July 28, 2010, Introduced by Rep. Tyler 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 20101, 20104, and 20104a (MCL 324.20101,
324.20104, and 324.20104a), section 20101 as amended and section
20104a as added by 1996 PA 383 and section 20104 as amended by 1995
PA 71.
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) "All appropriate inquiry" means an evaluation of
environmental conditions at a property at the time of purchase,
occupancy, or foreclosure that reasonably defines the existing
conditions and circumstances at the property in conformance with 40
CFR 312.
(d) (c)
"Attorney general" means
the department of the
attorney general.
(e) "Background concentration" means the concentration or
level of a hazardous substance that exists in the environment at or
regionally proximate to a facility that is not attributable to any
release at or regionally proximate to the facility.
(f) (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. a
written document that describes the results of an all appropriate
inquiry and the sampling and analysis that confirm that the
property is a facility. However, for purposes of a baseline
environmental assessment, the all appropriate inquiry under 40 CFR
312.20(a) may be conducted within 45 days after the date of
acquisition of a property and the components of an all appropriate
inquiry under 40 CFR 312.20(b) and 40 CFR 312.20(c)(3) may be
conducted or updated within 45 days after the date of acquisition
of a property.
(g) (e)
"Board" means the
brownfield redevelopment board
created in section 20104a.
(h) "Cleanup criteria for unrestricted residential use" means
either of the following:
(i) Cleanup criteria that satisfy the requirements for the
residential category in section 20120a(1)(a) or (16).
(ii) Cleanup criteria for unrestricted residential use under
part 213.
(i) (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.
(j) (g)
"Director" means the
director of the department of
environmental
quality natural resources and
environment.
(k) (h)
"Directors" means the
directors or their designees of
the
departments of environmental quality natural resources and
environment, community health, agriculture, and state police.
(l) (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.
(m) (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.
(n) (k)
"Environment" or
"natural resources" means land,
surface water, groundwater, subsurface, strata, air, fish,
wildlife, or biota within the state.
(o) (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.
(p) (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.
(q) (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
for which the person is not liable:
(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 section 20120a(1)(a) for unrestricted
residential use unless a criterion is not relevant because exposure
is
reliably restricted pursuant to section 20120b as otherwise
provided in this part.
(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 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 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.
(r) "Facility" means any area, place, or property where a
hazardous substance in excess of the concentrations that satisfy
the cleanup criteria for unrestricted residential use has been
released, deposited, disposed of, or otherwise comes to be located.
Facility does not include any area, place, or property where any of
the following conditions are satisfied:
(i) Response activities have been completed under this part
that satisfy the cleanup criteria for unrestricted residential use.
(ii) Corrective action has been completed under part 213 that
satisfies the cleanup criteria for unrestricted residential use.
(iii) Site-specific criteria that have been approved by the
department for application at the area, place, or property are met
or satisfied and both of the following conditions are met:
(A) The site-specific criteria do not depend on any land use
or resource use restriction to ensure protection of the public
health, safety, or welfare or the environment.
(B) Hazardous substances at the area, place, or property that
are not addressed by site-specific criteria satisfy the cleanup
criteria for unrestricted residential use.
(s) (p)
"Feasibility study" means
a process for developing,
evaluating, and selecting appropriate response activities.
(t) "Financial assurance" means a performance bond, escrow,
cash, certificate of deposit, irrevocable letter of credit,
corporate guarantee, or other equivalent security, or any
combination thereof.
(u) (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.
(v) (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.
(w) (s)
"Fund" means the cleanup
and redevelopment fund
established in section 20108.
(x) (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 the comprehensive
environmental
response, compensation, and liability act, of 1980,
Public
Law 96-510, 94 Stat. 2767 42
USC 9601 to 9675.
(iii) Hazardous waste as defined in part 111.
(iv) Petroleum as described in part 213.
(y) (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.
(z) (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 regulated affiliate or regulated subsidiary of any entity listed
in this subparagraph or subparagraphs (i) to (iii).
(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.
(vi) A motor vehicle finance company subject to the motor
vehicle
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.
(vii) A foreign bank.
(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.
(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.
(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.
(xi) Any other person who loans money for the purchase of or
improvement of real property.
(xii) Any person who retains or receives a security interest to
service a debt or to secure a performance obligation.
(aa) (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.
(bb) (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.
(cc) "Method detection limit" means the minimum concentration
of a hazardous substance which can be measured and reported with
99% confidence that the analyte concentration is greater than zero
and is determined from analysis of a sample in a given matrix that
contains the analyte.
(dd) "No further action letter" means a written response
provided by the department under section 20114d confirming that a
no further action report has been approved after review by the
department.
(ee) "No further action report" means a report under section
20114d detailing the completion of remedial actions and including a
postclosure plan and a postclosure agreement, if appropriate.
(ff) (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.
(gg) (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.
(hh) "Panel" means the response activity review panel created
in section 20114e.
(ii) (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 the
comprehensive environmental response, compensation, and liability
act, of
1980, Public Law 96-510, 94 Stat. 2767 42 USC 9601 to 9675.
(jj) "Postclosure agreement" means an agreement between the
department and a person who has submitted a no further action
report that prescribes, as appropriate, activities required to be
undertaken upon completion of remedial actions as provided for in
section 20114d.
