SB-0528, As Passed Senate, April 19, 2012
HOUSE SUBSTITUTE FOR
SENATE BILL NO. 528
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 21301a, 21304a, 21304b, 21307, 21307a, 21309a,
21310a, 21314a, 21315, 21316, 21316a, and 21320 (MCL 324.21301a,
324.21304a, 324.21304b, 324.21307, 324.21307a, 324.21309a,
324.21310a, 324.21314a, 324.21315, 324.21316, 324.21316a, and
324.21320), sections 21301a, 21304a, 21309a, 21310a, and 21315 as
amended and section 21304b as added by 1996 PA 116 and section
21307 as amended and sections 21307a, 21314a, and 21316a as added
by 1995 PA 22, and by adding sections 21304c, 21304d, 21323a,
21323b, 21323c, 21323d, 21323e, 21323f, 21323g, 21323h, 21323i,
21323j, 21323k, 21323l, 21323m, 21325, and 21334.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 21301a. (1) This part is intended to provide remedies
using a process and procedures separate and distinct from the
process, procedures, and criteria established under part 201 for
sites posing a threat to the public health, safety, or welfare, or
to the environment, as a result of releases from underground
storage tank systems, regardless of whether the release or threat
of release of a regulated substance occurred before or after
January 19, 1989, the effective date of the former leaking
underground
storage tank act, Act No. 478 of the Public Acts of
1988,
1988 PA 478, and for this purpose, this part shall be given
retroactive application. However, criminal penalties provided in
the
amendatory act that added this section this part only apply to
violations of this part that occur after April 13, 1995.
(2)
The changes in liability provisions
that are provided for
in
the amendatory act that added this subsection this part shall be
given retroactive application.
Sec. 21304a. (1) Corrective action activities undertaken
pursuant to this part shall be conducted in accordance with the
process outlined in RBCA in a manner that is protective of the
public health, safety, and welfare, and the environment. Corrective
action activities that involve a discharge into air or ground water
as defined in section 21302 or surface water as defined in section
21303 shall be consistent with parts 31 and 55.
(2)
Subject to subsections (3) and (4), the department shall
establish
cleanup criteria for corrective action activities
undertaken
under this part using the process outlined in RBCA. The
department
shall utilize only reasonable and relevant exposure
assumptions
and pathways in determining the cleanup criteria.
(2) The tier I risk-based screening levels for regulated
substances are the unrestricted residential and nonresidential
generic cleanup criteria developed by the department pursuant to
part 201 and shall be utilized in accordance with the process
outlined in RBCA as screening levels only.
(3) If a regulated substance poses a carcinogenic risk to
humans,
the cleanup criteria tier I
RBSLs derived for cancer risk
shall be the 95% upper bound on the calculated risk of 1 additional
cancer above the background cancer rate per 100,000 individuals
using
the exposure assumptions and pathways established by the
department
and the process in RBCA. If a
regulated substance poses
a risk of both cancer and an adverse health effect other than
cancer, cleanup criteria shall be derived for cancer and each
adverse health effect.
(4)
If a cleanup criterion the
applicable RBSL or SSTL for
groundwater differs from either (a) the state drinking water
standard established pursuant to section 5 of the safe drinking
water
act, Act No. 399 of the Public Acts of 1976, being section
325.1005
of the Michigan Compiled Laws, 1976
PA 399, MCL 325.1005,
or (b) criteria for adverse aesthetic characteristics derived
pursuant to R 299.5709 of the Michigan administrative code, the
cleanup
criterion SSTL shall be the more stringent of (a) or (b)
unless
a consultant retained by the owner or operator determines
that compliance with (a) or (b) is not necessary because the use of
the groundwater is reliably restricted pursuant to section 21310a.
(5) Corrective action at sites where a release has occurred or
a threat of release exists from an underground storage tank system
is regulated exclusively under this part. Notwithstanding any other
provision of this part, if a release or threat of release at a site
is not solely the result of a release or threat of release from an
underground storage tank system, the owner or operator of the
underground storage tank system may choose to perform response
activities pursuant to part 201 in lieu of corrective actions
pursuant to this part.
Sec.
21304b. (1) An owner or operator A person shall not
remove soil, or allow soil to be removed, from a site to an off-
site location unless that person determines that the soil can be
lawfully relocated without posing a threat to the public health,
safety, or welfare, or the environment. The determination shall
consider
whether the soil is subject to regulation pursuant to
under parts 111 and 115.
(2) For the purposes of subsection (1), soil poses a threat to
the public health, safety, or welfare, or the environment if
concentrations of regulated substances in the soil exceed the
cleanup
criteria tier I RBSLs established pursuant to section
21304a that apply to the location to which the soil will be moved
or relocated, except if the soil is to be removed from the site for
disposal or treatment, the soil shall satisfy the appropriate
regulatory criteria for disposal or treatment. Any land use
restriction that would be required for the application of a
criterion pursuant to section 21304a shall be in place at the
location to which the soil will be moved. Soil may be relocated
only to another location that is similarly contaminated,
considering the general nature, concentration, and mobility of
regulated substances present at the location to which the
contaminated soil will be removed. Contaminated soil shall not be
moved to a location that is not a site unless it is taken there for
treatment or disposal in conformance with applicable laws and
regulations.
(3)
An owner or operator A
person shall not relocate soil, or
allow soil to be relocated, within a site of environmental
contamination where a corrective action plan was approved unless
that person provides assurances that the same degree of control
required for application of the criteria of section 21304a is
provided for the contaminated soil.
(4) The prohibition in subsection (3) against relocation of
contaminated soil within a site of environmental contamination does
not apply to soils that are temporarily relocated for the purpose
of implementing corrective actions or utility construction if the
corrective actions or utility construction is completed in a timely
fashion and the short-term hazards are appropriately controlled.
(5)
If soil is being moved off-site from, moved to, or
relocated
on-site at a site where corrective actions will occur,
the
soil shall not be removed without the prior approval of the
department.
(5) (6)
If soil is being relocated in a
manner not addressed
by
subsection (5) this
section, the owner or operator of person
that owns or operates the site from which soil is being moved shall
notify the department within 14 days after the soil is moved. The
notice shall include all of the following:
(a) The location from which soil will be removed.
(b) The location to which the soil will be taken.
