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Polluter pay package trimmed down as efforts move from the Senate to the House

By Michigan Advance

December 17, 2024

BY KYLE DAVIDSON, MICHIGAN ADVANCE

MICHIGAN—In the early hours of Friday morning, the Michigan State Senate pushed forward on a package of bills centered on ensuring greater transparency and accountability from polluters, discharging the bills from committee and sending them to the House for further consideration through a party-line vote.

Members of both the House and the Senate each introduced “Polluter Pay” bills last October, however the bills were not taken up for a hearing prior to clearing the Senate.

Senate Minority Leader Aric Nesbitt (R-Porter Twp.) railed against the proposals, warning that these new regulations, if passed, would halt brownfield redevelopment and signal that Michigan is closed to business.

“These bills, in essence, send the message that all businesses are bad actors, and that only giving massive new control to an environmental regulatory agency and a new bureaucracy is the only way we can fix this in Michigan,” Nesbitt said, while urging a no vote on the bills.

Despite Nesbitt’s frustrations with Democrats discharging the bills from committee and fears that new pollution regulations will stifle Michigan business, state Sen. Jeff Irwin (D-Ann Arbor), who helped lead work on the package, said the bills were subject to a “very active” workgroup process over the summer, which included both the Department of Environment, Great Lakes and Energy (EGLE) alongside industry stakeholders. 

“We spent a lot of time over the summer sitting down primarily with polluters and trying to find out what they didn’t like about this, and we tried to narrow it down to some of the hardest to oppose, most reasonable elements of our original proposal,” Irwin told Michigan Advance Monday.

While working with stakeholders, Irwin said transparency and efforts to ensure that pollution sources are removed when feasible remained the focus while workshopping the bills, with substitutes for Senate Bills 605 and 606 adopted to reflect these changes.

“One of the fundamental holes that we’re trying to still plug, despite the fact that we’ve compromised these policies down considerably, is that we want it such that when people find polluted property, they have to communicate that to EGLE. This is incredibly important to stopping the growing list of polluted abandoned sites in Michigan,” Irwin said.

“We think that by enhancing the clarity of the law and requiring everybody to report their pollution, we get better eyes on what’s happening on these sites and neighboring property owners have a right to know what’s going on, because it can affect them,” Irwin said.

Another key focus was in addressing institutional controls, Irwin said.

When Michigan’s polluter pay laws changed in 1994 under GOP Gov. John Engler, the law shifted the focus from cleanup to management.

“The way the law works now is that if you, as the owner of a polluted piece of land, can demonstrate that you’re managing exposure to the pollution, then that’s an acceptable plan from the standpoint of EGLE analysis,” Irwin said.

“What ends up happening is that on thousands of sites, the plan to deal with it is just, you know, put a parking lot over the pollution. They put the monitoring wells in place to make sure it’s not moving, and then also put in place what’s called institutional controls, which are usually deed restrictions or other sort of legal means of restricting access to the resource…because of these institutional controls, the law just says, no, you’re not allowed to touch that water anymore because that water is polluted,” Irwin said.

While the initial proposal put severe limits on institutional control, concerns from local governments and stakeholders who redevelop brownfields prompted a different approach. 

“Rather than saying that they can’t use institutional controls, we put in place a series of questions that EGLE has to answer before institutional controls can be used as a final cleanup plan. So not at the beginning of a plan, like when they’re trying to do the redevelopment of property, but at the end, when they’re trying to get a, what we currently call a no further action plan, but what I think in the future, we’re gonna call a closure plan,” Irwin said.

“We want the polluters and the owners of polluted property to look at that and see if source removal is a practical option, and if it is, you want them to do that rather than just leave it in the ground,” Irwin said.

Alongside these efforts the Senate advanced Senate Bill 607 allowing EGLE to cleanup criteria without Administrative Procedures Act rulemaking.

The chamber also passed policies allowing the state to bring claims on behalf of the public to cover cleanup costs and damage to natural resources due to contaminants not known to be harmful when the statute of limitations for contamination claims expired as well as allowing people harmed by pollution to seek justice through the courts by beginning the timeframe for the statute of limitations when a spill is discovered. Those are addressed through Senate Bills 609 and 611.

However, not every bill from the package passed through the Senate, with policies requiring businesses working with large amounts of potential pollutants to provide up-front financial assurance to cover the cost of cleanup, and requiring polluters to cover the cost of medical monitoring for people exposed to pollution remaining in the Senate Energy and Environment Committee.

Irwin explained that alongside economic concerns from developers, there were practical concerns holding back Senate Bill 608. When looking into the deals of who sells financial assurances and how much they would cost, Irwin said they realized there wasn’t a system in place to address these assurances, and that the cost would be very high.

