June 28, 2011, Introduced by Senators CASPERSON, PROOS, KOWALL, PAPPAGEORGE, MARLEAU and WALKER and referred to the Committee on Natural Resources, Environment and Great Lakes.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 21301a, 21304a, 21309a, 21315, 21316, 21316a,
and 21320 (MCL 324.21301a, 324.21304a, 324.21309a, 324.21315,
324.21316, 324.21316a, and 324.21320), sections 21301a, 21304a,
21309a, and 21315 as amended by 1996 PA 116 and section 21316a as
added by 1995 PA 22, and by adding sections 21323a, 21323b, 21323c,
21323d, 21323e, 21323f, 21323g, 21323h, 21323i, 21323j, 21323k,
21323l, and 21323m.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
21301a. (1) This part is intended to provide remedies a
process and establish procedures and criteria 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 a release 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.
(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. For
purposes of this part, surface water or a surface water pathway
does not include groundwater or an enclosed sewer or other utility
line.
(3) If a regulated substance poses a carcinogenic risk to
humans, the cleanup criteria 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 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 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) 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. 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 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.
(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 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 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 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.
(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.
(xi) How the monitoring data will be used to demonstrate
effectiveness of corrective action activities.
(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) 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.
(e) A schedule for implementation of the corrective action.
(f)
A If the corrective action
plan includes the operation of
an active soil or groundwater remediation system, or both, 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 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 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 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. 21315. (1) The department shall design and implement a
program to selectively audit or oversee all aspects of corrective
actions undertaken under this part to assure compliance with this
part.
The Within 90 days after
its receipt of a submission or
report required under this part, including a closure report, 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.the
submission or 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 within 14 days after the
completion of the audit. 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
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.
(4) 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 cleanup criteria have been met, the
department shall include both of the following in the audit letter
provided under subsection (2):
(a) The specific deficiencies and the section or sections of
this part or rules promulgated under this part that support the
department's conclusion of noncompliance or that cleanup criteria
have not been met.
(b) Specific recommendations about corrective actions or
documentation that would address the deficiencies identified under
subdivision (a).
(5) The department shall only audit a report required under
this part 1 time. If the department's audit identifies deficiencies
as described in subsection (4), the department may audit a revised
report if requested by the owner or operator to evaluate whether
the identified deficiencies have been corrected, which shall be
completed within 90 days of the report's submission to the
department.
(6) Any report required under this part shall be considered in
compliance with this part unless the report is audited and found to
be noncompliant as provided in this section.
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. A person who knowingly delivers a regulated
substance to an underground storage tank system that is not in
compliance with this part 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.
(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 underground
storage tank system by
affixing a placard providing notice of the violation in plain view
to the underground storage tank system.
(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 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 that is
not being addressed by a person liable under this part, the
department may undertake corrective actions necessary to protect
the public health, safety, or welfare, or the environment.
Sec. 21323a. (1) Notwithstanding any other provision of this
act, and except as otherwise provided in this section and section
21323, 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 becomes an owner or operator on
or after June 5, 1995, 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 21323k, 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 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 who 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 who 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 who 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 who 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.
(4) Notwithstanding subsection (1), the following persons are
not liable under this part:
(a) A lender that engages in or conducts a lawful marshalling
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 who 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 who 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 no further
action 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, 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) Notwithstanding subsection (1)(b), if the owner or
operator of the property became the owner or operator of the
property on or after June 5, 1995 and prior to March 6, 1996 and
the property contains an underground storage tank system, that
owner or operator is liable under this part only if the owner or
operator is responsible for an activity causing a release or threat
of release.
(8) 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 who 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
shall 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 who 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 who 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 who is arranging for corrective action under this
part.
(b) "Corrective action contractor" means 1 or both of the
following:
(i) A person who 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 who is retained or hired by a person described in
subparagraph (i) to provide any service relating to a corrective
action.
(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 who is liable under section 21323a who 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 who is liable under section 21323a who 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 his or her 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 who
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
contribution and to any continuing liability to the state.
(5) A person who has resolved his or her 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 who is not liable under this part shall be
considered to have resolved his or her 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 who has resolved his or her 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 who has not resolved his or her liability.
(8) A person who has resolved his or her 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 who 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 who has resolved his or her 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
who 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 $5,000,000.00 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 who are liable under section
21323a.
(4) A covenant not to sue under this section is subject to the
satisfactory performance by a person of his or her 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 who 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 who 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 who is liable under section 21323a for a release or threat
of release at the property.
(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 who is liable under
section 21323a or any group of persons who are liable under section
21323a to perform corrective action if the department and the
attorney general determine that the persons who 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 who 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 who 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 shall 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.
Sec. 21323k. (1) A person who 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 property owner or operator 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 owner or operator of 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 owner or operator is otherwise liable under
section 21323a.
(b) For conditions associated with the response activity that
may present a threat to public health or safety.
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 20126, 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 who 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 20107a.
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. 531.
(c) Senate Bill No. 533.
(d) Senate Bill No. 530.
(d) Senate Bill No. 532.