(c) The volume of soil to be removed.
(d) A summary of information or data on which the owner or
operator is basing the determination required in subsection (2)
that the soil does not present a threat to the public health,
safety, or welfare, or the environment.
(e) If land use restrictions would apply pursuant to section
21310a, to the soil when it is relocated, the notice shall include
documentation that those restrictions are in place.
(6) (7)
The determination required by
subsections (1) and (3)
shall be based on knowledge of the person undertaking or approving
the removal or relocation of soil, or on characterization of the
soil for the purpose of compliance with this section.
(7) (8)
This section does not apply to soil
that is designated
as an inert material pursuant to section 11507.
Sec. 21304c. (1) A person that owns or operates property that
the person has knowledge is or was a site 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
Senate Bill No. 528 (H-2) as amended April 17, 2012
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)(c). However, if the state or local unit of
government, other than those exempt from liability under section
21323a(4)(b), acting as the operator of a parcel of property that
the state or local unit of government has knowledge is or was a
site, offers access to that parcel on a regular or continuous basis
pursuant to an express public purpose and invites the general
public to use that 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 purpose, and not
the entire property. Express public purpose includes, but is not
limited to, activities such as a public park, municipal office
building, or municipal public works operation. Express 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. 21304d. (1) If the owner of a parcel of real property has
knowledge or information or is on notice through a recorded
instrument that the real property is a site, the owner shall not
transfer an interest in that real property unless the owner
provides written notice to the transferee that the real property is
a site and of the general nature and extent of the release.
(2) The owner of real property for which a notice required in
subsection (1) has been recorded may, upon completion of all
corrective action activities for the site as approved by the
department, record with the register of deeds for the appropriate
county a certification that all corrective action activity required
in an approved final assessment report has been completed.
(3) A person shall not transfer an interest in real property
unless the person fully discloses any land or resource use
restrictions that apply to that real property as a part of
corrective action that has been or is being implemented in
compliance with section 21304a.
Sec. 21307. (1) Upon confirmation of a release from an
underground storage tank system, the owner or operator shall report
the
release and whether free product has been discovered to the
department within 24 hours after discovery. The department may
investigate the release. However, an investigation by the
department does not relieve the owner or operator from any
responsibilities related to the release provided for in this part.
(2) After a release has been reported under subsection (1),
the
owner or operator or a consultant retained by the owner or
operator
shall immediately begin and
expeditiously perform all of
the
following initial response actions:
(a) Identify and mitigate immediate fire, explosion hazards,
and acute vapor hazards.
(b) Take action to prevent further release of the regulated
substance into the environment including removing the regulated
substance from the underground storage tank system that is causing
the release.
(c)
Identify and recover free product. If free product is
identified,
do all of the following:
(i) Conduct free product removal in a manner that
minimizes the
spread
of contamination into previously uncontaminated zones by
using
recovery and disposal techniques appropriate to the
conditions
at the site and in a manner that properly treats,
discharges,
or disposes of recovery by-products as required by law.
(ii) Use abatement of free product migration as a
minimum
objective
for the design of the free product removal system.
(iii) Handle any flammable products in a safe and
competent
manner
to prevent fires or explosions.
(iv) If a discharge is necessary in conducting free
product
removal,
obtain all necessary permits or authorization as required
by
law.
(c) Using the process outlined by RBCA regarding NAPL, take
steps necessary and feasible under this part to address
unacceptable immediate risks.
(d) Excavate and contain, treat, or dispose of soils above the
water table that are visibly contaminated with a regulated
substance
if the contamination is likely to cause a fire hazard. or
spread
and increase the cost of corrective action.
(e) Take any other action necessary to abate an immediate
threat to public health, safety, or welfare, or the environment.
(f)
If free product is discovered after the release was
reported
under subsection (1), report the free product discovery to
the
department within 24 hours of its discovery.
(3) Immediately following initiation of initial response
actions
under this section, the consultant retained by the owner or
operator shall do all of the following:
(a) Visually inspect the areas of any aboveground releases or
exposed areas of belowground releases and prevent further migration
of the released substance into surrounding soils, groundwater, and
surface water.
(b) Continue to monitor and mitigate any additional immediate
fire
and safety hazards posed by vapors or free product NAPL that
have migrated from the underground storage tank system excavation
zone and entered into subsurface structures.
(c)
If free product is discovered at any time at a location
not
previously identified under subsection (2)(c), report the
discovery
within 24 hours to the department and initiate free
product
recovery in compliance with subsection (2)(c).
Sec.
21307a. (1) Following initiation of initial response
actions
under section 21307, a consultant retained by the owner or
operator shall complete the requirements of this part and submit
related reports or executive summaries detailed in this part to
address the contamination at the site. At any time that sufficient
corrective
action has been undertaken to address contamination, a
consultant
retained by the owner or operator
shall complete and
submit a site closure report pursuant to section 21312a and omit
the remaining interim steps.
(2) In addition to the reporting requirements specified in
this
part, a consultant retained by the owner or operator shall
provide 48-hour notification to the department prior to initiating
any of the following activities:
(a) Soil excavation.
(b) Well drilling, including monitoring well installation.
(c) Sampling of soil or groundwater.
(d) Construction of treatment systems.
Sec.
21309a. (1) If initial response actions under section
21307
have not resulted in completion of corrective action, a
consultant
retained by an owner or operator
shall prepare a
corrective
action plan to address contamination at the site. For
corrective
Corrective action plans submitted as part of a final
assessment
report pursuant to section 21311a after October 1, 1995,
the
corrective action plan shall use
the process described in RBCA
and shall be based upon the site information and characterization
results of the initial assessment report.
(2) A corrective action plan shall include all of the
following:
(a) A description of the corrective action to be implemented,
including an explanation of how that action will meet the
requirements of the tier I, II, or III evaluation in the RBCA
process. The corrective action plan shall also include an analysis
of the selection of indicator parameters to be used in evaluating
the implementation of the corrective action plan, if indicator
parameters are to be used. The corrective action plan shall include
an analysis of the recoverability of the NAPL and whether the NAPL
is mobile or migrating, and a description of ambient air quality
monitoring activities to be undertaken during the corrective action
if such activities are appropriate.
(b) An operation and maintenance plan if any element of the
corrective action requires operation and maintenance.
