SB-1328, As Passed Senate, November 29, 2012

 

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

SENATE BILL NO. 1328

 

 

 

 

 

 

 

 

 

 

 

 

A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

by amending sections 11506, 19608, 19612, 20101, 20104, 20114,

 

20114c, 20114d, 20114e, 20120a, 20120b, 20120c, 20126, 21301b,

 

21302, 21303, 21304, 21304a, 21304b, 21304c, 21304d, 21307, 21307a,

 

21308a, 21309a, 21310a, 21311a, 21312a, 21313a, 21315, 21316a,

 

21319a, 21323a, 21323j, 21323m, 21326, 21332, and 21333 (MCL

 

324.11506, 324.19608, 324.19612, 324.20101, 324.20104, 324.20114,

 

324.20114c, 324.20114d, 324.20114e, 324.20120a, 324.20120b,

 

324.20120c, 324.20126, 324.21301b, 324.21302, 324.21303, 324.21304,

 

324.21304a, 324.21304b, 324.21304c, 324.21304d, 324.21307,

 

324.21307a, 324.21308a, 324.21309a, 324.21310a, 324.21311a,

 

324.21312a, 324.21313a, 324.21315, 324.21316a, 324.21319a,

 


324.21323a, 324.21323j, 324.21323m, 324.21326, 324.21332, and

 

324.21333), section 11506 as amended by 2010 PA 345, section 19608

 

as amended by 2003 PA 252, section 19612 as added by 1998 PA 288,

 

sections 20101 and 20104 as amended by 2010 PA 229, section 20114

 

as amended by 2010 PA 234, sections 20120a, 20120b, and 20120c as

 

amended and sections 20114c and 20114d as added by 2010 PA 228,

 

section 20114e as amended and sections 21332 and 21333 as added by

 

2012 PA 109, section 20126 as amended by 2010 PA 227, section

 

21301b as added by 1996 PA 116, sections 21302 and 21303 as amended

 

by 2012 PA 111, sections 21304a, 21304b, 21307, 21307a, 21309a,

 

21310a, 21315, and 21316a as amended and sections 21304c, 21304d,

 

21323a, 21323j, and 21323m as added by 2012 PA 108, sections

 

21308a, 21311a, and 21312a as amended by 2012 PA 110, sections

 

21313a and 21319a as amended by 2012 PA 112, and section 21326 as

 

amended by 2012 PA 113, and by adding sections 20114f, 20114g, and

 

21323n; and to repeal acts and parts of acts.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

Sec. 11506. (1) "Solid waste" means garbage, rubbish, ashes,

 

incinerator ash, incinerator residue, street cleanings, municipal

 

and industrial sludges, solid commercial and solid industrial

 

waste, and animal waste other than organic waste generated in the

 

production of livestock and poultry. However, solid waste does not

 

include the following:

 

(a) Human body waste.

 

(b) Medical waste.

 

(c) Organic waste generated in the production of livestock and

 

poultry.

 


(d) Liquid waste.

 

(e) Ferrous or nonferrous scrap directed to a scrap metal

 

processor or to a reuser of ferrous or nonferrous products.

 

(f) Slag or slag products directed to a slag processor or to a

 

reuser of slag or slag products.

 

(g) Sludges and ashes managed as recycled or nondetrimental

 

materials appropriate for agricultural or silvicultural use

 

pursuant to a plan approved by the department. Food processing

 

residuals, precipitated calcium carbonate from sugar beet

 

processing, wood ashes resulting solely from a source that burns

 

only wood that is untreated and inert, lime from kraft pulping

 

processes generated prior to bleaching, or aquatic plants may be

 

applied on, or composted and applied on, farmland or forestland for

 

an agricultural or silvicultural purpose, or used as animal feed,

 

as appropriate, and such an application or use does not require a

 

plan described in this subdivision or a permit or license under

 

this part. In addition, source separated materials approved by the

 

department for land application for agricultural and silvicultural

 

purposes and compost produced from those materials may be applied

 

to the land for agricultural and silvicultural purposes and such an

 

application does not require a plan described in this subdivision

 

or permit or license under this part. Land application authorized

 

under this subdivision for an agricultural or silvicultural

 

purpose, or use as animal feed as provided for in this subdivision

 

shall be performed in a manner that prevents losses from runoff and

 

leaching. Land application under this subdivision shall be at an

 

agronomic rate consistent with generally accepted agricultural and

 


management practices under the Michigan right to farm act, 1981 PA

 

93, MCL 286.471 to 286.474.

 

(h) Materials approved for emergency disposal by the

 

department.

 

(i) Source separated materials.

 

(j) Site separated material.

 

(k) Fly ash or any other ash produced from the combustion of

 

coal, when used in the following instances:

 

(i) With a maximum of 6% of unburned carbon, if used as a

 

component of concrete, grout, mortar, or casting molds.

 

(ii) With a maximum of 12% unburned carbon passing M.D.O.T.

 

test method MTM 101, if used as a raw material in asphalt for road

 

construction.

 

(iii) As aggregate, road, or building material that in ultimate

 

use will be stabilized or bonded by cement, limes, or asphalt.

 

(iv) As a road base or construction fill that is covered with

 

asphalt, concrete, or other material approved by the department and

 

that is placed at least 4 feet above the seasonal groundwater

 

table.

 

(v) As the sole material in a depository designed to reclaim,

 

develop, or otherwise enhance land, subject to the approval of the

 

department. In evaluating the site, the department shall consider

 

the physical and chemical properties of the ash, including, but not

 

limited to, leachability, and the engineering of the depository,

 

including, but not limited to, the compaction, control of surface

 

water and groundwater that may threaten to infiltrate the site, and

 

evidence that the depository is designed to prevent water

 


percolation through the material.

 

(l) Soil that is relocated under section 20120c.

 

(m) (l) Other wastes regulated by statute.

 

(2) "Solid waste hauler" means a person who owns or operates a

 

solid waste transporting unit.

 

(3) "Solid waste processing plant" means a tract of land,

 

building, unit, or appurtenance of a building or unit or a

 

combination of land, buildings, and units that is used or intended

 

for use for the processing of solid waste or the separation of

 

material for salvage or disposal, or both, but does not include a

 

plant engaged primarily in the acquisition, processing, and

 

shipment of ferrous or nonferrous metal scrap, or a plant engaged

 

primarily in the acquisition, processing, and shipment of slag or

 

slag products.

 

(4) "Solid waste transporting unit" means a container, which

 

may be an integral part of a truck or other piece of equipment used

 

for the transportation of solid waste.

 

(5) "Solid waste transfer facility" means a tract of land, a

 

building and any appurtenances, or a container, or any combination

 

of land, buildings, or containers that is used or intended for use

 

in the rehandling or storage of solid waste incidental to the

 

transportation of the solid waste, but is not located at the site

 

of generation or the site of disposal of the solid waste.

 

(6) "Source separated material" means glass, metal, wood,

 

paper products, plastics, rubber, textiles, garbage, or any other

 

material approved by the department that is separated at the source

 

of generation for the purpose of conversion into raw materials or

 


new products including, but not limited to, compost.

 

(7) "Type I public water supply", "type IIa public water

 

supply", "type IIb public water supply", and "type III public water

 

supply" mean those terms, respectively, as described in R 325.10502

 

of the Michigan administrative code.

 

(8) "Yard clippings" means leaves, grass clippings, vegetable

 

or other garden debris, shrubbery, or brush or tree trimmings, less

 

than 4 feet in length and 2 inches in diameter, that can be

 

converted to compost humus. Yard clippings do not include stumps,

 

agricultural wastes, animal waste, roots, sewage sludge, or

 

garbage.

 

Sec. 19608. (1) Money in the fund that is allocated under

 

section 19607 shall be used for the following purposes:

 

(a) Money allocated under section 19607(1)(a) shall be used by

 

the department to fund all of the following:

 

(i) Corrective actions undertaken by the department to address

 

releases from leaking underground storage tanks pursuant to part

 

213.

 

(ii) Response activities undertaken by the department at

 

facilities pursuant to part 201 to address public health and

 

environmental problems or to promote redevelopment.

 

(iii) Assessment activities undertaken by the department to

 

determine whether a property is a facility.

 

(iv) $75,000,000.00 shall be used to provide grants and loans

 

to local units of government and brownfield redevelopment

 

authorities created under the brownfield redevelopment financing

 

act, 1996 PA 381, MCL 125.2651 to 125.2672, for response activities

 


at known or suspected facilities with redevelopment potential. Of

 

the money provided for in this subparagraph, not more than

 

$37,500,000.00 $50,000,000.00 shall be used to provide grants and

 

not more than $37,500,000.00 $25,000,000.00 shall be used to

 

provide loans pursuant to the clean Michigan initiative revolving

 

loan program created in section 19608a. However, grants or loans

 

provided for in this subparagraph shall not be made to a local unit

 

of government or a brownfield redevelopment authority that is

 

responsible for causing a release or threat of release under part

 

201 at the site proposed for grant or loan funding.

 

(v) Not more than $12,000,000.00 shall be used for grants

 

pursuant to the municipal landfill grant program under section

 

20109a.

 

(b) Money allocated under section 19607(1)(b) shall be used

 

for waterfront redevelopment grants pursuant to part 795.

 

(c) Money allocated under section 19607(1)(c) shall be used

 

for response activities for the remediation of contaminated lake

 

and river sediments pursuant to part 201.

 

(d) Money allocated under section 19607(1)(d) shall be used

 

for nonpoint source pollution prevention and control grants or

 

wellhead protection grants pursuant to part 88.

 

(e) Money allocated under section 19607(1)(e) shall be

 

deposited into the clean water fund created in section 8807.

 

(f) Money allocated under section 19607(1)(f) shall be

 

expended as follows:

 

(i) $10,000,000.00 shall be deposited into the retired

 

engineers technical assistance program fund created in section

 


14512.

 

(ii) $5,000,000.00 shall be deposited into the small business

 

pollution prevention assistance revolving loan fund created in

 

section 14513.

 

(iii) $5,000,000.00 shall be used by the department to implement

 

pollution prevention activities other than those funded under

 

subparagraphs (i) and (ii).

 

(g) Money that is allocated under section 19607(1)(g) shall be

 

used by the department of community health for remediation and

 

physical improvements to structures to abate or minimize exposure

 

of persons to lead hazards.

 

(h) Money allocated under section 19607(1)(h) shall be used

 

for infrastructure improvements at Michigan state parks as

 

determined by the department of natural resources. The installation

 

or upgrade of drinking water systems or rest room facilities shall

 

be the first priority.

 

(i) Money allocated under section 19607(1)(i) shall be used to

 

provide grants to local units of government for local recreation

 

projects pursuant to part 716.

 

(2) Of the money allocated under section 19607(1)(a),

 

$93,000,000.00 shall be used for facilities that pose an imminent

 

or substantial endangerment to the public health, safety, or

 

welfare, or to the environment. For purposes of this subsection,

 

facilities that pose an imminent or substantial endangerment shall

 

include, but are not limited to, those where public access poses

 

hazards because of potential exposure to chemicals or safety risks

 

and where drinking water supplies are threatened by contamination.

 


(3) Before expending any funds allocated under subsection

 

(1)(c) at a site that is an area of concern as designated by the

 

parties to the Great Lakes water quality agreement, the department

 

shall notify the public advisory council established to oversee

 

that area of concern regarding the development, implementation, and

 

evaluation of response activities to be conducted with money in the

 

fund at that area of concern.

 

(4) Money in the fund shall not be used to develop a municipal

 

or commercial marina.

 

(5) Money provided in the fund may be used by the department

 

of treasury to pay for the cost of issuing bonds and by the

 

department and the department of natural resources to pay

 

department costs as provided in this subsection. Not more than 3%

 

of the total amount specified in section 19607(1)(a) to (f) shall

 

be available for appropriation to the department to pay its costs

 

directly associated with the completion of a project authorized by

 

section 19607(1)(a) to (f). Not more than 3% of the total amount

 

specified in section 19607(1)(h) and (i) shall be available for

 

appropriation to the department of natural resources to pay its

 

costs directly associated with the completion of a project

 

authorized by section 19607(1)(h) and (i). It is the intent of the

 

legislature that general fund appropriations to the department and

 

to the department of natural resources shall not be reduced as a

 

result of costs funded pursuant to this subsection.

 

(6) A grant shall not be provided under this part for a

 

project that is located at any of the following:

 

(a) Land sited for use as a gaming facility or as a stadium or

 


arena for use by a professional sports team.

 

(b) Land or other facilities owned or operated by a gaming

 

facility or by a stadium or arena for use by a professional sports

 

team.

 

(c) Land within a project area described in a project plan

 

pursuant to the economic development corporations act, 1974 PA 338,

 

MCL 125.1601 to 125.1636, for a gaming facility.

 

(7) The department, the department of natural resources, and

 

the department of community health shall each submit annually a

 

list of all projects that will be undertaken by that department

 

that are recommended to be funded under this part. The list shall

 

be submitted to the governor, the standing committees of the house

 

of representatives and the senate that primarily address issues

 

pertaining to the protection of natural resources and the

 

environment, and the appropriations committees in the house of

 

representatives and the senate. The list shall be submitted to the

 

legislative committees not later than February 15 of each year.

 

This list shall also be submitted before any request for

 

supplemental appropriation of bond funds. For each eligible

 

project, the list shall include the nature of the eligible project;

 

the county in which the eligible project is located; an estimate of

 

the total cost of the eligible project; and other information

 

considered pertinent by the administering state department. A

 

project that is funded by a grant or loan with money from the fund

 

does not need to be included on the list submitted under this

 

subsection. However, money in the fund that is appropriated for

 

grants and loans shall not be encumbered or expended until the

 


administering state department has reported those projects that

 

have been approved for a grant or a loan to the standing committees

 

of the house of representatives and the senate that primarily

 

address issues pertaining to the protection of natural resources

 

and the environment and to the appropriations subcommittees in the

 

house of representatives and the senate on natural resources and

 

environmental quality. Before submitting the first cycle of

 

recommended projects under subsection (1)(a), the department shall

 

publish and disseminate the criteria it will use in evaluating and

 

recommending these projects for funding.

 

(8) The legislature shall appropriate prospective or actual

 

bond proceeds for projects proposed to be funded. Appropriations

 

shall be carried over to succeeding fiscal years until the project

 

for which the funds are appropriated is completed.

 

(9) Not later than December 31 of each year, the department,

 

the department of natural resources, and the department of

 

community health shall each submit a list of the projects financed

 

under this part by that department to the governor, the standing

 

committees of the house of representatives and the senate that

 

primarily address issues pertaining to the protection of natural

 

resources and the environment, and the subcommittees of the house

 

of representatives and the senate on appropriations on natural

 

resources and environmental quality. Each list shall include the

 

name, address, and telephone number of the recipient or

 

participant, if appropriate; the name and location of the project;

 

the nature of the project; the amount of money allocated to the

 

project; the county in which the project is located; a brief

 


summary of what has been accomplished by the project; and other

 

information considered pertinent by the administering state

 

department.

 

Sec. 19612. (1) A recipient of a grant or a loan made with

 

money from the fund shall do both of the following:

 

(a) Keep an accounting of the money spent on the project or

 

facility in a generally accepted manner. The accounting shall be

 

subject to a postaudit.

 

(b) Obtain authorization from the administering state

 

department before implementing a change that significantly alters

 

the proposed project.

 

(2) The administering state department may revoke a grant or a

 

loan made with money from the fund or withhold payment if the

 

recipient fails to comply with the terms and conditions of the

 

grant or loan agreement or with the requirements of this part or

 

the rules promulgated under this part, or with other applicable law

 

or rules. If a grant or loan is revoked, the administering state

 

department may recover all funds awarded.

