SENATE BILL NO. 605

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 20101, 20107a, 20112a, 20114, 20114b, 20114c, 20114d, 20114e, 20114g, 20126, and 20126a (MCL 324.20101, 324.20107a, 324.20112a, 324.20114, 324.20114b, 324.20114c, 324.20114d, 324.20114e, 324.20114g, 324.20126, and 324.20126a), sections 20101, 20114d, and 20114e as amended by 2018 PA 581, sections 20107a, 20114, 20114c, and 20126 as amended by 2014 PA 542, section 20112a as amended by 2010 PA 234, section 20114b as added by 2010 PA 228, section 20114g as added by 2012 PA 446, and section 20126a as amended by 2010 PA 227; and to repeal acts and parts of acts.

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; or 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 part 312. (2014).

(d) "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. A person may demonstrate that a hazardous substance is not present at a level that exceeds background concentration by any of the following methods:

(i) The hazardous substance complies with the statewide default background levels under table 2 as referenced in R 299.46 of the Michigan Administrative Code.

(ii) The hazardous substance is listed in table 2, 3, or 4 of the department's 2005 Michigan background soil survey, is present in a soil type identified in 1 or more of those tables, and meets 1 of the following:

(A) If a glacial lobe area in table 2, 3, or 4 lists an arithmetic or geometric mean for the hazardous substance that is represented by 9 or more samples, the concentration of that hazardous substance is the lesser of the following:

(I) Two standard deviations of that mean for the soil type and glacial lobe area in which the hazardous substance is located.

(II) The uppermost value in the typical range of data for the hazardous substance in table 1 of the department's 2005 Michigan background soil survey.

(B) If a glacial lobe area in table 2, 3, or 4 lists a nonparametric median for the hazardous substance that is represented by 10 or more samples, the concentration of that hazardous substance is the lesser of the following:

(I) The 97.5 quantile for the soil type and glacial lobe area in which the hazardous substance is located.

(II) The uppermost value in the typical range of data for the hazardous substance in table 1 of the department's 2005 Michigan background soil survey.

(C) The concentration of the hazardous substance meets a level established using the 2005 Michigan background soil survey in a manner that is approved by the department.

(iii) The hazardous substance is listed in any other study or survey conducted or approved by the department and is within the concentrations or falls within the typical ranges published in that study or survey.

(iv) A site-specific demonstration.

(f) "Baseline environmental assessment" means a written document that describes the results of an all appropriate inquiry and the sampling and analysis that confirm that the property is or contains a facility. For purposes of a baseline environmental assessment, the all appropriate inquiry may be conducted or updated prior to before or within 45 days after the earlier of the date of purchase, occupancy, or foreclosure.

(g) "Board" means the brownfield redevelopment board created in section 20104a.

(h) "Certificate of completion" means a written response provided by the department confirming that a response activity has been completed in accordance with the applicable requirements of this part and is approved by the department.

(i) "Cleanup criteria for unrestricted residential use" means any of the following:

(i) Cleanup criteria that satisfy the requirements for the residential category in section 20120a(1)(a).

(ii) Cleanup criteria for unrestricted residential use under part 213.

(iii) Site-specific cleanup criteria approved by the department for unrestricted residential use pursuant to under sections 20120a and 20120b.

(j) "Department" means the director or his or her the director's designee to whom the director delegates a power or duty by written instrument.

(k) "Director" means the director of the department of environmental quality.environment, Great Lakes, and energy.

(l) "Directors" means the directors or their designees of the departments of environmental quality, community health, environment, Great Lakes, and energy, health and human services, agriculture and rural development, and state police.

(m) "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.

(n) "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.

(o) "Environment" or "natural resources" means land, surface water, groundwater, subsurface strata, air, fish, wildlife, or biota within this state.

(p) "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.

(q) "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.

(r) "Exacerbation" means the occurrence of either of the following caused by a failure to carry out activities required under a due care plan described in section 20107a(1)(g) or by an activity undertaken by the person who that owns or operates the property, with respect to contamination for which the person is not liable:

(i) Migration of contamination in soil, air, or water above the targe detection limit and beyond the boundaries of the property that is the source of the release at levels above cleanup criteria for unrestricted residential use unless a criterion is not relevant because exposure is reliably restricted as otherwise provided in this part.

(ii) Migration of contamination in soil or water at levels above the cleanup criteria for unrestricted residential use or a relevant state drinking water standard, and that exceeds in any horizontal or vertical dimension of the area of contamination as delineated in the baseline environmental assessment.

(iii) (ii) A change in facility conditions that increases response activity costs.

(s) "Facility" means any area, place, parcel or parcels of property, or portion of a parcel of 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, parcel or parcels of property, or portion of a parcel of property where any of the following conditions are satisfied:

(i) Response activities have been completed under this part or the comprehensive environmental response, compensation, and liability act of 1980, 42 USC 9601 to 9675, that satisfy the cleanup criteria for unrestricted residential use.

(ii) Corrective action has been completed under the resource conservation and recovery act of 1976, 42 USC 6901 to 6992k, 6987, part 111, or 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, parcel of property, or portion of a parcel of property are met or satisfied and hazardous substances at the area, place, or property that are not addressed by site-specific criteria satisfy the cleanup criteria for unrestricted residential use.

(iv) Hazardous substances in concentrations above unrestricted residential cleanup criteria are present due only to the placement, storage, or use of beneficial use by-products or inert materials at the area, place, or property in compliance with part 115.

(v) The property has been lawfully split, subdivided, or divided from a facility and does not contain hazardous substances in excess of concentrations that satisfy the cleanup criteria for unrestricted residential use.

(vi) Natural attenuation or other natural processes have reduced concentrations of hazardous substances to levels at or below the cleanup criteria for unrestricted residential use.

(t) "Feasibility study" means a process for developing, evaluating, and selecting appropriate response activities.

(u) "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.

(v) "Foreclosure" means possession by a lender of a property on which it has foreclosed on a security interest or the expiration of a lawful redemption period, whichever occurs first.