The operation and maintenance plan shall include information that
describes
the proposed operation and maintenance actions. all of
the
following:
(i) Name, telephone number, and address of the person
who is
responsible
for operation and maintenance.
(ii) Operation and maintenance schedule.
(iii) Written and pictorial plan of operation and
maintenance.
(iv) Design and construction plans.
(v) Equipment diagrams, specifications, and
manufacturers'
guidelines.
(vi) Safety plan.
(vii) Emergency plan, including emergency contact
telephone
numbers.
(viii) A list of spare parts available for emergency
repairs.
(ix) Other information required by the department to
determine
the
adequacy of the operation and maintenance plan. Department
requests
for information pursuant to this subparagraph shall be
limited
to factors not adequately addressed by information required
by
subparagraphs (i)
through (viii)
and shall be accompanied by an
explanation
of the need for the additional information.
(c) A monitoring plan if monitoring of environmental media or
site activities or both is required to confirm the effectiveness
and integrity of the remedy. The monitoring plan shall include all
of the following:
(i) Location of monitoring points.
(ii) Environmental media to be monitored, including, but not
limited to, soil, air, water, or biota.
(iii) Monitoring schedule.
(iv) Monitoring methodology, including sample collection
procedures such as grab sampling procedures for monitoring
groundwater, among other procedures.
(v) Substances to be monitored, including an explanation of
the selection of any indicator parameters to be used.
(vi) Laboratory methodology, including the name of the
laboratory responsible for analysis of monitoring samples, method
detection limits, and practical quantitation levels. Raw data used
to determine method detection limits shall be made available to the
department on request.
(vii) Quality control/quality assurance plan.
(viii) Data presentation and evaluation plan.
(ix) Contingency plan to address ineffective
monitoring.
(x) Operation and maintenance plan for monitoring.
(ix) (xi) How
the monitoring data will be used to demonstrate
effectiveness of corrective action activities.
(x) (xii) Other
elements required by the department to determine
the adequacy of the monitoring plan. Department requests for
information pursuant to this subparagraph shall be limited to
factors not adequately addressed by information required under
subparagraphs
(i) through (xi) (ix) and shall be accompanied
by an
explanation of the need for the additional information.
(d) An explanation of any land use or resource use
restrictions, if the restrictions are required pursuant to section
21310a, including how those restrictions will be effective in
preventing or controlling unacceptable exposures.
(e) A schedule for implementation of the corrective action.
(f)
A financial assurance mechanism, as provided for in R
29.2161
to R 29.2169 of the Michigan administrative code, in an
amount
approved by the department, to pay for monitoring, operation
and
maintenance, oversight, and other costs if required by the
department
as necessary to assure the effectiveness and integrity
of
the corrective action.
(f) If the corrective action plan includes the operation of a
mechanical soil or groundwater remediation system, or both, a
financial assurance mechanism to pay for monitoring, operation, and
maintenance necessary to assure the effectiveness and integrity of
the corrective action remediation system.
(g) If provisions for operation and maintenance, monitoring,
or financial assurance are included in the corrective action plan,
and those provisions are not complied with, the corrective action
plan
is void from the time of lapse or violation unless until the
lapse
or violation is corrected. to the satisfaction of the
department.
(3) If a corrective action plan prepared under this section
does
not result in an unrestricted use of the property, for any
purpose,
the owner or operator or a
consultant retained by the
owner
or operator shall provide notice to
the public by means
designed to reach those members of the public directly impacted by
the release above a residential RBSL and the proposed corrective
action. The notice shall include the name, address, and telephone
number of a contact person. A copy of the notice and proof of
providing the notice shall be submitted to the department. The
department shall ensure that site release information and
corrective action plans that do not result in an unrestricted use
of property are made available to the public for inspection upon
request.
Sec. 21310a. (1) If the corrective action activities at a site
result
in a final remedy that relies on tier I commercial or
industrial
criteria 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 property owner or with
the
express written permission of the property owner. The form and
content
of the notice shall be subject to approval by the
department.
A notice of corrective action
recorded under this
subsection shall state the land use that was the basis of the
corrective
action. selected by a consultant retained by the owner
or
operator. 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 financial assurance,
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
property owner or with the express written permission of the
property owner. The restrictions shall run with the land and be
binding on the owner's successors, assigns, and lessees. The
restrictions
shall apply until the department determines that
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 are
subject
to approval by the department and 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 property
owner 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 a consultant retained by the owner or operator
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, the consultant owner or
operator 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 cleanup criteria RBSLs
or SSTLs identified in the
corrective action plan. An ordinance that serves as an exposure
control under this subsection shall include both 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.
(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 a consultant retained by
an owner or operator and the department determines that the
alternative mechanism is appropriate, the department may approve of
the alternate mechanism.
(5)
A person who implements corrective action activities 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 submittal of the corrective
action
plan, unless otherwise approved by the department.
(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.
21314a. The department shall establish and implement a
classification
system for sites considering impacts on public
health,
safety, and welfare, and the environment. Notwithstanding
any
other provision in this part, at sites posing an imminent risk
to
the public health, safety, or welfare, or the environment,
corrective
action shall be implemented immediately. Sites shall be
classified consistent with the process outlined in RBCA. If the
department determines that no imminent risk to the public health,
safety,
or welfare , or the
environment exists at a site, the
department may allow corrective action at these sites to be
conducted
on a schedule approved by the department. This provision
shall
not be used by the department to limit the ability of a
owner,
operator or a consultant to submit a claim to the Michigan
underground
storage tank financial assurance fund, or delay payment
on
a valid claim to an owner, operator or consultant.
Sec. 21315. (1) The department shall design and implement a
program
to selectively audit or oversee all aspects of corrective
actions
undertaken final assessment
reports and closure reports
submitted
under this part. to
assure compliance with this part. The
department
may audit a site at any time prior to receipt of a
closure
report pursuant to section 21312a and within 6 months after
receipt
of the closure report.
(2)
If the department conducts an audit under this section and
the
audit confirms that the cleanup criteria have been met, the
department
shall provide the owner or operator with a letter that
describes
the audit and its results. Upon
receipt of a final
assessment report or closure report, the department shall have 90
days to determine whether it will audit the report and inform the
owner or operator of its intention to audit the submitted report
within 7 days of the determination. If the department does not
inform the owner or operator of its intention to audit the report
within the required time limits, the department shall not audit the
report. If the department determines that it will conduct an audit,
the audit shall be completed within 180 days of the submission. The
department shall inform the owner or operator in writing of the
results of the audit within 14 days of the completion of the audit.