 

(3) The administering state department may withhold a grant or

 

a loan until the administering state department determines that the

 

recipient is able to proceed with the proposed project.

 

(4) To assure timely completion of a project, the

 

administering state department may withhold 10% of the grant or

 

loan amount until the project is complete.

 

(5) If an approved applicant fails to sign a grant or loan

 

agreement within 90 days after receipt of a written grant or loan

 

offer by the administering state department, the administering

 


state department may cancel the grant or loan offer. The applicant

 

may not appeal or contest a cancellation pursuant to this

 

subsection.

 

(6) The administering state department may terminate a grant

 

or loan agreement and require immediate repayment of the grant or

 

loan if the recipient uses grant or loan funds for any purpose

 

other than for the approved activities specified in the grant or

 

loan agreement. The administering state department shall provide

 

the recipient written notice of the termination 30 days prior to

 

the termination.

 

(7) A loan made with money in the fund shall have the

 

following terms:

 

(a) A loan interest rate of not more than 50% of the prime

 

rate as determined by the administering state department as of the

 

date of approval of the loan.

 

(b) Loan recipients shall repay loans in equal annual

 

installments of principal and interest beginning not later than 5

 

years after execution of a loan agreement and concluding not later

 

than 15 years after execution of a loan agreement.

 

(c) A loan recipient shall enter into a loan agreement with

 

the administering state department. At a minimum, the loan

 

agreement shall contain a commitment that the loan is secured by a

 

full faith and credit pledge of the applicant, or if the applicant

 

is an authority established pursuant to the brownfield

 

redevelopment financing act, 1996 PA 381, MCL 125.2651 to 125.2672,

 

the commitment shall be from the municipality that created the

 

authority pursuant to that act.

 


(d) Upon default of a loan, as determined by the administering

 

state department, or upon the request of the loan recipient as a

 

method to repay the loan, the department of treasury shall withhold

 

state payments from the loan recipient in amounts consistent with

 

the repayment schedule in the loan agreement until the loan is

 

repaid. The department of treasury shall deposit these withheld

 

funds into the fund until the loan is repaid.

 

(8) Loan payments and interest shall be deposited in the fund.

 

(9) Upon default of a loan, as determined by the administering

 

state department, or upon the request of the loan recipient as a

 

method to repay the loan, the department of treasury shall withhold

 

from the loan recipient state payments in amounts consistent with

 

the repayment schedule in the loan agreement until the loan is

 

repaid. The department of treasury shall deposit these withheld

 

funds into the fund until the loan is repaid.

 

Sec. 20101. (1) As used in this part:

 

(a) "Act of God" means an unanticipated grave natural disaster

 

or other natural phenomenon of an exceptional, inevitable, and

 

irresistible character, the effects of which could not have been

 

prevented or avoided by the exercise of due care or foresight.

 

(b) "Agricultural property" means real property used for

 

farming in any of its branches, including cultivating of soil;

 

growing and harvesting of any agricultural, horticultural, or

 

floricultural commodity; dairying; raising of livestock, bees,

 

fish, fur-bearing animals, or poultry; turf and tree farming; and

 

performing any practices on a farm as an incident to, or in

 

conjunction with, these farming operations. Agricultural property

 


does not include property used for commercial storage, processing,

 

distribution, marketing, or shipping operations.

 

(c) "All appropriate inquiry" means an evaluation of

 

environmental conditions at a property at the time of purchase,

 

occupancy, or foreclosure that reasonably defines the existing

 

conditions and circumstances at the property in conformance with 40

 

CFR 312.

 

(d) "Attorney general" means the department of the attorney

 

general.

 

(e) "Background concentration" means the concentration or

 

level of a hazardous substance that exists in the environment at or

 

regionally proximate to a facility that is not attributable to any

 

release at or regionally proximate to the facility. A person may

 

demonstrate a background concentration for a hazardous substance by

 

any of the following methods:

 

(i) The hazardous substance complies with the statewide default

 

background levels under R 299.5746 of the Michigan administrative

 

code.

 

(ii) The hazardous substance is listed in the department's 2005

 

Michigan background soil survey and falls within the typical ranges

 

published in that document.

 

(iii) The hazardous substance is listed in any other study or

 

survey conducted or approved by the department and is within the

 

concentrations or falls within the typical ranges published in that

 

study or survey.

 

(iv) A site-specific demonstration.

 

(f) "Baseline environmental assessment" means a written

 


document that describes the results of an all appropriate inquiry

 

and the sampling and analysis that confirm that the property is a

 

facility. However, for purposes of a baseline environmental

 

assessment, the all appropriate inquiry under 40 CFR 312.20(a) may

 

be conducted within 45 days after the date of acquisition of a

 

property and the components of an all appropriate inquiry under 40

 

CFR 312.20(b) and 40 CFR 312.20(c)(3) may be conducted or updated

 

within 45 days after the date of acquisition of a property.

 

(g) "Board" means the brownfield redevelopment board created

 

in section 20104a.

 

(h) "Certificate of completion" means a written response

 

provided by the department confirming that a response activity has

 

been completed in accordance with the applicable requirements of

 

this part and is approved by the department.

 

(i) (h) "Cleanup criteria for unrestricted residential use"

 

means either of the following:

 

(i) Cleanup criteria that satisfy the requirements for the

 

residential category in section 20120a(1)(a) or (16).

 

(ii) Cleanup criteria for unrestricted residential use under

 

part 213.

 

(j) (i) "Department" means the director of the department of

 

natural resources and environment environmental quality or his or

 

her designee to whom the director delegates a power or duty by

 

written instrument.

 

(k) (j) "Director" means the director of the department of

 

natural resources and environment.environmental quality.

 

(l) (k) "Directors" means the directors or their designees of

 


the departments of natural resources and environment, environmental

 

quality, community health, agriculture and rural development, and

 

state police.

 

(m) (l) "Disposal" means the discharge, deposit, injection,

 

dumping, spilling, leaking, or placing of any hazardous substance

 

into or on any land or water so that the hazardous substance or any

 

constituent of the hazardous substance may enter the environment or

 

be emitted into the air or discharged into any groundwater or

 

surface water.

 

(n) (m) "Enforcement costs" means court expenses, reasonable

 

attorney fees of the attorney general, and other reasonable

 

expenses of an executive department that are incurred in relation

 

to enforcement under this part.

 

(o) (n) "Environment" or "natural resources" means land,

 

surface water, groundwater, subsurface , strata, air, fish,

 

wildlife, or biota within the state.

 

(p) (o) "Environmental contamination" means the release of a

 

hazardous substance, or the potential release of a discarded

 

hazardous substance, in a quantity which is or may become injurious

 

to the environment or to the public health, safety, or welfare.

 

(q) (p) "Evaluation" means those activities including, but not

 

limited to, investigation, studies, sampling, analysis, development

 

of feasibility studies, and administrative efforts that are needed

 

to determine the nature, extent, and impact of a release or threat

 

of release and necessary response activities.

 

(r) (q) "Exacerbation" means the occurrence of either of the

 

following caused by an activity undertaken by the person who owns

 


or operates the property, with respect to contamination for which

 

the person is not liable:

 

(i) Contamination that has migrated beyond the boundaries of

 

the property which is the source of the release at levels above

 

cleanup criteria for unrestricted residential use unless a

 

criterion is not relevant because exposure is reliably restricted

 

as otherwise provided in this part.

 

(ii) A change in facility conditions that increases response

 

activity costs.

 

(s) (r) "Facility" means any area, place, or property where a

 

hazardous substance in excess of the concentrations that satisfy

 

the cleanup criteria for unrestricted residential use has been

 

released, deposited, disposed of, or otherwise comes to be located.

 

Facility does not include any area, place, or property where any of

 

the following conditions are satisfied:

 

(i) Response activities have been completed under this part

 

that satisfy the cleanup criteria for unrestricted residential use.

 

(ii) Corrective action has been completed under part 213 that

 

satisfies the cleanup criteria for unrestricted residential use.

 

(iii) Site-specific criteria that have been approved by the

 

department for application at the area, place, or property are met

 

or satisfied and both of the following conditions are met:

 

(A) The site-specific criteria do not depend on any land use

 

or resource use restriction to ensure protection of the public

 

health, safety, or welfare or the environment.

 

(B) Hazardous substances at the area, place, or property that

 

are not addressed by site-specific criteria satisfy the cleanup

 


criteria for unrestricted residential use.

 

(t) (s) "Feasibility study" means a process for developing,

 

evaluating, and selecting appropriate response activities.

 

(u) (t) "Financial assurance" means a performance bond,

 

escrow, cash, certificate of deposit, irrevocable letter of credit,

 

corporate guarantee, or other equivalent security, or any

 

combination thereof.

 

(v) (u) "Foreclosure" means possession of a property by a

 

lender on which it has foreclosed on a security interest or the

 

expiration of a lawful redemption period, whichever occurs first.

 

(w) (v) "Free product" means a hazardous substance in a liquid

 

phase equal to or greater than 1/8 inch of measurable thickness

 

that is not dissolved in water and that has been released into the

 

environment.

 

(x) (w) "Fund" means the cleanup and redevelopment fund

 

established in section 20108.

 

(y) (x) "Hazardous substance" means 1 or more of the

 

following, but does not include fruit, vegetable, or field crop

 

residuals or processing by-products, or aquatic plants, that are

 

applied to the land for an agricultural use or for use as an animal

 

feed, if the use is consistent with generally accepted agricultural

 

management practices developed pursuant to the Michigan right to

 

farm act, 1981 PA 93, MCL 286.471 to 286.474:

 

(i) Any substance that the department demonstrates, on a case

 

by case basis, poses an unacceptable risk to the public health,

 

safety, or welfare, or the environment, considering the fate of the

 

material, dose-response, toxicity, or adverse impact on natural

 


resources.

 

(ii) Hazardous substance as defined in the comprehensive

 

environmental response, compensation, and liability act, 42 USC

 

9601 to 9675.

 

(iii) Hazardous waste as defined in part 111.

 

(iv) Petroleum as described in part 213.

 

(z) (y) "Interim response activity" means the cleanup or

 

removal of a released hazardous substance or the taking of other

 

actions, prior to the implementation of a remedial action, as may

 

be necessary to prevent, minimize, or mitigate injury to the public

 

health, safety, or welfare, or to the environment. Interim response

 

activity also includes, but is not limited to, measures to limit

 

access, replacement of water supplies, and temporary relocation of

 

people as determined to be necessary by the department. In

 

addition, interim response activity means the taking of other

 

actions as may be necessary to prevent, minimize, or mitigate a

 

threatened release.

 

(aa) (z) "Lender" means any of the following:

 

(i) A state or nationally chartered bank.

 

(ii) A state or federally chartered savings and loan

 

association or savings bank.

 

(iii) A state or federally chartered credit union.

 

(iv) Any other state or federally chartered lending institution

 

or regulated affiliate or regulated subsidiary of any entity listed

 

in this subparagraph or subparagraphs (i) to (iii).

 

(v) An insurance company authorized to do business in this

 

state pursuant to the insurance code of 1956, 1956 PA 218, MCL

 


500.100 to 500.8302.

 

(vi) A motor vehicle finance company subject to the motor

 

vehicle finance act, 1950 (Ex Sess) PA 27, MCL 492.101 to 492.141,

 

with net assets in excess of $50,000,000.00.

 

(vii) A foreign bank.

 

(viii) A retirement fund regulated pursuant to state law or a

 

pension fund regulated pursuant to federal law with net assets in

 

excess of $50,000,000.00.

 

(ix) A state or federal agency authorized by law to hold a

 

security interest in real property or a local unit of government

 

holding a reversionary interest in real property.

 

(x) A nonprofit tax exempt organization created to promote

 

economic development in which a majority of the organization's

 

assets are held by a local unit of government.

 

(xi) Any other person who loans money for the purchase of or

 

improvement of real property.

 

(xii) Any person who retains or receives a security interest to

 

service a debt or to secure a performance obligation.

 

(bb) (aa) "Local health department" means that term as defined

 

in section 1105 of the public health code, 1978 PA 368, MCL

 

333.1105.

 

(cc) (bb) "Local unit of government" means a county, city,

 

township, or village, an agency of a local unit of government, an

 

authority or any other public body or entity created by or pursuant

 

to state law. Local unit of government does not include the state

 

or federal government or a state or federal agency.

 

(dd) (cc) "Method detection limit" means the minimum

 


concentration of a hazardous substance which can be measured and

 

reported with 99% confidence that the analyte concentration is

 

greater than zero and is determined from analysis of a sample in a

 

given matrix that contains the analyte.

 

(ee) (dd) "No further action letter" means a written response

 

provided by the department under section 20114d confirming that a

 

no further action report has been approved after review by the

 

department.

 

(ff) (ee) "No further action report" means a report under

 

section 20114d detailing the completion of remedial actions and

 

including a postclosure plan and a postclosure agreement, if

 

appropriate.

 

(gg) (ff) "Operator" means a person who is in control of or

 

responsible for the operation of a facility. Operator does not

 

include either of the following:

 

(i) A person who holds indicia of ownership primarily to

 

protect the person's security interest in the facility, unless that

 

person participates in the management of the facility as described

 

in section 20101a.

 

(ii) A person who is acting as a fiduciary in compliance with

 

section 20101b.

 

(hh) (gg) "Owner" means a person who owns a facility. Owner

 

does not include either of the following:

 

(i) A person who holds indicia of ownership primarily to

 

protect the person's security interest in the facility, including,

 

but not limited to, a vendor's interest under a recorded land

 

contract, unless that person participates in the management of the

 


facility as described in section 20101a.

 

(ii) A person who is acting as a fiduciary in compliance with

 

section 20101b.

 

(ii) (hh) "Panel" means the response activity review panel

 

created in section 20114e.

 

(jj) (ii) "Permitted release" means 1 or more of the

 

following:

 

(i) A release in compliance with an applicable, legally

 

enforceable permit issued under state law.

 

(ii) A lawful and authorized discharge into a permitted waste

 

treatment facility.

 

(iii) A federally permitted release as defined in the

 

comprehensive environmental response, compensation, and liability

 

act, 42 USC 9601 to 9675.

 

(kk) (jj) "Postclosure agreement" means an agreement between

 

the department and a person who has submitted a no further action

 

report that prescribes, as appropriate, activities required to be

 

undertaken upon completion of remedial actions as provided for in

 

section 20114d.

 

(ll) (kk) "Postclosure plan" means a plan for land use or

 

resource use restrictions or permanent markers at a facility upon

 

completion of remedial actions as required under section 20114c.

 

(mm) (ll) "Release" includes, but is not limited to, any

 

spilling, leaking, pumping, pouring, emitting, emptying,

 

discharging, injecting, escaping, leaching, dumping, or disposing

 

of a hazardous substance into the environment, or the abandonment

 

or discarding of barrels, containers, and other closed receptacles

 


containing a hazardous substance. Release does not include any of

 

the following:

 

(i) A release that results in exposure to persons solely within

 

a workplace, with respect to a claim that these persons may assert

 

against their employers.

 

(ii) Emissions from the engine exhaust of a motor vehicle,

 

rolling stock, aircraft, or vessel.

 

(iii) A release of source, by-product, or special nuclear

 

material from a nuclear incident, as those terms are defined in the

 

atomic energy act of 1954, 42 USC 2011 to 2297h-13, if the release

 

is subject to requirements with respect to financial protection

 

established by the nuclear regulatory commission under 42 USC 2210,

 

or any release of source by-product or special nuclear material

 

from any processing site designated under 42 USC 7912(a)(1) or 42

 

USC 7942(a).