(w) "Fund" means the cleanup and redevelopment fund established in section 20108.

(x) "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 at the time of the application or stamp sands:

(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 that term is defined in the comprehensive environmental response, compensation, and liability act of 1980, 42 USC 9601 to 9675.

(iii) Hazardous waste, as that term is defined in part 111.

(iv) Petroleum as described as a regulated substance in section 21303.

(y) "Interim response activity" means the cleanup or removal of a released hazardous substance or the taking of other actions, prior to before 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) "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.

(v) Any state or federally regulated affiliate or regulated subsidiary of any entity listed in subparagraphs (i) to (iv).

(vi) An insurance company authorized to do business in this state pursuant to in accordance with the insurance code of 1956, 1956 PA 218, MCL 500.100 to 500.8302.

(vii) A motor vehicle sales finance company subject to the motor vehicle sales finance act, 1950 (Ex Sess) PA 27, MCL 492.101 to 492.141, with net assets in excess of $50,000,000.00.

(viii) A foreign bank.

(ix) A retirement fund regulated pursuant to in accordance with state law or a pension fund regulated pursuant to in accordance with federal law with net assets in excess of $50,000,000.00.

(x) 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) 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) Any other person that loans money for the purchase of or improvement of real property.

(xiii) Any person that retains or receives a security interest to service a debt or to secure a performance obligation.

(aa) "Local health department" means that term as defined in section 1105 of the public health code, 1978 PA 368, MCL 333.1105.

(bb) "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 in accordance with state law. Local unit of government does not include this state or the federal government or a state or federal agency.

(cc) "Method detection limit" means the minimum concentration of a hazardous substance that 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) "Migrating NAPL" means that terms term as it is defined in section 21302.

(ee) "Mobile NAPL" means that term as it is defined in section 21302.

(ff) "NAPL" means that term as it is defined in section 21303.

(gg) "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.

(hh) "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.

(ii) "Nonresidential" means that category of land use for parcels of property or portions of parcels of property that is not residential. This category of land use may include, but is not limited to, any of the following:

(i) Industrial, commercial, retail, office, and service uses.

(ii) Recreational properties that are not contiguous to residential property.

(iii) Hotels, hospitals, and campgrounds.

(iv) Natural areas such as woodlands, brushlands, grasslands, and wetlands.

(jj) "Operator" means a person who is in control of that controls or controlled or is or was responsible for the operation of a facility. Operator does not include either of the following:

(i) A person who that holds or held indicia of ownership primarily to protect the person's security interest in the facility, unless that person participates or participated in the management of the facility as described in section 20101a.

(ii) A person who is acting that acts or acted as a fiduciary in compliance with section 20101b.

(kk) "Owner" means a person who that owns or owned a facility. Owner does not include either of the following:

(i) A person who that holds or held 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 or participated in the management of the facility as described in section 20101a.

(ii) A person who is acting that acts or acted as a fiduciary in compliance with section 20101b.

(ll) "Panel" means the response activity review panel established under section 20114e.

(mm) "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 that term is defined in the comprehensive environmental response, compensation, and liability act of 1980, 42 USC 9601 to 9675.

(nn) "Postclosure agreement" means an agreement between the department and a person who that has submitted a no further action report that prescribes, as appropriate, activities required to be undertaken upon on completion of remedial actions as provided for in section 20114d.

(oo) "Postclosure plan" means a plan for land use or resource use restrictions or permanent markers at a facility upon on completion of remedial actions as provided for in section 20114c.

(pp) "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, 42 USC 2011 to 2286i, Public Law 83-703, if the release is subject to requirements with respect to financial protection established by the nuclear regulatory commission Nuclear Regulatory Commission under 42 USC 2210, or any release of source by-product or special nuclear material from any processing site designated under 42 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 at the time of the application, 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

(A) "Fertilizer" means that term as defined in section 8501.

(B) "Pesticide" means that term as defined in section 8305.

(C) "Soil conditioner" have the meaning given to these terms in part 85, and pesticide has the meaning given to means that term as defined in part 83.section 8501a.

(v) Application of fruits, vegetables, field crop processing by-products, or aquatic plants 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 at the time of the application.

(vi) The relocation of soil under section 20120c.

(vii) The placement, storage, or use of beneficial use by-products or inert materials at the site of storage or use if in compliance with part 115.

(qq) "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.

(rr) "Remedial action plan" means a work plan for performing remedial action under this part.

(ss) "Residential" means that category of land use for parcels of property or portions of parcels of property where people live and sleep for significant periods of time such that the frequency of exposure is reasonably expected or foreseeable to meet the exposure assumptions used by the department to develop generic residential cleanup criteria as set forth in rules promulgated under this part. This category of land use may include, but is not limited to, homes and surrounding yards, condominiums, and apartments.

(tt) "Residential closure" means a property 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.

(uu) "Residual NAPL saturation" means that term as it is defined in part 213.section 21303.

(vv) "Response activity" means evaluation, interim response activity, remedial action, demolition, providing an alternative water supply, 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 community health and human services and enforcement actions related to any response activity.

(ww) "Response activity costs" or "costs of response activity" means all costs incurred in taking or conducting a response activity, including enforcement costs.

(xx) "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.

(yy) "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 in accordance with 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.

(zz) "Source" means any storage, handling, distribution, or processing equipment from which the release originates and first enters the environment.

(aaa) "Stamp sands" means finely grained crushed rock resulting from mining, milling, or smelting of copper ore and includes native substances contained within the crushed rock and any ancillary material associated with the crushed rock.

(bbb) "State drinking water standards" means that term as defined in section 2 of the safe drinking water act, 1976 PA 399, MCL 325.1002.

(ccc) (bbb) "Target detection limit" means the detection limit for a hazardous substance in a given environmental medium that is specified in a rule promulgated by the department on a list that is published not more than once per 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.

(ddd) "Technically feasible" means reasonably achievable using currently available remediation methods.

(eee) (ccc) "Threatened release" or "threat of release" means any circumstance that may reasonably be anticipated to cause a release.

