January 18, 2006, Introduced by Reps. Hune, Gaffney and Mortimer and referred to the Committee on Natural Resources, Great Lakes, Land Use, and Environment.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 20126 and 20126a (MCL 324.20126 and
324.20126a), section 20126 as amended by 1999 PA 196 and section
20126a as added by 1995 PA 71.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 20126. (1) Notwithstanding any other provision or rule of
law and except as provided in subsections (2), (3), (4), and (5)
and section 20128, the following persons are liable under this
part:
(a) The owner or operator of a facility if the owner or
operator is responsible for an activity causing a release or threat
of release.
(b) The owner or operator of a facility at the time of
disposal of a hazardous substance if the owner or operator is
responsible for an activity causing a release or threat of release
or if the person or persons who are otherwise liable under this
part cannot be determined or located. An owner or operator of a
facility who is liable under this subdivision because the person or
persons who are otherwise liable under this part cannot be
determined or located is liable only for the costs listed in
section 20126a(1) and (2).
(c) An owner or operator of a facility 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 discloses the results of a baseline
environmental assessment to the department and subsequent purchaser
or transferee if the baseline environmental assessment confirms
that the property is a facility.
(d) A person who by contract, agreement, or otherwise arranged
for disposal or treatment, or arranged with a transporter for
transport for disposal or treatment, of a hazardous substance owned
or possessed by the person, by any other person, at a facility
owned or operated by another person and containing the hazardous
substance. This subdivision does not include any of the following:
(i) A person who, on or after June 5, 1995, arranges for the
sale or transport of a secondary material for use in producing a
new product. As used in this subparagraph, secondary material means
scrap metal, paper, plastic, glass, textiles, or rubber, which has
demonstrated reuse or recycling potential and has been separated or
removed from the solid waste stream for reuse or recycling, whether
or not subsequent separation and processing is required, if
substantial amounts of the material are consistently used in the
manufacture of products which may otherwise be produced from a raw
or virgin material.
(ii) A person who, prior to June 5, 1995, arranges for the sale
or transport of a secondary material for use in producing a new
product unless the state has incurred response activity costs
associated
with these secondary materials prior to the effective
date
of the 1999 amendments to this section December 17, 1999. As
used in this subparagraph, secondary material means scrap metal,
paper, plastic, glass, textiles, or rubber, which has demonstrated
reuse or recycling potential and has been separated or removed from
the solid waste stream for reuse or recycling, whether or not
subsequent separation and processing is required, if substantial
amounts of the material are consistently used in the manufacture of
products which may otherwise be produced from a raw or virgin
material.
(iii) A person who arranges the lawful transport or disposal of
any product or container commonly used in a residential household,
which is in a quantity commonly used in a residential household,
and which was used in the person's residential household.
(e) A person who accepts or accepted any hazardous substance
for transport to a facility selected by that person.
(f) The estate or trust of a person described in subdivisions
(a) to (e).
(2) Subject to section 20107a, an owner or operator who
complies with subsection (1)(c) is not liable for contamination
existing at the facility at the earlier of the date of purchase,
occupancy, or foreclosure, unless the person is responsible for an
activity causing the contamination existing at the facility.
Subsection (1)(c) does not alter a person's liability with regard
to a subsequent release or threat of release at a facility 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 unless the person is responsible for an
activity causing a release at the facility:
(a) The state or a local unit of government that acquired
ownership or control of a facility involuntarily through
bankruptcy, tax delinquency, abandonment, a transfer from a lender
pursuant to subsection (7), 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 a facility 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 a facility
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 a facility, holds or acquires an interest
in a facility by dedication in a plat, or by dedication pursuant to
1909 PA 283, MCL 220.1 to 239.6, or otherwise holds or acquires an
interest in a facility for a transportation or utility corridor or
public right of way.
(c) A person who holds an easement interest in a facility 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 owns or occupies residential real property if
hazardous substance use at the property is consistent with
residential use.
(g) A person who acquires a facility as a result of the death
of the prior owner or operator of the facility, whether by
inheritance, devise, or transfer from an inter vivos or
testamentary trust.
(h) A person who did not know and had no reason to know that
the property was a facility. To establish that the person did not
know and did not have a reason to know that the property was a
facility, 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 hazardous 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.
(i) A utility performing normal construction, maintenance, and
repair activities in the normal course of its utility service
business. This subsection does not apply to property owned by the
utility.
(j) A lessee who uses property for retail, office, or
commercial purpose.
