There are currently six Senate bills pending in the Michigan Legislature which, if passed, would significantly overhaul Michigan’s environmental remediation programs and drastically alter brownfield redevelopment in Michigan. These six Senate bills are referenced as Senate Bills 606 through 611 and are oddly referenced as the “Polluter Pay” amendments. The reference to “Polluter Pay” amendments is ironic, considering the fact that in 1991, there were “Polluter Pay” amendments to Michigan’s principal environmental remediation statute which created a strict, retroactive and joint and several liability structure for individuals and businesses who had any legal connection to contaminated property in Michigan. Four years later, the Legislature recognized that this approach to liability was a significant impediment to redeveloping Michigan’s urban industrial core. Accordingly, those laws were restructured to allow certain individuals and businesses to acquire and redevelop contaminated property without liability, so long as they did so responsibly. Notably, these amendments did not let alleged polluters off the hook, they simply retargeted enforcement to individuals who were actually responsible for causing contamination.

Pending Michigan Senate Bills

The currently pending Senate bills would return Michigan to liability structures and redevelopment challenges which will likely dissuade property owners and investors from purchasing and responsibly redeveloping contaminated property. Some highlights of the proposed Senate bills are as follows:

1. The use of institutional or engineering controls which focus on protecting human health through legal or physical barriers will be eliminated or significantly curtailed. The current remediation process, which focuses on controlling exposures to contamination, will be abandoned in favor of a policy of compulsory remediation, regardless of whether or not the contamination has any practical effect to human health or the environment. This change also places into question the validity of prior approved cleanups, where institutional or engineering controls were used to facilitate the remediation process.
2. Cost effectiveness of remediation approaches would no longer be a consideration and, instead, remediation projects must “exercise a degree of control or cleanup that is the greatest technically feasible”, regardless of cost.
3. All remediation projects will be required to meet a residential use standard that will make the property safe for residential use, regardless of whether or not the property is used for industrial or commercial purposes.
4. Baseline Environmental Assessments (BEA), which is the process by which contaminated property redevelopment occurs, will only be permitted if the BEA evaluation process is sufficiently robust and only so long as the BEA includes an acceptable “due care plan” which must be approved by the Department of Environment, Great Lakes and Energy (EGLE). In order to maintain the liability protections of a BEA, a property owner would need to recertify the results of their BEA and due care plan at least once every five years to demonstrate to EGLE’s satisfaction that use of the property does not create any threats to the environment. A property owner who fails to undertake these ongoing monitoring and reporting requirements, would become completely liable for the entire remediation cost to clean up the property if they fail to provide this documentation.
5. Remediation projects will no longer be allowed to be self-managed, but instead must have all remediation steps approved by EGLE. The current process allows for self-directed remediation, so long as a party can demonstrate that a self-directed cleanup sufficiently protects human health and the environment.

In addition to these changes to the cleanup program, there are also some structural legal changes proposed in these amendments. The proposed Senate bills would amend the statute of limitations to permit third-party claims asserting cleanup liability or for environmental damage, regardless of when the contamination occurred, so long as the suing party can demonstrate that they did not know about the contamination. In addition to economic damages, plaintiffs would have the ability to collect the cost of future medical monitoring expenses in the event that they are unable to show a current injury created by exposure to contaminants. In addition, the pending legislation proposes to allow EGLE to create new environmental standards and remediation benchmarks by administration memos, rather than promulgated rules or statutes, which is what is currently required.

Contact An Environmental Lawyer Today

These current bills are likely to see attention by the Legislature in the very near future. Stay tuned for additional progress reports. Contact the team at Kuhn Rogers today for more information.