SB-0717, As Passed Senate, December 7, 2016
HOUSE SUBSTITUTE FOR
SENATE BILL NO. 717
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 21303, 21304c, 21310a, 21323a, and 21325 (MCL
324.21303, 324.21304c, 324.21310a, 324.21323a, and 324.21325),
sections 21303, 21304c, 21310a, and 21323a as amended by 2012 PA
446 and section 21325 as added by 2012 PA 108, and by adding
section 21325a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 21303. As used in this part:
(a) "NAPL" means a nonaqueous-phase liquid or a nonaqueous-
phase liquid solution composed of 1 or more organic compounds that
are immiscible or sparingly soluble in water. NAPL includes both
DNAPL and LNAPL.
(b) "Operator" means a person who is presently, or was at the
time of a release, in control of, or responsible for, the operation
of an underground storage tank system.
(c) "Owner" means a person who holds, or at the time of a
release who held, a legal, equitable, or possessory interest of any
kind in an underground storage tank system or in the property on
which an underground storage tank system is or was located
including, but not limited to, a trust, vendor, vendee, lessor, or
lessee.
(d) "Property" means real estate that is contaminated by a
release from an underground storage tank system.
(e) "Public highway" means a road or highway under the
jurisdiction of the state transportation department, a county road
commission, or a local unit of government.
(f) (e)
"Qualified underground storage
tank consultant" means
a person who meets the requirements established in section 21325.
(g) (f)
"RBCA" means the American
society Society for testing
Testing
and materials Materials (ASTM) document entitled standard
guide for risk-based corrective action applied at petroleum release
sites, designation E 1739-95 (reapproved 2010) E1; standard guide
for risk-based corrective action designation E 2081-00 (reapproved
2010) E1; and standard guide for development of conceptual site
models and remediation strategies for light nonaqueous-phase
liquids released to the subsurface designation E 2531-06 E1, all of
which are hereby incorporated by reference.
(h) (g)
"Regulated substance"
means any of the following:
(i) A substance defined in section 101(14) of title I of the
comprehensive environmental response, compensation, and liability
act of 1980, Public Law 96-510, 42 USC 9601, but not including a
substance regulated as a hazardous waste under subtitle C of the
solid waste disposal act, title II of Public Law 89-272, 42 USC
6921 to 6939e.
(ii) Petroleum, including crude oil or any fraction of crude
oil that is liquid at standard conditions of temperature and
pressure (60 degrees Fahrenheit and 14.7 pounds per square inch
absolute). Petroleum includes but is not limited to mixtures of
petroleum with de minimis quantities of other regulated substances
and petroleum-based substances composed of a complex blend of
hydrocarbons derived from crude oil through processes of
separation, conversion, upgrading, or finishing such as motor
fuels, jet fuels, distillate fuel oils, residual fuel oils,
lubricants, and petroleum solvents.
(iii) A substance listed in section 112 of part A of title I
of
the clean air act, chapter 360, 84 Stat. Stat 1685, 42 USC 7412.
(i) (h)
"Release" means any
spilling, leaking, emitting,
discharging, escaping, or leaching from an underground storage tank
system into groundwater, surface water, or subsurface soils.
(j) (i)
"Residual NAPL
saturation" means the range of NAPL
saturations greater than zero NAPL saturation up to the NAPL
saturation at which NAPL capillary pressure equals pore entry
pressure and includes the maximum NAPL saturation, below which NAPL
is discontinuous and immobile under the applied gradient.
(k) (j)
"Risk-based screening
level" or "RBSL" means the
unrestricted residential and nonresidential generic cleanup
criteria developed by the department pursuant to part 201.
(l) (k)
"Saturated zone" means a
soil area where the soil
pores are filled with groundwater and can include the presence of
LNAPL.
(m) (l) "Site"
means a location where a release has occurred
or a threat of release exists from an underground storage tank
system, excluding any location where corrective action was
completed which satisfies the applicable RBSL or SSTL.