All audits shall be conducted based on the standards, criteria, and
procedures in effect at the time the final assessment report or
closure report was submitted.
(2) The department shall have 270 days from the effective date
of the 2012 amendatory act that amended this section to selectively
audit final assessment reports or closure reports that were
submitted within the time period beginning 6 months prior to and
ending 60 days after the effective date of the 2012 amendatory act
that amended this section.
(3) If the department conducts an audit, the results of the
audit shall approve, approve with conditions, or deny the final
assessment report or closure report or shall notify the owner or
operator that the report does not contain sufficient information
for the department to make a decision. If the department's response
is that the report does not include sufficient information, the
department shall identify the information that is required for the
department to make a decision. If a report is approved with
conditions, the department's approval shall state with specificity
the conditions of the approval.
(4) If the department does not perform an audit and provide a
written response in accordance with subsection (1) to a final
assessment report or closure report submitted after June 15, 2012,
the report is considered approved. An owner or operator may request
written confirmation from the department that the report is
considered approved under this section, and the department shall
provide written confirmation within 14 days of the request.
(5) Any time frame required by this section may be extended by
mutual agreement of the department and an owner or operator
submitting a final assessment or closure report. An agreement
extending a time frame shall be in writing.
(6) If an audit conducted under this section does not confirm
that corrective action has been conducted in compliance with this
part or does not confirm that applicable RBSLs or SSTLs have been
met, the department shall include both of the following in the
written response as required in subsection (1):
(a) The specific deficiencies and the section or sections of
this part or rules applicable to this part or applicable RBCA
standard that support the department's conclusion of noncompliance
or that applicable RBSLs or SSTLs have not been met.
(b) Recommendations about corrective actions or documentation
that may address the deficiencies identified under subsection
(6)(a).
(7) If the department denies a final assessment report or
closure report under this section, an owner or operator shall
either revise and resubmit the report for approval, submit a
petition for review of scientific or technical disputes to the
response activity review panel pursuant to section 20114e and pay a
fee in the amount of $300.00 in lieu of the $3,500.00 fee set forth
in section 20114e(7), or submit a petition to the department's
office of administrative hearings for a contested case hearing
pursuant to section 21332.
(8) Notwithstanding section 21312a, after conducting an audit
under this section, the department may issue a closure letter for
any
site that meets the cleanup criteria applicable RBSL or SSTL
pursuant to section 21304a.
(3)
If an audit conducted under this section does not confirm
that
corrective action has been conducted in compliance with this
part
or that cleanup criteria have been met, the department may
require
an owner or operator to do either or both of the following:
(a)
Provide additional information related to any requirement
of
this part.
(b)
Retain a consultant to take additional corrective actions
necessary
to comply with this part or to protect public health,
safety,
or welfare, or the environment.
(9) The department shall only audit a report required under
this part 1 time. If the department's audit identifies deficiencies
as described in subsection (6), the department may audit a revised
report to evaluate whether the identified deficiencies have been
corrected, which shall be completed within 90 days of the revised
report's submission to the department.
Sec. 21316. The department may create and require the use of
forms containing information specifically required under this part
to assist in the reporting requirements provided in this part.
Sec. 21316a. (1) A person shall not knowingly deliver a
regulated
substance to an underground storage tank system at any
facility
that is not in compliance with this part and rules
promulgated
under this part, and part 211 and rules promulgated
under
part 211. that has had a
placard affixed to it under
subsection
(2). A person who that knowingly
delivers a regulated
substance to an underground storage tank system that has had a
placard affixed to it under subsection (2) is guilty of a
misdemeanor punishable by imprisonment for not more than 90 days or
a fine of not more than $500.00, or both. A person is considered to
have knowledge if placards have been affixed to the underground
storage tank system at the property and are visible at the time of
the delivery.
(2)
The department, upon discovery of a the operation of an
underground storage tank system in violation of this part, rules
promulgated under this part, part 211, or rules promulgated under
part
211, at a facility having an underground storage tank
system,
shall provide notification prohibiting delivery of regulated
substances
to such a facility the underground
storage tank system
by affixing a placard providing notice of the violation in plain
view to the underground storage tank system. The department shall
provide a minimum of 15 days' notice to the liable owner or
operator prior to affixing a placard for violations of this part or
rules promulgated under this part, unless the violation causes an
imminent and substantial endangerment to the public health, safety,
or welfare or the environment.
(3) A person shall not remove, deface, alter, or otherwise
tamper with a placard affixed to an underground storage tank system
pursuant
to subsection (2). A person who that
knowingly removes,
defaces, alters, or otherwise tampers with a placard affixed to an
underground storage tank system pursuant to subsection (2) such
that the notification is not discernible is guilty of a misdemeanor
punishable by imprisonment for not more than 90 days or a fine of
not more than $500.00, or both.
(4) The attorney general or, upon request by the department,
county prosecuting attorney may commence criminal actions for
violation of subsections (1) and (3) in the circuit court of the
county where the violation occurred.
Sec. 21320. If the department learns of a suspected or
confirmed release from an underground storage tank system, the
department may undertake corrective actions necessary to protect
the
public health, safety, or welfare
, or the environment at
sites
where persons that are liable are not financially viable or not
readily identifiable, at sites where persons that are liable have
not implemented corrective action necessary to abate an imminent
and substantial endangerment, or to facilitate brownfield
redevelopment.
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.
(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 right-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) The owner or operator of property onto which contamination
has migrated unless that person is responsible for an activity
causing the release that is the source of the contamination.
(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 21312a. 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, an owner or operator 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.
(iv) If the closure report relies on monitoring necessary to
assure the effectiveness and integrity of the corrective action, an
owner or operator who is otherwise liable 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 who is otherwise liable 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 the effective date of the amendatory act that added
this subsection is considered to be in compliance with subsection
(1)(b).
Sec. 21323b. (1) Except as provided in section 21323a(2), a
person that is liable under section 21323a is jointly and severally
liable for all of the following:
(a) All costs of corrective action lawfully incurred by the
state relating to the selection and implementation of corrective
action under this part.
