Michigan legislators introduced a much-anticipated 14-bill package of polluter pay legislation Wednesday that would strengthen cleanup criteria for some contaminated sites, require certain businesses to provide financial assurances that they can perform cleanups, and make it easier for those impacted by pollution to sue for medical costs.
“We cannot allow polluters to leave contamination in place, making ever-growing portions of our land and water unusable,” Rep. Jason Morgan (D-Ann Arbor) said in a press release. He said that polluters, not taxpayers, should pay for cleanups and that fencing off land or shutting off drinking water wells shouldn’t be used as a substitute for removing contamination.
Michigan has approximately 24,000 contaminated sites, only 3,000 of which have been remediated since 1990, including sites like the Gelman Sciences 1,4 dioxane plume that has covered much of the west side of Ann Arbor for decades. Environmental advocates have long called for reinstating polluter pay rules, which briefly existed in the early 1990s before they were gutted during the Engler administration.
The proposed legislation won’t restore the strict liability rules in the original polluter pay law, but they contain provisions that lawmakers and experts say could help the state get a handle on the proliferation of contaminated sites by deterring pollution or making sure cleanups actually take place.
However, this legislation is certain to face pushback from the business community, who say that new requirements will make it less likely for companies to invest in the state.
Improving cleanups
State Sen. Jeff Irwin (D-Ann Arbor) told Planet Detroit the legislation would improve cleanups by requiring more “source removal” rather than “exposure management,” although the bill language only requires such removal “if technically feasible.”
Under current law, many polluters avoid expensive cleanups by fencing off or installing barriers around sites but not removing the underlying pollution. This has led to problems like vapor intrusion in Grand Rapids, where chemicals from a dry cleaning business that closed in 1995 have seeped into nearby buildings, leading to high levels of cancer-causing chemicals in the blood of those living and working nearby.
A pair of bills (SB 0605 and HB 5247) would also add more transparency about cleanups, shedding light on what Irwin calls “secret cleanups” where businesses remediate contamination without informing the Michigan Department of Environment, Great Lakes, and Energy, potentially creating future issues with pollution that wasn’t properly addressed.
Michigan also deals with an estimated 13,000 “orphan sites,” where Michigan taxpayers are left with the bill for pollution because businesses have gone bankrupt or otherwise dodged responsibility.
A proposed requirement that certain types of high-risk businesses provide financial assurances in the form of insurance or bonding for any future cleanup could prevent new sites from being added to the list of orphaned sites.
Irwin said in addition to protecting taxpayers, these financial assurances may also compel better behavior from a business because anything that triggers the payment clause of their insurance policy could cause their rate to go up.
Another pair of bills (SB 607 and HB 5245) would ease the rule-making process for new pollution threats, allowing EGLE to circumvent the sometimes-cumbersome administrative rule-making process.
Nick Schroeck, an environmental law expert at the University of Detroit Mercy, said the cleanup provisions in the legislation are a step in the right direction, although he would like them to go further.
“The language on improved clean-up requirements focusing on removal of contamination and eliminating clean-ups done in secret without public notice are significant improvements,” he said. “I’d like to see the legislation require the highest feasible clean-up criteria, which hopefully can be added through the committee process.”
Addressing legacy pollution and health impacts
It’s unclear how much these bills will address the state’s massive backlog of sites requiring cleanup. The 1990 polluter pay law included “joint and several liability,” potentially holding anyone involved in the pollution on property liable. Business interests have argued such strict liability rules could make redeveloping orphan sites extremely difficult.
However, Irwin said transparency requirements could help prevent contamination from being discovered years after the fact.
And a pair of bills (SB 609 and HB 5243) would allow the state to extend the statute of limitations around emerging pollutants like PFAS, starting the clock at the time pollution is discovered, not when it was originally created, which could help secure funding for cleanup and damages.
This could enable the state to move more forcefully against companies like the footwear manufacturer Wolverine Worldwide, which contaminated groundwater around Rockford, Michigan, with PFAS chemicals, pollution that still hasn’t been cleaned up.
Additional legislation (SB 611 and HB5244) would change the statute of limitations for residents harmed by such companies and enable (SB 610 and HB 5241) those exposed to hazardous chemicals to sue polluters to cover the cost of medical monitoring required to detect conditions linked to exposure.
Among those who might benefit from such provisions is Sandy Wynn-Stelt, whose husband died from liver cancer after drinking well water contaminated by Wolverine’s PFAS contamination for years. Wynn-Stelt has thyroid cancer.
“This is not a close call,” Wynn-Stelt said at a Wednesday press conference . “I don’t know how you argue against holding people accountable. Every three-year-old in the state learned that if you made a mess, you cleaned it up.”
Recent polling by the left-leaning Public Policy Polling shows strong support for holding polluters accountable, with 92% of respondents saying they favor reinstating a polluter pay law and 95% expressing support for having corporations pay for cleanups rather than taxpayers.
However, Irwin acknowledged at Wednesday’s press conference that there would likely be pushback from businesses, including the Big Three automakers.
In a statement to MLive, the Michigan Manufacturers Association said, “If Michigan is to compete for new manufacturing investment and create the kind of jobs young new workers want and need, we cannot continue to see lawmakers put up policies that make it too costly to choose to locate or grow here.”
Yet, Irwin says the cost of failing to act would also be high.
“We all know somebody who was lost to cancer, and that’s what we’re talking about here,” he said. “ We’re talking about people’s lives being taken from them and made dramatically worse through horrible and acute illnesses that don’t have to happen.”