January 21, 2016, Introduced by Senator CASPERSON and referred to the Committee on Natural Resources.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 21304c, 21310a, 21323a, and 21325 (MCL
324.21304c, 324.21310a, 324.21323a, and 324.21325), sections
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. 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 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) does not apply to the state or to
a local unit of government that is not liable under section
21323a(3)(a), (b), (c), or (e) or to the state or local unit of
government that 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 state or local unit of
government,
other than those 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 state or 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, or a public highway as described in section 20 of 1909
PA
283, MCL 221.20. Express public Public purpose
does not include
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.
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 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 either 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) An ordinance, state law, or regulation 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.
(b) The existence of a public highway described in section 20
of 1909 PA 283, MCL 221.20, if the owner or operator that is liable
under section 21323a does all of the following:
(i) Provides a copy of the final assessment report and closure
report to the owner and operator of the public highway.
(ii) Performs a title search to determine whether there are
any other possessory or use property interests within the public
highway and provides the owners of the identified possessory or use
property interests with a copy of the final assessment report and
closure report.
(iii) Confirms that there are no current plans to relocate,
vacate, or abandon the public highway.
(4) 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 on either the state transportation department or a local
unit of government.
(5) (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.
(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. However, compliance with the 45-day time
period under this subparagraph is not necessary if the owner or
operator requests and receives from the department a written
determination that its failure to comply with the time frame was
inconsequential. 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.
(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 state or a local unit of government that 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 local unit of government to which
ownership or control of property is transferred by the state or by
another local unit of government that is not liable under
subsection (1), or the state or a local unit of government that
acquired ownership or control of property by seizure, receivership,
or forfeiture pursuant to the operation of law or by court order.
(b) A state or local unit of government that holds or acquires
an easement interest in 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 state or a local unit of government that leases
property to a person if the state or the local unit of government
is not liable under this part for environmental contamination at
the property.
(f) A person 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 regulation 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 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 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 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.