(fff) (ddd) "Venting groundwater" means groundwater that is entering a surface water of this state from a facility.

(2) As used in this part:

(a) The phrase "a person who is liable" includes a person who that 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. 20107a. (1) A person who that owns or operates property that he or she the person 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.

(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 is interpreted to provide any right of access not expressly authorized by law, including access authorized pursuant to in accordance with a warrant or a court order, or to preclude access allowed pursuant to in accordance with 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.

(g) Conduct a baseline environmental assessment and comply with the time frames specified under this part. The baseline environmental assessment must include a due care plan submitted on a form and in a manner provided by the department. Within 90 business days after receipt of a due care plan that contains sufficient information for the department to make a decision, the department shall approve, approve with conditions, or deny the due care plan. If the department denies the due care plan, the department shall provide to the person the reasons why the due care plan was not approved. A person that disagrees with the department's decision under this subdivision may submit a petition for review to the response activity review panel in accordance with section 20114e. A due care plan submitted under this subdivision must include, but is not limited to, both of the following:

(i) A nonexhaustive list of specific actions that the person that owns or operates the property will take to fulfill the person's obligations under this part.

(ii) A description of how the person that owns or operates the property will monitor the property for a release or threat of release and a timeline for submitting a report to the department regarding the monitoring conducted in accordance with this subparagraph. A report under this subparagraph must be submitted at least once every 5 years or at an interval determined by the department.

(2) The owner's or operator's obligations under this section shall be based upon the current numeric cleanup criteria under section 20120a(1) or site-specific criteria approved under section 20120b.

(3) A person who that violates subsection (1) who that 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 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 is borne by the party seeking relief.

(4) Compliance with this section does not satisfy a person's obligation to perform response activities as otherwise required under this part.

(5) Subsection (1)(a) to (c) does not apply to the this state or to a local unit of government that is not liable under section 20126(1)(c) or (3)(a), (b), (c), or (e) or to the this state or a local unit of government that acquired property by purchase, gift, transfer, or condemnation prior to before June 5, 1995 or to a person who that 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 this state or local unit of government has knowledge is a facility, offers access to that parcel on a regular or continuous basis pursuant to in accordance with an express public purpose and invites the general public to use that property for the express public purpose, the this 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) Subsection (1)(a) to (c) does not apply to a person who that is exempt from liability under section 20126(3)(c) or (d) except with regard to that person's activities at the facility.

Sec. 20112a. (1) Subject to subsection (3), the department shall create, and update on an ongoing basis, an inventory of residential closures and a separate inventory of other known facilities. Each inventory shall must contain, if applicable, at least the following information for each facility:

(a) Location.

(b) Whether 1 or more response activity plans were submitted under section 20114b and the status of department approval.

(c) Whether a notice of land use or resource use restrictions under section 20114c was submitted to the department.

(d) Whether a no further action report under section 20114d was submitted to the department and whether the report included a postclosure plan or proposed postclosure agreement and the status of department approval.

(2) The department may categorize facilities on the inventory created under subsection (1) in a manner that the department believes is useful for the general public.

(3) The department shall create and update on an ongoing basis a separate inventory of residential closures.

(4) The department shall post the inventories created under subsections (1) and (2) the following on the department's website: .

(a) The inventories created under subsections (1) and (2).

(b) All of the following received by the department:

(i) Response activity plans.

(ii) Remedial action plans.

(iii) Postclosure plans.

(iv) No further action reports.

(v) Requests for certificate of completion or documentation of due care compliance.

(vi) Initial assessment reports.

(vii) Final assessment reports.

(viii) Closure reports.

(ix) Documentation of due care compliance under part 213.

(x) Baseline environmental assessments.

(5) The department shall compile the following data on a quarterly basis and post the data in a searchable format on its website:

(a) The number of response activity plans received by the department and itemized as follows:

(i) Approved by the department.

(ii) Disapproved by the department.

(iii) Recommended for approval by the panel.

(iv) Recommended for disapproval by the panel.

(v) Approved by operation of law under section 20114b.

(b) The number of no further action reports received by the department and itemized as follows:

(i) Approved by the department.

(ii) Disapproved by the department.

(iii) Recommended for approval by the panel.

(iv) Recommended for disapproval by the panel.

(v) Approved by operation of law.

(c) The number of baseline environmental assessments received by the department .and a list of all of the following information for each site of a baseline environmental assessment:

(i) Whether the site is an orphaned site.

(ii) The size of the site.

(iii) Type of contaminant present at the site and the potential for human exposure.

(iv) The closure status of the site.

(6) The department shall annually determine the percentage of no further action reports approved by operation of law under section 20114d. If the percentage in any year is in excess of 10%, the department shall notify the standing committees of the senate and the house of representatives with jurisdiction over issues related to natural resources and the environment of this occurrence.

(7) The department shall provide and make available on its website guidance documents that detail reasonable time frames for remedial actions based on the following characteristics:

(a) Type and amount of contamination.

(b) Likelihood of human exposure.

(c) Likelihood of migration of contaminants beyond the boundaries of the property that is the source of a release.

(d) Available remediation methods.

(e) Any other characteristics determined necessary by the department.

Sec. 20114. (1) Except as provided in subsection (4), (3), an owner or operator of property who that has knowledge that the property is a facility shall do all of the following with respect to a release for which the owner or operator is liable under section 20126:

(a) Subject to subsection (6), (5), determine the nature and extent of the release at the facility.

(b) Make the following notifications:

(i) If the release is of a reportable quantity of a hazardous substance under 40 CFR 302.4 and 302.6, (July 1, 2012 edition), report the release to the department within 24 hours after obtaining knowledge of the release.

(ii) If the owner or operator has reason to believe that 1 or more hazardous substances are emanating from or have emanated from and are present beyond the boundary of his or her the owner's or operator's property at a concentration in excess of cleanup criteria for unrestricted residential use or a state drinking water standard, notify the department and the owners of property where the hazardous substances are present within 30 days after obtaining knowledge that the release has migrated.

