HB-6360, As Passed House, November 10, 2010
July 28, 2010, Introduced by Rep. Stanley and referred to the Committee on New Economy and Quality of Life.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 20107a and 20108b (MCL 324.20107a and
324.20108b), section 20107a as amended and section 20108b as added
by 1996 PA 383.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 20107a. (1) A person who owns or operates property that
he or she has knowledge is a facility shall do all of the following
with respect to hazardous substances at the facility:
(a) Undertake measures as are necessary to prevent
exacerbation. of
the existing contamination.
(b) Exercise due care by undertaking response activity
necessary to mitigate unacceptable exposure to hazardous
substances, mitigate fire and explosion hazards due to hazardous
substances, and allow for the intended use of the facility in a
manner that protects the public health and safety.
(c) Take reasonable precautions against the reasonably
foreseeable acts or omissions of a third party and the consequences
that foreseeably could result from those acts or omissions.
(d) Provide reasonable cooperation, assistance, and access to
the persons that are authorized to conduct response activities at
the facility, including the cooperation and access necessary for
the installation, integrity, operation, and maintenance of any
complete or partial response activity at the facility. Nothing in
this subdivision shall be interpreted to provide any right of
access not expressly authorized by law, including access authorized
pursuant to a warrant or a court order, or to preclude access
allowed pursuant to a voluntary agreement.
(e) Comply with any land use or resource use restrictions
established or relied on in connection with the response activities
at the facility.
(f) Not impede the effectiveness or integrity of any land use
or resource use restriction employed at the facility in connection
with response activities.
(2) The owner's or operator's obligations under this section
shall be based upon the current numeric cleanup criteria under
section 20120a(1).
(3) (2)
Notwithstanding any other provision of this part, a A
person who violates subsection (1) who is not otherwise liable
under this part for the release at the facility is liable for
response activity costs and natural resource damages attributable
to
any exacerbation of existing contamination and any fines or
penalties imposed under this part resulting from the violation of
subsection (1) but is not liable for performance of additional
response activities unless the person is otherwise liable under
this part for performance of additional response activities. The
burden of proof in a dispute as to what constitutes exacerbation
shall be borne by the party seeking relief.
(4) (3)
Compliance with this section does
not satisfy a
person's obligation to perform response activities as otherwise
required under this part.
(5) (4)
Subsection (1) (1)(a) to (c) does not apply to the
state or to a local unit of government that is not liable under
section
20126(3)(a) 20126(1)(c) or
(3)(a), (b), (c), or (e) or to
the state or a local unit of government that acquired property by
purchase,
gift, transfer, or condemnation prior to the effective
date
of this section June 5, 1995 or to
a person who is exempt from
liability under section 20126(4)(c). However, if the state or local
unit of government, acting as the operator of a parcel of property
that the state or local unit of government has knowledge is a
facility, offers access to that parcel on a regular or continuous
basis pursuant to an express public purpose and invites the general
public to use that property for the express public purpose, the
state or local unit of government is subject to this section but
only with respect to that portion of the facility that is opened to
and used by the general public for that express purpose, and not
the entire facility. Express public purpose includes, but is not
limited to, activities such as a public park, municipal office
building, or municipal public works operation. Express public
purpose does not include activities surrounding the acquisition or
compilation of parcels for the purpose of future development.
(6) (5)
Subsection (1) (1)(a) to (c) does not apply to a
person who is exempt from liability under section 20126(3)(c) or
(d) except with regard to that person's activities at the facility.
Sec. 20108b. (1) The department shall create a revitalization
revolving loan program for the purpose of making loans to certain
local units of government to provide for eligible activities at
certain properties in order to promote economic redevelopment.
(2) To be eligible for a loan, applications must meet the
following requirements:
(a) The applicant is a county, city, township, or village, or
an authority established pursuant to the brownfield redevelopment
financing
act, provided that if the municipality which that created
the authority pursuant to the brownfield redevelopment financing
act commits to secure the loan with a pledge of the municipality's
full faith and credit.
(b) The application is for eligible activities at a property
within the applicant's jurisdiction that is a facility or is
suspected to be a facility based on current or historic use.
(c) The application is complete and submitted on a form
provided by the department.
(d) The application is received by the deadline established by
the department.
(e) The application is for eligible activities only as
provided for in subsection (3).
