SB-0717, As Passed House, 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.

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.

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

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.

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.

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.

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

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.

(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.

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.

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.

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.