(iii) If the release is a result of an activity that is subject to permitting under part 615 and the owner or operator is not the owner of the surface property and the release results in hazardous substance concentrations in excess of cleanup criteria for unrestricted residential use, notify the department and the surface owner within 30 days after obtaining knowledge of the release.

(c) Immediately stop or prevent an ongoing release at the source.

(d) Immediately implement measures to address, remove, or contain hazardous substances that are released after June 5, 1995 if those measures are technically practical , are cost effective, and abate an unacceptable risk to the public health, safety, or welfare or the environment. At a facility where hazardous substances are released after June 5, 1995, and those hazardous substances have not affected groundwater but are likely to, groundwater contamination shall must be prevented if it can be prevented by measures that are technically practical , cost effective, and abate an unacceptable risk to the public health, safety, or welfare or the environment.

(e) Immediately identify and eliminate any threat of fire or explosion or any direct contact hazards.

(f) Initiate a remedial action that is necessary and feasible to address unacceptable risks associated with residual NAPL saturation, migrating NAPL, and mobile NAPL using best practices for managing NAPL, including, but not limited to, best practices developed by the American society Society for testing Testing and materials Materials or the interstate technology Interstate Technology and regulatory council.Regulatory Council.

(g) Diligently pursue response activities necessary to prevent the horizontal and vertical expansion of contamination in soil and water and to achieve the cleanup criteria established under this part. Except as otherwise provided in this part, in pursuing response activities under this subdivision, the owner or operator may do either of the following:

(i) Proceed under section 20114a to conduct self-implemented response activities.

(ii) Proceed shall proceed under section 20114b if the owner or operator wishes to, or is required to, obtain departmental approval of 1 or more aspects of planning response activities.

(h) Upon written request by the department, take 1 or more of the following actions:

(i) Provide a response activity plan containing a plan for undertaking interim response activities and undertake interim response activities consistent with that plan.

(ii) Provide a response activity plan containing a plan for undertaking evaluation activities and undertake evaluation activities consistent with that plan.

(iii) Pursue remedial actions under section 20114a and, upon completion, submit a no further action report under section 20114d.

(iii) (iv) Take any other response activity determined by the department to be technically sound and necessary to protect the public health, safety, welfare, or the environment.

(iv) (v) Submit to the department for approval a response activity plan containing a remedial action plan that, when implemented, will achieve the cleanup criteria established under this part.

(v) (vi) Implement an approved response activity plan in accordance with a schedule approved by the department pursuant to under this part.

(vi) (vii) Submit a no further action report under section 20114d after completion of remedial action.

(i) Provide a report on the progress of response activities conducted under this part at least once every 5 years until a no further action report is submitted under section 20114d, or at an interval determined by the department.

(2) Subsection (1) does not preclude a person from simultaneously undertaking 1 or more aspects of planning or implementing response activities at a facility under section 20114a without the prior approval of the department, unless 1 or more response activities are being conducted pursuant to an administrative order or agreement or judicial decree that requires prior department approval, and submitting a response activity plan to the department under section 20114b.

(2) (3) Except as provided in subsection (4), (3), a person who that holds an easement interest in a portion of a property who that has knowledge that there may be a release within that easement shall report the release to the department within 24 hours after obtaining knowledge of the release. This subsection applies to reportable quantities of hazardous substances established pursuant to in accordance with 40 CFR 302.4 and 302.6. (July 1, 2012 edition).

(3) (4) The requirements of subsections (1) and (3) (2) do not apply to a permitted release or a release in compliance with applicable federal, state, and local air pollution control laws.

(4) (5) This section does not do either of the following:

(a) Limit the authority of the department to take or conduct response activities pursuant to in accordance with this part.

(b) Limit the liability of a person who is liable under section 20126.

(5) (6) If a hazardous substance is released at a property and there is no available analytical method or generic cleanup criteria for that hazardous substance, the nature and extent of the hazardous substance may be determined by any of the following means, singly or in combination:

(a) If another hazardous substance with an available analytical method was released at the same location and has similar fate and mobility characteristics, determine the nature and extent of that hazardous substance as a surrogate.

(b) For venting groundwater, use a an ecological demonstration or modeling demonstration, an ecological demonstration, or a combination of both, consistent with section 20120e(9) and (10), 20120e(6) and (7), to determine whether the hazardous substance has reached surface water.

(c) Develop and propose to the department an analytical method for approval by the department.

(d) In lieu of determining the nature and extent of the hazardous substance release, eliminate the potential for exposure in areas where remove the hazardous substance is expected to be located through removal, containment, exposure barriers, or land use or resource use restrictions.to below detectable levels.

(6) (7) As used in this section, "available analytical method" means a method that is approved and published by a governmental agency, is conducted routinely by commercial laboratories in the United States, and identifies and quantitatively measures the specific hazardous substance or class of substances.

Sec. 20114b. (1) Subject to section 20114(1)(h), a person undertaking response activity under this part may shall submit to the department a response activity plan that includes a request for department approval of 1 or more aspects of response activity.

(2) A person who that submits a response activity plan under this section and who is not subject to an administrative order or agreement or judicial decree that requires prior department approval of response activity shall submit a response activity plan review request form with the response activity plan. The department shall specify the required content of the response activity request form and make the form available on the department's website.

(3) Upon On receipt of a response activity plan submitted for approval under this subsection, the department shall approve, approve with conditions, or deny the response activity plan, or shall notify the submitter that the plan does not contain sufficient information for the department to make a decision. The department shall provide its determination within 150 days after the plan was received by the department unless the plan requires public participation under section 20120d(2). If the plan requires public participation under section 20120d(2), the department shall respond within 180 days. If the department's response is that the plan does not include sufficient information, the department shall identify the information that is required for the department to make a decision. If a plan is approved with conditions, the department's approval shall must state with specificity the conditions of the approval. The conditions may include, but are not limited to, requiring a timeline for completion of certain response activities, requiring intermediary benchmarks, and requiring submission of progress reports at regular intervals. If the plan is denied, the department's denial shall, must, to the extent practical, state with specificity all of the reasons for denial.