(n) (m)
"Surface water" means all
of the following, but does
not include groundwater or an enclosed sewer, other utility line,
storm water retention basin, or drainage ditch:
(i) The Great Lakes and their connecting waters.
(ii) All inland lakes.
(iii) Rivers.
(iv) Streams.
(v) Impoundments.
(o) (n)
"Site-specific target
level" or "SSTL" means an RBCA
risk-based remedial action target level for contamination developed
for a site under RBCA tier II and tier III evaluations.
(p) (o)
"Threat of release" or
"threatened release" means any
circumstance that may reasonably be anticipated to cause a release.
Threat of release or threatened release does not include the
ownership or operation of an underground storage tank system if the
underground storage tank system is operated in accordance with part
211 and rules promulgated under that part.
(q) (p)
"Tier I", "tier
II", and "tier III" mean those terms
as they are used in RBCA.
(r) (q)
"Underground storage tank
system" means a tank or
combination of tanks, including underground pipes connected to the
tank or tanks, which is, was, or may have been used to contain an
accumulation of regulated substances, and the volume of which,
including the volume of the underground pipes connected to the tank
or tanks, is 10% or more beneath the surface of the ground. An
underground storage tank system does not include any of the
following:
(i) A farm or residential tank of 1,100 gallons or less
capacity used for storing motor fuel for noncommercial purposes.
(ii) A tank used for storing heating oil for consumptive use
on the premises where the tank is located.
(iii) A septic tank.
(iv) A pipeline facility, including gathering lines regulated
under either of the following:
(A) The natural gas pipeline safety act of 1968, Public Law
90-481, 49 USC Appx 1671 to 1677, 1679a to 1682, and 1683 to 1687.
(B) Sections 201 to 215 and 217 of the hazardous liquid
pipeline safety act of 1979, title II of Public Law 96-129, 49 USC
Appx 2001 to 2015.
(v) A surface impoundment, pit, pond, or lagoon.
(vi) A storm water or wastewater collection system.
(vii) A flow-through process tank.
(viii) A liquid trap or associated gathering lines directly
related to oil or gas production and gathering operations.
(ix) A storage tank situated in an underground area such as a
basement, cellar, mineworking, drift, shaft, or tunnel if the
storage tank is situated upon or above the surface of the floor.
(x) Any pipes connected to a tank that is described in
subdivisions (i) to (ix).
(xi) An underground storage tank system holding hazardous
wastes listed or identified under subtitle C of the solid waste
disposal act, title II of Public Law 89-272, 42 USC 6921 to 6939e,
or a mixture of such hazardous waste and other regulated
substances.
(xii) A wastewater treatment tank system that is part of a
wastewater treatment facility regulated under section 307(b) of
title III or section 402 of title IV of the federal water pollution
control act, 33 USC 1317 and 1342.
(xiii) Equipment or machinery that contains regulated
substances for operational purposes such as hydraulic lift tanks
and electrical equipment tanks.
(xiv) An underground storage tank system that has a capacity
of 110 gallons or less.
(xv) An underground storage tank system that contains a de
minimis concentration of regulated substances.
(xvi) An emergency spill or overflow containment underground
storage tank system that is expeditiously emptied after use.
(s) (r)
"Vadose zone" means the
soil between the land surface
and the top of the capillary fringe. Vadose zone is also known as
an unsaturated zone or a zone of aeration.
Sec. 21304c. (1) A person that owns or operates property that
the person has knowledge is contaminated shall do all of the
following with respect to regulated substances at the property:
(a) Undertake measures as are necessary to prevent
exacerbation.
(b) Exercise due care by undertaking corrective action
necessary to mitigate unacceptable exposure to regulated
substances, mitigate fire and explosion hazards due to regulated
substances, and allow for the intended use of the property in a
manner that protects the public health and safety.
(c) Take reasonable precautions against the reasonably
foreseeable acts or omissions of a third party and the consequences
that foreseeably could result from those acts or omissions.
