SENATE BILL NO. 47

January 27, 2021, Introduced by Senator MOSS and referred to the Committee on Environmental Quality.

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 20138 and 20140 (MCL 324.20138 and 324.20140), section 20138 as amended by 1995 PA 71 and section 20140 as amended by 2000 PA 254.

the people of the state of michigan enact:

Sec. 20138. (1) All unpaid costs and damages for which a person is liable under section 20126 constitute a lien in favor of the this state upon on a facility that has been the subject of response activity by the this state and is owned by that person. A lien under this subsection has priority over all other liens and encumbrances except liens and encumbrances recorded before the date the lien under this subsection is recorded. A lien under this subsection arises when the this state first incurs costs for response activity at the facility for which the person is responsible.

(2) If the attorney general determines that the lien provided in subsection (1) is insufficient to protect the interest of the this state in recovering response costs at a facility, the attorney general may file a petition in the circuit court of the county in which the facility is located seeking either or both of the following:

(a) A lien upon on the facility subject to response activity that takes priority over all other liens and encumbrances that are or have been recorded on the facility.

(b) A lien upon on real or personal property or rights to real or personal property, other than the facility, owned by the person described in subsection (1), having priority over all other liens and encumbrances except liens and encumbrances recorded prior to before the date the lien under this subsection subdivision is recorded. However, the following are not subject to the lien provided for in this subdivision:

(i) Assets of a qualified pension plan or individual retirement account under the internal revenue code of 1986, 26 USC 1 to 9834.

(ii) Assets held expressly for the purpose of financing a dependent's college education.

(iii) Up to $500,000.00 in nonbusiness real or personal property or rights to nonbusiness real or personal property, except that not more than $25,000.00 of this amount may be cash or securities.

(3) A petition submitted pursuant to filed under subsection (2) shall must set forth, with as much specificity as possible, the type of lien sought, the property that would be affected, and the reasons the attorney general believes the lien is necessary. Upon On receipt of a petition under subsection (2), the court shall promptly schedule a hearing to determine whether the petition should be granted. Notice The court shall provide notice of the hearing shall be provided to the attorney general, the property owner, and any persons a person holding liens a lien or perfected security interests interest in the real property subject to response activity. A The court shall not grant a lien shall not be granted under subsection (2) against the owner of the facility if the owner is not liable under section 20126.

(4) In addition to the lien provided in subsections (1) and (2), if the this state incurs costs for response activity that increases the market value of real property that is the location of a release or threatened release, the increase in value caused by the state funded response activity, to the extent the this state incurred unpaid costs and damages, constitutes a lien in favor of the this state upon on the real property. This lien has priority over all other liens or encumbrances that are or have been recorded upon on the property.

(5) A lien provided in subsection (1), (2), or (4) is perfected against real property when a notice of lien is filed by the department with the register of deeds in the county in which the real property is located. A lien upon on personal property provided in subsection (2) (2)(b) is perfected when a notice of lien is filed by the department in accordance with applicable law and regulation for the perfection of a lien on that type of personal property. In addition, the department shall, at At the time of the filing of the notice of lien, the department shall provide a copy of the notice of lien to the owner of that property by certified mail.

(6) A lien under this section continues until the liability for the costs and damages is satisfied or resolved. or becomes unenforceable through the operation of the statute of limitations provided in section 20140.

(7) Upon On satisfaction of the liability secured by the lien, the department shall file a notice of release of lien in the same manner as provided in subsection (5).

(8) If the department, at the time or prior to before the time of filing the notice of release of lien pursuant to under subsection (7), has made makes a determination that the person liable under section 20126 has completed all of the response activity activities at the real property pursuant to under the approved remedial action plan, the department shall execute and file with the notice of release of lien a document stating that all response activities required in the approved remedial action plan have been completed.

Sec. 20140. (1) Except as provided in subsections (2) and (3), the limitation period for filing actions under this part is as follows:

(a) For the recovery of response activity costs and natural resources damages pursuant to section 20126a(1)(a), (b), or (c), within 6 years of initiation of physical on-site construction activities for the remedial action selected or approved by the department at a facility, except as provided in subdivision (b).

(b) For 1 or more subsequent actions for recovery of response activity costs pursuant to section 20126, at any time during the response activity, if commenced not later than 3 years after the date of completion of all response activity at the facility.

(c) For civil fines under this part, within 3 years after discovery of the violation for which the civil fines are assessed.

(2) For recovery of natural resources damages that accrued prior to July 1, 1991, the limitation period for filing actions under this part is July 1, 1994.

(3) For recovery of response activity costs that were incurred prior to July 1, 1991, the limitation period for filing actions under this part is July 1, 1994.

(4) Subsection (3) is curative and intended to clarify the original intent of the legislature and applies retroactively.An action under this part may be filed at any time.