(b) All costs of corrective action reasonably incurred under
the circumstances by any other person.
(c) Damages for the full value of injury to, destruction of,
or loss of natural resources, including the reasonable costs of
assessing the injury, destruction, or loss resulting from the
release.
(2) The costs of corrective action recoverable under
subsection (1) shall also include all costs of corrective action
reasonably incurred by the state prior to the promulgation of rules
relating to the selection and implementation of corrective action
under this part. A person challenging the recovery of costs under
this subsection has the burden of establishing that the costs were
not reasonably incurred under the circumstances that existed at the
time the costs were incurred.
(3) The amounts recoverable in an action under this section
may include interest, attorney fees, witness fees, and the costs of
litigation to the prevailing or substantially prevailing party. The
interest shall accrue from the date payment is demanded in writing,
or the date of the expenditure or damage, whichever is later. The
rate of interest on the outstanding unpaid balance of the amounts
recoverable under this section shall be the same rate as is
specified in section 6013(8) of the revised judicature act of 1961,
1961 PA 236, MCL 600.6013.
(4) In the case of injury to, destruction of, or loss of
natural resources under subsection (1)(c), liability shall be to
the state for natural resources belonging to, managed by,
controlled by, appertaining to, or held in trust by the state or a
local unit of government. Sums recovered by the state under this
part for natural resource damages shall be retained by the
department for use only to restore, repair, replace, or acquire the
equivalent of the natural resources injured or acquire substitute
or alternative resources. There shall be no double recovery under
this part for natural resource damages, including the costs of
damage assessment or restoration, rehabilitation, replacement, or
acquisition, for the same release and natural resource.
(5) A person shall not be required under this part to
undertake corrective action for a permitted release. Recovery by
any person for corrective action costs or damages resulting from a
permitted release shall be pursuant to other applicable law, in
lieu of this part. With respect to a permitted release, this
subsection does not affect or modify the obligations or liability
of any person under any other state law, including common law, for
damages, injury, or loss resulting from a release of a regulated
substance or for corrective action or the costs of corrective
action.
(6) If the department determines that there may be an imminent
and substantial endangerment to the public health, safety, or
welfare or to the environment because of an actual or threatened
release from an underground storage tank system, the attorney
general may bring an action against any person that is liable under
section 21323a or any other appropriate person to secure the relief
that may be necessary to abate the danger or threat. The court has
jurisdiction to grant such relief as the public interest and the
equities of the case may require.
(7) The costs recoverable under this section may be recovered
in an action brought by the state or any other person.
Sec. 21323c. (1) Except as otherwise provided in this section,
a person that is a corrective action contractor for any release or
threatened release is not liable to any person for injuries, costs,
damages, expenses, or other liability, including, but not limited
to, claims for indemnification or contribution and claims by third
parties for death, personal injuries, illness, or loss of or
damages to property or economic loss that result from the release
or threatened release. This subsection does not apply if a release
or threatened release is caused by conduct of the corrective action
contractor that is negligent or grossly negligent or that
constitutes intentional misconduct.
(2) Subsection (1) does not affect the liability of a person
under any warranty under federal, state, or common law. This
subsection does not affect the liability of an employer who is a
corrective action contractor to any employee of the employer under
law, including any law relating to worker's compensation.
(3) An employee of this state or a local unit of government
who provides services relating to a corrective action while acting
within the scope of his or her authority as a governmental employee
has the same exemption from liability as is provided to the
corrective action contractor under subsection (1).
(4) Except as provided in this section, this section does not
affect the liability under this part or under any other federal or
state law of any person.
(5) As used in subsections (1) to (4):
(a) "Corrective action contract" means a contract or agreement
entered into by a corrective action contractor with 1 or more of
the following:
(i) The department.
(ii) The department of community health.
(iii) A person that is arranging for corrective action under
this part.
(b) "Corrective action contractor" means all of the following:
(i) A person that enters into a corrective action contract with
respect to a release or threatened release and is carrying out the
terms of a contract.
(ii) A person that is retained or hired by a person described
in subparagraph (i) to provide any service relating to a corrective
action.
(iii) A qualified underground storage tank consultant.
(6) Notwithstanding any other provision of law, a person is
not liable for corrective action costs or damages that result from
an act or a failure to act in the course of rendering care,
assistance, or advice with respect to a release of petroleum into
or on the surface waters of the state or on the adjoining
shorelines to the surface waters of the state if the act or failure
to act was consistent with the national contingency plan or as
otherwise directed by the federal on-scene coordinator or the
director. This subsection does not apply to any of the following:
(a) A person that is liable under section 21323a that is a
responsible party.
(b) An action with respect to personal injury or wrongful
death.
(c) A person that is grossly negligent or engages in willful
misconduct.
(7) A person that is liable under section 21323a and that is a
responsible party is liable for any corrective action costs and
damages that another person is relieved of under subsection (6).
(8) As used in this subsection and subsections (6) and (7):
(a) "Damages" means damages of any kind for which liability
may exist under the laws of this state resulting from, arising out
of, or related to the release or threatened release of petroleum.
(b) "Federal on-scene coordinator" means the federal official
predesignated by the United States environmental protection agency
or the United States coast guard to coordinate and direct federal
responses under the national contingency plan or the official
designated by the lead agency to coordinate and direct corrective
action under the national contingency plan.
(c) "National contingency plan" means the national contingency
plan prepared and published under section 311 of title III of the
federal water pollution control act, 33 USC 1321.
(9) This section does not affect a plaintiff's burden of
establishing liability under this part.
Sec. 21323d. (1) If 2 or more persons acting independently are
liable under section 21323a and there is a reasonable basis for
division of harm according to the contribution of each person, each
person is subject to liability under this part only for the portion
of the total harm attributable to that person. However, a person
seeking to limit that person's liability on the grounds that the
entire harm is capable of division has the burden of proof as to
the divisibility of the harm and as to the apportionment of
liability.
(2) If 2 or more persons are liable under section 21323a for
an indivisible harm, each person is subject to liability for the
entire harm.
(3) A person may seek contribution from any other person that
is liable under section 21323a during or following a civil action
brought under this part. This subsection does not diminish the
right of a person to bring an action for contribution in the
absence of a civil action by the state under this part. In a
contribution action brought under this part, the court shall
consider all of the following factors in allocating corrective
action costs and damages among liable persons:
(a) Each person's relative degree of responsibility in causing
the release or threat of release.