“I think we just struggled to make sense of it and to, you know, understand exactly how it was going to work and you know, the numbers just weren’t working out,” Irwin said.

Additionally, the medical monitoring requirements of Senate Bill 610 proved to be more controversial than Irwin expected, creating frustrations among business stakeholders due to the additional legal liability the bill would bring.

“We only had so much time and capacity to focus on so many things…we really zeroed in on…how do we change the cleanup law in a way that is positive but also possible? How do we change it without slowing down some of the redevelopments that are good in our downtowns? And so that’s why we zeroed in on that set of changes,” Irwin said.

Despite efforts to bring businesses on board, Irwin said he doesn’t expect to see support from industry organizations as the bills move to the House.

Mike Witkowski, director of environmental and regulatory policy for the Michigan Manufacturers Association said the organization opposed the package on its introduction as well as the legislation as it stands. While the Association participated in workgrouping efforts on the legislation in October, the versions of the bills which cleared the Senate do not reflect the concerns raised during that discussion.

Witkowski said the major concern lies with Brownfield redevelopments and how the policies would impact not just economic drivers, but also actual environmental cleanups. The investments happening are happening through people coming in and saying, ‘Hey, we want to build here. We want to create jobs here, and we want to clean up the legacy contaminants at the site,” Witkowski said.

“If they make that too costly and too complicated—which is what these bills do—those folks either are going to leave the state or they’re going to build in greenfields, which I don’t think anybody really wants,” Witkowksi said.

Additionally, the statute of limitations bills were not included as part of the workgrouping, Witkowski said.

Charlotte Jameson, chief policy for the Michigan Environmental Council, disagreed.

“What these bills do is they force polluters to be more transparent, to tell the environmental department and the State of Michigan exactly what they’re doing to clean up and exactly when they pollute, if being transparent means that you can’t redevelop the site or ensure that you can sell it that, you know, it doesn’t seem plausible to me,” Jameson said.

“The other thing that these bills do is, they don’t transfer liability. The liability remains with the responsible party. So anyone who wants to buy a site that’s already contaminated is not going to have that liability transferred to them,” Jameson said.

However, these bills do not allow polluters to sit on contamination without addressing it, while the state’s current system does, Jameson said.

While the bills did not contain everything the council would like to see—including strict liability for polluters and additional funding to clean up orphan sites, contaminated sites for which a responsible party cannot be identified—Jameson said they are very supportive of the bills, and would plan to advocate for financial assurances and medical monitoring requirements moving forward.

The Michigan Environmental Justice Coalition similarly noted its support for the package. While the loss of the financial assurance and medical monitoring components was a disappointment, coalition Policy Associate Chris Gilmer-Hill said these bills would still mark a giant step forward. 

Andrea Pierce, the coalition’s policy director, noted her support for medical monitoring requirements moving forward, saying that her mother had died two and a half years prior due to PFAS contamination.

Pierce, who is a tribal citizen of the Little Traverse Bay Bands of Odawa Indians, said she has also been pushing for her tribe to do medical testing to find out how they have all been impacted due to PFAS contamination in Pellston.

“They don’t have any water pipes coming in there. They’re all through the well. So this could really, you know, this would have been really impactful for communities, especially tribal communities,” Pierce said.

Additionally, legislation efforts on air pollution will be another large priority of the coalition moving forward, Gilmer-Hill said, ensuring pollution is addressed in the air, land and water.

However as the bills advanced to the House both Irwin and Jameson noted the precarious future of the polluter pay legislation, though Irwin remained optimistic.

“Even though you know it only takes one [Sen.] Joe Manchin (D-W.Va.)  to kill this, we have really narrowed it down to some very sensible positive elements, and we’ve filtered out the things that were most scary to economic developers and industry,” Irwin said, likely referencing the West Virginia senator’s refusal to support climate spending in an evenly-split US Senate.

However, with Republicans walking out of the Michigan House chamber and refusing to vote unless Democrats negotiated on road funding and changes to the state’s tipped minimum wage and paid sick leave policy, and Democrats facing challenges from within their party, Jameson was concerned that key legislative changes could fail due to chaos within the chamber.

“I just hope that the Michigan House, and frankly, the House Republicans who completely walked out on their job, can, you know, get their act together and move forward legislation like this, because it’s incredibly important to the people of Michigan, and I think to our water quality,” Jameson said.

READ MORE: Kids and farmers are at the heart of a clean air crusade in rural Michigan

This coverage was republished from Michigan Advance pursuant to a Creative Commons license. 

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CATEGORIES: STATE LEGISLATURE
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