(4) If the department fails to provide a written response within the time frames required by subsection (3), the response activity plan is considered approved. If the department denies a response activity plan under subsection (3), a person may subsequently revise and resubmit the response activity plan for approval.

(5) The department may require that a person undertaking response activity under this part submit a new response activity plan under this section if any of the following occur:

(a) There is new information about the type and extent of contamination.

(b) There is evidence of either of the following:

(i) Migration of hazardous substances.

(ii) That the person undertaking response activities substantially misrepresented response activities or the type or extent of contamination or failed to comply with conditions set forth in the response activity plan.

(iii) There is new scientific information released regarding the contaminants present at the facility.

(6) (5) Any time frame required by this section may be extended by mutual agreement of the department and a person submitting a response activity plan. An agreement extending a time frame shall must be in writing.

(7) (6) A person requesting approval of a response activity plan may appeal the department's decision in accordance with section 20114e, if applicable.

Sec. 20114c. (1) If remedial actions at a facility satisfy cleanup criteria for unrestricted residential use and any affected groundwater is restored to meet state drinking water standards, land use or resource use restrictions or monitoring is not required.

(2) Upon On completion of remedial actions at a facility for a category of cleanup that does not satisfy cleanup criteria for unrestricted residential use or that does not meet state drinking water standards, the person conducting the remedial actions shall prepare and implement a postclosure plan for that facility. A postclosure plan shall must include both all of the following:

(a) Land use or resource use restrictions as provided in section 20121.

(b) Permanent markers to describe restricted areas of the facility and the nature of any restrictions. A permanent marker is not required under this subdivision if the only applicable land use or resource use restrictions relate to 1 or more of the following:

(i) A facility at which remedial action satisfies the cleanup criteria for the nonresidential category under section 20120a(1)(b).

(ii) Use of groundwater.

(iii) Protection of the integrity of exposure controls that prevent contact with soil, and those controls are composed solely of asphalt, concrete, or landscaping materials. This subparagraph does not apply if the hazardous substances that are addressed by the barrier exceed a cleanup criterion based on acute toxic effects, reactivity, corrosivity, ignitability, explosivity, or flammability.

(iv) Construction requirements or limitations for structures that may be built in the future.

(c) A timeline for submitting an annual report to the department that contains the following information:

(i) Measures taken to ensure that the land and resource use restrictions are effective in limiting human exposure to contaminants.

(ii) Any known failures of the land or resource use restrictions in preventing access or exposure to the restricted land or resource.

(d) A description of continuous monitoring sufficient to detect any vertical or horizontal migration or expansion of contamination in soil or groundwater, and reporting on migration or expansion of contaminants.

(3) At any time within 10 years after a postclosure plan is submitted under subsection (2), the department may require changes or updates to the postclosure plan based on monitoring and reporting conducted in accordance with subsection (2)(c) and (d).

(4) (3) A person who that implements a postclosure plan shall provide notice of the land use or resource use restrictions to the department and to the zoning authority for the local unit of government in which the facility is located within 30 days after recording the land use or resource use restrictions with the register of deeds.

(5) (4) Implementation of remedial actions does not relieve a person who is liable under section 20126 of that person's responsibility to report and provide for response activity to address a subsequent release or threat of release.

(6) (5) Implementation by any person of remedial actions without department approval does not relieve that person of an obligation to undertake response activities or limit the ability of the department to take action to require response activities necessary to comply with this part by a person who is liable under section 20126.

Sec. 20114d. (1) On completion of remedial actions that satisfy the requirements of this part, a person may submit a no further action report to the department. A person may submit a no further action report under this subsection for remedial actions addressing contamination for which the person is or is not liable. Remedial actions included in a no further action report may address all or a portion of contamination at a facility as follows:

(a) The remedial actions may address 1 or more releases at a facility.

(b) The remedial actions may address 1 or more hazardous substances at a facility.

(c) The remedial actions may address contamination in 1 or more environmental media at a facility.

(d) The remedial actions may address contamination within the entire facility or only a portion of a facility.

(e) The remedial actions may address contamination at a facility through any combination of subdivisions (a) through to (d).

(2) A no further action report submitted under subsection (1) must document the basis for concluding that the remedial actions included in the no further action report are protective of the public health, safety, and welfare, and the environment with respect to the environmental contamination addressed by the remedial actions. have been completed. A no further action report may include a request that, upon on approval, the release or conditions addressed by the no further action report be designated as a residential closure. A no further action report shall must be submitted with a form developed by the department. The department shall make this form available on its website.

(3) A no further action report submitted under subsection (1) shall must be submitted with the following, as applicable:

(a) If the remedial action at the facility satisfies the cleanup criteria for unrestricted residential use for the hazardous substances or meets state drinking water standards and portion of the facility addressed in the no further action report, neither a postclosure plan or a proposed postclosure agreement is required to be submitted.

(b) If the remedial action requires only land use or resource use restrictions and financial assurance is not required or the financial assurance is de minimis, a postclosure plan is required but a proposed postclosure agreement is not required to be submitted.

(c) For circumstances other than those described in subdivision (a) or (b), a postclosure plan and a proposed postclosure agreement are required to be submitted.

(4) A proposed postclosure agreement that is submitted as part of a no further action report must include all of the following:

(a) Provisions for monitoring, operation and maintenance, and oversight necessary to assure the effectiveness and integrity of the remedial action.

(b) Financial assurance in the form of a bond, insurance policy, or irrevocable letter of credit to pay for monitoring, operation and maintenance, oversight, and other costs determined by the department to be necessary to assure the effectiveness and integrity of the remedial action.

(c) A provision requiring notice to the department of the owner's intent to convey any interest in the facility 14 days prior to before consummating the conveyance. A conveyance of title, an easement, or other interest in the property shall must not be consummated by the property owner without adequate and complete provision for compliance with the terms and conditions of the postclosure plan and the postclosure agreement.

