SB-0528, As Passed House, April 18, 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.