HB-6363, As Passed House, December 1, 2010

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE BILL No. 6363

 

July 28, 2010, Introduced by Rep. Knollenberg and referred to the Committee on New Economy and Quality of Life.

 

     A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

by amending sections 20112a, 20113, and 20114 (MCL 324.20112a,

 

324.20113, and 324.20114), section 20112a as added and section

 

20114 as amended by 1995 PA 71 and section 20113 as amended by 1996

 

PA 383.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 20112a. Within 2 years after the effective date of this

 

section and biennially thereafter, the department shall report to

 

the legislature on the effectiveness of the amendatory act that

 

added this section in restoring the economic value of sites of

 

environmental contamination. The report shall include but not be

 

limited to an examination of the effectiveness of the categorical

 

cleanup criteria and liability provisions in encouraging the

 

redevelopment of sites of environmental contamination. In preparing


 

this report, the department shall consult the chairpersons of the

 

senate and house of representatives standing committees with

 

jurisdiction over issues pertaining to natural resources and the

 

environment.

 

     (1) Subject to subsection (3), the department shall create,

 

and update on an ongoing basis, an inventory of residential

 

closures and a separate inventory of other known facilities. Each

 

inventory shall contain, if applicable, at least the following

 

information for each facility:

 

     (a) Location.

 

     (b) Whether 1 or more response activity plans were submitted

 

under section 20114b and the status of department approval.

 

     (c) Whether a notice of land use or resource use restrictions

 

under section 20114c was submitted to the department.

 

     (d) Whether a no further action report under section 20114d

 

was submitted to the department and whether the report included a

 

postclosure plan or proposed postclosure agreement and the status

 

of department approval.

 

     (2) The department may categorize facilities on the inventory

 

created under subsection (1) in a manner that the department

 

believes is useful for the general public.

 

     (3) The department shall create and update on an ongoing basis

 

a separate inventory of residential closures.

 

     (4) The department shall post the inventories created under

 

subsections (1) and (2) on the department's website.

 

     (5) The department shall compile the following data on a

 

quarterly basis and post the data on its website:


 

     (a) The number of response activity plans received by the

 

department and itemized as follows:

 

     (i) Approved by the department.

 

     (ii) Disapproved by the department.

 

     (iii) Recommended for approval by the panel.

 

     (iv) Recommended for disapproval by the panel.

 

     (v) Approved by operation of law under section 20114b.

 

     (b) The number of no further action reports received by the

 

department and itemized as follows:

 

     (i) Approved by the department.

 

     (ii) Disapproved by the department.

 

     (iii) Recommended for approval by the panel.

 

     (iv) Recommended for disapproval by the panel.

 

     (v) Approved by operation of law.

 

     (c) The number of baseline environmental assessments received

 

by the department.

 

     (6) The department shall annually determine the percentage of

 

no further action reports approved by operation of law under

 

section 20114d. If the percentage in any year is in excess of 10%,

 

the department shall notify the standing committees of the senate

 

and the house of representatives with jurisdiction over issues

 

related to natural resources and the environment of this

 

occurrence.

 

     Sec. 20113. (1) Money required to implement the programs

 

described under this part and to pay for response activities

 

recommended under this part shall be appropriated from the fund and

 

any other source the legislature considers necessary to implement


 

the requirements of this part.

 

     (2) Money from the fund shall be appropriated only for

 

response activities at sites that have been subjected to the risk

 

assessment process described in section 20105.

 

     (2) (3) The department shall annually submit to the governor a

 

request for appropriation from the fund. The request will include a

 

lump sum amount for the purposes of subsection (4)(a) and a lump

 

sum amount for the purposes of subsection (4)(f) (3)(e). For the

 

purposes set forth in subsection (4)(b), (c), (d), and (e), (3)(a),

 

(b), (c), and (d), the request shall include a list of sites

 

facilities where the department is proposing to expend funds. The

 

list shall include the following information for each site

 

facility: the common name of the site facility, the response

 

activities that are planned to be conducted, and the estimated

 

amount of money that is needed to conduct the response activities.

 

The legislature shall approve by law the list of sites facilities

 

to be addressed and shall provide a lump sum appropriation for

 

these sites based on the total estimated amount needed for the

 

approved sites facilities.

 

     (3) (4) Money from the fund may be used, upon appropriation,

 

for the following as determined by the department:

 

     (a) National priority list municipal landfill cost-share

 

grants to be approved by the board pursuant to section 20109a.

 

     (a) (b) Superfund match, which includes funding for any

 

response activity that is required to match federal dollars at a

 

superfund site as required under the comprehensive environmental

 

response, compensation, and liability act, of 1980, Public Law 96-


 

510, 94 Stat. 2767 42 USC 9601 to 9675.