 

(iv) If applied according to label directions and according to

 

generally accepted agricultural and management practices developed

 

pursuant to the Michigan right to farm act, 1981 PA 93, MCL 286.471

 

to 286.474, the application of a fertilizer, soil conditioner,

 

agronomically applied manure, or pesticide, or fruit, vegetable, or

 

field crop residuals or processing by-products, aquatic plants, or

 

a combination of these substances. As used in this subparagraph,

 

fertilizer and soil conditioner have the meaning given to these

 

terms in part 85, and pesticide has the meaning given to that term

 

in part 83.

 

(v) A release does not include fruits, vegetables, field crop

 

processing by-products, or aquatic plants, that are applied to the

 


land for an agricultural use or for use as an animal feed, if the

 

use is consistent with generally accepted agricultural and

 

management practices developed pursuant to the Michigan right to

 

farm act, 1981 PA 93, MCL 286.471 to 286.474.

 

(vi) The relocation of soil under section 20120c.

 

(nn) (mm) "Remedial action" includes, but is not limited to,

 

cleanup, removal, containment, isolation, destruction, or treatment

 

of a hazardous substance released or threatened to be released into

 

the environment, monitoring, maintenance, or the taking of other

 

actions that may be necessary to prevent, minimize, or mitigate

 

injury to the public health, safety, or welfare, or to the

 

environment.

 

(oo) (nn) "Remedial action plan" means a work plan for

 

performing remedial action under this part.

 

(pp) (oo) "Residential closure" means a facility property at

 

which the contamination has been addressed in a no further action

 

report that satisfies the limited residential cleanup criteria

 

under section 20120a(1)(c) or the site-specific residential cleanup

 

criteria under sections 20120a(2) and 20120b, that contains land

 

use or resource use restrictions, and that is approved by the

 

department or is considered approved by the department under

 

section 20120d.

 

(qq) (pp) "Response activity" means evaluation, interim

 

response activity, remedial action, demolition, providing an

 

alternative water supply, or the taking of other actions necessary

 

to protect the public health, safety, or welfare, or the

 

environment or the natural resources. Response activity also

 


includes health assessments or health effect studies carried out

 

under the supervision, or with the approval of, the department of

 

community health and enforcement actions related to any response

 

activity.

 

(rr) (qq) "Response activity costs" or "costs of response

 

activity" means all costs incurred in taking or conducting a

 

response activity, including enforcement costs.

 

(ss) (rr) "Response activity plan" means a plan for

 

undertaking response activities. A response activity plan may

 

include 1 or more of the following:

 

(i) A plan to undertake interim response activities.

 

(ii) A plan for evaluation activities.

 

(iii) A feasibility study.

 

(iv) A remedial action plan.

 

(tt) (ss) "Security interest" means any interest, including a

 

reversionary interest, in real property created or established for

 

the purpose of securing a loan or other obligation. Security

 

interests include, but are not limited to, mortgages, deeds of

 

trusts, liens, and title pursuant to lease financing transactions.

 

Security interests may also arise from transactions such as sale

 

and leasebacks, conditional sales, installment sales, trust receipt

 

transactions, certain assignments, factoring agreements, accounts

 

receivable financing arrangements, consignments, or any other

 

transaction in which evidence of title is created if the

 

transaction creates or establishes an interest in real property for

 

the purpose of securing a loan or other obligation.

 

(uu) (tt) "Target detection limit" means the detection limit

 


for a hazardous substance in a given environmental medium that is

 

specified by the department on a list that it publishes not more

 

than once a year. The department shall identify 1 or more

 

analytical methods, when a method is available, that are judged to

 

be capable of achieving the target detection limit for a hazardous

 

substance in a given environmental medium. The target detection

 

limit for a given hazardous substance is greater than or equal to

 

the method detection limit for that hazardous substance. In

 

establishing a target detection limit, the department shall

 

consider the following factors:

 

(i) The low level capabilities of methods published by

 

government agencies.

 

(ii) Reported method detection limits published by state

 

laboratories.

 

(iii) Reported method detection limits published by commercial

 

laboratories.

 

(iv) The need to be able to measure a hazardous substance at

 

concentrations at or below cleanup criteria.

 

(vv) (uu) "Threatened release" or "threat of release" means

 

any circumstance that may reasonably be anticipated to cause a

 

release.

 

(ww) (vv) "Venting groundwater" means groundwater that is

 

entering a surface water of the state from a facility.

 

(2) As used in this part:

 

(a) The phrase "a person who is liable" includes a person who

 

is described as being subject to liability in section 20126. The

 

phrase "a person who is liable" does not presume that liability has

 


been adjudicated.

 

(b) The phrase "this part" includes "rules promulgated under

 

this part".

 

Sec. 20104. (1) The department shall coordinate all activities

 

required under this part and may promulgate rules necessary to

 

implement this part.

 

(2) A guideline, bulletin, interpretive statement, or

 

operational memorandum under this part shall not be given the force

 

and effect of law. A guideline, bulletin, interpretive statement,

 

or operational memorandum under this part is not legally binding on

 

any person.

 

(3) Claims for natural resource damages may be pursued only in

 

accordance with principles of scientific and economic validity and

 

reliability. Contingent nonuse valuation methods or similar nonuse

 

valuation methods shall not be utilized and damages shall not be

 

recovered for nonuse values unless and until rules are promulgated

 

that establish an appropriate means of determining such damages.

 

(4) A contingent nonuse valuation method or similar nonuse

 

valuation method shall not be utilized for natural resource damage

 

calculations unless a determination is made by the department that

 

such a method satisfies principles of scientific and economic

 

validity and reliability and rules for utilizing a contingent

 

nonuse valuation method or a similar nonuse valuation method are

 

subsequently promulgated.

 

(5) The provisions in this section related to natural resource

 

damages as added by 1995 PA 71 do not apply to any judicial or

 

administrative action or claim in bankruptcy initiated on or before

 


March 1, 1995.

 

Sec. 20114. (1) Except as provided in subsection (4), an owner

 

or operator of property who has knowledge that the property is a

 

facility and who is liable under section 20126 shall do all of the

 

following:

 

(a) Determine the nature and extent of a release at the

 

facility.

 

(b) Make the following notifications:

 

(i) If the release is of a reportable quantity of a hazardous

 

substance under 40 CFR 302.4 and 302.6 (1989), (July 1, 2012

 

edition), report the release to the department within 24 hours

 

after obtaining knowledge of the release.

 

(ii) If the owner or operator has reason to believe that 1 or

 

more hazardous substances are emanating from or have emanated from

 

and are present beyond the boundary of his or her property at a

 

concentration in excess of cleanup criteria for unrestricted

 

residential use, notify the department and the owners of property

 

where the hazardous substances are present within 30 days after

 

obtaining knowledge that the release has migrated.

 

(iii) If the release is a result of an activity that is subject

 

to permitting under part 615 and the owner or operator is not the

 

owner of the surface property and the release results in hazardous

 

substance concentrations in excess of cleanup criteria for

 

unrestricted residential use, notify the department and the surface

 

owner within 30 days after obtaining knowledge of the release.

 

(c) Immediately stop or prevent the release at the source.

 

(d) Immediately implement source control or removal measures

 


to remove or contain hazardous substances that are released after

 

June 5, 1995 if those measures are technically practical, cost

 

effective, and provide protection to the environment. At a facility

 

where hazardous substances are released after June 5, 1995, and

 

those hazardous substances have not affected groundwater but are

 

likely to, groundwater contamination shall be prevented if it can

 

be prevented by measures that are technically practical, cost

 

effective, and provide protection to the environment.

 

(e) Immediately identify and eliminate any threat of fire or

 

explosion or any direct contact hazards.

 

(f) Immediately initiate removal of a hazardous substance that

 

is in a liquid phase, that is not dissolved in water, and that has

 

been released.

 

(g) Diligently pursue response activities necessary to achieve

 

the cleanup criteria established under this part. Except as

 

otherwise provided in this part, in pursuing response activities

 

under this subdivision, the owner or operator may do either of the

 

following:

 

(i) Proceed under section 20114a to conduct self-implemented

 

response activities.

 

(ii) Proceed under section 20114b if the owner or operator

 

wishes to, or is required to, obtain departmental approval of 1 or

 

more aspects of planning response activities.

 

(h) Upon written request by the department, take 1 or more of

 

the following actions:

 

(i) Provide a response activity plan containing a plan for

 

undertaking interim response activities and undertake interim

 


response activities consistent with that plan.

 

(ii) Provide a response activity plan containing a plan for

 

undertaking evaluation activities and undertake evaluation

 

activities consistent with that plan.

 

(iii) Pursue remedial actions under section 20114a and, upon

 

completion, submit a no further action report under section 20114d.

 

(iv) Take any other response activity determined by the

 

department to be technically sound and necessary to protect the

 

public health, safety, welfare, or the environment.

 

(v) Submit to the department for approval a response activity

 

plan containing a remedial action plan that, when implemented, will

 

achieve the cleanup criteria established under this part.

 

(vi) Implement an approved response activity plan in accordance

 

with a schedule approved by the department pursuant to this part.

 

(vii) Submit a no further action report under section 20114d

 

after completion of remedial action.

 

(2) Subsection (1) does not preclude a person from

 

simultaneously undertaking 1 or more aspects of planning or

 

implementing response activities at a facility under section 20114a

 

without the prior approval of the department, unless 1 or more

 

response activities are being conducted pursuant to an

 

administrative order or agreement or judicial decree that requires

 

prior department approval, and submitting a response activity plan

 

to the department under section 20114b.

 

(3) Except as provided in subsection (4), a person who holds

 

an easement interest in a portion of a property who has knowledge

 

that there may be a release within that easement shall report the

 


release to the department within 24 hours after obtaining knowledge

 

of the release. This subsection applies to reportable quantities of

 

hazardous substances established pursuant to 40 CFR 302.4 and 302.6

 

(1989).(July 1, 2012 edition).

 

(4) The requirements of subsections (1) and (3) do not apply

 

to a permitted release or a release in compliance with applicable

 

federal, state, and local air pollution control laws.

 

(5) This section does not do either of the following:

 

(a) Limit the authority of the department to take or conduct

 

response activities pursuant to this part.

 

(b) Limit the liability of a person who is liable under

 

section 20126.

 

Sec. 20114c. (1) If remedial actions at a facility satisfy

 

cleanup criteria for unrestricted residential use, land use or

 

resource use restrictions or monitoring is not required.

 

(2) Upon completion of remedial actions at a facility for a

 

category of cleanup that does not satisfy cleanup criteria for

 

unrestricted residential use, the person conducting the remedial

 

actions shall prepare and implement a postclosure plan for that

 

facility. A postclosure plan shall include both of the following:

 

(a) Land use or resource use restrictions as provided in

 

subsection (3).

 

(b) Permanent markers to describe restricted areas of the

 

facility and the nature of any restrictions. A permanent marker is

 

not required under this subdivision if the only applicable land use

 

or resource use restrictions relate to 1 or more of the following:

 

(i) A facility at which remedial action satisfies the cleanup

 


criteria for the nonresidential category under section

 

20120a(1)(b).

 

(ii) Use of groundwater.

 

(iii) Protection of the integrity of exposure controls that

 

prevent contact with soil, and those controls are composed solely

 

of asphalt, concrete, or landscaping materials. This subparagraph

 

does not apply if the hazardous substances that are addressed by

 

the barrier exceed a cleanup criterion based on acute toxic

 

effects, reactivity, corrosivity, ignitability, explosivity, or

 

flammability. , or if any hazardous substance addressed by the

 

exposure control is present at a concentration of more than 10

 

times an applicable soil direct contact cleanup criterion.

 

(iv) Construction requirements or limitations for structures

 

that may be built in the future.

 

(3) Land use or resource use restrictions that assure the

 

effectiveness and integrity of any containment, exposure barrier,

 

or other land use or resource use restrictions necessary to assure

 

the effectiveness and integrity of the remedy shall be described in

 

a restrictive covenant. A restrictive covenant developed to comply

 

with this part shall be in a format made available on the

 

department's website, with modifications to reflect the facts

 

applicable to the facility. The restrictive covenant shall be

 

recorded with the register of deeds for the county in which the

 

property is located within 21 days after the completion of the

 

remedial actions or within 21 days after the completion of

 

construction of the containment or barrier, as appropriate. The

 

restrictive covenant shall only be recorded by the property owner

 


or with the express written permission of the property owner. The

 

restrictions shall run with the land and be binding on the owner's

 

successors, assigns, and lessees. The restrictive covenant shall

 

include a survey and property description that define the areas

 

addressed by the remedial actions and the scope of any land use or

 

resource use restrictions. At a minimum, the restrictive covenant

 

shall do all of the following:

 

(a) Describe the general uses of the property that are

 

consistent with the cleanup criteria.

 

(b) Restrict activities at the facility that may interfere

 

with remedial actions, operation and maintenance, monitoring, or

 

other measures necessary to assure the effectiveness and integrity

 

of the remedial actions.

 

(c) Restrict activities that may result in exposures above

 

levels attained in the remedial actions.

 

(d) Grant to the department the ability to enforce the

 

restrictive covenant by legal action in a court of appropriate

 

jurisdiction.

 

(4) A person shall not record a restrictive covenant

 

indicating approval by the department unless the department has

 

approved the recording of the restrictive covenant.

 

(5) A person who implements a postclosure plan shall provide

 

notice of the land use or resource use restrictions to the

 

department and to the zoning authority for the local unit of

 

government in which the facility is located within 30 days after

 

recording the land use or resource use restrictions with the

 

register of deeds.

 


(6) The department, with the approval of the state

 

administrative board, may place restrictive covenants related to

 

land use or resource use restrictions on deeds of state-owned

 

property.

 

(7) Implementation of remedial actions does not relieve a

 

person who is liable under section 20126 of that person's

 

responsibility to report and provide for response activity to

 

address a subsequent release or threat of release.

 

(8) Implementation by any person of remedial actions without

 

department approval does not relieve that person of an obligation

 

to undertake response activities or limit the ability of the

 

department to take action to require response activities necessary

 

to comply with this part by a person who is liable under section

 

20126.

 

Sec. 20114d. (1) Upon completion of remedial actions that

 

satisfy applicable cleanup criteria established under the

 

requirements of this part, and all other requirements of this part

 

that are applicable to remedial action, a person may submit a no

 

further action report to the department. The A person may submit a

 

no further action report under this subsection for remedial actions

 

addressing contamination for which the person is or is not liable.

 

Remedial actions included in a no further action report may address

 

all or a portion of contamination at a facility as follows:

 

(a) The remedial actions may address 1 or more releases at a

 

facility.

 

(b) The remedial actions may address 1 or more hazardous

 

substances at a facility.

 


(c) The remedial actions may address contamination in 1 or

 

more environmental media at a facility.

 

(d) The remedial actions may address contamination within the

 

entire facility or only a portion of a facility.

 

(e) The remedial actions may address contamination at a

 

facility through any combination of subdivisions (a) through (d).

 

(2) A no further action report submitted under subsection (1)

 

shall document the basis for concluding that the remedial actions

 

have been completed. A no further action report may include a

 

request that, upon approval, the facility release or conditions

 

addressed by the no further action report be designated as a

 

residential closure. A no further action report shall be submitted

 

with a form developed by the department. The department shall make

 

this form available on its website.

