Overview:
- The Michigan Senate passed pollution cleanup legislation on Friday, aiming for greater transparency around polluted sites.
- The bill updates cleanup criteria, extends the statute of limitations for suing polluters over contaminants like PFAS, and could increase the amount of contaminated material cleaned up.
- While not a strict liability provision, environmental advocates say it will lead to more cleanups and transparency. Business groups oppose it, citing potential harm to brownfield redevelopment and increased costs. The legislation could address Michigan's 24,000 contaminated sites, including 14,000 orphaned sites with no identified responsible party.
The Michigan Senate passed pollution cleanup legislation in a flurry of early morning lawmaking on Friday, setting the bills up for a possible vote in the House.
The legislation, Senate bills 605, 606, 607, 609 and 611, would require greater transparency around polluted sites, update cleanup criteria as new risks are discovered, extend the statute of limitations for individuals and the state to sue polluters over impacts from contaminants like PFAS and potentially increase the amount of contaminated material that gets cleaned up.
The bills will not return Michigan to the “polluter pay” legislation of the early 1990s, which included strict liability provisions, or provide as many protections as earlier versions of the bills would have. But environmental advocates say the legislation would still lead to more contaminated site cleanups and create more transparency around pollution.
However, business groups say they will continue fighting the legislation in the Michigan House, arguing it will hurt brownfield redevelopment and add significant costs for businesses.
Passage through the House will be difficult even without pushback from the business interests. Republicans walked out of the chamber last week, refusing to return unless Democrats negotiated on road funding and other issues.
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New legislation aims to bring back ‘polluter pay’
A 14-bill package addresses source removal, transparency, ‘orphan sites’, assurance and medical costs from contaminated sites. Michigan has an estimated 24,000 such sites.
What a return to ‘polluter pay’ could mean for Michigan
Michigan has more than 24,000 contaminated sites. Lawmakers want to bring back accountability for polluters, but opponents say that would stymie redevelopment.
Without Republican lawmakers in the room, Democrats need to secure votes from every House member to pass bills. But Democratic lawmakers have been trading barbs and criticizing the leadership of House Speaker Joe Tate (D-Detroit).
Yet, passing pollution cleanup legislation could be extremely popular. A 2023 poll from the left-leaning Public Policy Polling found that 92% of respondents favored reinstating a polluter pay law and 95% supported having corporations pay for cleanups rather than taxpayers.
And the legislation could help Michigan get a handle on the estimated 24,000 contaminated sites in the state. Around 14,000 of these are ‘orphaned sites’ where no responsible party has been identified.
Dave Dempsey, senior adviser for the nonprofit For Love of Water, told Planet Detroit the legislation shouldn’t be considered real ‘polluter pay’ because of the lack of strict liability rules, but he said it would still help protect residents.
“There’ll be more responsibilities for owners of contaminated property to control the source of contamination before it spreads beyond their property and endangers public health, and more transparency in how the department handles contaminated sites,” Dempsey said. “Both of these ought to result in more protective cleanups.”
Bills could increase pollution cleanups and reduce the number of ‘orphan sites’
Although the polluter cleanup bills don’t contain as many protections as lawmakers originally sought, State Sen. Jeff Irwin (D-Ann Arbor), who championed the legislation along with Rep. Jason Morgan (D-Ann Arbor), said they can still deliver important benefits.
He said reforming Michigan’s current system, which allows developers to cordon off polluted areas rather than cleanup pollution, was especially important.
“Right now…we don’t really have a cleanup law,” Irwin said. “We actually have an exposure management law. If, as a polluter, you can demonstrate that you’re managing the public’s exposure to your pollution, that’s considered good enough.”
He said this allows developers to do things like build parking lots on top of polluted land and place deed restrictions on the property so future owners can’t disturb the soil or draw water from an aquifer.
In response to concerns from local governments and business groups, the legislation was modified so that deed restrictions could be used instead of cleanups in some instances. But this would come at the end of a redevelopment project where the Michigan Department of Environment, Great Lakes, and Energy can consider whether to approve a deed restriction or force developers to remove the source of the pollution as part of what’s currently called a “no further action plan.”
Irwin said this approach allows protections to be added without slowing down the redevelopment of blighted properties.
The proposed legislation also requires property owners to report pollution when they find it, not just when pollution is migrating off the property, which could help cut down on the number of orphaned sites.
“One of the reasons why we have so many abandoned properties is because by the time we find out that the pollution is migrating, those property owners are long gone and the taxpayers are left holding the bag,” Irwin said.
The Senate also passed changes to the statute of limitations for damages from pollution. For individuals, the statute of limitations to sue over damages from pollutants like PFAS would begin with when a spill was discovered. Meanwhile, the state could sue for damages to natural resources from chemicals that were not known to be harmful when the statute of limitations for claims expired.
Earlier measures to mandate financial assurances to cover future cleanup costs and require polluters to cover medical monitoring costs for those exposed to pollution were not included in the legislation the Senate passed on Friday.
Business groups say bills would stymie development
Irwin said he engaged with a variety of stakeholders to refine the pollution cleanup package, but business groups say they will continue to fight the legislation.
Mike Witkowski, director of environmental and regulatory policy for the Michigan Manufacturers Association, told the Michigan Advance the legislation would impede brownfield redevelopment and environmental cleanups.
“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.
Mike Alaimo, director of environmental and energy affairs at the Michigan Chamber of Commerce, cited similar concerns and said the Chamber remained “adamantly opposed” to the legislation.
“We’re continuing to push and call on the House legislators to support our brownfield developers, support our construction and manufacturing industries and not take this up for a vote,” he told Planet Detroit.
Whether the legislation passes could come down to attendance. Several legislators have missed votes in recent days, while Democrats only have a short window to advance bills before Republicans take control of the chamber in January.
Rep. Morgan said that he hopes the legislation is brought up for a vote because the issue has been a core Democratic priority for decades in Michigan.
“If we were to pass the polluter pay legislation during lame duck, it would be one of the most significant things that we’ve done in the entire two years of the democratic trifecta,” he said.