(d) A provision granting the department the right to enter the property at reasonable times for the purpose of determining and monitoring compliance with the postclosure plan and postclosure agreement, including the right to take samples, inspect the operation of the remedial action measures, and inspect records.

(5) A postclosure agreement may waive the requirement for permanent markers.

(6) The person submitting that submits a no further action report shall include a signed affidavit attesting to the fact that the information upon on which the no further action report is based is complete and true to the best of that person's knowledge. The no further action report must also include a signed affidavit from an environmental consultant who meets the professional qualifications described in section 20114e(2) and who prepared the no further action report, attesting to the fact that the remedial actions detailed in the no further action report comply with all applicable requirements and that the information upon on which the no further action report is based is complete and true to the best of that person's the environmental consultant's knowledge. In addition, the environmental consultant shall attach a certificate of insurance demonstrating that the environmental consultant has obtained at least all of the following from a carrier that is authorized to conduct business in this state:

(a) Statutory worker compensation insurance as required in this state.

(b) Professional liability errors and omissions insurance. This policy must not exclude bodily injury, property damage, or claims arising out of pollution for environmental work and must be issued with a limit of not less than $1,000,000.00 per claim.

(c) Contractor pollution liability insurance with limits of not less than $1,000,000.00 per claim, if not included under the professional liability errors and omissions insurance required under subdivision (b). The insurance requirement under this subdivision is not required for environmental consultants who do not perform contracting functions.

(d) Commercial general liability insurance with limits of not less than $1,000,000.00 per claim and $2,000,000.00 aggregate.

(e) Automobile liability insurance with limits of not less than $1,000,000.00 per claim.

(7) A person submitting that submits a no further action report shall maintain all documents and data prepared, acquired, or relied upon on in connection with the no further action report for not less than 10 years after the later of the date on which the department approves the no further action report under this section, or the date on which no further monitoring, operation, or maintenance is required to be undertaken as part of the remedial action covered by the report. All documents and data required to be maintained under this section shall must be made available to the department upon on request.

(8) Upon On receipt of a no further action report submitted under this subsection, the department shall approve or deny the no further action report or shall notify the submitter that the report does not contain sufficient information for the department to make a decision. If the no further action report requires a postclosure agreement, the department may negotiate alternative terms than those included within the proposed postclosure agreement. The department shall provide its determination within 150 days after the report was received by the department under this subsection unless the report requires public participation under section 20120d(2). If the report requires public participation under section 20120d(2), the department shall respond within 180 days. If the department's response is that the report does not include sufficient information, the department shall identify the information that is required for the department to make a decision. If the report is denied, the department's denial must, to the extent practical, state with specificity all of the reasons for denial. If the no further action report, including any required postclosure plan and postclosure agreement, is approved, the department shall provide the person submitting that submits the no further action report with a no further action letter. The department shall review and provide a written response within the time frames required by this subsection for at least 90% of the no further action reports submitted to the department under this section in each calendar year.

(9) If the department fails to provide a written response within the time frames required by subsection (8), the no further action report is considered approved.

(10) A person requesting that requests approval of a no further action report under subsection (8) may appeal the department's decision in accordance with section 20114e.

(11) Any time frame required by this section may be extended by mutual agreement of the department and a person submitting that submits a no further action report. An agreement extending a time frame must be in writing.

(12) Following approval of a no further action report under this section, the owner or operator of the facility addressed by the no further action report may submit to the department an amended no further action report. The amended no further action report must include the proposed changes to the original no further action report and an accompanying rationale for the proposed change. The process for review and approval of an amended no further action report is the same as the process for no further action reports.

Sec. 20114e. (1) The director shall establish a response activity review panel to advise him or her the director on technical or scientific disputes, including disputes regarding assessment of risk, response activity plans, no further action reports, certificates of completion, and documentation of due care compliance under this part, and initial assessment reports, final assessment reports, closure reports, and documentation of due care compliance under part 213.

(2) The panel must consist of 15 individuals, appointed by the director. Each member of the panel must meet all of the following minimum requirements:

(a) Meet 1 or more of the following:

(i) Hold a current professional engineer's or professional geologist's license or registration from a state, tribe, or United States territory, or the Commonwealth of Puerto Rico, and have the equivalent of 6 years of full-time relevant experience.

(ii) Have a baccalaureate degree from an accredited institution of higher education in a discipline of engineering or science and the equivalent of 10 years of full-time relevant experience.

(iii) Have a master's degree from an accredited institution of higher education in a discipline of engineering or science and the equivalent of 8 years of full-time relevant experience.

(b) Remain current in his or her the individual's field through participation in continuing education or other activities.

(3) An individual is not eligible to be a member of the panel if any of the following is true:

(a) The individual is a current employee of any office, department, or agency of this state.

(b) The individual is a party to 1 or more contracts with the department and the compensation paid under those contracts represented more than 5% of the individual's annual gross revenue in any of the preceding 3 years.

(c) The individual is employed by an entity that is a party to 1 or more contracts with the department and the compensation paid to the individual's employer under these contracts represented more than 5% of the employer's annual gross revenue in any of the preceding 3 years.

(d) The individual was employed by the department within the preceding 3 years.

(4) An individual appointed to the panel serves for a term of 3 years and may be reappointed for 1 additional 3-year term. After serving 2 consecutive terms, the individual shall not be a member of the panel for a period of at least 2 years before being eligible to be appointed to the panel again. The terms for members first appointed must be staggered so that not more than 5 vacancies are scheduled to occur in a single year. Individuals appointed to the panel serve without compensation. However, members of the panel may be reimbursed for their actual and necessary expenses incurred in the performance of their official duties as members of the panel.

(5) A vacancy on the panel shall must be filled in the same manner as the original appointment.

(6) The business that the panel may perform shall must be conducted at a public meeting of the panel held in compliance with the open meetings act, 1976 PA 267, MCL 15.261 to 15.275.