 

(3) (2) A no further action report submitted under subsection

 

(1) shall be submitted with the following, as applicable:

 

(a) If the remedial action at the facility satisfies the

 

cleanup criteria for unrestricted residential use for the hazardous

 

substances and portion of the facility addressed in the no further

 

action report, neither a postclosure plan or a proposed postclosure

 

agreement is required to be submitted.

 

(b) If the remedial action requires only land use or resource

 

use restrictions and financial assurance is not required or the

 

financial assurance is de minimis, a postclosure plan is required

 

but a proposed postclosure agreement is not required to be

 

submitted.

 

(c) For facilities circumstances other than those described in

 


subdivision (a) or (b), a postclosure plan and a proposed

 

postclosure agreement are required to be submitted.

 

(4) (3) A proposed postclosure agreement that is submitted as

 

part of a no further action report shall include all of the

 

following:

 

(a) Provisions for monitoring, operation and maintenance, and

 

oversight necessary to assure the effectiveness and integrity of

 

the remedial action.

 

(b) Financial assurance to pay for monitoring, operation and

 

maintenance, oversight, and other costs determined by the

 

department to be necessary to assure the effectiveness and

 

integrity of the remedial action.

 

(c) A provision requiring notice to the department of the

 

owner's intent to convey any interest in the facility 14 days prior

 

to consummating the conveyance. A conveyance of title, an easement,

 

or other interest in the property shall not be consummated by the

 

property owner without adequate and complete provision for

 

compliance with the terms and conditions of the postclosure plan

 

and the postclosure agreement.

 

(d) A provision granting the department the right to enter the

 

property at reasonable times for the purpose of determining and

 

monitoring compliance with the postclosure plan and postclosure

 

agreement, including the right to take samples, inspect the

 

operation of the remedial action measures, and inspect records.

 

(5) (4) A postclosure agreement may modify the terms of a

 

postclosure plan as follows:

 

(a) If the exposure to hazardous substances addressed in the

 


no further action report may be reliably restricted by an

 

institutional control in lieu of a restrictive covenant, and

 

imposition of land use or resource use restrictions through

 

restrictive covenants is impractical, the postclosure agreement may

 

allow for a remedial action under section 20120a(1)(c) or (d) or

 

(2) to rely on an institutional control in lieu of a restrictive

 

covenant in a postclosure plan. Mechanisms that may be considered

 

under this subsection include, but are not limited to, an ordinance

 

that restricts the use of groundwater or an aquifer in a manner and

 

to a degree that protects against unacceptable exposures. An

 

ordinance that serves as an exposure control pursuant to this

 

subsection shall be published and maintained in the same manner as

 

zoning ordinances and shall include a requirement that the local

 

unit of government notify the department at least 30 days prior to

 

adopting a modification to the ordinance, or to the lapsing or

 

revocation of the ordinance.

 

(b) A postclosure agreement may waive the requirement for

 

permanent markers.

 

(6) (5) The person submitting a no further action report shall

 

include a signed affidavit attesting to the fact that the

 

information upon which the no further action report is based is

 

complete and true to the best of that person's knowledge. The no

 

further action report shall also include a signed affidavit from an

 

environmental consultant who meets the professional qualifications

 

described in section 20114e(2) and who prepared the no further

 

action report, attesting to the fact that the remedial actions

 

detailed in the no further action report comply with all applicable

 


requirements and that the information upon which the no further

 

action report is based is complete and true to the best of that

 

person's knowledge. In addition, the environmental consultant shall

 

attach a certificate of insurance demonstrating that the

 

environmental consultant has obtained at least all of the following

 

from a carrier that is authorized to conduct business in this

 

state:

 

(a) Statutory worker compensation insurance as required in

 

this state.

 

(b) Professional liability errors and omissions insurance.

 

This policy may not exclude bodily injury, property damage, or

 

claims arising out of pollution for environmental work and shall be

 

issued with a limit of not less than $1,000,000.00 per claim.

 

(c) Contractor pollution liability insurance with limits of

 

not less than $1,000,000.00 per claim, if not included under the

 

professional liability errors and omissions insurance required

 

under subdivision (b). The insurance requirement under this

 

subdivision is not required for environmental consultants who do

 

not perform contracting functions.

 

(d) Commercial general liability insurance with limits of not

 

less than $1,000,000.00 per claim and $2,000,000.00 aggregate.

 

(e) Automobile liability insurance with limits of not less

 

than $1,000,000.00 per claim.

 

(7) (6) A person submitting a no further action report shall

 

maintain all documents and data prepared, acquired, or relied upon

 

in connection with the no further action report for not less than

 

10 years after the later of the date on which the department

 


approves the no further action report under this section, or the

 

date on which no further monitoring, operation, or maintenance is

 

required to be undertaken as part of the remedial action covered by

 

the report. All documents and data required to be maintained under

 

this section shall be made available to the department upon

 

request.

 

(8) (7) Upon receipt of a no further action report submitted

 

under this subsection, the department shall approve or deny the no

 

further action report or shall notify the submitter that the report

 

does not contain sufficient information for the department to make

 

a decision. If the no further action report requires a postclosure

 

agreement, the department may negotiate alternative terms than

 

those included within the proposed postclosure agreement. The

 

department shall provide its determination within 150 days after

 

the report was received by the department under this subsection

 

unless the report requires public participation under section

 

20120d(2). If the report requires public participation under

 

section 20120d(2), the department shall respond within 180 days. If

 

the department's response is that the report does not include

 

sufficient information, the department shall identify the

 

information that is required for the department to make a decision.

 

If the report is denied, the department's denial shall, to the

 

extent practical, state with specificity all of the reasons for

 

denial. If the no further action report, including any required

 

postclosure plan and postclosure agreement, is approved, the

 

department shall provide the person submitting the no further

 

action report with a no further action letter. The department shall

 


review and provide a written response within the time frames

 

required by this subsection for at least 90% of the no further

 

action reports submitted to the department under this section in

 

each calendar year.

 

(9) (8) If the department fails to provide a written response

 

within the time frames required by subsection (7), (8), the no

 

further action report is considered approved.

 

(10) (9) A person requesting approval of a no further action

 

report under subsection (7) (8) may appeal the department's

 

decision in accordance with section 20114e.

 

(11) (10) Any time frame required by this section may be

 

extended by mutual agreement of the department and a person

 

submitting a no further action report. An agreement extending a

 

time frame shall be in writing.

 

(12) (11) Following approval of a no further action report

 

under this section, the owner or operator of the facility addressed

 

by the no further action report may submit to the department an

 

amended no further action report. The amended no further action

 

report shall include the proposed changes to the original no

 

further action report and an accompanying rationale for the

 

proposed change. The process for review and approval of an amended

 

no further action report is the same as the process for no further

 

action reports.

 

Sec. 20114e. (1) The director shall establish a response

 

activity review panel to advise him or her on technical or

 

scientific disputes, including disputes regarding assessment of

 

risk, concerning response activity plans, and no further action

 


reports, certificates of completion, and documentations of due care

 

compliance under this part, and initial assessment reports, final

 

assessment reports, and closure reports, and documentations of due

 

care compliance under part 213.

 

(2) The panel shall consist of 15 individuals, appointed by

 

the director. Each member of the panel shall meet all of the

 

following minimum requirements:

 

(a) Meet 1 or more of the following:

 

(i) Hold a current professional engineer's or professional

 

geologist's license or registration from a state, tribe, or United

 

States territory, or the Commonwealth of Puerto Rico, and have the

 

equivalent of 6 years of full-time relevant experience.

 

(ii) Have a baccalaureate degree from an accredited institution

 

of higher education in a discipline of engineering or science and

 

the equivalent of 10 years of full-time relevant experience.

 

(iii) Have a master's degree from an accredited institution of

 

higher education in a discipline of engineering or science and the

 

equivalent of 8 years of full-time relevant experience.

 

(b) Remain current in his or her field through participation

 

in continuing education or other activities.

 

(3) An individual is not eligible to be a member of the panel

 

if any 1 of the following is true:

 

(a) The individual is a current employee of any office,

 

department, or agency of the state.

 

(b) The individual is a party to 1 or more contracts with the

 

department and the compensation paid under those contracts

 

represented more than 5% of the individual's annual gross revenue

 


in any of the preceding 3 years.

 

(c) The individual is employed by an entity that is a party to

 

1 or more contracts with the department and the compensation paid

 

to the individual's employer under these contracts represented more

 

than 5% of the employer's annual gross revenue in any of the

 

preceding 3 years.

 

(d) The individual was employed by the department within the

 

preceding 3 years.

 

(4) An individual appointed to the panel shall serve for a

 

term of 3 years and may be reappointed for 1 additional 3-year

 

term. After serving 2 consecutive terms, the individual shall not

 

be a member of the panel for a period of at least 2 years before

 

being eligible to be appointed to the panel again. The terms for

 

members first appointed shall be staggered so that not more than 5

 

vacancies are scheduled to occur in a single year. Individuals

 

appointed to the panel shall serve without compensation. However,

 

members of the panel may be reimbursed for their actual and

 

necessary expenses incurred in the performance of their official

 

duties as members of the panel.

 

(5) A vacancy on the panel shall be filled in the same manner

 

as the original appointment.

 

(6) The business that the panel may perform shall be conducted

 

at a public meeting of the panel held in compliance with the open

 

meetings act, 1976 PA 267, MCL 15.261 to 15.275.

 

(7) A person who submitted a response activity plan, or a no

 

further action report, a request for certificate of completion, or

 

documentation of due care compliance under this part or an initial

 


assessment report, final assessment report, or closure report, or

 

documentation of due care compliance under part 213 may appeal a

 

decision made by the department regarding a technical or scientific

 

dispute, including a dispute regarding assessment of risk,

 

concerning the response activity plan, no further action report,

 

request for certificate of completion, initial assessment report,

 

final assessment report, or closure report, or documentation of due

 

care compliance by submitting a petition to the director. However,

 

an issue that was addressed as part of the final decision of the

 

director under section 21332 or that is the subject of a contested

 

case hearing under section 21332 is not eligible for review by the

 

panel. The petition shall include the issues in dispute, the

 

relevant facts upon which the dispute is based, factual data,

 

analysis, opinion, and supporting documentation for the

 

petitioner's position. The petitioner shall also submit a fee of

 

$3,500.00. If the director believes that the dispute may be able to

 

be resolved without convening the panel, the director may contact

 

the petitioner regarding the issues in dispute and may negotiate a

 

resolution of the dispute. This negotiation period shall not exceed

 

45 days. If the dispute is resolved without convening the panel,

 

any fee that is submitted with the petition shall be returned.

 

(8) If a dispute is not resolved pursuant to subsection (7),

 

the director shall schedule a meeting of 5 members of the panel,

 

selected on the basis of their relevant expertise, within 45 days

 

after receiving the original petition. If the dispute involves an

 

underground storage tank system, at least 3 of the members selected

 

shall have relevant experience in the American society for testing

 


and materials risk-based corrective action processes described in

 

part 213. A member selected for the dispute resolution process

 

shall agree not to accept employment by the person bringing the

 

dispute before the panel, or to undertake any employment concerning

 

the facility in question for a period of 1 year after the decision

 

has been rendered on the matter if that employment would represent

 

more than 5% of the member's gross revenue in any of the preceding

 

3 years. The director shall provide a copy of all supporting

 

documentation to members of the panel who will hear the dispute. An

 

alternative member may be selected by the director to replace a

 

member who is unable to participate in the dispute resolution

 

process. Any action by the members selected to hear the dispute

 

shall require a majority of the votes cast. The members selected

 

for the dispute resolution process shall elect a chairperson of the

 

dispute resolution process. At a meeting scheduled to hear the

 

dispute, representatives of the petitioner and the department shall

 

each be afforded an opportunity to present their positions to the

 

panel. The fee that is received by the director along with the

 

petition shall be forwarded to the state treasurer for deposit into

 

the fund.

 

(9) Within 45 days after hearing the dispute, the members of

 

the panel who were selected for and participated in the dispute

 

resolution process shall make a recommendation regarding the

 

petition and provide written notice of the recommendation to the

 

director of the department and the petitioner. The written

 

recommendation shall include the specific scientific or technical

 

rationale for the recommendation. The panel's recommendation

 


regarding the petition may be to adopt, modify, or reverse, in

 

whole or in part, the department's decision that is the subject of

 

the petition. If the panel does not make its recommendation within

 

this 45-day time period, the decision of the department is the

 

final decision of the director.

 

(10) Within 60 days after receiving written notice of the

 

panel's recommendation, the director shall issue a final decision,

 

in writing, regarding the petition. However, this time period may

 

be extended by written agreement between the director and the

 

petitioner. If the director agrees with the recommendation of the

 

panel, the department shall incorporate the recommendation into its

 

response to the response activity plan, no further action report,

 

request for certificate of completion, initial assessment report,

 

final assessment report, or closure report, or documentation of due

 

care compliance. If the director rejects the recommendation of the

 

panel, the director shall issue a written decision to the

 

petitioner with a specific rationale for rejecting the

 

recommendation of the panel. If the director fails to issue a final

 

decision within the time period provided for in this subsection,

 

the recommendation of the panel shall be considered the final

 

decision of the director. The final decision of the director under

 

this subsection is subject to review pursuant to section 631 of the

 

revised judicature act of 1961, 1961 PA 236, MCL 600.631.

 

(11) Upon request of the director, the panel shall make a

 

recommendation to the department on whether a member should be

 

removed from the panel. Prior to making this recommendation, the

 

panel may convene a peer review panel to evaluate the conduct of

 


the member with regard to compliance with this part.

 

(12) A member of the panel shall not participate in the

 

dispute resolution process for any appeal in which that member has

 

a conflict of interest. The director shall select a member of the

 

panel to replace a member who has a conflict of interest under this

 

subsection. For purposes of this subsection, a member has a

 

conflict of interest if a petitioner has hired that member or the

 

member's employer on any environmental matter within the preceding

 

3 years.

 

(13) As used in this section, "relevant experience" means

 

active participation in the preparation, design, implementation,

 

and assessment of remedial investigations, feasibility studies,

 

interim response activities, and remedial actions under this part

 

or experience in the American society for testing and materials

 

risk-based corrective action processes described in part 213. This

 

experience must demonstrate the exercise of sound professional

 

judgment and knowledge of the requirements of this part or part

 

213, or both.

 

Sec. 20114f. (1) Upon completion of a response activity a

 

person may request a certificate of completion from the department.

 

(2) To obtain a certificate of completion from the department

 

under this section, a person shall submit each of the following to

 

the department:

 

(a) A certificate of completion request form. The department

 

shall specify the required content of the request form and make the

 

form available on the department's website.

 

(b) Documentation of the completed response activity.

 


(3) Upon receipt of a request for a certificate of completion

 

submitted under this subsection, the department shall issue a

 

certificate or deny the request, or shall notify the submitter that

 

there is not sufficient information for the department to make a

 

decision. If the department's response is that the request does not

 

include sufficient information, the department shall identify the

 

information that is required for the department to make a decision.

 

If the request is denied, the department's denial shall, to the

 

extent practical, state with specificity all of the reasons for

 

denial. The department shall make a decision under this subsection

 

and shall provide the person submitting the request with a

 

certificate of completion, as appropriate, within 1 of the

 

following time frames, as applicable:

 

(a) 150 days after the request was received by the department

 

if the response activity was undertaken without prior approval of

 

the department and the department determines that the response

 

activity complies with the applicable requirements of this part.

 

(b) 90 days after the request was received by the department

 

if the response activity was undertaken pursuant to a response

 

activity plan that was approved under section 20114b and the

 

department determines that the response activity was completed in

 

accordance with the approved plan.