(d) Provide reasonable cooperation, assistance, and access to
the persons that are authorized to conduct corrective action
activities at the property, including the cooperation and access
necessary for the installation, integrity, operation, and
maintenance of any complete or partial corrective action activity
at the property. Nothing in this subdivision shall be interpreted
to provide any right of access not expressly authorized by law,
including access authorized pursuant to a warrant or a court order,
or to preclude access allowed pursuant to a voluntary agreement.
(e) Comply with any land use or resources use restrictions
established or relied on in connection with the corrective action
activities at the property.
(f) Not impede the effectiveness or integrity of any
corrective action or land use or resource use restriction employed
at the property in connection with corrective action activities.
(2) A person's obligations under this section shall be based
upon the applicable RBSL or SSTL.
(3) A person that violates subsection (1) that is not
otherwise liable under this part for the release at the property is
liable for corrective action activity costs and natural resource
damages attributable to any exacerbation and any fines or penalties
imposed under this part resulting from the violation of subsection
(1) but is not liable for performance of additional corrective
action activities unless the person is otherwise liable under this
part for performance of additional corrective action activities.
The burden of proof in a dispute as to what constitutes
exacerbation shall be borne by the party seeking relief.
(4) Compliance with this section does not satisfy a person's
obligation to perform corrective action activities as otherwise
required under this part.
(5)
Subsection (1)(a) to (c) and (f) does not apply to the
this
state, a county road commission, or to a local unit of
government
that if it is not liable under section 21323a(3)(a),
(b),
(c), or (e) or to the this
state, a county road commission,
or
a
local unit of government that if it acquired
property by
purchase, gift, transfer, or condemnation or to a person that is
exempt
from liability under section 21323a(4)(b). However, if the
this
state or a local unit of government, other
than those unless
exempt from liability under section 21323a(4)(b), acting as the
owner
or operator of a parcel of property
that the state or local
unit
of government has knowledge is contaminated by a release from
an
underground storage tank system, offers
access to that parcel
the
property on a regular or continuous
basis pursuant to an
express
for a public purpose and invites the general public
to use
that
the property for the express public purpose, the
this state or
the local unit of government is subject to this section but only
with respect to that portion of the property that is opened to and
used
by the general public for that express the public purpose, and
not
the entire property. Express public Public purpose includes,
but
is not limited to, activities such as a public park, municipal
office
building, or municipal public works operation. Express
public
Public purpose does not include a public highway or
activities surrounding the acquisition or compilation of parcels
for the purpose of future development.
(6) Subsection (1)(a) to (c) does not apply to a person that
is exempt from liability under section 21323a(3)(c) or (d) except
with regard to that person's activities at the property.
(7) Subsection (1)(a) to (f) applies to an owner or operator
who is liable under section 21323a with respect to regulated
substances present within a public highway above applicable RBSLs
or SSTLs.
Sec. 21310a. (1) If the corrective action activities at a site
result in a final remedy that relies on a nonresidential RBSL or an
SSTL, institutional controls shall be implemented as provided in
this subsection. A notice of corrective action shall be recorded
with the register of deeds for the county in which the site is
located prior to submittal of a closure report under section
21312a. A notice shall be filed under this subsection only by the
person that owns the property or with the express written
permission of the person that owns the property. A notice of
corrective action recorded under this subsection shall state the
land use that was the basis of the corrective action. The notice
shall state that if there is a proposed change in the land use at
any time in the future, that change may necessitate further
evaluation of potential risks to the public health, safety, and
welfare and to the environment and that the department shall be
contacted regarding any proposed change in the land use. Additional
requirements for monitoring or operation and maintenance shall not
apply if contamination levels do not exceed the levels established
in the tier I evaluation.