 

     (b) (c) Response activities to address actual or potential

 

public health or environmental problems.

 

     (c) (d) Completion of response activities initiated by the

 

state using environmental protection bond funds or completion of

 

response activities at facilities initiated by a person who was

 

liable under this part prior to Public Act 71 of 1995 1995 PA 71

 

but is not liable under section 20126 of this part, where such

 

response activities have ceased.

 

     (d) (e) Response activities at sites facilities that will

 

facilitate redevelopment.

 

     (e) (f) Emergency response actions for sites facilities to be

 

determined by the department.

 

     (4) (5) Money in the fund shall be expended first for the

 

purposes described in subsection (4)(b) and (f) (3)(a) and (e) and

 

health or environmental problems under subsection (4)(c) (3)(b)

 

that are related to acute health or environmental problems.

 

Following these expenditures, not less than 50% of the remaining

 

money expended under this section shall be expended for response

 

activities that facilitate redevelopment of urbanized areas. All

 

additional expenditures under this section shall be expended

 

following the expenditures described in this subsection. As used in

 

this subsection, "urbanized area" means an urbanized area as

 

determined by the economics and statistics administration, United

 

States bureau of census, according to the 1990 2000 census.

 

     (6) The total amount of funds expended by the department for

 

national priority list municipal landfill cost-share grants shall


 

not exceed the lesser of 12% of the funds appropriated from the

 

fund in a fiscal year or $6,000,000.00 in a fiscal year.

 

     (5) (7) Not later than December 31 April 1 of each year, the

 

department shall provide to the governor, the senate and house of

 

representatives standing committees with jurisdiction over issues

 

pertaining to natural resources and the environment, and the senate

 

and house of representatives appropriations committees a list of

 

all projects financed under this part through the preceding fiscal

 

year. The list shall include the project site and location, the

 

nature of the project, the total amount of money authorized, the

 

total amount of money expended, and project status.

 

     Sec. 20114. (1) Except as provided in subsection (4), an owner

 

or operator of property who has knowledge that the property is a

 

facility and who is liable under section 20126 shall do all of the

 

following:

 

     (a) Determine the nature and extent of a release at the

 

facility.

 

     (b) Report Make the following notifications:

 

     (i) If the release is of a reportable quantity of a hazardous

 

substance under 40 CFR 302.4 and 302.6 (1989), report the release

 

to the department within 24 hours after obtaining knowledge of the

 

release. The requirements of this subdivision shall apply to

 

reportable quantities of hazardous substances established pursuant

 

to 40 C.F.R. 302.4 and 302.6 (1989), unless the department

 

establishes through rules alternate or additional reportable

 

quantities as necessary to protect the public health, safety, or

 

welfare, or the environment.


 

     (ii) If the owner or operator has reason to believe that 1 or

 

more hazardous substances are emanating from or have emanated from

 

and are present beyond the boundary of his or her property at a

 

concentration in excess of cleanup criteria for unrestricted

 

residential use, notify the department and the owners of property

 

where the hazardous substances are present within 30 days after

 

obtaining knowledge that the release has migrated.

 

     (iii) If the release is a result of an activity that is subject

 

to permitting under part 615 and the owner or operator is not the

 

owner of the surface property and the release results in hazardous

 

substance concentrations in excess of cleanup criteria for

 

unrestricted residential use, notify the department and the surface

 

owner within 30 days after obtaining knowledge of the release.

 

     (c) Immediately stop or prevent the release at the source.

 

     (d) Immediately implement source control or removal measures

 

to remove or contain hazardous substances that are released after

 

the effective date of the 1995 amendments to this section June 5,

 

1995 if those measures are technically practical, cost effective,

 

and provide protection to the environment. At a facility where

 

hazardous substances are released after the effective date of the

 

1995 amendments to this section June 5, 1995, and those hazardous

 

substances have not affected groundwater but are likely to,

 

groundwater contamination shall be prevented if it can be prevented

 

by measures that are technically practical, cost effective, and

 

provide protection to the environment.

 

     (e) Immediately identify and eliminate any threat of fire or

 

explosion or any direct contact hazards.


 

     (f) Immediately initiate removal of a hazardous substance that

 

is in a liquid phase, that is not dissolved in water, and that has

 

been released.

 

     (g) Diligently pursue response activities necessary to achieve

 

the cleanup criteria specified in established under this part. and

 

the rules promulgated under this part. For a period of 2 years

 

after the effective date of the 1995 amendments to this section,

 

fines and penalties shall not be imposed under this part for a

 

violation of this subdivision. Except as otherwise provided in this

 

part, in pursuing response activities under this subdivision, the

 

owner or operator may do either of the following:

 

     (i) Proceed under section 20114a to conduct self-implemented

 

response activities.