 

(4) If the department fails to provide a written response

 

within the time frame required by subsection (3), the response

 

activity is considered approved.

 

(5) Any time frame required by this section may be extended by

 

mutual agreement of the department and a person submitting a

 


request for a certificate of completion or a person who has

 

received a certificate of completion. An agreement extending a time

 

frame shall be in writing.

 

(6) A person requesting a certificate of completion may appeal

 

the department's decision in accordance with section 20114e, if

 

applicable.

 

Sec. 20114g. (1) A person may submit to the department

 

documentation of due care compliance regarding a facility. The

 

documentation of due care compliance shall be submitted on a form

 

provided by the department and shall contain documentation of

 

compliance with section 20107a, and other information required by

 

the department.

 

(2) Within 45 business days after receipt of the documentation

 

of due care compliance under subsection (1) containing sufficient

 

information for the department to make a decision, the department

 

shall approve, approve with conditions, or deny the documentation

 

of due care compliance. If the department does not approve the

 

documentation of due care compliance, the department shall provide

 

the person that submitted the documentation the reasons why the

 

documentation of due care compliance was not approved.

 

(3) A person that disagrees with a decision of the department

 

under this section may submit a petition for review of scientific

 

or technical disputes to the response activity review panel

 

pursuant to section 20114e.

 

Sec. 20120a. (1) The department may establish cleanup criteria

 

and approve of remedial actions in the categories listed in this

 

subsection. The cleanup category proposed shall be the option of

 


the person proposing the remedial action, subject to department

 

approval if required, considering the appropriateness of the

 

categorical criteria to the facility. The categories are as

 

follows:

 

(a) Residential.

 

(b) Nonresidential. Beginning on the effective date of the

 

2010 amendatory act that amended this section, the The

 

nonresidential cleanup criteria shall be the former industrial

 

categorical cleanup criteria developed by the department pursuant

 

to this section until new nonresidential cleanup criteria are

 

developed and published by the department pursuant to subsection

 

(17).

 

(c) Limited residential.

 

(d) Limited nonresidential.

 

(2) As an alternative to the categorical criteria under

 

subsection (1), the department may approve a response activity plan

 

or a no further action report containing site-specific criteria

 

that satisfy the requirements of section 20120b and other

 

applicable requirements of this part. The department shall utilize

 

only reasonable and relevant exposure pathways in determining the

 

adequacy of a site-specific criterion. Additionally, the department

 

may approve a remedial action plan for a designated area-wide zone

 

encompassing more than 1 facility, and may consolidate remedial

 

actions for more than 1 facility.

 

(3) The department shall develop cleanup criteria pursuant to

 

subsection (1) based on generic human health risk assessment

 

assumptions determined by the department to appropriately

 


characterize patterns of human exposure associated with certain

 

land uses. The department shall utilize only reasonable and

 

relevant exposure pathways in determining these assumptions. The

 

department may prescribe more than 1 generic set of exposure

 

assumptions within each category described in subsection (1). If

 

the department prescribes more than 1 generic set of exposure

 

assumptions within a category, each set of exposure assumptions

 

creates a subcategory within a category described in subsection

 

(1). The department shall specify facility characteristics that

 

determine the applicability of criteria derived for these

 

categories or subcategories.

 

(4) If a hazardous substance poses a carcinogenic risk to

 

humans, the cleanup criteria derived for cancer risk under this

 

section shall be the 95% upper bound on the calculated risk of 1

 

additional cancer above the background cancer rate per 100,000

 

individuals using the generic set of exposure assumptions

 

established under subsection (3) for the appropriate category or

 

subcategory. If the hazardous substance poses a risk of an adverse

 

health effect other than cancer, cleanup criteria shall be derived

 

using appropriate human health risk assessment methods for that

 

adverse health effect and the generic set of exposure assumptions

 

established under subsection (3) for the appropriate category or

 

subcategory. A hazard quotient of 1.0 shall be used to derive

 

noncancer cleanup criteria. For the noncarcinogenic effects of a

 

hazardous substance present in soils, the intake shall be assumed

 

to be 100% of the protective level, unless compound and site-

 

specific data are available to demonstrate that a different source

 


contribution is appropriate. If a hazardous substance poses a risk

 

of both cancer and 1 or more adverse health effects other than

 

cancer, cleanup criteria shall be derived under this section for

 

the most sensitive effect.

 

(5) If a cleanup criterion derived under subsection (4) for

 

groundwater in an aquifer differs from either: (a) the state

 

drinking water standard established pursuant to section 5 of the

 

safe drinking water act, 1976 PA 399, MCL 325.1005, or (b) the

 

national secondary drinking water regulations established pursuant

 

to 42 USC 300g-1, or (c) if there is not national secondary

 

drinking water regulation for a contaminant, the concentration

 

determined by the department according to methods approved by the

 

United States environmental protection agency below which taste,

 

odor, appearance, or other aesthetic characteristics are not

 

adversely affected, the cleanup criterion shall be the more

 

stringent of (a), (b), or (c) unless the department determines that

 

compliance with this subsection is not necessary because the use of

 

the aquifer is reliably restricted under provisions of a

 

postclosure plan or a postclosure agreement.

 

(6) The department shall not approve a remedial action plan or

 

no further action report in categories set forth in subsection

 

(1)(b) to (d), unless the person documents that the current zoning

 

of the property is consistent with the categorical criteria being

 

proposed, or that the governing zoning authority intends to change

 

the zoning designation so that the proposed criteria are consistent

 

with the new zoning designation, or the current property use is a

 

legal nonconforming use. The department shall not grant final

 


approval for a remedial action plan or no further action report

 

that relies on a change in zoning designation until a final

 

determination of that zoning change has been made by the local unit

 

of government. The department may approve of a remedial action plan

 

or no further action report that achieves categorical criteria that

 

are based on greater exposure potential than the criteria

 

applicable to current zoning. In addition, the remedial action plan

 

or no further action report shall include documentation that the

 

current property use is consistent with the current zoning or is a

 

legal nonconforming use. Abandoned or inactive property shall be

 

considered on the basis of zoning classifications as described

 

above.

 

(7) Cleanup criteria from 1 or more categories in subsection

 

(1) may be applied at a facility, if all relevant requirements are

 

satisfied for application of a pertinent criterion.

 

(8) The need for soil remediation to protect an aquifer from

 

hazardous substances in soil shall consider the vulnerability of

 

the aquifer or aquifers potentially affected if the soil remains at

 

the facility. Migration of hazardous substances in soil to an

 

aquifer is a pertinent pathway if appropriate based on

 

consideration of site specific factors.

 

(9) The department may establish cleanup criteria for a

 

hazardous substance using a biologically based model developed or

 

identified as appropriate by the United States environmental

 

protection agency if the department determines all of the

 

following:

 

(a) That application of the model results in a criterion that

 


more accurately reflects the risk posed.

 

(b) That data of sufficient quantity and quality are available

 

for a specified hazardous substance to allow the scientifically

 

valid application of the model.

 

(c) The United States environmental protection agency has

 

determined that application of the model is appropriate for the

 

hazardous substance in question.

 

(10) If the target detection limit or the background

 

concentration for a hazardous substance is greater than a cleanup

 

criterion developed for a category pursuant to subsection (1), the

 

criterion shall be the target detection limit or background

 

concentration, whichever is larger, for that hazardous substance in

 

that category.

 

(11) The department may also approve cleanup criteria if

 

necessary to address conditions that prevent a hazardous substance

 

from being reliably measured at levels that are consistently

 

achievable in samples from the facility in order to allow for

 

comparison with generic cleanup criteria. A person seeking approval

 

of a criterion under this subsection shall document the basis for

 

determining that the relevant published target detection limit

 

cannot be achieved in samples from the facility.

 

(12) In determining the adequacy of a land-use based response

 

activity to address sites contaminated by polychlorinated

 

biphenyls, the department shall not require response activity in

 

addition to that which is subject to and complies with applicable

 

federal regulations and policies that implement the toxic

 

substances control act, 15 USC 2601 to 2692.

 


(13) Remedial action to address the release of uncontaminated

 

mineral oil satisfies cleanup criteria under this part for

 

groundwater or for soil if all visible traces of mineral oil are

 

removed from groundwater and soil.

 

(14) Approval by the department of remedial action based on

 

the categorical standard in subsection (1)(a) or (b) shall be

 

granted only if the pertinent criteria are satisfied in the

 

affected media. The department shall approve the use of

 

probabilistic or statistical methods or other scientific methods of

 

evaluating environmental data when determining compliance with a

 

pertinent cleanup criterion if the methods are determined by the

 

department to be reliable, scientifically valid, and best represent

 

actual site conditions and exposure potential.

 

(15) If a discharge of venting groundwater complies with this

 

part, a permit for the discharge is not required.

 

(16) Remedial actions shall meet the cleanup criteria for

 

unrestricted residential use or shall provide for acceptable land

 

use or resource use restrictions in a postclosure plan or a

 

postclosure agreement.

 

(17) Remedial actions that rely on categorical cleanup

 

criteria developed pursuant to subsection (1) shall also consider

 

other factors necessary to protect the public health, safety, and

 

welfare, and the environment as specified by the department, if the

 

department determines based on data and existing information that

 

such considerations are relevant to a specific facility. These

 

factors include, but are not limited to, the protection of surface

 

water quality and consideration of ecological risks if pertinent to

 


the facility based on the requirements of this part.

 

(18) Not later than 2 years after the effective date of the

 

2010 amendatory act that amended this section, December 31, 2013,

 

the department shall evaluate and revise the cleanup criteria

 

derived under this section. The evaluation and any revisions shall

 

incorporate knowledge gained through research and studies in the

 

areas of fate and transport and risk assessment and shall take into

 

account best practices from other states, reasonable and realistic

 

conditions, and sound science. Following this revision, the

 

department shall periodically evaluate whether new information is

 

available regarding the cleanup criteria and shall make revisions

 

as appropriate. The department shall prepare and submit to the

 

legislature a report detailing any revisions made to cleanup

 

criteria under this section.

 

(19) A person demonstrates compliance with indoor air

 

inhalation criteria for a hazardous substance at a facility under

 

this part if all of the following conditions are met:

 

(a) The facility is an establishment covered by the

 

classifications provided by sector 31-33 manufacturing, of the

 

North American industry classification system, United States, 2012,

 

published by the office of management and budget.

 

(b) The person complies with the Michigan occupational safety

 

and health act, 1974 PA 154, MCL 408.1001 to 408.1094, and the

 

rules promulgated under that act applicable to the exposure to the

 

hazardous substance, including, but not limited to, the

 

occupational health standards for air contaminants, R 325.51101 to

 

R 325.51108 of the Michigan administrative code.

 


(c) The hazardous substance is included in the facility's

 

hazard communication program under section 14a of the Michigan

 

occupational safety and health act, 1974 PA 154, MCL 408.1014a, and

 

the hazard communication rules, R 325.77001 to R 325.77003 of the

 

Michigan administrative code, except that unless the hazardous

 

substance is in use in the facility, the requirement to have a

 

material safety data sheet in the workplace requires only a generic

 

material safety data sheet for the hazardous substance and the

 

labeling requirements do not apply.

 

Sec. 20120b. (1) The department shall approve numeric or

 

nonnumeric site-specific criteria in a response activity under

 

section 20120a if such criteria, in comparison to generic criteria,

 

better reflect best available information concerning the toxicity

 

or exposure risk posed by the hazardous substance or other factors.

 

(2) Site-specific criteria approved under subsection (1) may,

 

as appropriate:

 

(a) Use the algorithms for calculating generic criteria

 

established by rule or propose and use different algorithms.

 

(b) Alter any value, parameter, or assumption used to

 

calculate generic criteria.

 

(c) Take into consideration the depth below the ground surface

 

of contamination, which may reduce the potential for exposure and

 

serve as an exposure barrier.

 

(d) Be based on information related to the specific facility

 

or information of general applicability, including peer-reviewed

 

scientific literature.

 

(e) Use probabilistic methods of calculation.

 


(f) Use nonlinear-threshold-based calculations where

 

scientifically justified.

 

Sec. 20120c. (1) An owner or operator shall not remove soil,

 

or allow soil to be removed, from a facility to an off-site

 

location unless that person determines that the soil can be

 

lawfully relocated without posing a threat to the public health,

 

safety, or welfare, or the environment. The determination shall

 

consider whether the soil is subject to regulation pursuant to part

 

111.

 

(2) For the purposes of subsection (1), soil poses a threat to

 

the public health, safety, or welfare, or the environment if

 

concentrations of hazardous substances in the soil exceed the

 

cleanup criterion determined pursuant to section 20120a(1) or (2)

 

that apply to the location to which the soil will be moved or

 

relocated, except that if the soil is to be removed from the

 

facility for disposal or treatment, the soil shall satisfy the

 

appropriate regulatory criteria for disposal or treatment. Any land

 

use or resource use restrictions that would be required for the

 

application of a criterion pursuant to section 20120a(1) or (2)

 

shall be in place at the location to which the soil will be moved.

 

Soil may be relocated only to another location that is similarly

 

contaminated, considering the general nature, concentration, and

 

mobility of hazardous substances present at the location to which

 

contaminated soil will be moved. Contaminated soil shall not be

 

moved to a location that is not a facility unless it is taken there

 

for treatment or disposal in conformance with applicable laws and

 

regulations.

 


(3) An owner or operator shall not relocate soil, or allow

 

soil to be relocated, within a facility where a remedial action

 

plan has been approved unless that person assures that the same

 

degree of control required for application of the criteria of

 

section 20120a(1) or (2) is provided for the contaminated soil.

 

(4) The prohibition in subsection (3) against relocation of

 

contaminated soil within a facility does not apply to soils that

 

are temporarily relocated for the purpose of implementing response

 

activity or utility construction if the response activity or

 

utility construction is completed in a timely fashion and the

 

short-term hazards are appropriately controlled.

 

(5) If soil is being moved off-site from, moved to, or

 

relocated on-site at a facility where a remedial action plan has

 

been approved by the department based on a categorical cleanup

 

criterion in section 20120a(1)(c) or (d) or (2), the soil shall not

 

be moved without prior department approval.

 

(6) If soil is being relocated in a manner not addressed by

 

subsection (5), the owner or operator of the facility from which

 

soil is being moved must provide notice to the department within 14

 

days after the soil is moved. The notice shall include all of the

 

following:

 

(a) The location from which soil will be removed.

 

(b) The location to which the soil will be taken.

 

(c) The volume of soil to be moved.

 

(d) A summary of information or data on which the owner or

 

operator is basing the determination required in subsection (2)

 

that the soil does not present a threat to the public health,

 


safety, or welfare, or the environment.

 

(e) If land use or resource use restrictions in a postclosure

 

plan or a postclosure agreement would apply to the soil when it is

 

relocated, the notice shall include documentation that those

 

restrictions are in place.

 

(7) The determination required by subsections (1) and (3)

 

shall be based on knowledge of the person undertaking or approving

 

of the removal or relocation of soil, or on characterization of the

 

soil for the purpose of compliance with this section.

 

(8) This section does not apply to soil that is designated as

 

an inert material pursuant to section 11507(3).

 

(1) An owner or operator may relocate contaminated soil off-

 

site or allow contaminated soil to be relocated off-site if all of

 

the following requirements are met:

 

(a) The person determines that the soil can be lawfully

 

relocated without posing a threat to the public health, safety, or

 

welfare or the environment. In making the determination, the owner

 

or operator shall consider whether the soil is subject to

 

regulation under part 111. For the purposes of this subdivision,

 

soil poses a threat to the public health, safety, or welfare or the

 

environment if concentrations of hazardous substances in the soil

 

exceed the cleanup criterion determined pursuant to section

 

20120a(1) or (2) that apply to the facility to which the soil will

 

be relocated. Any land use or resource use restrictions that would

 

be required for the application of a criterion pursuant to section

 

20120a(1) or (2) shall be in place at the facility before the soil

 

is relocated. Contaminated soil shall not be relocated to a

 


location that is not a facility.

