September 21, 2010, Introduced by Senator SWITALSKI and referred to the Committee on Education.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending section 20101 (MCL 324.20101), as amended by 1996 PA
383, and by adding sections 20121 and 20122.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 20101. (1) As used in this part:
(a) "Act of God" means an unanticipated grave natural disaster
or other natural phenomenon of an exceptional, inevitable, and
irresistible character, the effects of which could not have been
prevented or avoided by the exercise of due care or foresight.
(b) "Agricultural property" means real property used for
farming in any of its branches, including cultivating of soil;
growing and harvesting of any agricultural, horticultural, or
floricultural commodity; dairying; raising of livestock, bees,
fish, fur-bearing animals, or poultry; turf and tree farming; and
performing any practices on a farm as an incident to, or in
conjunction with, these farming operations. Agricultural property
does not include property used for commercial storage, processing,
distribution, marketing, or shipping operations.
(c) "Attorney general" means the department of the attorney
general.
(d) "Baseline environmental assessment" means an evaluation of
environmental conditions which exist at a facility at the time of
purchase, occupancy, or foreclosure that reasonably defines the
existing conditions and circumstance at the facility so that, in
the event of a subsequent release, there is a means of
distinguishing the new release from existing contamination.
(e) "Board" means the brownfield redevelopment board created
in section 20104a.
(f) "Department" means the director of the department of
environmental
quality natural resources and
environment or his or
her designee to whom the director delegates a power or duty by
written instrument.
(g) "Director" means the director of the department of
environmental
quality natural resources and
environment.
(h) "Directors" means the directors or their designees of the
departments
of environmental quality natural
resources and
environment, community health, agriculture, and state police.
(i) "Disposal" means the discharge, deposit, injection,
dumping, spilling, leaking, or placing of any hazardous substance
into or on any land or water so that the hazardous substance or any
constituent
of the hazardous substance may enter the environment or
be emitted into the air or discharged into any groundwater or
surface water or otherwise enter the environment.
(j) "Enforcement costs" means court expenses, reasonable
attorney fees of the attorney general, and other reasonable
expenses of an executive department that are incurred in relation
to enforcement under this part or rules promulgated under this
part, or both.
(k) "Environment" or "natural resources" means land, surface
water,
groundwater, subsurface , strata, air, fish, wildlife, or
biota within the state.
(l) "Environmental contamination" means the release of a
hazardous substance, or the potential release of a discarded
hazardous substance, in a quantity which is or may become injurious
to the environment or to the public health, safety, or welfare.
(m) "Evaluation" means those activities including, but not
limited to, investigation, studies, sampling, analysis, development
of feasibility studies, and administrative efforts that are needed
to determine the nature, extent, and impact of a release or threat
of release and necessary response activities.
(n) "Exacerbation" means the occurrence of either of the
following caused by an activity undertaken by the person who owns
or operates the property, with respect to existing contamination:
(i) Contamination that has migrated beyond the boundaries of
the property which is the source of the release at levels above
cleanup
criteria specified in established
under section
20120a(1)(a) unless a criterion is not relevant because exposure is
reliably restricted pursuant to section 20120b.
(ii) A change in facility conditions that increases response
activity costs.
(o) "Facility" means any area, place, or property where a
hazardous substance in excess of the concentrations which satisfy
the
requirements of established
under section 20120a(1)(a) or (17)
or the cleanup criteria for unrestricted residential use under part
213 has been released, deposited, disposed of, or otherwise comes
to be located. Facility does not include any area, place, or
property at which response activities have been completed which
satisfy
the cleanup criteria for the residential category provided
for
in established under section 20120a(1)(a) and (17) or at which
corrective action has been completed under part 213 which satisfies
the cleanup criteria for unrestricted residential use.
(p) "Feasibility study" means a process for developing,
evaluating, and selecting appropriate response activities.
(q) "Foreclosure" means possession of a property by a lender
on which it has foreclosed on a security interest or the expiration
of a lawful redemption period, whichever occurs first.
(r) "Free product" means a hazardous substance in a liquid
phase equal to or greater than 1/8 inch of measurable thickness
that is not dissolved in water and that has been released into the
environment.