(3) Eligible activities are limited to evaluation and
demolition at the property or properties in an area-wide zone, and
interim response activities required to facilitate evaluation and
demolition conducted prior to redevelopment of a property or
properties in an area-wide zone. Eligible activities include only
those necessary to facilitate redevelopment. Eligible activities do
not include activities necessary only to design or complete a
remedial action that fully complies with the requirements of
section 20120a. All eligible activities must be consistent with a
work
plan or remedial action response
activity plan approved in
advance by the department under this part or pursuant to section 15
of the brownfield redevelopment financing act, MCL 125.2665. Unless
otherwise approved by the director, only activities carried out and
costs incurred after execution of a loan agreement are eligible.
(4) The department shall provide for at least 1 application
cycle per fiscal year. Prior to each application cycle, the
department shall develop written instructions for prospective
applicants including the criteria that will be used in application
review and approval.
(5) Final application decisions shall be made by the
department within 4 months of the application deadline.
(6) A complete application shall include the following:
(a) A description of the proposed eligible activities.
(b) An itemized budget for the proposed eligible activities.
(c) A schedule for the completion of the proposed eligible
activities.
(d) Location of the property.
(e) Current ownership and ownership history of the property.
(f) Current use of the property.
(g) A detailed history of the use of the property.
(h) Existing and proposed future zoning of the property.
(i) If the property is not owned by the applicant, a draft of
an enforceable agreement between the property owner and the
applicant that commits the property owner to cooperate with the
applicant, including a commitment to allow access to the property
to complete at a minimum the proposed activities.
(j) A description of the property's economic redevelopment
potential.
(k) A resolution from the local governing body of the
applicant committing to repayment of the loan according to the
terms of this section.
(l) Other information as specified by the department in its
written instructions.
(7)
To receive loan funds, approved applicants must shall
enter into a loan agreement with the department. At a minimum, the
loan agreement shall contain all of the following:
(a) The approved eligible activities to be undertaken with
loan funds.
(b) The loan interest rate, terms, and repayment schedule as
determined by the department pursuant to subsection (10).
(c) A commitment that the loan is secured by a full faith and
credit pledge of the applicant, or if the applicant is an authority
established pursuant to the brownfield redevelopment financing act,
the commitment shall be from the municipality that created the
authority pursuant to that act.
(d) An implementation schedule.
(e) Reporting requirements, including at a minimum the
following:
(i) The recipient shall submit a progress status report to the
department every 6 months during the implementation schedule.
(ii) The recipient shall provide a final report within 3 months
of completion of the loan funded activities that includes
documentation of project costs and expenditures, including invoices
and proof of payment.
(f) If the property is not owned by the recipient, an executed
agreement that has been approved by the department that meets the
requirements of subsection (6)(i).
(g) Other provisions as considered appropriate by the
department.
(8) If an approved applicant fails to sign a loan agreement
within 90 days of a written loan offer by the department, the
department may cancel the loan offer. The applicant may not appeal
or contest a cancellation pursuant to this subsection.
(9) The department may terminate a loan agreement and require
immediate repayment of the loan if the recipient uses loan funds
for any purpose other than for the approved eligible activities
specified in the loan agreement. The department shall provide
written notice 30 days prior to the termination.
(10)
Loans Subject to
subsection (11), loans shall have the
following terms:
(a) A loan interest rate of not more than 50% of the prime
rate as determined by the department as of the date of approval of
the loan.
(b) Loan recipients shall repay loans in equal annual
installments of principal and interest beginning not later than 5
years
after execution of a loan agreement the first draw of the
loan
and concluding not later than 15 years
after execution of a
the
first draw of the loan. agreement.
(11) Upon request of a loan recipient and a showing of
financial hardship related to the project that was financed in
whole or in part by the loan, the department may renegotiate the
terms of any outstanding loan, including the length of the loan,
the interest rate, and the repayment terms.
(12) (11)
Loan payments and interest shall be
deposited back
into the revitalization revolving loan fund created in section
20108a.
(13) (12)
Upon default of a loan, as
determined by the
department, or upon the request of the loan recipient as a method
to repay the loan, the department of treasury shall withhold state
payments from the loan recipient in amounts consistent with the
repayment schedule in the loan agreement until the loan is repaid.
The department of treasury shall deposit these withheld funds into
the revitalization revolving loan fund created in section 20108a
until the loan is repaid.
(14) As used in this section, "brownfield redevelopment
financing act" means 1996 PA 381, MCL 125.2651 to 125.2672.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 95th Legislature are
enacted into law:
(a) Senate Bill No. 1345.
(b) Senate Bill No. 1346.
(c) Senate Bill No. 1348.
(d) House Bill No. 6363(request no. H06271'10 *).
(e) Senate Bill No. _____ or House Bill No. 6359(request no.
07378'10).