 

     (ii) Proceed under section 20114b if the owner or operator

 

wishes to, or is required to, obtain departmental approval of 1 or

 

more aspects of planning response activities.

 

     (h) Upon written request by the department, take 1 or more of

 

the following actions:

 

     (i) Provide a response activity plan containing a plan for

 

undertaking interim response activities and undertake interim

 

response activities consistent with that plan.

 

     (ii) Provide a response activity plan containing a plan for

 

undertaking evaluation activities and undertake evaluation

 

activities consistent with that plan.

 

     (iii) Pursue remedial actions under section 20114a and, upon

 

completion, submit a no further action report under section 20114d.

 

     (iv) (iii) Take any other response activity determined by the


 

department to be technically sound and necessary to protect the

 

public health, safety, welfare, or the environment.

 

     (v) (iv) Submit to the department for approval a response

 

activity plan containing a remedial action plan that, when

 

implemented, will achieve the cleanup criteria specified in

 

established under this part. and the rules promulgated under this

 

part.

 

     (vi) (v) Implement an approved remedial action response

 

activity plan in accordance with a schedule approved by the

 

department pursuant to this part.

 

     (vii) Submit a no further action report under section 20114d

 

after completion of remedial action.

 

     (2) A person may undertake response activity without prior

 

approval by the department unless that response activity is being

 

done pursuant to an administrative order or agreement or judicial

 

decree which requires prior department approval. Any such action

 

shall not relieve any person of liability for further response

 

activity as may be required by the department.

 

     (2) Subsection (1) does not preclude a person from

 

simultaneously undertaking 1 or more aspects of planning or

 

implementing response activities at a facility under section 20114a

 

without the prior approval of the department, unless 1 or more

 

response activities are being conducted pursuant to an

 

administrative order or agreement or judicial decree that requires

 

prior department approval, and submitting a response activity plan

 

to the department under section 20114b.

 

     (3) Except as provided in subsection (4), a person who holds


 

an easement interest in a portion of a property who has knowledge

 

that there may be a release within that easement shall report the

 

release to the department within 24 hours after obtaining knowledge

 

of the release. Unless the department establishes through rules

 

alternate or additional reportable quantities as necessary to

 

protect the public health, safety, or welfare, or the environment,

 

this This subsection shall apply applies to reportable quantities

 

of hazardous substances established pursuant to 40 C.F.R. CFR 302.4

 

and 302.6 (1989).

 

     (4) The requirements of subsections (1) and (3) do not apply

 

to a permitted release or a release in compliance with applicable

 

federal, state, and local air pollution control laws.

 

     (5) Upon a determination by the department that a person has

 

completed all response activity at a facility pursuant to an

 

approved remedial action plan prepared and implemented in

 

compliance with this part and the rules promulgated under this

 

part, the department, upon request of a person, shall execute and

 

present a document stating that all response activities required in

 

the approved remedial action plan have been completed.

 

     (6) An owner or operator of a facility from which a hazardous

 

substance is released that is determined to be reportable under

 

subsection (1)(b), other than a permitted release, who fails to

 

notify the department within 24 hours after obtaining knowledge of

 

the release or who submits in such notification any information

 

that the person knows to be false or misleading, is subject to a

 

civil fine of not more than $25,000.00 for each day in which the

 

violation occurs or the failure to comply continues. A fine imposed


 

under this subsection shall be based upon the seriousness of the

 

violation and any good faith efforts by the violator to comply with

 

this subsection.

 

     (5) (7) This section does not do either of the following:

 

     (a) Limit the authority of the department to take or conduct

 

response activities pursuant to this part.

 

     (b) Limit the liability of a person who is liable under

 

section 20126.

 

     (8) Any request for approval of a plan shall be granted or

 

denied within 6 months of submittal of the information necessary or

 

required for the department to make its decision. If the department

 

does not approve the plan, the reasons for the denial shall be

 

provided by the department in writing with a complete and specific

 

statement of the conditions or requirements necessary to obtain

 

approval. The department may not add additional items to this

 

statement after it has been issued. Failure of the department to

 

act within the specified time period shall result in the request

 

being considered approved. The time frame for decision may be

 

extended by the mutual consent of the department and the person

 

submitting the plan.

 

     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. 6360(request no. H06270'10 *).


 

     (e) Senate Bill No. ____ or House Bill No. 6359(request no.

 

07378'10).