(2) If corrective action activities at a site rely on
institutional controls other than as provided in subsection (1),
the institutional controls shall be implemented as provided in this
subsection. The restrictive covenant shall be recorded with the
register of deeds for the county in which the property is located
within 30 days from submittal of the final assessment report
pursuant to section 21311a, unless otherwise agreed to by the
department. The restrictive covenant shall be filed only by the
person that owns the property or with the express written
permission of the person that owns the property. The restrictions
shall run with the land and be binding on the owner's successors,
assigns, and lessees. The restrictions shall apply until regulated
substances no longer present an unacceptable risk to the public
health, safety, or welfare or to the environment. The restrictive
covenant shall include a survey and property description which
define the areas addressed by the corrective action plan and the
scope of any land use or resource use limitations. The form and
content of the restrictive covenant shall include provisions to
accomplish all of the following:
(a) Restrict activities at the site that may interfere with
corrective action, operation and maintenance, monitoring, or other
measures necessary to assure the effectiveness and integrity of the
corrective action.
(b) Restrict activities that may result in exposure to
regulated substances above levels established in the corrective
action plan.
(c) Prevent a conveyance of title, an easement, or other
interest in the property from being consummated by the person that
owns the property without adequate and complete provision for
compliance with the corrective action plan and prevention of
exposure to regulated substances described in subdivision (b).
(d) Grant to the department and its designated representatives
the right to enter the property at reasonable times for the purpose
of determining and monitoring compliance with the corrective action
plan, including, but not limited to, the right to take samples,
inspect the operation of the corrective action measures, and
inspect records.
(e)
Allow the this state to enforce restrictions set forth in
the covenant by legal action in a court of appropriate
jurisdiction.
(f) Describe generally the uses of the property that are
consistent with the corrective action plan.
(3) If the owner or operator that is liable under section
21323a determines that exposure to regulated substances may be
reliably
restricted by a means other than a
restrictive covenant
and
that imposition of land use or resource use restrictions
through
restrictive covenants is impractical, in a manner that
protects against exposure to regulated substances as defined by the
RBSLs and SSTLs, the owner or operator that is liable under section
21323a may select a corrective action plan that relies on
alternative mechanisms. Mechanisms that may be considered under
this
subsection include, but are not limited to, an ordinance that
prohibits
the use of groundwater in a manner and to a degree that
protects
against unacceptable exposure to a regulated substance as
defined
by the RBSLs or SSTLs identified in the corrective action
plan.
An ordinance that serves as an exposure control under this
subsection
shall include both any of the following:
(a)
A requirement that the local unit of government notify the
department
30 days before adopting a modification to the ordinance
or
the lapsing or revocation of the ordinance.
(b)
A requirement that the ordinance be filed with the
register
of deeds as an ordinance affecting multiple properties.
(a) Compliance with an ordinance, state law, or rule that
limits or prohibits the use of contaminated groundwater above the
RBSLs or SSTLs identified in the corrective action plan, prohibits
the raising of livestock, prohibits development in certain
locations, or restricts property to certain uses. An ordinance
under this subdivision shall be filed with the register of deeds on
the affected property or shall be filed as an ordinance affecting
multiple properties. An ordinance adopted after the effective date
of the 2016 amendatory act that amended this section shall include
a requirement that the local unit of government notify the
department 30 days before adopting a modification to the ordinance
or the lapsing or revocation of the ordinance.
(b) A license or license agreement with the state
transportation department if regulated substances are proposed to
be left in place within a public highway owned or controlled by the
state transportation department. The license or license agreement
may include a financial mechanism in an amount calculated to
reflect the reasonably estimated increased cost of any activity
anticipated to be performed as described in the most recently
adopted state 5-year program, that has the potential to disturb or
expose the environmental contamination left in place within the
public highway, including, but not limited to, 1 of the following:
(i) A bond executed by a surety authorized to do business in
this state.
(ii) Insurance coverage, as evidenced by a proof of insurance.
(iii) Eligibility under the underground storage tank cleanup
fund created in section 21506b.
(iv) A letter of credit.
(v) A corporate guarantee.
(vi) Self-insurance meeting a financial test approved by the
state transportation department.
