HB-5401, As Passed House, May 6, 2014
March 11, 2014, Introduced by Reps. McBroom, Potvin, Graves, Schmidt, Goike, LaFontaine, Clemente, Jacobsen, Kivela, Zorn, Rendon, Dianda, Foster, MacGregor, Glardon, Victory, Kesto, Haveman, Poleski, Forlini, Haugh, Lane, Brunner, Durhal, Santana and Crawford and referred to the Committee on Natural Resources.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending section 20126 (MCL 324.20126), as amended by 2012 PA
446.
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.
(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 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.
(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 that
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 that 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 December 17,
1999. As used in this subparagraph, secondary material means scrap
metal,
paper, plastic, glass, textiles, or rubber, which that 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 that 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 that is 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.
(iv) A person who stores or uses or arranges for the storage or
use of a beneficial use by-product or inert material in compliance
with part 115.
(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) (1)(c)(i) and (ii) 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 with respect to contamination at a
facility 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 a facility involuntarily through
bankruptcy,
tax delinquency, abandonment, a transfer from a lender
pursuant
to subsection (5), 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,
including sewers, pipes, and pipelines, 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
subdivision 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 subdivision
does not apply to property
owned by the utility.
(j) A lessee who uses the leased property for a retail,
office, or commercial purpose regardless of the level of the
lessee's hazardous substance use.
(k) A person who holds a license, easement, or lease, or who
otherwise occupies or operates property, for the purpose of siting,
constructing, operating, or removing a wind energy conversion
system or any component of a wind energy conversion system. As used
in this subdivision, "wind energy conversion system" means that
term as defined in section 13 of the clean, renewable, and
efficient energy act, 2008 PA 295, MCL 460.1013.
(l) A person who owns or occupies a residential condominium
unit for both of the following:
(i) Contamination of the unit if hazardous substance use within
the unit is consistent with residential use.
(ii) Contamination of any general common element, limited
common element, or common area in which the person has an ownership
interest or right of occupation by reason of owning or occupying
the residential condominium unit.
(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.
(e) Any person for environmental contamination addressed in a
no further action report that is approved by the department or is
considered
approved under section 20114d. Notwithstanding this
subdivision,
However, a person may be liable under this part for
the following:
(i) A subsequent release not addressed in the no further action
report if the person is otherwise liable under this part for that
release.
(ii) Environmental contamination that is not addressed in the
no further action report and for which the person is otherwise
liable under this part.
(iii) If the no further action report relies on land use or
resource use restrictions, an owner or operator who desires to
change those restrictions is responsible for any response
activities 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 no further action report relies on monitoring
necessary
to assure ensure the effectiveness and integrity of the
remedial action, an owner or operator who is otherwise liable for
environmental contamination addressed in a no further action report
is liable under this part for additional response activities
necessary to address any potential exposure to the environmental
contamination demonstrated by the monitoring in excess of the
levels relied on in the no further action report.
(v) If the remedial actions that were the basis for the no
further action report fail to meet performance objectives that are
identified in the no further action report, an owner or operator
who is otherwise liable for environmental contamination addressed
in the no further action report is liable under this part for
response activities 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 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.
(7) 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.
(8) An owner or operator who was in compliance with subsection
(1)(c)
(1)(c)(i) and (ii) prior
to December 14, 2010 is considered to
be
in compliance with subsection (1)(c).(1)(c)(i) and (ii).
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No. ____ or House Bill No. 5400 (request no.
00948'13 **) of the 97th Legislature is enacted into law.