(4) Notwithstanding subsection (1), the following persons are
not liable under this part:
(a) The owner or operator of a hazardous waste treatment,
storage, or disposal facility regulated pursuant to part 111 from
which there is a release or threat of release solely from the
treatment, storage, or disposal facility, or a waste management
unit at the facility and the release or threat of release is
subject to corrective action under part 111.
(b) 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 facility.
(c) 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.
(d) A person who owns or operates a facility in 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.
(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 facility is not liable under
this part for costs or damages as a result of response activity
taken in response to a release or threat of release. For a lender,
this subsection applies only to response activity 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. If the department proves a
prima facie case against a person, the person shall bear the burden
of showing by a preponderance of the evidence that he or she is not
liable under this section.
(7) A lender that is not responsible for an activity causing a
release at a facility and that establishes that it has met the
requirements of subsection (1)(c) with respect to that facility
may immediately transfer to the state the property on which there
has been a release or a threat of a release if the lender complies
with all of the following:
(a) Within 9 months following foreclosure and for a period of
at least 120 days, the lender either lists the facility with a
broker, dealer, or agent who deals with the type of property in
question, or advertises the facility as being for sale or
disposition on at least a monthly basis in either a real estate
publication, a trade or other publication suitable for the facility
in question, or a newspaper of general circulation of over 10,000
covering the area where the property is located.
(b) The lender has taken reasonable care in maintaining and
preserving the real estate and permanent fixtures.
(c) The lender provides to the department all environmental
information related to the facility that is available to the
lender.
(d) If the department has issued an order pursuant to section
20119, the lender has complied with the order to the department's
satisfaction.
(e) If conditions on the property pose a threat of fire or
explosion or present an imminent hazard through direct contact with
hazardous substances, the lender has undertaken appropriate
response activities to abate the threat or hazard.
(8) The department shall establish minimum technical standards
for baseline environmental assessments conducted under this section
in guidelines pursuant to the administrative procedures act of
1969, 1969 PA 306, MCL 24.201 to 24.328.
(9) Notwithstanding subsection (1)(c), if the owner or
operator of the facility became the owner or operator of the
facility on or after June 5, 1995 and prior to March 6, 1996, and
the facility contains an underground storage tank system as defined
in part 213, 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.
Sec. 20126a. (1) Except as provided in section 20126(2), a
person who is liable under section 20126 is jointly and severally
liable for all of the following:
(a) All costs of response activity lawfully incurred by the
state relating to the selection and implementation of response
activity under this part.
(b) All costs of response activity lawfully incurred by a
local unit of government or an authority established to provide
fire protection or emergency response for response activities
undertaken by the municipality or authority.
(c) (b)
Any other necessary costs of
response activity
incurred by any other person consistent with rules relating to the
selection and implementation of response activity promulgated under
this part.
(d) (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.
(e) Damages for the loss or destruction of buildings or other
real or personal property.
(2) The costs of response activity recoverable under
subsection (1) shall also include all of the following:
(a) All costs of response activity reasonably incurred by the
state
prior to the promulgation of rules relating to the selection
and
implementation of response activity under this part July 12,
1990, excepting those cases where cost recovery actions have been
filed before July 12, 1990. A person challenging the recovery of
costs under this subdivision has the burden of establishing that
the costs were not reasonably incurred under the circumstances that
existed at the time the costs were incurred. Recoverable costs
include costs incurred reasonably consistent with the rules
relating to the selection and implementation of response activity
in effect on July 12, 1990.
(b) Any other necessary costs of response activity reasonably
incurred
by any other person prior to the promulgation of rules
relating
to the selection and implementation of response activity
under
this part July 12, 1990. A person seeking recovery of these
costs has the burden of establishing that the costs were 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. This 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(5) of the revised
judicature
act of 1961, Act No. 236 of the Public Acts of 1961,
being
section 600.6013 of the Michigan Compiled Laws 1961
PA 236,
MCL 600.6013.
(4) In the case of injury to, destruction of, or loss of
natural
resources under subsection (1)(c) (1)(d), 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
not be no a
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 response activity for a permitted release. Recovery by
any person for response activity 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 hazardous
substance or for response activity or the costs of response
activity.
(6) If the department or the fire chief or fire code
enforcement official of a local unit of government 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 a facility, the attorney general
or a local law enforcement official, a fire chief, or a fire code
enforcement official of a local unit of government may bring an
action against any person who is liable under section 20126 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, a local unit of government, or
any other person. A local unit of government may enact an ordinance
that provides for recovery of costs that are recoverable under this
section.