HOUSE BILL NO. 5241

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 20126 and 20140 (MCL 324.20126 and 324.20140), section 20126 as amended by 2014 PA 542 and section 20140 as amended by 2000 PA 254, and by adding section 20136.

the people of the state of michigan enact:

Sec. 20126. (1) Notwithstanding any other provision or rule of law and except as provided in subsections (2), (3), (4), and (5) and section 20128, the following persons are liable under this part:

(a) The owner or operator of a facility if the owner or operator is responsible for an activity causing a release or threat of release.

(b) The owner or operator of a facility at the time of disposal of a hazardous substance if the owner or operator is responsible for an activity causing a release or threat of release.

(c) An owner or operator of a facility who 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 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 "secondary material" means scrap metal, paper, plastic, glass, textiles, or rubber, that has demonstrated reuse or recycling potential and has been separated or removed from the solid waste stream for reuse or recycling, whether or not subsequent separation and processing is required, if substantial amounts of the material are consistently used in the manufacture of products 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 this state has incurred response activity costs associated with these secondary materials prior to before December 17, 1999. As used in this subparagraph, secondary material "secondary material" means scrap metal, paper, plastic, glass, textiles, or rubber, that has demonstrated reuse or recycling potential and has been separated or removed from the solid waste stream for reuse or recycling, whether or not subsequent separation and processing is required, if substantial amounts of the material are consistently used in the manufacture of products 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).

(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 the operation of law or by court order.

(b) A state or local unit of government that holds or acquires an easement interest in a facility, holds or acquires an interest in a facility by dedication in a plat, or by dedication pursuant to 1909 PA 283, MCL 220.1 to 239.6, or otherwise holds or acquires an interest in a facility for a transportation or utility corridor, including sewers, pipes, and pipelines, or public right of way.

(c) A person who 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 that 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 that 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 that 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 that 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 this state or the 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 that term is 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).

(9) This section does not apply to liability under section 20136.

Sec. 20136. (1) An individual who does not have a present injury or disease has a cause of action for the remedy of medical monitoring against a person that is liable under section 20126 if all of the following are demonstrated by a preponderance of the evidence:

(a) The individual or, subject to subsection (2), the individual's biological parent had an exposure to the hazardous substance at a rate significantly greater than the general population.

(b) As a proximate result of the exposure, the individual has suffered an increased risk of contracting a serious disease.

(c) The increased risk of contracting a serious disease makes it medically necessary for the individual to undergo periodic medical monitoring procedures different from those prescribed for the general population in the absence of exposure.

(d) The medical monitoring procedures exist and are reasonable in cost and safe for use.

(e) The person responsible for the release of the hazardous substance employed 5 or more full-time employees at the time of the release.

(2) This section applies to an individual whose biological parent had an exposure to a hazardous substance if the exposure occurred before the individual was born.

(3) If the cost of medical monitoring is awarded, the court shall order the defendant found liable to pay the award to a court-supervised medical monitoring program administered by 1 or more appropriate health professionals, including professionals with expertise in exposure to hazardous substances or expertise with treating or monitoring the relevant latent disease or diseases.

(4) Upon an award of medical monitoring under subsection (3), the court shall award to the plaintiff reasonable attorney fees and other litigation costs reasonably incurred.

(5) This section is the exclusive remedy for an individual without a present injury to bring a cause of action to seek medical monitoring because of exposure to a hazardous substance.

(6) Except as provided under subsection (5), this section does not preclude the pursuit of any other civil or injunctive remedy or defense available under statute or common law, including, but not limited to, the right of any person to seek to recover damages related to the manifestation of a latent disease. The remedies and defenses in this section are in addition to those provided by other statutory or common law. The remedies provided in this section may be awarded in an action under section 20135.

(7) This section does not increase the rights and remedies available under the worker's disability compensation act of 1969, 1969 PA 317, MCL 418.101 to 418.941, to an employee who suffers a personal injury by accident arising out of and in the course of employment.

(8) An action under this section may be brought as a class action.

(9) As used in this section:

(a) "Disease" means a disease, illness, ailment, or adverse physiological or chemical change linked to exposure to a hazardous substance. A disease is serious if it has the potential to cause death, disability, or chronic pain.

(b) "Exposure" means ingestion, inhalation, or absorption through any body surface.

(c) "Medical monitoring" means a program of medical tests or procedures for the purpose of early detection of signs or symptoms of a latent disease resulting from exposure.

Sec. 20140. (1) Except as provided in subsections (2), and (3), and (5), the limitation period for filing actions under this part is as follows:

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

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

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

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

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

(4) Subsection (3) is curative and intended to clarify the original intent of the legislature and applies retroactively.

(5) This section does not apply to an action under section 20136.