(s) "Fund" means the cleanup and redevelopment fund
established in section 20108.
(t) "Hazardous substance" means 1 or more of the following,
but does not include fruit, vegetable, or field crop residuals or
processing by-products, or aquatic plants, that are applied to the
land for an agricultural use or for use as an animal feed, if the
use is consistent with generally accepted agricultural management
practices
developed pursuant to the Michigan right to farm act, Act
No.
93 of the Public Acts of 1981, being sections 286.471 to
286.474
of the Michigan Compiled Laws 1981 PA 93, MCL 286.471 to
286.474:
(i) Any substance that the department demonstrates, on a case
by case basis, poses an unacceptable risk to the public health,
safety, or welfare, or the environment, considering the fate of the
material, dose-response, toxicity, or adverse impact on natural
resources.
(ii) Hazardous substance as defined in section 101 of title I
of the comprehensive environmental response, compensation, and
liability
act of 1980, Public Law 96-510, 94 Stat. 2767 42 USC
9601.
(iii) Hazardous waste as defined in part 111 section 11103.
(iv) Petroleum as described in part 213 section 21303.
(u) "Interim response activity" means the cleanup or removal
of a released hazardous substance or the taking of other actions,
prior to the implementation of a remedial action, as may be
necessary to prevent, minimize, or mitigate injury to the public
health, safety, or welfare, or to the environment. Interim response
activity also includes, but is not limited to, measures to limit
access, replacement of water supplies, and temporary relocation of
people as determined to be necessary by the department. In
addition, interim response activity means the taking of other
actions as may be necessary to prevent, minimize, or mitigate a
threatened release.
(v) "Lender" means any of the following:
(i) A state or nationally chartered bank.
(ii) A state or federally chartered savings and loan
association or savings bank.
(iii) A state or federally chartered credit union.
(iv) Any other state or federally chartered lending
institution. or
(v) A regulated affiliate or regulated subsidiary of any
entity
listed in this subparagraph or subparagraphs (i) to (iii) (iv).
(vi) (v) An
insurance company authorized to do business in this
state
pursuant to the insurance code of 1956, Act No. 218 of the
Public
Acts of 1956, being sections 500.100 to 500.8302 of the
Michigan Compiled Laws 1956 PA 218, MCL 500.100 to 500.8302.
(vii) (vi) A
motor vehicle finance company subject to the motor
vehicle sales
finance act, Act No. 27 of the Extra Session of 1950,
being
sections 492.101 to 492.141 of the Michigan Compiled Laws
1950 (Ex Sess) PA 27, MCL 492.101 to 492.141, with net assets in
excess of $50,000,000.00.
(viii) (vii) A
foreign bank.
(ix) (viii) A
retirement fund regulated pursuant to state law or
a pension fund regulated pursuant to federal law with net assets in
excess of $50,000,000.00.
(x) (ix) A
state or federal agency authorized by law to hold a
security interest in real property or a local unit of government
holding a reversionary interest in real property.
(xi) (x) A
nonprofit tax exempt organization created to promote
economic development in which a majority of the organization's
assets are held by a local unit of government.
(xii) (xi) Any
other person who loans money for the purchase of
or improvement of real property.
(xiii) (xii) Any
person who retains or receives a security
interest to service a debt or to secure a performance obligation.
(w) "Local health department" means that term as defined in
section
1105 of the public health code, Act No. 368 of the Public
Acts
of 1978, being section 333.1105 of the Michigan Compiled Laws
1978 PA 368, MCL 333.1105.
(x) "Local unit of government" means a county, city, township,
or village, an agency of a local unit of government, an authority,
or any other public body or entity created by or pursuant to state
law. Local unit of government does not include the state or federal
government or a state or federal agency.
(y) "Operator" means a person who is in control of or
responsible for the operation of a facility. Operator does not
include either of the following:
(i) A person who holds indicia of ownership primarily to
protect the person's security interest in the facility, unless that
person participates in the management of the facility as described
in section 20101a.
(ii) A person who is acting as a fiduciary in compliance with
section 20101b.