(7) A person who that submitted a response activity plan, ; remedial action plan; postclosure plan; a no further action report, ; a or request for certificate of completion or documentation of due care compliance under this part, ; or an initial assessment report, final assessment report, closure report, or documentation of due care compliance under part 213, may appeal a decision made by the department regarding a technical or scientific dispute, including a dispute regarding an assessment of risk, response activity plan, no further action report, request for certificate of completion, initial assessment report, final assessment report, closure report, or documentation of due care compliance, by submitting a petition to the director. However, an issue that was addressed as part of the final decision of the director under section 21332 or that is the subject of a contested case hearing under section 21332 is not eligible for review by the panel. The petition must include the issues in dispute, the relevant facts upon on which the dispute is based, factual data, analysis, opinion, and supporting documentation for the petitioner's position. The petitioner shall also submit a fee of $3,500.00. If the director believes that the dispute may be able to be resolved without convening the panel, the director may contact the petitioner regarding the issues in dispute and may negotiate a resolution of the dispute. This negotiation period must not exceed 45 days. If the dispute is resolved without convening the panel, any fee that is submitted with the petition shall must be returned.

(8) If a dispute is not resolved pursuant to under subsection (7), the director shall schedule a meeting of 5 members of the panel, selected on the basis of their relevant expertise, within 45 days after receiving the original petition. If the dispute involves an underground storage tank system, at least 3 of the members selected must have relevant experience in the American Society for Testing and Materials risk-based corrective action processes described in part 213. A member selected for the dispute resolution process shall agree not to accept employment by the person bringing the dispute before the panel, or to undertake any employment concerning the facility in question for a period of 1 year after the decision has been rendered on the matter if that employment would represent more than 5% of the member's gross revenue in any of the preceding 3 years. The director shall provide a copy of all supporting documentation to members of the panel who will hear the dispute. An alternative member may be selected by the director to replace a member who is unable to participate in the dispute resolution process. Any action by the members selected to hear the dispute requires a majority of the votes cast. The members selected for the dispute resolution process shall elect a chairperson of the dispute resolution process. At a meeting scheduled to hear the dispute, representatives of the petitioner and the department must each be afforded an opportunity to present their positions to the panel. The fee that is received by the director along with the petition shall must be forwarded to the state treasurer for deposit into the fund.

(9) Within 45 days after hearing the dispute, the members of the panel who were selected for and participated in the dispute resolution process shall make a recommendation regarding the petition and provide written notice of the recommendation to the director of the department and the petitioner. The written recommendation must include the specific scientific or technical rationale for the recommendation. The panel's recommendation regarding the petition may be to adopt, modify, or reverse, in whole or in part, the department's decision that is the subject of the petition. If the panel does not make its recommendation within this 45-day time period, the decision of the department is the final decision of the director.

(10) Within 60 days after receiving written notice of the panel's recommendation, the director shall issue a final decision, in writing, regarding the petition. However, this time period may be extended by written agreement between the director and the petitioner. If the director agrees with the recommendation of the panel, the department shall incorporate the recommendation into its response to the response activity plan, no further action report, request for certificate of completion, initial assessment report, final assessment report, closure report, or documentation of due care compliance. If the director rejects the recommendation of the panel, the director shall issue a written decision to the petitioner with a specific rationale for rejecting the recommendation of the panel. If the director fails to issue a final decision within the time period provided for in this subsection, the recommendation of the panel shall must be considered the final decision of the director. The final decision of the director under this subsection is subject to review pursuant to in accordance with section 631 of the revised judicature act of 1961, 1961 PA 236, MCL 600.631.

(11) Upon On request of the director, the panel shall make a recommendation to the department on whether a member should be removed from the panel for noncompliance with this part. Prior to Before making this recommendation, the panel may convene a peer review panel to evaluate the conduct of the member.

(12) A member of the panel shall not participate in the dispute resolution process for any appeal in which that member has a conflict of interest. The director shall select a member of the panel to replace a member who has a conflict of interest under this subsection. For purposes of this subsection, a member has a conflict of interest if a petitioner has hired that member or the member's employer on any environmental matter within the preceding 3 years.

(13) As used in this section, :

(a) "Dispute" means any disagreement over a technical, scientific, or administrative issue, including, but not limited to, disagreements over assessment of risk, response activity plans, remedial action plans, no further action reports, certificates of completion, documentation of due care compliance under this part, determinations of whether a person has submitted sufficient information for the department to make a decision regarding a submittal under this part or part 213, and initial assessment reports, final assessment reports, closure reports, postclosure plans, and documentations of due care compliance under part 213.

(b) "Relevant "relevant experience" means active participation in the preparation, design, implementation, and assessment of remedial investigations, feasibility studies, interim response activities, and remedial actions under this part or experience in the American society Society for testing Testing and materials Materials risk-based corrective action processes described in part 213. This experience must demonstrate the exercise of sound professional judgment and knowledge of the requirements of this part or part 213, or both.

Sec. 20114g. (1) A person may shall submit to the department documentation of due care compliance regarding a facility. The documentation of due care compliance shall must be submitted on a form provided by the department and shall contain documentation of compliance with section 20107a , and any other information required by the department.

(2) Within 45 business days after receipt of the documentation of due care compliance under subsection (1) containing sufficient information for the department to make a decision, the department shall approve, approve with conditions, or deny the documentation of due care compliance. If the department does not approve the documentation of due care compliance, the department shall provide the person that submitted the documentation the reasons why the documentation of due care compliance was not approved.

(3) A person that disagrees with a decision of the department under this section may submit a petition for review of scientific or technical disputes to the response activity review panel pursuant to in accordance with section 20114e.

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 that becomes an owner or operator on or after June 5, 1995, unless the owner or operator complies with either of the following:

(i) A baseline environmental assessment that meets the requirements under section 20107a(1)(g) is conducted prior to before or within 45 days after the earlier of the date of purchase, occupancy, or foreclosure, and the owner or operator provides the 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. For purposes of this section, assessing property to conduct a baseline environmental assessment does not constitute occupancy.