(kk) "Postclosure plan" means a plan for land use or resource
use restrictions or permanent markers at a facility upon completion
of remedial actions as required under section 20114c.
(ll) (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, by-product, or special nuclear
material from a nuclear incident, as those terms are defined in the
atomic
energy act of 1954, chapter 1073, 68 Stat. 919, 42 USC 2011
to 2297h-13, 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. USC 2210,
or any release of source by-product 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
7942 USC 7912(a)(1) or 42 USC
7942(a).
(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.
(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.
(mm) (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.
(nn) (dd)
"Remedial action plan"
means a work plan for
performing remedial action under this part.
(oo) "Residential closure" means a facility at which the
contamination has been addressed in a no further action report that
satisfies the limited residential cleanup criteria under section
20120a(1)(c) or the site-specific residential cleanup criteria
under sections 20120a(2) and 20120b, that contains land use or
resource use restrictions, and that is approved by the department
or is considered approved by the department under section 20120d.
(pp) (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 community health and enforcement actions
related to any response activity.
(qq) (ff)
"Response activity costs"
or "costs of response
activity" means all costs incurred in taking or conducting a
response activity, including enforcement costs.
(rr) "Response activity plan" means a plan for undertaking
response activities. A response activity plan may include 1 or more
of the following:
(i) A plan to undertake interim response activities.
(ii) A plan for evaluation activities.
(iii) A feasibility study.
(iv) A remedial action plan.
(ss) (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.
(hh)
"Site" means the location of environmental contamination.
(tt) "Target detection limit" means the detection limit for a hazardous substance in a given environmental medium that is specified by the department on a list that it publishes not more than once a year. The department shall identify 1 or more analytical methods, when a method is available, that are judged to be capable of achieving the target detection limit for a hazardous substance in a given environmental medium. The target detection limit for a given hazardous substance is greater than or equal to the method detection limit for that hazardous substance. In establishing a target detection limit, the department shall consider the following factors: (i) The low level capabilities of methods published by
government agencies. (ii) Reported method detection limits published by state
laboratories. (iii) Reported method detection limits published by commercial
laboratories. (iv) The need to be able to measure a hazardous substance at
concentrations at or below cleanup criteria.
(uu) (ii)
"Threatened release" or
"threat of release" means
any circumstance that may reasonably be anticipated to cause a
release.
(vv) "Venting groundwater" means groundwater that is entering
a surface water of the state from a facility.
(2)
As used in this part: , the
(a) 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.
(b) The phrase "this part" includes "rules promulgated under
this part".
Sec. 20104. (1) The department shall coordinate all activities
required
under this part and shall may
promulgate rules to provide
for
the performance of response activities, to provide for the
assessment
of damages for injury to, destruction of, or loss of
natural
resources resulting from a release, and to implement the
powers
and duties of the department under this part, and as
otherwise
necessary to carry out the requirements of this part
necessary to implement this part.
(2) A guideline, bulletin, interpretive statement, or
operational memorandum under this part shall not be given the force
and effect of law. A guideline, bulletin, interpretive statement,
or operational memorandum under this part is not legally binding on
any person.
(3) (2)
Claims for natural resource damages
may be pursued
prior
to promulgation of rules but only
in accordance with
principles of scientific and economic validity and reliability.
Contingent nonuse valuation methods or similar nonuse valuation
methods shall not be utilized and damages shall not be recovered
for nonuse values unless and until rules are promulgated that
establish an appropriate means of determining such damages.
(4) (3)
A contingent nonuse valuation
method or similar nonuse
valuation method shall not be utilized for natural resource damage
calculations unless a determination is made by the department that
such a method satisfies principles of scientific and economic
validity and reliability and rules for utilizing a contingent
nonuse valuation method or a similar nonuse valuation method are
subsequently promulgated.
(5) (4)
The provisions in this section
related to natural
resource
damages as added by the 1995 amendatory act that amended
this
section PA 71 do not apply to any judicial or administrative
action or claim in bankruptcy initiated on or before March 1, 1995.
Sec. 20104a. (1) The brownfield redevelopment board is created
within
the department. of environmental quality.
(2) The board shall consist of the following members:
(a)
The director of the department of environmental quality or
his or her designee.
(b) The director of the department of technology, management,
and budget or his or her designee.
(c)
The chief executive officer of the jobs commission
Michigan economic development corporation or his or her designee.
(3) A majority of the members of the board constitute a quorum
for the transaction of business at a meeting of the board.
(4) The business which the board may perform shall be
conducted at a public meeting of the board held in compliance with
the
open meetings act, Act No. 267 of the Public Acts of 1976,
being
sections 15.261 to 15.275 of the Michigan Compiled Laws 1976
PA 267, MCL 15.261 to 15.275.
(5) A writing prepared, owned, used, in the possession of, or
retained by the board in the performance of an official function is
subject
to the freedom of information act, Act No. 442 of the
Public
Acts of 1976, being sections 15.231 to 15.246 of the
Michigan Compiled Laws 1976 PA 442, MCL 15.231 to 15.246.
(6) The board shall implement the duties and responsibilities
as provided in this part and as otherwise provided by law.
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. 1348.
(c) House Bill No. 6360(request no. H06270'10 *).
(d) House Bill No. 6363(request no. H06271'10 *).
(e) Senate Bill No. ____ or House Bill No. 6359(request no.
07378'10).