(z) "Owner" means a person who owns a facility. Owner does not
include either of the following:
(i) A person who holds indicia of ownership primarily to
protect the person's security interest in the facility, including,
but not limited to, a vendor's interest under a recorded land
contract, unless that person participates in the management of the
facility as described in section 20101a.
(ii) A person who is acting as a fiduciary in compliance with
section 20101b.
(aa) "Permitted release" means 1 or more of the following:
(i) A release in compliance with an applicable, legally
enforceable permit issued under state law.
(ii) A lawful and authorized discharge into a permitted waste
treatment facility.
(iii) A federally permitted release as defined in section 101 of
title I of the comprehensive environmental response, compensation,
and
liability act of 1980, Public Law 96-510, 94 Stat. 2767 42 USC
9601.
(bb) "Release" includes, but is not limited to, any spilling,
leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing of a hazardous
substance into the environment, or the abandonment or discarding of
barrels, containers, and other closed receptacles containing a
hazardous substance. Release does not include any of the following:
(i) A release that results in exposure to persons solely within
a workplace, with respect to a claim that these persons may assert
against their employers.
(ii) Emissions from the engine exhaust of a motor vehicle,
rolling stock, aircraft, or vessel.
(iii) A release of source material, by-product material, or
special nuclear material from a nuclear incident, as those terms
are defined in section 1 of the atomic energy act of 1954, chapter
1073,
68 Stat. 919 922, 42 USC
2014, if the release is subject to
requirements with respect to financial protection established by
the
nuclear regulatory commission under section 170 of chapter 14
of
title I of the atomic energy act of 1954, chapter 1073, 71 Stat.
576,
42 U.S.C. 2210 the atomic
energy damages act, 42 USC 2210,
or
any release of source material, by-product material, or special
nuclear material from any processing site designated under section
102(a)(1) of title I or 302(a) of title III of the uranium mill
tailings
radiation control act of 1978, Public Law 95-604, 42
U.S.C.
7912 and 42 USC
7912 or 7942.
(iv) If applied according to label directions and according to
generally accepted agricultural and management practices, the
application of a fertilizer, soil conditioner, agronomically
applied manure, or pesticide, or fruit, vegetable, or field crop
residuals or processing by-products, aquatic plants, or a
combination of these substances. As used in this subparagraph,
"fertilizer", and "soil conditioner", have the meaning
given to
these
terms in part 85, and "pesticide"
has the meaning given to
that
term in part 83 mean those
terms as defined in sections 8501,
8501a, and 8305, respectively.
(v) A release does not include fruits, vegetables, field crop
processing by-products, or aquatic plants, that are applied to the
land for an agricultural use or for use as an animal feed, if the
use is consistent with generally accepted agricultural and
management practices developed pursuant to the Michigan right to
farm
act, Act No. 93 of the Public Acts of 1981, being sections
286.471
to 286.474 of the Michigan Compiled Laws 1981 PA 93, MCL
286.471 to 286.474.
(cc) "Remedial action" includes, but is not limited to,
cleanup, removal, containment, isolation, destruction, or treatment
of a hazardous substance released or threatened to be released into
the environment, monitoring, maintenance, or the taking of other
actions that may be necessary to prevent, minimize, or mitigate
injury to the public health, safety, or welfare, or to the
environment.
(dd) "Remedial action plan" means a work plan for performing
remedial action under this part.
(ee) "Response activity" means evaluation, interim response
activity, remedial action, demolition, or the taking of other
actions necessary to protect the public health, safety, or welfare,
or the environment or the natural resources. Response activity also
includes health assessments or health effect studies carried out
under the supervision, or with the approval of, the department of
public health and enforcement actions related to any response
activity.
(ff) "Response activity costs" or "costs of response activity"
means all costs incurred in taking or conducting a response
activity, including enforcement costs.
(gg) "School" means all buildings, playgrounds, athletic
fields, and other real property owned or leased by a private or
public elementary or secondary institution of learning for any of
grades kindergarten through 12. School does not include a family
residence used as a home school.