(b) The principles of equity pertaining to contribution.
(c) The degree of involvement of and care exercised by the
person with regard to the regulated substance.
(d) The degree of cooperation by the person with federal,
state, or local officials to prevent, minimize, respond to, or
remedy the release or threat of release.
(e) Whether equity requires that the liability of some of the
persons should constitute a single share.
(4) If, in an action for contribution under subsection (3),
the court determines that all or part of a person's share of
liability is uncollectible from that person, then the court may
reallocate any uncollectible amount among the other liable persons
according to the factors listed in subsection (3). A person whose
share is determined to be uncollectible continues to be subject to
Senate Bill No. 528 (H-2) as amended April 17, 2012
contribution and to any continuing liability to the state.
(5) A person that has resolved that person's liability to the
state in an administrative or judicially approved consent order is
not liable for claims for contribution regarding matters addressed
in the consent order. The consent order does not discharge any of
the other persons liable under section 21323a unless the terms of
the consent order provide for this discharge, but the potential
liability of the other persons is reduced by the amount of the
consent order.
(6) A person that is not liable under this part, including a
person that was issued a written determination under former section
20129a affirming that the person meets the criteria for an
exemption from liability, and that is otherwise in compliance with
section [21304c], shall be considered to have resolved that person's
liability to the state in an administratively approved settlement
under the applicable federal law and shall by operation of law be
granted contribution protection under federal law and under this
part in the same manner that contribution protection is provided
pursuant to subsection (5).
(7) If the state obtains less than complete relief from a
person that has resolved that person's liability to the state in an
administrative or judicially approved consent order under this
part, the state may bring an action against any other person liable
under section 21323a that has not resolved that person's liability.
(8) A person that has resolved that person's liability to the
state for some or all of a corrective action in an administrative
or judicially approved consent order may seek contribution from any
person that is not a party to the consent order described in
subsection (5).
(9) In an action for contribution under this section, the
rights of any person that has resolved that person's liability to
the state is subordinate to the rights of the state, if the state
files an action under this part.
Sec. 21323e. (1) An indemnification, hold harmless, or similar
agreement or conveyance is not effective to transfer from a person
that is liable under section 21323a to the state for evaluation or
corrective action costs or damages for a release or threat of
release to any other person the liability imposed under this part.
This section does not bar an agreement to insure, hold harmless, or
indemnify a party to the agreement for liability under this part.
(2) This part does not bar a cause of action that a person
subject to liability under this part, or a guarantor, has or would
have by reason of subrogation or otherwise against any person.
Sec. 21323f. (1) Except as provided in subsection (2), the
liability under this part for each release or threat of release
shall not exceed the total of all the costs of corrective action
and fines, plus $50,000,000.00 damages for injury to, destruction
of, or loss of natural resources resulting from the release or
threat of release, including the reasonable costs of assessing the
injury, destruction, or loss resulting from the release or threat
of release.
(2) Notwithstanding the limitations in subsection (1), the
liability of a person under this part shall be the full and total
costs and damages listed in subsection (1), in either of the
following circumstances:
(a) The release or threatened release of a regulated substance
was the result of willful misconduct or gross negligence of the
party.
(b) The primary cause of the release or threat of release was
a knowing violation of applicable safety, construction, or
operating standards or regulations.
Sec. 21323g. (1) The state may provide a person with a
covenant not to sue concerning any liability to the state under
this part, including future liability, resulting from a release or
threatened release addressed by corrective action, whether that
action is on or off the property on which an underground storage
tank system is located, if each of the following is met:
(a) The covenant not to sue is in the public interest.
(b) The covenant not to sue would expedite corrective action
consistent with rules promulgated under this part.
(c) There is full compliance with a consent order under this
part for response to the release or threatened release concerned.
(d) The corrective action has been approved by the department.
(2) A covenant not to sue concerning future liability to the
state shall not take effect until the department certifies that
corrective action has been completed in accordance with the
requirements of this part at the property that is the subject of
the covenant.
(3) In assessing the appropriateness of a covenant not to sue
and any condition to be included in a covenant not to sue, the
state shall consider whether the covenant or condition is in the
public interest on the basis of factors such as the following:
(a) The effectiveness and reliability of the corrective
action, in light of the other alternative corrective actions
considered for the property concerned.
(b) The nature of the risks remaining at the property.
(c) The extent to which performance standards are included in
the consent order.
(d) The extent to which the corrective action provides a
complete remedy for the property, including a reduction in the
hazardous nature of the substances at the property.
(e) The extent to which the technology used in the corrective
action is demonstrated to be effective.
(f) Whether corrective action will be carried out, in whole or
in significant part, by persons that are liable under section
21323a.
(4) A covenant not to sue under this section is subject to the
satisfactory performance by a person of that person's obligations
under the agreement concerned.
(5) A covenant not to sue a person concerning future liability
to the state shall include an exception to the covenant that allows
the state to sue that person concerning future liability resulting
from the release or threatened release that is the subject of the
covenant if the liability arises out of conditions that are unknown
at the time the department certifies under subsection (2) that
corrective action has been completed at the property concerned.
(6) In extraordinary circumstances, the state may determine,
after assessment of relevant factors such as those referred to in
subsection (3) and volume, toxicity, mobility, strength of
evidence, ability to pay, litigative risks, public interest
considerations, precedential value, and inequities and aggravating
factors, not to include the exception in subsection (5) if other
terms, conditions, or requirements of the agreement containing the
covenant not to sue are sufficient to provide all reasonable
assurances that the public health and the environment will be
protected from any future releases at or from the property.
(7) The state may include any provisions providing for future
enforcement action that in the discretion of the department are
necessary and appropriate to assure protection of the public
health, safety, and welfare and the environment.
Sec. 21323h. (1) The state may provide a person that proposes
to redevelop or reuse property contaminated by a release from an
underground storage tank system, including a vacant manufacturing
or abandoned industrial site, with a covenant not to sue concerning
liability under section 21323a, if all of the following conditions
are met:
(a) The covenant not to sue is in the public interest.
(b) The covenant not to sue will yield new resources to
facilitate implementation of corrective action.
