

incurred reasonably consistent with the rules relating to the

 

selection and implementation of response activity in effect on July

 

12, 1990.

 

     (b) Any other necessary costs of response activity reasonably

 

incurred by any other person prior to the promulgation of rules

 

relating to the selection and implementation of response activity

 

under this part. A person seeking recovery of these costs has the

 

burden of establishing that the costs were reasonably incurred

 

under the circumstances that existed at the time the costs were

 

incurred.

 

     (3) The amounts recoverable in an action under this section

 

shall include interest. This interest shall accrue from the date

 

payment is demanded in writing, or the date of the expenditure or

 

damage, whichever is later. The rate of interest on the outstanding

 

unpaid balance of the amounts recoverable under this section shall

 

be the same rate as is specified in section 6013(5) 6013(8) of the

 

revised judicature act of 1961, Act No. 236 of the Public Acts of

 

1961, being section 600.6013 of the Michigan Compiled Laws 1961 PA

 

236, MCL 600.6013.

 

     (4) In the case of injury to, destruction of, or loss of

 

natural resources under subsection (1)(c), liability shall be to

 

the state for natural resources belonging to, managed by,

 

controlled by, appertaining to, or held in trust by the state or a

 

local unit of government. Sums recovered by the state under this

 

part for natural resource damages shall be retained by the

 

department, for use only to restore, repair, replace, or acquire

 

the equivalent of the natural resources injured or acquire

 

substitute or alternative resources. There shall be no double

 

recovery under this part for natural resource damages, including

 

the costs of damage assessment or restoration, rehabilitation,

 

replacement, or acquisition, for the same release and natural

 

resource.

 

     (5) A person shall not be required under this part to

 

undertake response activity for a permitted release. Recovery by

 

any person for response activity costs or damages resulting from a

 

permitted release shall be pursuant to other applicable law, in

 

lieu of this part. With respect to a permitted release, this

 

subsection does not affect or modify the obligations or liability

 

of any person under any other state law, including common law, for

 

damages, injury, or loss resulting from a release of a hazardous

 

substance or for response activity or the costs of response

 

activity.

 

     (6) If the department determines that there may be an imminent

 

and substantial endangerment to the public health, safety, or

 

welfare, or to the environment because of an actual or threatened

 

release from a facility, the attorney general may bring an action

 

against any person who is liable under section 20126 or any other

 

appropriate person to secure the relief that may be necessary to

 

abate the danger or threat. The court has jurisdiction to grant

 

such relief as the public interest and the equities of the case may

 

require.

 

     (7) The costs recoverable under this section may be recovered

 

in an action brought by the state or any other person.

 

     Enacting section 1. This amendatory act does not take effect

 

unless all of the following bills of the 95th Legislature are

 

enacted into law:

 

     (a) Senate Bill No. 1345.

 

     (b) Senate Bill No. 1346.

 

     (c) Senate Bill No. 1348.

 

     (d) House Bill No. ____ (request no. H06270'10 *).

 

     (e) House Bill No. ____ (request no. H06271'10 *).