(hh) (gg) "Security interest" means any
interest, including a
reversionary interest, in real property created or established for
the purpose of securing a loan or other obligation. Security
interests include, but are not limited to, mortgages, deeds of
trusts, liens, and title pursuant to lease financing transactions.
Security interests may also arise from transactions such as sale
and leasebacks, conditional sales, installment sales, trust receipt
transactions, certain assignments, factoring agreements, accounts
receivable financing arrangements, consignments, or any other
transaction in which evidence of title is created if the
transaction creates or establishes an interest in real property for
the purpose of securing a loan or other obligation.
(ii) (hh)
"Site" means the location of environmental
contamination.
(jj) (ii)
"Threatened release" or "threat of release" means
any circumstance that may reasonably be anticipated to cause a
release.
(2) As used in this part, the phrase "a person who is liable"
includes a person who is described as being subject to liability in
section 20126. The phrase "a person who is liable" does not presume
that liability has been adjudicated.
Sec. 20121. Before beginning construction of a school, the
owner or operator of the school shall conduct an environmental
assessment of the property to determine all of the following:
(a) Whether the property is a facility.
(b) The nature and extent of the owner's or operator's due
care obligations under section 20107a and the response activities
necessary to fulfill those obligations.
(c) The nature and extent of any response activities that the
owner or operator is required to conduct.
Sec. 20122. (1) Except as provided in subsection (2) or (3), a
school shall not be constructed or operated on property that is or
was a facility.
(2) If response activities that satisfy the cleanup criteria
for limited residential use established under section 20120a(1)(f)
and (17), or corrective action that satisfies the cleanup criteria
for restricted residential use established under part 213, have
been completed at the property, a school may be constructed and
operated on the property if the owner or operator of the school
monitors the property, including, if applicable, soil, air, and
indoor air, to demonstrate that no unacceptable exposures to
hazardous substances exist. The monitoring shall be conducted in
conformity with a written monitoring plan that contains a schedule
for conducting the monitoring and is approved by the department.
The department shall not approve a monitoring plan under this
subsection unless the owner or operator of the school has done both
of the following:
(a) Provided public notice, in the manner required under
subsection (4), of the environmental contamination at the site, the
proposed monitoring plan, the results of any monitoring that has
already been conducted at the site, and the right to request a
hearing under subdivision (b).
(b) If requested by any person within 14 days after public
notice is provided under subdivision (a), conducted a public
hearing in the vicinity of the site. The owner or operator of the
school shall give public notice of the hearing in the manner
required under subsection (4).
(3) If response activities that satisfy the cleanup criteria
for residential use established under section 20120a(1)(a) and
(17), or corrective action that satisfies the cleanup criteria for
unrestricted residential use established under part 213, have been
completed at the property, a school may be constructed and operated
on the property if the owner or operator does all of the following:
(a) Provides public notice, in the manner required under
subsection (4), of the prior status of the property as a facility
and of testing results that demonstrate that the property satisfies
the cleanup criteria for residential use established under section
20120a(1)(a) and (17) or for unrestricted residential use under
part 213.
(b) Provides the public an opportunity to comment.
(c) If requested by the department based on new information
received by the department that the conditions at the school are
reasonably likely to fail to satisfy the cleanup criteria for
residential use established under section 20120a(1)(a) and (17) or
for unrestricted residential use under part 213, conducts an
environmental assessment. The environmental assessment shall be
conducted in conformity with a written assessment plan that
contains a schedule for conducting the environmental assessment and
is approved by the department. The department shall not approve an
assessment plan under this subsection unless the owner or operator
has done both of the following:
(i) Provided public notice, in the manner required under
subsection (4), of the environmental contamination at the site, the
proposed assessment plan, the results of any environmental
assessment that has already been conducted at the site, and the
right to request a hearing under subparagraph (ii).
(ii) If requested by any person within 14 days after public
notice is provided under subparagraph (i), conducted a public
hearing in the vicinity of the site. The owner or operator of the
school shall give public notice of the hearing in the manner
required under subsection (4).
(4) Notice under this section, including notice of a public
hearing, shall be published in a newspaper of general circulation
in the city, village, or township where the school is or will be
located and shall include information considered appropriate by the
department.