(c) The covenant not to sue would, when appropriate, expedite
corrective action consistent with the rules promulgated under this
part.
(d) Based upon available information, the department
determines that the redevelopment or reuse of the property is not
likely to do any of the following:
(i) Exacerbate or contribute to the existing release or threat
of release.
(ii) Interfere with the implementation of corrective action.
(iii) Pose health risks related to the release or threat of
release to persons who may be present at or in the vicinity of the
property.
(e) The proposal to redevelop or reuse the property has
economic development potential.
(2) A person that requests a covenant not to sue under
subsection (1) shall demonstrate to the satisfaction of the state
all of the following:
(a) That the person is financially capable of redeveloping and
reusing the property in accordance with the covenant not to sue.
(b) That the person is not affiliated in any way with any
person that is liable under section 21323a for a release or threat
of release at the property.
(c) Compliance with section 21304c.
(3) A covenant not to sue issued under this section shall
address only past releases or threats of release at a property and
shall expressly reserve the right of the state to assert all other
claims against the person that proposes to redevelop or reuse the
property, including, but not limited to, those claims arising from
any of the following:
(a) The release or threat of release of any regulated
substance resulting from the redevelopment or reuse of the property
to the extent such claims otherwise arise under this part.
(b) Interference with or failure to cooperate with the
department, its contractors, or other persons conducting corrective
action.
(4) A covenant not to sue issued under this section shall
provide for an irrevocable right of entry to the department, its
contractors, or other persons performing corrective action related
to the release or threat of release addressed by the covenant not
to sue and for monitoring compliance with the covenant not to sue.
Sec. 21323i. (1) The department and the attorney general may
enter into a consent order with a person that is liable under
section 21323a or any group of persons that are liable under
section 21323a to perform corrective action if the department and
the attorney general determine that the persons that are liable
under section 21323a will properly implement the corrective action
and that the consent order is in the public interest, will expedite
effective corrective action, and will minimize litigation. The
consent order may, as determined appropriate by the department and
the attorney general, provide for implementation by a person or any
group of persons that are liable under section 21323a of any
portion of corrective action at the property. A decision of the
attorney general not to enter into a consent order under this part
is not subject to judicial review.
(2) Whenever practical and in the public interest, as
determined by the department, the department and the attorney
general shall as promptly as possible reach a final settlement with
a person in an administrative or civil action under this part if
this settlement involves only a minor portion of the response costs
at the property concerned and, in the judgment of the department
and the attorney general, the conditions in either of the following
are met:
(a) Both of the following are minimal in comparison to other
regulated substances at the property:
(i) The amount of the regulated substances contributed by that
person to the property.
(ii) The toxic or other regulated effects of the substances
contributed by that person to the property.
(b) Except as provided in subsection (3), the person meets all
of the following conditions:
(i) The person is the owner of the property on or in which the
underground storage tank system is or was located.
(ii) The person did not conduct or permit the generation,
transportation, storage, treatment, or disposal of any regulated
substance at the property.
(iii) The person did not contribute to the release or threat of
release of a regulated substance at the property through any action
or omission.
(3) A settlement shall not be made under subsection (2)(b) if
the person purchased the property with actual or constructive
knowledge that the property was used for the generation,
transportation, storage, treatment, or disposal of a regulated
substance.
(4) A settlement under subsection (2) may be set aside if
information obtained after the settlement indicates that the person
settling does not meet the conditions set forth in subsection
(2)(a) or (b).
Sec. 21323j. (1) Except as otherwise provided in this part, a
person, including a local unit of government on behalf of its
citizens, whose health or enjoyment of the environment is or may be
adversely affected by a release from an underground storage tank
system or threat of release from an underground storage tank
system, by a violation of this part or a rule promulgated or order
issued under this part, or by the failure of the directors to
perform a nondiscretionary act or duty under this part, may
commence a civil action against any of the following:
(a) An owner or operator who is liable under section 21323a
for injunctive relief necessary to prevent irreparable harm to the
public health, safety, or welfare or the environment from a release
or threatened release in relation to that underground storage tank
system on the property on which the underground storage tank system
is located.
(b) A person that is liable under section 21323a for a
violation of this part or a rule promulgated under this part or an
order issued under this part in relation to that underground
storage tank system on the property on which the underground
storage tank system is located.
(c) One or more of the directors if it is alleged that 1 or
more of the directors failed to perform a nondiscretionary act or
duty under this part.
(2) The circuit court has jurisdiction in actions brought
under subsection (1)(a) to grant injunctive relief necessary to
protect the public health, safety, or welfare or the environment
from a release or threatened release. The circuit court has
jurisdiction in actions brought under subsection (1)(b) to enforce
this part or a rule promulgated or order issued under this part by
ordering such action as may be necessary to correct the violation
and to impose any civil fine provided for in this part for the
violation. A civil fine recovered under this section shall be
deposited in the general fund. The circuit court has jurisdiction
in actions brought under subsection (1)(c) to order 1 or more of
the directors to perform the nondiscretionary act or duty
concerned.
(3) An action shall not be filed under subsection (1)(a) or
(b) unless all of the following conditions exist:
(a) The plaintiff has given at least 60 days' notice in
writing of the plaintiff's intent to sue, the basis for the suit,
and the relief to be requested to each of the following:
(i) The department.
(ii) The attorney general.
(iii) The proposed defendants.
(b) The state has not commenced and is not diligently
prosecuting an action under this part or under other appropriate
legal authority to obtain injunctive relief concerning the
underground storage tank system or the property on which the
underground storage tank system is located or to require compliance
with this part or a rule or an order under this part.
(4) An action shall not be filed under subsection (1)(c) until
the plaintiff has given in writing at least 60 days' notice to the
directors of the plaintiff's intent to sue, the basis for the suit,
and the relief to be requested.
(5) In issuing a final order in an action brought pursuant to
this section, the court may award costs of litigation, including
reasonable attorney and expert witness fees, to the prevailing or
substantially prevailing party.
(6) This section does not affect or otherwise impair the
rights of any person under federal, state, or common law.
(7) An action under subsection (1)(a) or (b) shall be brought
in the circuit court for the circuit in which the alleged release,
threatened release, or other violation occurred. An action under
subsection (1)(c) shall be brought in the circuit court for Ingham
county.