 

(b) Prior department approval is obtained if the contaminated

 

soil is being relocated off-site from or to either of the

 

following:

 

(i) A facility where a remedial action plan that includes soil

 

as an affected media has been approved by the department based on a

 

categorical cleanup criterion in section 20120a(1)(b), (c), or (d)

 

or site-specific criteria under section 20120a(2).

 

(ii) A facility where a no further action report that includes

 

soil as an affected medium has been approved by the department.

 

(c) If contaminated soil is being relocated off-site in a

 

manner not addressed by subdivision (b), the owner or operator of

 

the facility from which soil is being relocated provides notice to

 

the department within 14 days after the soil is relocated. The

 

notice shall include all of the following:

 

(i) The facility from which soil was relocated.

 

(ii) The facility to which the soil was relocated.

 

(iii) the volume of soil relocated.

 

(iv) A summary of information or data on which the owner or

 

operator based the determination required in subdivision (a) that

 

the soil did not present a threat to the public health, safety, or

 

welfare or the environment.

 

(v) If land use or resource use restrictions in a postclosure

 

plan or a postclosure agreement would apply to the soil when it is

 

relocated, documentation that those restrictions are in place.

 

(2) An owner or operator may relocate contaminated soil, or

 

allow contaminated soil to be relocated, on-site if all of the

 


following requirements are met:

 

(a) If either a remedial action plan that includes soil as an

 

affected medium or a no further action report that includes soil as

 

an affected medium has been approved for a facility, the person

 

assures that the same degree of control required for application of

 

the criteria of section 20120a(1) or (2) under the remedial action

 

plan or no further action report is provided for the contaminated

 

soil. This subdivision does not apply to soils that are temporarily

 

relocated for the purpose of implementing response activity or

 

utility construction if the response activity or utility

 

construction is completed in a timely fashion and the short-term

 

hazards are appropriately controlled.

 

(b) If 500 cubic yards or more of contaminated soil are being

 

relocated on-site at a facility where either a remedial action plan

 

that includes soil as an affected medium or a no further action

 

report that includes soil as an affected medium has been approved

 

by the department, the owner or operator of the facility at which

 

soil is being relocated provides notice to the department within 14

 

days after the soil is relocated. The notice shall include all of

 

the following:

 

(i) The facility from which soil was relocated.

 

(ii) The facility to which the soil was taken.

 

(iii) The volume of soil relocated.

 

(iv) A summary of information or data assuring that the same

 

degree of control required for application of the criteria of

 

section 20120a(1) or (2) is provided for the contaminated soil

 

under subdivision (a).

 


(v) If land use or resource use restrictions in a postclosure

 

plan or a postclosure agreement would apply to the soil when it is

 

relocated, documentation that those restrictions are in place.

 

(c) If subdivision (b) does not apply and an owner or operator

 

relocates contaminated soil on-site without department approval or

 

notice to the department, the owner of the facility within which

 

contaminated soil is relocated includes the following information

 

regarding the relocation as part of disclosing the general nature

 

and extent of the release under section 20116 to a purchaser or

 

other person to which the facility is transferred:

 

(i) The facility from which soil was relocated.

 

(ii) The facility to which the soil was taken.

 

(iii) The volume of soil relocated.

 

(iv) A summary of the basis for the owner's or operator's

 

determination that the relocation did not cause any exacerbation

 

under section 20107a(1).

 

(d) Section 20107a(1) and (3) applies to the relocation of

 

soil under this subsection even if an owner or operator is not

 

otherwise subject to section 20107a.

 

(3) The determination required by subsections (1)(a) and

 

(2)(a) shall be based on knowledge of the person undertaking or

 

approving of the removal or relocation of soil, or on

 

characterization of the soil for the purpose of compliance with

 

this section.

 

(4) This section does not apply to the following:

 

(a) Soil that is designated as an inert material pursuant to

 

section 11507(3).

 


(b) Uncontaminated soil that is mixed with a beneficial use

 

by-product under part 115.

 

(c) Soil that is relocated for treatment or disposal in

 

conformance with applicable laws and regulations.

 

(d) The relocation of uncontaminated soil.

 

(5) As used in this section:

 

(a) "Contaminated soil" means soil that meets all of the

 

following criteria:

 

(i) The soil is contaminated with 1 or more hazardous

 

substances at levels that exceed the background concentration for

 

that hazardous substance or those hazardous substances.

 

(ii) The soil is contaminated with 1 or more hazardous

 

substances at levels that exceed any applicable cleanup criteria

 

under section 20120a(1) or any applicable site-specific criteria

 

under section 20120b.

 

(b) "Off-site" means property that is not on-site.

 

(c) "On-site" means within any contiguous or adjacent parcels

 

owned by or under the control of an owner or operator.

 

(d) "Uncontaminated soil" means soil that is either of the

 

following:

 

(i) Not contaminated with any hazardous substances due to human

 

activity.

 

(ii) Contaminated with 1 or more hazardous substances as a

 

result of human activity but the levels of those hazardous

 

substances at the facility do not exceed any categorical cleanup

 

criteria under section 20120a(1) or site-specific criteria under

 

section 20120b.

 


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 becomes an owner or

 

operator on or after June 5, 1995, unless the owner or operator

 

complies with both of the following:

 

(i) A baseline environmental assessment is conducted prior to

 

or within 45 days 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 provides a 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.

 

(d) A person who 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, 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 means

 

scrap metal, paper, plastic, glass, textiles, or rubber, which 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 which may otherwise be produced from a raw

 

or virgin material.

 

(ii) A person who, prior to June 5, 1995, arranges for the sale

 

or transport of a secondary material for use in producing a new

 

product unless the state has incurred response activity costs

 

associated with these secondary materials prior to December 17,

 

1999. As used in this subparagraph, secondary material means scrap

 

metal, paper, plastic, glass, textiles, or rubber, which 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 which may otherwise be produced from a raw

 

or virgin material.

 

(iii) A person who arranges the lawful transport or disposal of

 

any product or container commonly used in a residential household,

 

which is in a quantity commonly used in a residential household,

 

and which was used in the person's residential household.

 


(e) A person who 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

 

complies with subsection (1)(c) 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 state or a local unit of government that acquired

 

ownership or control of a facility involuntarily through

 

bankruptcy, tax delinquency, abandonment, a transfer from a lender

 

pursuant to subsection (7), (5), 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 state or by another local unit of government

 

that is not liable under subsection (1), or the 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 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 owns severed subsurface mineral rights or

 

severed subsurface formations or who leases subsurface mineral

 

rights or formations.

 

(e) The state or a local unit of government that leases

 

property to a person if the state or the local unit of government

 

is not liable under this part for environmental contamination at

 

the property.

 

(f) A person who owns or occupies residential real property if

 

hazardous substance use at the property is consistent with

 

residential use.

 

(g) A person who 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 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 section shall

 

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 subsection does not apply to property owned by the

 

utility.

 

(j) A lessee who 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 holds a license, easement, or lease, or who

 

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, renewable, and

 

efficient energy act, 2008 PA 295, MCL 460.1013.

 

(l) A person who 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 a hazardous waste treatment,

 

storage, or disposal facility regulated pursuant to part 111 from

 

which there is a release or threat of release solely from the

 

treatment, storage, or disposal facility, or a waste management

 

unit at the facility and the release or threat of release is

 

subject to corrective action under part 111.

 

(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 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 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. Notwithstanding this

 

subdivision, 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 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 assure the effectiveness and integrity of the remedial

 

action, an owner or operator who 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 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

 

state or a local unit of government or a lender who 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 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 state or local unit of government.

 

(6) In establishing liability under this section, the

 

department bears the burden of proof.

 

(7) Beginning on the effective date of the 2010 amendatory act

 

that amended this section, the department shall not implement or

 

enforce R 299.5901 to R 299.5919 of the Michigan administrative

 


code, except the department may implement and enforce the following

 

rules:

 

(a) Subrules (2), (6), (8), and (9) of rule 903, R 299.5903 of

 

the Michigan administrative code.

 

(b) Subrules (2) through (6) of rule 905, R 299.5905 of the

 

Michigan administrative code.

 

(c) Rule 919, R 299.5919 of the Michigan administrative code.

 

(7) (8) 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 March 6, 1996, and

 

the facility contains an underground storage tank system as 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) (9) An owner or operator who was in compliance with

 

subsection (1)(c) prior to the effective date of the amendatory act

 

that added this subsection, December 14, 2010 is considered to be

 

in compliance with subsection (1)(c).

 

Sec. 21301b. (1) Notwithstanding any other provision of this

 

part, the following actions shall be governed by the provisions of

 

this part that were in effect on May 1, 1995:

 

(a) Any judicial action or claim in bankruptcy that was

 

initiated by any person on or before May 1, 1995.

 

(b) An administrative order that was issued on or before May

 

1, 1995.

 

(c) An enforceable agreement with the state entered into on or

 

before May 1, 1995 by any person under this part.

 


(d) For purposes of this section, the provisions of this part

 

that were in effect on May 1, 1995 are hereby incorporated by

 

reference.

 

(2) Notwithstanding subsection (1), upon request of a person

 

who has not completed implementing corrective actions under this

 

part, the department shall approve changes in corrective action to

 

be consistent with sections 21304a, 21308a, 21309a, and 21311a.

 

(3) Notwithstanding any other provision of this part, a person

 

that is not liable under this part may conduct corrective actions

 

under this part in the same manner as a person that is liable under

 

this part. Notwithstanding any other provision of this part, the

 

department shall provide responses to nonliable parties conducting

 

corrective actions for reports submitted under this part in the

 

same manner that it provides responses to persons that are liable

 

under this part.

 

Sec. 21302. As used in this part:

 

(a) "Air" means ambient or indoor air at the point of

 

exposure.

 

(b) "All appropriate inquiry" means an evaluation of

 

environmental conditions at a property at the time of purchase,

 

occupancy, or foreclosure that reasonably defines the existing

 

conditions and circumstances at the property in conformance with 40

 

CFR 312.

 

(c) "Baseline environmental assessment" means a written

 

document that describes the results of an all appropriate inquiry

 

and the sampling and analysis that confirm that the property is a

 

site. However, for purposes of a baseline environmental assessment,

 


the all appropriate inquiry under 40 CFR 312.20(a) may be conducted

 

within 45 days after the date of acquisition of a property and the

 

components of an all appropriate inquiry under 40 CFR 312.20(b) and

 

40 CFR 312.20(c)(3) may be conducted or updated within 45 days

 

after the date of acquisition of a property.

 

(d) "Biota" means the plant and animal life in an area

 

affected by a corrective action plan.

 

(e) "Capillary fringe" means the portion of the aquifer above

 

an unconfined saturated zone in which groundwater is drawn upward

 

by capillary force and can include the presence of LNAPL.

 

(f) "Consultant" means a person that meets the requirements

 

set forth in section 21325.

 

(g) "Contamination" or "contaminated" means the presence of a

 

regulated substance in soil, surface water, or groundwater or air

 

that has been released from an underground storage tank system at a

 

concentration exceeding the level set forth in the RCBA tier I

 

screening levels established under section 20120a(1)(a) and (b).

 

(h) "Corrective action" means the investigation, assessment,

 

cleanup, removal, containment, isolation, treatment, or monitoring

 

of regulated substances released into the environment from an

 

underground storage tank system that is necessary under this part

 

to prevent, minimize, or mitigate injury to the public health,

 

safety, or welfare, the environment, or natural resources.

 

(i) "DNAPL" means a dense nonaqueous-phase liquid with a

 

specific gravity greater than 1 and composed of 1 or more organic

 

compounds that are immiscible or sparingly soluble in water. DNAPL

 

encompasses all potential occurrences of DNAPL.

 


(j) "Grab sample" means a single sample or measurement taken

 

at a specific time or over as short a period as feasible.

 

(k) "Groundwater" means water below the land surface in the

 

zone of saturation and capillary fringe.

 

(l) "Groundwater not in an aquifer" means the saturated

 

formation below the land surface that yields groundwater at an

 

insignificant rate considering the local and regional hydrogeology

 

and is not likely in hydraulic communication with groundwater in an

 

aquifer. This includes water trapped or isolated in fill material

 

in an underground storage tank or equivalent basin.

 

(m) "Heating oil" means petroleum that is no. 1, no. 2, no. 4-

 

light, no. 4-heavy, no. 5-light, no. 5-heavy, and no. 6 technical

 

grades of fuel oil; other residual fuel oils including navy special

 

fuel oil and bunker c; and other fuels when used as substitutes for

 

1 of these fuel oils. Heating oil is typically used in the

 

operation of heating equipment, boilers, or furnaces.

 

(n) "LNAPL" means a light nonaqueous-phase liquid having a

 

specific gravity less than 1 and composed of 1 or more organic

 

compounds that are immiscible or sparingly soluble in water, and

 

the term encompasses all potential occurrences of LNAPL.

 

(o) "Local unit of government" means a city, village,

 

township, county, fire department, or local health department as

 

defined in section 1105 of the public health code, 1978 PA 368, MCL

 

333.1105.

 

(p) "Low flow sampling" means minimal drawdown groundwater

 

sampling procedures as described in the United States environmental

 

protection agency, office of research and development, office of

 


solid waste and emergency response, EPA/540/S-95/504, December,

 

1995, EPA groundwater issue.

 

(q) "Migrating NAPL" means NAPL that is observed to spread or

 

expand laterally or vertically or otherwise result in an increased

 

volume of the NAPL extent, usually indicated by time series data or

 

observation. Migrating NAPL does not include NAPL that appears in a

 

well within the historical extent of the NAPL due to a fluctuating

 

water table.

 

(r) "Mobile NAPL" means NAPL that exceeds residual saturation,

 

and includes migrating NAPL, but not all mobile NAPL is migrating

 

NAPL.

 

Sec. 21303. As used in this part:

 

(a) "NAPL" means a nonaqueous-phase liquid or a nonaqueous-

 

phase liquid solution composed of 1 or more organic compounds that

 

are immiscible or sparingly soluble in water. NAPL includes both

 

DNAPL and LNAPL.

 

(b) "Operator" means a person who is presently, or was at the

 

time of a release, in control of, or responsible for, the operation

 

of an underground storage tank system. and who is liable under part

 

213.

 

(c) "Owner" means a person who holds, or at the time of a

 

release who held, a legal, equitable, or possessory interest of any

 

kind in an underground storage tank system or in the property on

 

which an underground storage tank system is or was located

 

including, but not limited to, a trust, vendor, vendee, lessor, or

 

lessee. and who is liable under part 213.

 

(d) "Property" means real estate that has been impacted is

 


contaminated by a release from an underground storage tank system.

 

(e) "Qualified underground storage tank consultant" means a

 

person who meets the requirements established in section 21325.

 

(f) "RBCA" means the American society for testing and

 

materials (ASTM) document entitled standard guide for risk-based

 

corrective action applied at petroleum release sites, designation E

 

1739-95 (reapproved 2010) E1; standard guide for risk-based

 

corrective action designation E 2081-00 (reapproved 2010) E1; and

 

standard guide for development of conceptual site models and

 

remediation strategies for light nonaqueous-phase liquids released

 

to the subsurface designation E 2531-06 E1, all of which are hereby

 

incorporated by reference.