(c) If the state transportation department fails or refuses to
grant a license or enter into a license agreement within 120 days
after submission of a request to issue a license or enter into a
license agreement, and for public highways owned or controlled by a
county road commission or a local unit of government, reliance on
the existence of a public highway, if the owner or operator that is
liable under section 21323a does all of the following:
(i) Provides the department and the person that owns or
operates the public highway with the following information related
to the release and site:
(A) The site name, address, and facility identification
number, and the name and contact information of the person relying
on the alternative mechanism.
(B) Identification of the department district office with
jurisdiction over the site.
(C) The name of the affected public highway and the nearest
intersection.
(D) Identification of known or suspected contaminants.
(E) A statement that residual or mobile NAPL is or is not
present at the affected public highway.
(F) The media affected, including depth of contaminated soil,
depth of groundwater, and predominate groundwater flow direction.
(G) A scale drawing of the portion of the public highway
subject to the alternate mechanism that depicts the area impacted
by regulated substances and the location of utilities in the
impacted area, including storm water systems and municipal separate
storm water systems.
(H) Identification of all ownership and possessory or use
property interests related to the public highway and whether they
are affected by the contamination and whether they have received
notification of the existing conditions as part of a corrective
action plan or pursuant to the due care requirements under section
21304c.
(I) Identification of exposure risks from drinking water,
direct contact, groundwater, soil excavation, or relocation.
(ii) Confirms that there are no current plans to relocate,
vacate, or abandon the public highway.
(iii) Either provides a certification to the person that owns
or operates the public highway that any contamination present as a
result of the release from the underground storage tank system does
not enter a storm sewer system or provides all information
necessary to clearly identify the nature and extent of the
contamination that enters or has the potential to enter the storm
sewer system.
(4)
Notwithstanding subsections (1), (2), and (3), if a
mechanism
other than a notice of corrective action, an ordinance,
or
a restrictive covenant is requested by an owner or operator that
is
liable under section 21323a and the department determines that
the
alternative mechanism is appropriate, the department may
approve
of the alternate mechanism.A
person that applies for a
permit issued by a county road commission or a local unit of
government to excavate, bore, drill, or perform any other intrusive
activity within a public highway or right-of-way of a public
highway shall identify whether the proposed work will take place
within an area being relied upon as an alternative institutional
control.
(5) Reliance on a public highway as an alternative mechanism
under subsection (3)(b) does not affect an owner's or operator's
liability under section 21323a or impose liability for corrective
action or any other obligation on the state transportation
department, a county road commission, or a local unit of
government. Information provided pursuant to section 21310a(3) or
(4) to the person that owns or operates a public highway does not
create an estoppel, obligation, or liability on the person that
owns or operates the public highway. The use of a public highway as
an alternative mechanism does not limit or restrict any right or
duty of the state transportation department, a county road
commission, or a local unit of government to operate, maintain,
repair, reconstruct, enlarge, relocate, abandon, vacate, or
otherwise exercise its jurisdiction over any public highway or
public highway right-of-way or any part thereof, or to permit any
utilities or others to use any public highway or public highway
right-of-way, or any part thereof.
(6) (5)
A person that implements corrective
action activities
that relies on land use restrictions shall provide notice of the
land use restrictions that are part of the corrective action plan
to the local unit of government in which the site is located within
30 days of filing of the land use restrictions with the county
register of deeds.
Sec. 21323a. (1) Notwithstanding any other provision of this
act, and except as otherwise provided in this section and section
21323c, the following persons are liable under this part:
(a) The owner or operator if the owner or operator is
responsible for an activity causing a release or threat of release.
(b) An owner or operator who became an owner or operator on or
after March 6, 1996, 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 provides a baseline environmental
assessment to the department and subsequent purchaser or transferee
within 6 months after the earlier of the date of purchase,
occupancy, or foreclosure.
(iii) If the owner or operator fails to meet the time frames
in subparagraphs (i) and (ii), the owner or operator requests and
receives from the department a determination that its failure to
comply with the time frames was inconsequential.