(8) All unpaid costs and damages for which a person is liable
under this section constitute a lien in favor of the state upon a
property that has been the subject of corrective action by the
state and is owned by that person. A lien under this subsection has
priority over all other liens and encumbrances except liens and
encumbrances recorded before the date the lien under this
subsection is recorded. A lien under this subsection arises when
the state first incurs costs for corrective action at the property
for which the person is responsible.
(9) If the attorney general determines that the lien provided
in subsection (8) is insufficient to protect the interest of the
state in recovering corrective action costs at a property, the
attorney general may file a petition in the circuit court of the
county in which the facility is located seeking either or both of
the following:
(a) A lien upon the property owned by the person described in
subsection (8), subject to corrective action that takes priority
over all other liens and encumbrances that are or have been
recorded on the property.
(b) A lien upon real or personal property or rights to real or
personal property, other than the property which was the subject of
corrective action, owned by the person described in subsection (8),
having priority over all other liens and encumbrances except liens
and encumbrances recorded prior to the date the lien under this
subsection is recorded. However, the following are not subject to
the lien provided for in this subsection:
(i) Assets of a qualified pension plan or individual retirement
account under the internal revenue code.
(ii) Assets held expressly for the purpose of financing a
dependent's college education.
(iii) Up to $500,000.00 in nonbusiness real or personal property
or rights to nonbusiness real or personal property, except that not
more than $25,000.00 of this amount may be cash or securities.
(10) A petition submitted pursuant to subsection (9) shall set
forth with as much specificity as possible the type of lien sought,
the property that would be affected, and the reasons the attorney
general believes the lien is necessary. Upon receipt of a petition
under subsection (3), the court shall promptly schedule a hearing
to determine whether the petition should be granted. Notice of the
hearing shall be provided to the attorney general, the property
owner, and any persons holding liens or perfected security interest
in the real property subject to corrective action. A lien shall not
be granted under subsection (3) against the owner of the property
if the owner is not liable under section 21323a.
(11) In addition to the lien provided in subsections (8) and
(9), if the state incurs costs for corrective action that increases
the market value of real property that is the location of a release
or threatened release, the increase in the value caused by the
state-funded corrective action, to the extent the state incurred
unpaid costs and damages, constitutes a lien in favor of the state
upon the real property. This lien has priority over all other liens
or encumbrances that are or have been recorded upon the property.
(12) A lien provided in subsection (8), (9), or (11) is
perfected against real property when a notice of lien is filed by
the department with the register of deeds in the county in which
the real property is located. A lien upon personal property
provided in subsection (9) is perfected when a notice of lien is
filed by the department in accordance with applicable law and
regulation for the perfection of a lien on that type of personal
property. In addition, the department shall, at the time of the
filing of the notice of lien, provide a copy of the notice of lien
to the owner of that property by certified mail.
(13) A lien under this section continues until the liability
for the costs and damages is satisfied or resolved or becomes
unenforceable through the operation of the statute of limitations
provided in this part.
(14) Upon satisfaction of the liability secured by the lien,
the department shall file a notice of release of lien in the same
manner as provided in subsection (12).
(15) If the department, at the time or prior to the time of
filing the notice of release of lien pursuant to subsection (14),
has made a determination that the person liable under section
21323a has completed all of the corrective action, the department
shall execute and file with the notice of release of lien a
document stating that all corrective action has been completed.
Sec. 21323k. (1) A person that is liable under section 21323a
or a lender that has a security interest in all or a portion of a
property on which contamination from a release of regulated
substances from an underground storage tank system may file a
petition in the circuit court of the county in which the property
is located seeking access to the property in order to conduct
corrective action. If the court grants access to property under
this section, the court may do any of the following:
(a) Provide compensation to the person that owns or operates
the property for damages related to the granting of access to the
property, including compensation for loss of use of the property.
(b) Enjoin interference with the corrective action.
(c) Grant any other appropriate relief as determined by the
court.
(2) If a court grants access to property under this section,
the person that owns or operates the property to which access is
granted is not liable for either of the following:
(a) A release caused by the corrective action for which access
is granted unless the person is otherwise liable under section
21323a.
(b) For conditions associated with the corrective action that
may present a threat to public health or safety.
Senate Bill No. 528 (H-2) as amended April 17, 2012
Sec. 21323l. The limitation period for filing actions under
this part is as follows:
(a) For the recovery of corrective action costs and natural
resources damages pursuant to section 21323b(1)(a), (b), or (c),
within 6 years of initiation of physical on-site construction
activities for the corrective action at the property by the person
seeking recovery, except as provided in subdivision (b).
(b) For 1 or more subsequent actions for recovery of
corrective action costs pursuant to section [21323b], at any time
during the corrective action, if commenced not later than 3 years
after the date of completion of all corrective action at the
property.
(c) For civil fines under this part, within 3 years after
discovery of the violation for which the civil fines are assessed.
Sec. 21323m. (1) Except as provided in section 21323b(5), a
person that has complied with the requirements of this part or is
exempt from liability under this part is not subject to a claim in
law or equity for performance of corrective action under part 17,
part 31, or common law.
(2) This section does not bar any of the following:
(a) Tort claims unrelated to performance of corrective action.
(b) Tort claims for damages which result from corrective
action.
(c) Tort claims related to the exercise or failure to exercise
responsibilities under section 21304c.
Sec. 21325. A person shall be considered a qualified
underground storage tank consultant if the person meets all of the
following requirements:
(a) Experience in all phases of underground storage tank work,
including 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. 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.
(b) The person 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. 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. 21334. Not later than November 1, 2013 and not later than
November 1 of each subsequent year, the department shall submit a
report to the standing committees of the senate and house of
representatives with jurisdiction primarily pertaining to natural
resources and the environment that contains all of the following:
(a) The number of closure reports submitted and approved by
the department and the number of closure reports that were approved
by operation of law under this part.
(b) The number of closure reports that were submitted to the
department and not approved under this part.
(c) The number of contested case hearings held pursuant to
section 21332.
(d) The number of issues resolved by the response activity
review panel under section 20114e.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 96th Legislature are
enacted into law:
(a) Senate Bill No. 529.
(b) Senate Bill No. 530.
(c) Senate Bill No. 531.
(d) Senate Bill No. 532.
(e) Senate Bill No. 533.