 

(g) "Regulated substance" means any of the following:

 

(i) A substance defined in section 101(14) of title I of the

 

comprehensive environmental response, compensation, and liability

 

act of 1980, Public Law 96-510, 42 USC 9601, but not including a

 

substance regulated as a hazardous waste under subtitle C of the

 

solid waste disposal act, title II of Public Law 89-272, 42 USC

 

6921 to 6939e.

 

(ii) Petroleum, including crude oil or any fraction of crude

 

oil that is liquid at standard conditions of temperature and

 

pressure (60 degrees Fahrenheit and 14.7 pounds per square inch

 

absolute). Petroleum includes but is not limited to mixtures of

 

petroleum with de minimis quantities of other regulated substances

 

and petroleum-based substances composed of a complex blend of

 

hydrocarbons derived from crude oil through processes of

 

separation, conversion, upgrading, or finishing such as motor

 


fuels, jet fuels, distillate fuel oils, residual fuel oils,

 

lubricants, and petroleum solvents.

 

(iii) A substance listed in section 112 of part A of title I of

 

the clean air act, chapter 360, 84 Stat. 1685, 42 USC 7412.

 

(h) "Release" means any spilling, leaking, emitting,

 

discharging, escaping, or leaching from an underground storage tank

 

system into groundwater, surface water, or subsurface soils.

 

(i) "Residual NAPL saturation" means the range of NAPL

 

saturations greater than zero NAPL saturation up to the NAPL

 

saturation at which NAPL capillary pressure equals pore entry

 

pressure and includes the maximum NAPL saturation, below which NAPL

 

is discontinuous and immobile under the applied gradient.

 

(j) "Risk-based screening level" or "RBSL" means the

 

unrestricted residential and nonresidential generic cleanup

 

criteria developed by the department pursuant to part 201.

 

(k) "Saturated zone" means a soil area where the soil pores

 

are filled with groundwater and can include the presence of LNAPL.

 

(l) "Site" means a location where a release has occurred or a

 

threat of release exists from an underground storage tank system,

 

excluding any location where corrective action was completed which

 

satisfies the applicable RBSL or SSTL.

 

(m) "Surface water" means all of the following, but does not

 

include groundwater or an enclosed sewer, other utility line, storm

 

water retention basin, or drainage ditch:

 

(i) The Great Lakes and their connecting waters.

 

(ii) All inland lakes.

 

(iii) Rivers.

 


(iv) Streams.

 

(v) Impoundments.

 

(n) "Site-specific target level" or "SSTL" means an RBCA risk-

 

based remedial action target level for contamination developed for

 

a site under RBCA tier II and tier III evaluations.

 

(o) "Threat of release" or "threatened release" means any

 

circumstance that may reasonably be anticipated to cause a release.

 

Threat of release or threatened release does not include the

 

ownership or operation of an underground storage tank system if the

 

underground storage tank system is operated in accordance with part

 

211 and rules promulgated under that part.

 

(p) "Tier I", "tier II", and "tier III" mean those terms as

 

they are used in RBCA.

 

(q) "Underground storage tank system" means a tank or

 

combination of tanks, including underground pipes connected to the

 

tank or tanks, which is, was, or may have been used to contain an

 

accumulation of regulated substances, and the volume of which,

 

including the volume of the underground pipes connected to the tank

 

or tanks, is 10% or more beneath the surface of the ground. An

 

underground storage tank system does not include any of the

 

following:

 

(i) A farm or residential tank of 1,100 gallons or less

 

capacity used for storing motor fuel for noncommercial purposes.

 

(ii) A tank used for storing heating oil for consumptive use on

 

the premises where the tank is located.

 

(iii) A septic tank.

 

(iv) A pipeline facility, including gathering lines regulated

 


under either of the following:

 

(A) The natural gas pipeline safety act of 1968, Public Law

 

90-481, 49 USC Appx 1671 to 1677, 1679a to 1682, and 1683 to 1687.

 

(B) Sections 201 to 215 and 217 of the hazardous liquid

 

pipeline safety act of 1979, title II of Public Law 96-129, 49 USC

 

Appx 2001 to 2015.

 

(v) A surface impoundment, pit, pond, or lagoon.

 

(vi) A storm water or wastewater collection system.

 

(vii) A flow-through process tank.

 

(viii) A liquid trap or associated gathering lines directly

 

related to oil or gas production and gathering operations.

 

(ix) A storage tank situated in an underground area such as a

 

basement, cellar, mineworking, drift, shaft, or tunnel if the

 

storage tank is situated upon or above the surface of the floor.

 

(x) Any pipes connected to a tank that is described in

 

subdivisions (i) to (ix).

 

(xi) An underground storage tank system holding hazardous

 

wastes listed or identified under subtitle C of the solid waste

 

disposal act, title II of Public Law 89-272, 42 USC 6921 to 6939e,

 

or a mixture of such hazardous waste and other regulated

 

substances.

 

(xii) A wastewater treatment tank system that is part of a

 

wastewater treatment facility regulated under section 307(b) of

 

title III or section 402 of title IV of the federal water pollution

 

control act, 33 USC 1317 and 1342.

 

(xiii) Equipment or machinery that contains regulated substances

 

for operational purposes such as hydraulic lift tanks and

 


electrical equipment tanks.

 

(xiv) An underground storage tank system that has a capacity of

 

110 gallons or less.

 

(xv) An underground storage tank system that contains a de

 

minimis concentration of regulated substances.

 

(xvi) An emergency spill or overflow containment underground

 

storage tank system that is expeditiously emptied after use.

 

(r) "Vadose zone" means the soil between the land surface and

 

the top of the capillary fringe. Vadose zone is also known as an

 

unsaturated zone or a zone of aeration.

 

Sec. 21304. (1) Actions taken by a consultant pursuant to this

 

part do not limit or remove the liability of an owner or operator

 

that is liable under section 21323a except as specifically provided

 

for in this part.

 

(2) Notwithstanding any other provision in this part, if an

 

owner or operator that is liable under section 21323a is a

 

consultant or employs a consultant, this part does not require the

 

owner or operator that is liable under section 21323a to retain an

 

outside consultant to perform the responsibilities required under

 

this part. Those responsibilities may be performed by an owner or

 

operator that is liable under section 21323a who is a consultant or

 

by a consultant employed by the owner or operator that is liable

 

under section 21323a.

 

Sec. 21304a. (1) Corrective action activities undertaken

 

pursuant to this part shall be conducted in accordance with the

 

process outlined in RBCA in a manner that is protective of the

 

public health, safety, and welfare, and the environment. Corrective

 


action activities that involve a discharge into air or groundwater

 

as defined in section 21302 or surface water as defined in section

 

21303 shall be consistent with parts 31 and 55.

 

(2) The tier I risk-based screening levels for regulated

 

substances are the unrestricted residential and nonresidential

 

generic cleanup criteria developed by the department pursuant to

 

part 201 and shall be utilized in accordance with the process

 

outlined in RBCA as screening levels only.

 

(3) If a regulated substance poses a carcinogenic risk to

 

humans, the tier I RBSLs derived for cancer risk shall be the 95%

 

upper bound on the calculated risk of 1 additional cancer above the

 

background cancer rate per 100,000 individuals using the exposure

 

assumptions and pathways established by the process in RBCA. If a

 

regulated substance poses a risk of both cancer and an adverse

 

health effect other than cancer, cleanup criteria shall be derived

 

for cancer and each adverse health effect.

 

(4) If the applicable RBSL or SSTL for groundwater differs

 

from either (a) the state drinking water standard established

 

pursuant to section 5 of the safe drinking water act, 1976 PA 399,

 

MCL 325.1005, or (b) criteria for adverse aesthetic characteristics

 

derived pursuant to R 299.5709 of the Michigan administrative code,

 

the SSTL shall be the more stringent of (a) or (b) unless the owner

 

or operator person that undertakes corrective actions under this

 

part determines that compliance with (a) or (b) is not necessary

 

because the use of the groundwater is reliably restricted pursuant

 

to section 21310a.

 

(5) Corrective action at sites where a release has occurred or

 


a threat of release exists from an underground storage tank system

 

is regulated exclusively under this part. Notwithstanding any other

 

provision of this part, if an owner or operator that is liable

 

under section 21323a may choose, in its sole discretion, to fulfill

 

its corrective action obligations pursuant to part 201 in lieu of

 

corrective actions pursuant to this part in either of the following

 

situations:

 

(a) If a release or threat of release at a site is not solely

 

the result of a release or threat of release from an underground

 

storage tank system, the owner or operator of the underground

 

storage tank system that is liable under section 21323a may choose,

 

in its sole discretion, to perform response activities pursuant to

 

part 201 in lieu of corrective actions pursuant to this part.

 

(b) If a release from an underground storage tank system

 

involves venting groundwater, the owner or operator that is liable

 

under section 21323a may choose, in its sole discretion, to follow

 

the procedures set forth in section 20120e in performing corrective

 

action under this part related to venting groundwater to address

 

the venting groundwater pursuant to part 201 in lieu of corrective

 

actions addressing the venting groundwater pursuant to this part.

 

Sec. 21304b. (1) A person shall not remove soil, or allow soil

 

to be removed, from a site to an off-site location unless that

 

person determines that the soil can be lawfully relocated without

 

posing a threat to the public health, safety, or welfare, or the

 

environment. The determination shall consider whether the soil is

 

subject to regulation under parts 111 and 115.

 

(2) For the purposes of subsection (1), soil poses a threat to

 


the public health, safety, or welfare, or the environment if

 

concentrations of regulated substances in the soil exceed the tier

 

I RBSLs established pursuant to section 21304a that apply to the

 

location to which the soil will be moved or relocated, except if

 

the soil is to be removed from the site for disposal or treatment,

 

the soil shall satisfy the appropriate regulatory criteria for

 

disposal or treatment. Any land use restriction that would be

 

required for the application of a criterion pursuant to section

 

21304a shall be in place at the location to which the soil will be

 

moved. Soil may be relocated only to another location that is

 

similarly contaminated, considering the general nature,

 

concentration, and mobility of regulated substances present at the

 

location to which the contaminated soil will be removed.

 

Contaminated soil shall not be moved to a location that is not a

 

site unless it is taken there for treatment or disposal in

 

conformance with applicable laws and regulations.

 

(3) A person shall not relocate soil, or allow soil to be

 

relocated, within a site of environmental contamination where a

 

corrective action plan was approved unless that person provides

 

assurances that the same degree of control required for application

 

of the criteria of section 21304a is provided for the contaminated

 

soil.

 

(4) The prohibition in subsection (3) against relocation of

 

contaminated soil within a site of environmental contamination does

 

not apply to soils that are temporarily relocated for the purpose

 

of implementing corrective actions or utility construction if the

 

corrective actions or utility construction is completed in a timely

 


fashion and the short-term hazards are appropriately controlled.

 

(5) If soil is being relocated in a manner not addressed by

 

this section, the person that owns or operates the site from which

 

soil is being moved shall notify the department within 14 days

 

after the soil is moved. The notice shall include all of the

 

following:

 

(a) The location from which soil will be removed.

 

(b) The location to which the soil will be taken.

 

(c) The volume of soil to be removed.

 

(d) A summary of information or data on which the owner or

 

operator person is basing the determination required in subsection

 

(2) that the soil does not present a threat to the public health,

 

safety, or welfare, or the environment.

 

(e) If land use restrictions would apply pursuant to section

 

21310a, to the soil when it is relocated, the notice shall include

 

documentation that those restrictions are in place.

 

(6) The determination required by subsections (1) and (3)

 

shall be based on knowledge of the person undertaking or approving

 

the removal or relocation of soil, or on characterization of the

 

soil for the purpose of compliance with this section.

 

(7) This section does not apply to soil that is designated as

 

an inert material pursuant to section 11507.

 

Sec. 21304c. (1) A person that owns or operates property that

 

the person has knowledge is or was a site contaminated shall do all

 

of the following with respect to regulated substances at the

 

property:

 

(a) Undertake measures as are necessary to prevent

 


exacerbation.

 

(b) Exercise due care by undertaking corrective action

 

necessary to mitigate unacceptable exposure to regulated

 

substances, mitigate fire and explosion hazards due to regulated

 

substances, and allow for the intended use of the property in a

 

manner that protects the public health and safety.

 

(c) Take reasonable precautions against the reasonably

 

foreseeable acts or omissions of a third party and the consequences

 

that foreseeably could result from those acts or omissions.

 

(d) Provide reasonable cooperation, assistance, and access to

 

the persons that are authorized to conduct corrective action

 

activities at the property, including the cooperation and access

 

necessary for the installation, integrity, operation, and

 

maintenance of any complete or partial corrective action activity

 

at the property. Nothing in this subdivision shall be interpreted

 

to provide any right of access not expressly authorized by law,

 

including access authorized pursuant to a warrant or a court order,

 

or to preclude access allowed pursuant to a voluntary agreement.

 

(e) Comply with any land use or resources use restrictions

 

established or relied on in connection with the corrective action

 

activities at the property.

 

(f) Not impede the effectiveness or integrity of any land use

 

or resource use restriction employed at the property in connection

 

with corrective action activities.

 

(2) A person's obligations under this section shall be based

 

upon the applicable RBSL or SSTL.

 

(3) A person that violates subsection (1) that is not

 


otherwise liable under this part for the release at the property is

 

liable for corrective action activity costs and natural resource

 

damages attributable to any exacerbation and any fines or penalties

 

imposed under this part resulting from the violation of subsection

 

(1) but is not liable for performance of additional corrective

 

action activities unless the person is otherwise liable under this

 

part for performance of additional corrective action activities.

 

The burden of proof in a dispute as to what constitutes

 

exacerbation shall be borne by the party seeking relief.

 

(4) Compliance with this section does not satisfy a person's

 

obligation to perform corrective action activities as otherwise

 

required under this part.

 

(5) Subsection (1)(a) to (c) does not apply to the state or to

 

a local unit of government that is not liable under section

 

21323a(3)(a), (b), (c), or (e) or to the state or local unit of

 

government that acquired property by purchase, gift, transfer, or

 

condemnation or to a person that is exempt from liability under

 

section 21323a(4)(c). 21323a(4)(b). However, if the state or local

 

unit of government, other than those exempt from liability under

 

section 21323a(4)(b), acting as the operator of a parcel of

 

property that the state or local unit of government has knowledge

 

is or was a site, contaminated by a release from an underground

 

storage tank system, offers access to that parcel on a regular or

 

continuous basis pursuant to an express public purpose and invites

 

the general public to use that property for the express public

 

purpose, the state or local unit of government is subject to this

 

section but only with respect to that portion of the property that

 


is opened to and used by the general public for that express

 

purpose, and not the entire property. Express public purpose

 

includes, but is not limited to, activities such as a public park,

 

municipal office building, or municipal public works operation.

 

Express public purpose does not include activities surrounding the

 

acquisition or compilation of parcels for the purpose of future

 

development.

 

(6) Subsection (1)(a) to (c) does not apply to a person that

 

is exempt from liability under section 21323a(3)(c) or (d) except

 

with regard to that person's activities at the property.

 

Sec. 21304d. (1) If the owner of a person owns a parcel of

 

real property and has knowledge or information or is on notice

 

through a recorded instrument that the real property is a site, the

 

owner person shall not transfer an interest in that real property

 

unless the owner person provides written notice to the transferee

 

that the real property is a site and of the general nature and

 

extent of the release.