(c) The estate or trust of a person described in subdivisions
(a) and (b).
(2) Subject to section 21304c, an owner or operator who
complies with subsection (1)(b) is not liable for contamination
existing at the property on which an underground storage tank
system is located at the earlier of the date of purchase,
occupancy, or foreclosure, unless the person is responsible for an
activity causing the contamination. Subsection (1)(b) does not
alter a person's liability with regard to a subsequent release or
threat of release from an underground storage tank system 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
property on which an underground storage tank system is located
resulting from a release or threat of release unless the person is
responsible for an activity causing that release or threat of
release:
(a)
The This state,
a county road commission, or a local
unit
of
government that if it acquired ownership or control of the
property involuntarily through bankruptcy, tax delinquency,
abandonment, a transfer from a lender 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 county road commission or a local unit of government to which
ownership
or control of property is transferred by the this state,
by a county road commission, or by another local unit of government
that
is not liable under subsection (1);
, or the this state,
a
county
road commission, or a local unit of
government that if it
acquired ownership or control of property by seizure, receivership,
or forfeiture pursuant to the operation of law or by court order.
(b)
A This state,
a county road commission, or a local
unit of
government
that if it holds or acquires an easement interest in
property, holds or acquires an interest in property by dedication
in a plat, or by dedication pursuant to the public highways and
private roads act, 1909 PA 283, MCL 220.1 to 239.6, or otherwise
holds or acquires an interest in property for a transportation or
utility corridor, including sewers, pipes, and pipelines, or public
rights-of-way.
(c) A person that holds an easement interest in property 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 that owns severed subsurface mineral rights or
severed subsurface formations or who leases subsurface mineral
rights or formations.
(e)
The This state,
a county road commission, or a local
unit
of
government that if it leases property to a person if the state
or
the local unit of government and
is not liable under this part
for environmental contamination at the property.
(f) A person that acquires property as a result of the death
of the prior owner or operator of the property, whether by
inheritance, devise, or transfer from an inter vivos or
testamentary trust.
(g) A person that did not know and had no reason to know that
the property was contaminated. To establish that the person did not
know and did not have a reason to know that the property was
contaminated, 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 regulated 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.
(h) A utility performing normal construction, maintenance, and
repair activities in the normal course of its utility service
business. This subdivision does not apply to property owned by the
utility.
(i) A lessee who uses the leased property for a retail,
office, or commercial purpose regardless of the level of the
lessee's regulated substance use unless the lessee is otherwise
liable under this section.
(4) Notwithstanding subsection (1), the following persons are
not liable under this part:
(a) A lender that engages in or conducts a lawful marshaling
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 property.
(b) A person that owns or operates property onto which
contamination has migrated unless that person is responsible for an
activity causing the release that is the source of the
contamination.
(c) A person that owns or operates property on 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
that is liable under this section.
(d) Any person for environmental contamination addressed in a
closure report that is approved by the department or is considered
approved under section 21315(4). Notwithstanding this subdivision,
a person may be liable under this part for the following:
(i) A subsequent release not addressed in the closure report
if the person is otherwise liable under this part for that release.
(ii) Environmental contamination that is not addressed in the
closure report and for which the person is otherwise liable under
this part.
(iii) If the closure report relies on land use or resource use
restrictions, a person who desires to change those restrictions is
responsible for any corrective action 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 closure report. However, if
the closure report relies on an alternate mechanism as provided for
in section 21310a and the ordinance, state law, or rule is
modified, lapses, or is revoked or the public highway is relocated,
vacated, or abandoned, the owner or operator that is liable under
section 21323a for the environmental contamination addressed in the
closure report shall notify the department 30 days before the
ordinance, state law, or rule is modified, lapses, or is revoked or
the public highway is relocated, vacated, or abandoned. In such
cases, the owner or operator is liable under this part for
additional corrective action activities necessary to address any
increased risk of exposure to the environmental contamination.