(ii) The owner or operator requests and receives from the department a determination that its failure to comply with the time frames in subparagraph (i) when conducting and submitting a baseline environmental assessment was inconsequential.

(d) A person who that 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, that, 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, that has demonstrated demonstrates reuse or recycling potential and has been is 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 that may otherwise be produced from a raw or virgin material.

(ii) A person who, prior to that, before 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 before December 17, 1999. As used in this subparagraph, "secondary material" means scrap metal, paper, plastic, glass, textiles, or rubber, that has demonstrated demonstrates reuse or recycling potential and has been is 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 that may otherwise be produced from a raw or virgin material.

(iii) A person who that arranges the lawful transport or disposal of any product or container that is commonly used in a residential household, is in a quantity commonly used in a residential household, and was used in the person's residential household.

(iv) A person who that 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 that 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).

(g) A person that fails to submit documentation of due care compliance under section 20114g.

(2) Subject to section 20107a, an owner or operator who that complies with subsection (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 This state or a local unit of government that acquired ownership or control of a facility involuntarily through bankruptcy, tax delinquency, abandonment, 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 this state or by another local unit of government that is not liable under subsection (1); or the this state or a local unit of government that acquired ownership or control of a facility by seizure, receivership, or forfeiture pursuant to in accordance with 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 in accordance with 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 that 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 that owns severed subsurface mineral rights or severed subsurface formations or who leases subsurface mineral rights or formations.

(e) The This state or a local unit of government that leases property to a person if the this state or the local unit of government is not liable under this part for environmental contamination at the property.

(f) A person who that owns or occupies residential real property if hazardous substance use at the property is consistent with residential use.

(g) A person who that 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 that 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 subdivision shall must 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 subdivision does not apply to property owned by the utility.

(j) A lessee who that 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 that holds a license, easement, or lease, or who that 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 , and renewable energy , and efficient energy waste reduction act, 2008 PA 295, MCL 460.1013.

(l) A person who that 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 property at or from which there is a release or threat of release and the release or threat of release is subject to corrective action under part 111 or is being addressed as part of a corrective action under part 111. A corrective action under part 111 may be implemented using processes and cleanup criteria, as appropriate, under this part. However, a release or threat of release that is subject to or that has been or is being addressed through part 111 corrective action shall must not also be subject to remediation and department oversight under this part.

(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 that 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. 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 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 that 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 this state or a local unit of government or a lender who that 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 before 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 before 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 that was in compliance with subsection (1)(c)(i) and (ii) prior to before December 14, 2010 is considered to be in compliance with subsection (1)(c)(i) and (ii).

Sec. 20126a. (1) Except as provided in section 20126(2), a person who is liable under section 20126 is jointly and severally liable for all of the following:

(a) All costs of response activity lawfully incurred by the this state relating to the selection and implementation of response activity under this part.

(b) Any other costs of response activity reasonably incurred under the circumstances by any other person.

(c) Damages for the full value of injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing the injury, destruction, or loss resulting from the release.

(2) The costs of response activity recoverable under subsection (1) shall must also include all costs of response activity reasonably incurred by the this state prior to before the promulgation of rules relating to the selection and implementation of response activity under this part or before the cleanup criteria are developed or revised under section 20120a, excepting those cases where cost recovery actions have been filed before July 12, 1990. A person challenging that challenges the recovery of costs under this subdivision has the burden of establishing that the costs were not reasonably incurred under the circumstances that existed at the time the costs were incurred.

(3) The amounts recoverable in an action under this section shall include interest. This interest shall accrue accrues from the date payment is demanded in writing, or the date of the expenditure or damage, whichever is later. The rate of interest on the outstanding unpaid balance of the amounts recoverable under this section shall must be the same rate as is specified in section 6013(8) of the revised judicature act of 1961, 1961 PA 236, MCL 600.6013.

(4) In the case of injury to, destruction of, or loss of natural resources under subsection (1)(c), liability shall must be to the this state for natural resources belonging to, managed by, controlled by, appertaining to, or held in trust by the this state or a local unit of government. Sums recovered by the this state under this part for natural resource damages shall must be retained by the department, for use only to restore, repair, replace, or acquire the equivalent of the natural resources injured or acquire substitute or alternative resources. There shall be is no double recovery under this part for natural resource damages, including the costs of damage assessment or restoration, rehabilitation, replacement, or acquisition, for the same release and natural resource.

(5) A person shall not be required under this part to undertake response activity for a permitted release. Recovery by any person for response activity costs or damages resulting from a permitted release shall must be pursuant to in accordance with other applicable law, laws, in lieu of this part. With respect to a permitted release, this subsection does not affect or modify the obligations or liability of any person under any other state law, including common law, for damages, injury, or loss resulting from a release of a hazardous substance or for response activity or the costs of response activity.

(6) If the department determines that there may be an imminent and substantial endangerment to the public health, safety, or welfare, or to the environment because of an actual or threatened release from a facility, the attorney general may bring an action against any person who is liable under section 20126 or any other appropriate person to secure the relief that may be necessary to abate the danger or threat. The court has jurisdiction to grant such relief as the public interest and the equities of the case may require.

(7) The costs recoverable under this section may be recovered in an action brought by the this state or any other person.

(8) A person that does not comply with a reporting requirement specified under this part or a request by the department for documentation is subject to a civil fine as follows:

(a) For a first offense, a civil fine of not more than $500.00.

(b) For a second offense, a civil fine of not more than $5,000.00.

(c) For a third or subsequent offense, a civil fine of not more than $10,000.00.

(9) The prosecutor of the county in which the violation occurred or the attorney general may bring an action to collect the civil fines described under subsection (8).

Enacting section 1. Section 20114a of the natural resources and environmental protection act, 1994 PA 451, MCL 324.20114a, is repealed.

Enacting section 2. This amendatory act does not take effect unless all of the following bills of the 102nd Legislature are enacted into law:

(a) Senate Bill No. 606.

 

(b) Senate Bill No. 607.