(iv) If the closure report relies on monitoring necessary to
assure the effectiveness and integrity of the corrective action, an
owner or operator that is liable under section 21323a for
environmental contamination addressed in a closure report is liable
under this part for additional corrective action activities
necessary to address any potential exposure to the environmental
contamination demonstrated by the monitoring in excess of the
levels relied on in the closure report.
(v) If the corrective actions that were the basis for the
closure report fail to meet performance objectives that are
identified in the closure report or section 21304a, an owner or
operator that is liable under section 21323a for environmental
contamination addressed in the closure report is liable under this
part for corrective action 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 property is not liable under
this part for costs or damages as a result of corrective action
taken in response to a release or threat of release. For a lender,
this subsection applies only to corrective action 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 this state or local unit of government.
(6) In establishing liability under this section, the
department bears the burden of proof.
(7) An owner or operator who was in compliance with subsection
(1)(b) prior to May 1, 2012 is considered to be in compliance with
subsection (1)(b).
Sec. 21325. A person shall be considered a qualified
underground storage tank consultant if the person meets all of the
following requirements:
(a)
Experience Has experience in all phases of underground
storage tank work, including RBCA, tank removal oversight, site
assessment, soil removal, feasibility, design, remedial system
installation, remediation management activities, and site closure
and possesses or employs at least 1 of the following:
(i) A professional engineer license with 3 or more years of
relevant corrective action experience, preferably involving
underground storage tanks.
(ii) A professional geologist certification or a similar
approved designation such as a professional hydrologist or a
certified groundwater professional, with 3 or more years of
relevant corrective action experience, preferably involving
underground storage tanks.
(iii) A person with a master's degree from an accredited
institution of higher education in a discipline of engineering or
science and 8 years of full-time relevant experience or a person
with a baccalaureate degree from an accredited institution of
higher education in a discipline of engineering or science and 10
years of full-time relevant experience. This experience shall be
documented with professional and personal references, past
employment references and histories, and documentation that all
requirements of the occupational safety and health act of 1970,
Public
Law 91-596, 84 Stat. Stat 1590, and regulations promulgated
under that act, and the Michigan occupational safety and health
act, 1974 PA 154, MCL 408.1001 to 408.1094, and rules promulgated
under that act have been met.
(iv) A person that was certified by the department as an
underground
storage tank professional pursuant to section 21543 at
the
time of the effective date of the amendatory act that added
this
subparagraph.on May 1, 2012.
(b)
The person has Has all of the following insurance policies
written by carriers authorized to write such business, or approved
as
an eligible surplus lines insurer, by the this state and which
are placed with an insurer listed in a.m. best's with a rating of
no less than B+ VII:
(i) Worker's compensation insurance.
(ii) Professional liability errors and omissions insurance.
This policy may not exclude bodily injury, property damage, or
claims arising out of pollution for environmental work and shall be
issued with a limit of not less than $1,000,000.00 per occurrence.
(iii) Contractor pollution liability insurance with limits of
not less than $1,000,000.00 per occurrence, if not included under
the professional liability errors and omissions insurance required
under subparagraph (ii). The insurance requirement under this
subparagraph is not required for consultants who do not perform
contracting functions.
(iv) Commercial general liability insurance with limits of not
less than $1,000,000.00 per occurrence and $2,000,000.00 aggregate.
(v) Automobile liability insurance with limits of not less
than $1,000,000.00 per occurrence.
(c) Has demonstrated compliance with the occupational safety
and
health act of 1970, Public Law 91-596, 84 Stat. Stat 1590,
and
the regulations promulgated under that act, and the Michigan
occupational safety and health act, 1974 PA 154, MCL 408.1001 to
408.1094, and the rules promulgated under that act, and is able to
demonstrate that all such rules and regulations have been complied
with during the person's previous corrective action activity.
Sec. 21325a. Department employees who are responsible for the
oversight of corrective action or the audits conducted under
section 21315 shall be formally trained and demonstrate proficiency
in RBCA.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.