 

(2) The owner of A person that owns real property for which a

 

notice required in subsection (1) has been recorded may, upon

 

completion of all corrective action activities for the site as

 

approved by the department, record with the register of deeds for

 

the appropriate county a certification that all corrective action

 

activity required in an approved final assessment report has been

 

completed.

 

(3) A person shall not transfer an interest in real property

 

unless the person fully discloses any land or resource use

 

restrictions that apply to that real property as a part of

 


corrective action that has been or is being implemented in

 

compliance with section 21304a.

 

Sec. 21307. (1) Upon confirmation of a release from an

 

underground storage tank system, the owner or operator that is

 

liable under section 21323a shall report the release to the

 

department within 24 hours after discovery. The department may

 

investigate the release. However, an investigation by the

 

department does not relieve the owner or operator that is liable

 

under section 21323a from any responsibilities related to the

 

release provided for in this part.

 

(2) After a release has been reported under subsection (1),

 

the owner or operator that is liable under section 21323a shall

 

immediately begin and expeditiously perform all of the following

 

initial actions:

 

(a) Identify and mitigate immediate fire, explosion hazards,

 

and acute vapor hazards.

 

(b) Take action to prevent further release of the regulated

 

substance into the environment including removing the regulated

 

substance from the underground storage tank system that is causing

 

the release.

 

(c) Using the process outlined by RBCA regarding NAPL, take

 

steps necessary and feasible under this part to address

 

unacceptable immediate risks.

 

(d) Excavate and contain, treat, or dispose of soils above the

 

water table that are visibly contaminated with a regulated

 

substance if the contamination is likely to cause a fire hazard.

 

(e) Take any other action necessary to abate an immediate

 


threat to public health, safety, or welfare, or the environment.

 

(3) Immediately following initiation of initial response

 

actions under this section, the owner or operator that is liable

 

under section 21323a shall do all of the following:

 

(a) Visually inspect the areas of any aboveground releases or

 

exposed areas of belowground releases and prevent further migration

 

of the released substance into surrounding soils, groundwater, and

 

surface water.

 

(b) Continue to monitor and mitigate any additional immediate

 

fire and safety hazards posed by vapors or NAPL that have migrated

 

from the underground storage tank system excavation zone and

 

entered into subsurface structures.

 

Sec. 21307a. (1) Following initiation of initial actions under

 

section 21307, the owner or operator that is liable under section

 

21323a shall complete the requirements of this part and submit

 

related reports or executive summaries detailed in this part to

 

address the contamination at the site. At any time that sufficient

 

corrective action has been undertaken to address contamination, the

 

owner or operator that is liable under section 21323a shall

 

complete and submit a site closure report pursuant to section

 

21312a and omit the remaining interim steps.

 

(2) In addition to the reporting requirements specified in

 

this part, the owner or operator that is liable under section

 

21323a shall provide 48-hour notification to the department prior

 

to initiating any of the following activities:

 

(a) Soil excavation.

 

(b) Well drilling, including monitoring well installation.

 


(c) Sampling of soil or groundwater.

 

(d) Construction of treatment systems.

 

Sec. 21308a. (1) Within 180 days after a release has been

 

discovered, the owner or operator that is liable under section

 

21323a shall complete an initial assessment report and submit the

 

report to the department on a form created pursuant to section

 

21316. The report shall include the following information:

 

(a) Results of initial actions taken under section 21307(2).

 

(b) Site information and site characterization results. The

 

following items shall be included as appropriate given the site

 

conditions:

 

(i) The property address.

 

(ii) The name of the business, if applicable.

 

(iii) The name, address, and telephone number of a contact

 

person for the owner or operator that is liable under section

 

21323a.

 

(iv) The time and date of release discovery.

 

(v) The time and date the release was reported to the

 

department.

 

(vi) A site map that includes all of the following:

 

(A) The location of each underground storage tank in the

 

leaking underground storage tank system.

 

(B) The location of any other known current or former

 

underground storage tank system on the site.

 

(C) The location of fill ports, dispensers, and other

 

pertinent system components for known current or former underground

 

storage tank systems on the site.

 


(D) Soil and groundwater sample locations, if applicable.

 

(E) The locations of nearby buildings, roadways, paved areas,

 

or other structures.

 

(vii) A description of how the release was discovered.

 

(viii) A list of regulated substances the underground storage

 

tank system contained when the release occurred.

 

(ix) A list of the regulated substances the underground storage

 

tank system contained in the past other than those listed in

 

subparagraph (viii).

 

(x) The location of nearby surface waters and wetlands.

 

(xi) The location of nearby underground sewers and utility

 

lines.

 

(xii) The component of the underground storage tank system from

 

which the release occurred (e.g., piping, underground storage tank,

 

overfill).

 

(xiii) Whether the underground storage tank system was emptied

 

to prevent further release.

 

(xiv) A description of what other steps were taken to prevent

 

further migration of the regulated substance into the soil or

 

groundwater.

 

(xv) Whether toxic or explosive vapors or migrating or mobile

 

NAPL was found and what steps were taken to evaluate those

 

conditions and the current levels of toxic or explosive vapors or

 

migrating or mobile NAPL in nearby structures.

 

(xvi) The extent to which all or part of the underground

 

storage tank system or soil, or both, was removed.

 

(xvii) Data from analytical testing of soil and groundwater

 


samples.

 

(xviii) A description of the mobile or migrating NAPL

 

investigation and evaluation conducted pursuant to section

 

21307(2)(c) and, if the evaluation of NAPL concludes that NAPL is

 

recoverable and removal is necessary under this part to abate an

 

unacceptable risk pursuant to the provisions outlined in RBCA, a

 

description of the removal, including all of the following:

 

(A) A description of the actions taken to remove any NAPL.

 

(B) The name of the person or persons responsible for

 

implementing the NAPL removal measures.

 

(C) The estimated quantity, type, and thickness of NAPL

 

observed or measured in wells, boreholes, and excavations.

 

(D) The type of NAPL recovery system used.

 

(E) Whether any discharge will take place on site or off site

 

during the recovery operation and where this discharge will be

 

located.

 

(F) The type of treatment applied to, and the effluent quality

 

expected from, any discharge.

 

(G) The steps that have been or are being taken to obtain

 

necessary permits for any discharge.

 

(H) The quantity and disposition of the recovered NAPL.

 

(xix) Identification of any other contamination on the site not

 

resulting from the release and the source, if known.

 

(xx) An estimate of the horizontal and vertical extent of on-

 

site and off-site soil contamination exceeding the applicable RBSL

 

for tier I sites or the applicable SSTL for tier II or tier III

 

sites.

 


(xxi) The depth to groundwater.

 

(xxii) An identification of potential migration and exposure

 

pathways and receptors.

 

(xxiii) An estimate of the amount of soil in the vadose zone

 

that is contaminated.

 

(xxiv) If the on-site assessment indicates that off-site soil

 

or groundwater may be affected, report the steps that have been

 

taken or will be taken including an implementation schedule to

 

expeditiously secure access to off-site properties to complete the

 

delineation of the extent of the release if the contamination

 

exceeds the applicable RBSL or the applicable SSTL.

 

(xxv) Groundwater flow rate and direction.

 

(xxvi) Laboratory analytical data collected. The owner or

 

operator may elect to obtain groundwater samples utilizing a grab

 

sample technique for initial assessment and monitoring purposes

 

that do not represent initial delineation of the limit of

 

contamination or closure verification sampling.

 

(xxvii) The vertical distribution of contaminants that exceed

 

the applicable RBSL or applicable SSTL.

 

(c) Site classification under section 21314a.

 

(d) Tier I or tier II evaluation according to the RBCA

 

process.

 

(e) A work plan, including an implementation schedule for

 

conducting a final assessment report under section 21311a, to

 

determine the vertical and horizontal extent of the contamination

 

that exceeds the applicable RBSL or applicable SSTL as necessary

 

for preparation of the corrective action plan.

 


(2) If migrating or mobile NAPL is discovered at a site after

 

the submittal of an initial assessment report pursuant to

 

subsection (1), the owner or operator that is liable under section

 

21323a shall do both of the following:

 

(a) Perform initial actions identified in section 21307(2)(c).

 

(b) Submit to the department an amendment to the initial

 

assessment report within 30 days of discovery of the migrating or

 

mobile NAPL that describes response actions taken as a result of

 

the migrating or mobile NAPL discovery.

 

(3) The department shall not require any additional

 

information beyond that required under this section to be included

 

in an initial assessment report. The owner or operator that is

 

liable under section 21323a shall provide supporting documentation

 

to the data and conclusions of the initial assessment report upon

 

request by the department.

 

Sec. 21309a. (1) If initial actions under section 21307 have

 

not resulted in completion of corrective action, an owner or

 

operator that is liable under section 21323a shall prepare a

 

corrective action plan to address contamination at the site.

 

Corrective action plans submitted as part of a final assessment

 

report shall use the process described in RBCA and shall be based

 

upon the site information and characterization results of the

 

initial assessment report.

 

(2) A corrective action plan shall include all of the

 

following:

 

(a) A description of the corrective action to be implemented,

 

including an explanation of how that action will meet the

 


requirements of the tier I, II, or III evaluation in the RBCA

 

process. The corrective action plan shall also include an analysis

 

of the selection of indicator parameters to be used in evaluating

 

the implementation of the corrective action plan, if indicator

 

parameters are to be used. The corrective action plan shall include

 

an analysis of the recoverability of the NAPL and whether the NAPL

 

is mobile or migrating, and a description of ambient air quality

 

monitoring activities to be undertaken during the corrective action

 

if such activities are appropriate.

 

(b) An operation and maintenance plan if any element of the

 

corrective action requires operation and maintenance. The operation

 

and maintenance plan shall include information that describes the

 

proposed operation and maintenance actions.

 

(c) A monitoring plan if monitoring of environmental media or

 

site activities or both is required to confirm the effectiveness

 

and integrity of the remedy. The monitoring plan shall include all

 

of the following:

 

(i) Location of monitoring points.

 

(ii) Environmental media to be monitored, including, but not

 

limited to, soil, air, water, or biota.

 

(iii) Monitoring schedule.

 

(iv) Monitoring methodology, including sample collection

 

procedures such as grab sampling procedures for monitoring

 

groundwater, among other procedures.

 

(v) Substances to be monitored, including an explanation of

 

the selection of any indicator parameters to be used.

 

(vi) Laboratory methodology, including the name of the

 


laboratory responsible for analysis of monitoring samples, method

 

detection limits, and practical quantitation levels. Raw data used

 

to determine method detection limits shall be made available to the

 

department on request.

 

(vii) Quality control/quality assurance plan.

 

(viii) Data presentation and evaluation plan.

 

(ix) How the monitoring data will be used to demonstrate

 

effectiveness of corrective action activities.

 

(x) Other elements required by the department to determine the

 

adequacy of the monitoring plan. Department requests for

 

information pursuant to this subparagraph shall be limited to

 

factors not adequately addressed by information required under

 

subparagraphs (i) through (ix) and shall be accompanied by an

 

explanation of the need for the additional information.

 

(d) An explanation of any land use or resource use

 

restrictions, if the restrictions are required pursuant to section

 

21310a, including how those restrictions will be effective in

 

preventing or controlling unacceptable exposures.

 

(e) A schedule for implementation of the corrective action.

 

(f) If the corrective action plan includes the operation of a

 

mechanical soil or groundwater remediation system, or both, a

 

financial assurance mechanism to pay for monitoring, operation, and

 

maintenance necessary to assure the effectiveness and integrity of

 

the corrective action remediation system.

 

(g) If provisions for operation and maintenance, monitoring,

 

or financial assurance are included in the corrective action plan,

 

and those provisions are not complied with, the corrective action

 


plan is void from the time of lapse or violation until the lapse or

 

violation is corrected.

 

(3) If a corrective action plan prepared under this section

 

does not result in an unrestricted use of the property, the owner

 

or operator that is liable under section 21323a shall provide

 

notice to the public by means designed to reach those members of

 

the public directly impacted by the release above a residential

 

RBSL and the proposed corrective action. The notice shall include

 

the name, address, and telephone number of a contact person. A copy

 

of the notice and proof of providing the notice shall be submitted

 

to the department. The department shall ensure that site release

 

information and corrective action plans that do not result in an

 

unrestricted use of property are made available to the public for

 

inspection upon request.

 

Sec. 21310a. (1) If the corrective action activities at a site

 

result in a final remedy that relies on a nonresidential RBSL or an

 

SSTL, institutional controls shall be implemented as provided in

 

this subsection. A notice of corrective action shall be recorded

 

with the register of deeds for the county in which the site is

 

located prior to submittal of a closure report under section

 

21312a. A notice shall be filed under this subsection only by the

 

person that owns the property owner or with the express written

 

permission of the person that owns the property. owner. A notice of

 

corrective action recorded under this subsection shall state the

 

land use that was the basis of the corrective action. The notice

 

shall state that if there is a proposed change in the land use at

 

any time in the future, that change may necessitate further

 


evaluation of potential risks to the public health, safety, and

 

welfare and to the environment and that the department shall be

 

contacted regarding any proposed change in the land use. Additional

 

requirements for monitoring or operation and maintenance shall not

 

apply if contamination levels do not exceed the levels established

 

in the tier I evaluation.

 

(2) If corrective action activities at a site rely on

 

institutional controls other than as provided in subsection (1),

 

the institutional controls shall be implemented as provided in this

 

subsection. The restrictive covenant shall be recorded with the

 

register of deeds for the county in which the property is located

 

within 30 days from submittal of the final assessment report

 

pursuant to section 21311a, unless otherwise agreed to by the

 

department. The restrictive covenant shall be filed only by the

 

person that owns the property owner or with the express written

 

permission of the person that owns the property. owner. The

 

restrictions shall run with the land and be binding on the owner's

 

successors, assigns, and lessees. The restrictions shall apply

 

until regulated substances no longer present an unacceptable risk

 

to the public health, safety, or welfare or to the environment. The

 

restrictive covenant shall include a survey and property

 

description which define the areas addressed by the corrective

 

action plan and the scope of any land use or resource use

 

limitations. The form and content of the restrictive covenant shall

 

include provisions to accomplish all of the following:

 

(a) Restrict activities at the site that may interfere with

 

corrective action, operation and maintenance, monitoring, or other

 


measures necessary to assure the effectiveness and integrity of the

 

corrective action.

 

(b) Restrict activities that may result in exposure to

 

regulated substances above levels established in the corrective

 

action plan.

 

(c) Prevent a conveyance of title, an easement, or other

 

interest in the property from being consummated by the person that

 

owns the property owner without adequate and complete provision for

 

compliance with the corrective action plan and prevention of

 

exposure to regulated substances described in subdivision (b).

 

(d) Grant to the department and its designated representatives

 

the right to enter the property at reasonable times for the purpose

 

of determining and monitoring compliance with the corrective action

 

plan, including but not limited to the right to take samples,

 

inspect the operation of the corrective action measures, and

 

inspect records.

 

(e) Allow the state to enforce restrictions set forth in the

 

covenant by legal action in a court of appropriate jurisdiction.

 

(f) Describe generally the uses of the property that are

 

consistent with the corrective action plan.

 

(3) If the owner or operator that is liable under section

 

21323a determines that exposure to regulated substances may be

 

reliably restricted by a means other than a restrictive covenant

 

and that imposition of land use or resource use restrictions

 

through restrictive covenants is impractical, the owner or operator

 

that is liable under section 21323a may select a corrective action

 

plan that relies on alternative mechanisms. Mechanisms that may be

 


considered under this subsection include, but are not limited to,

 

an ordinance that prohibits the use of groundwater in a manner and

 

to a degree that protects against unacceptable exposure to a

 

regulated substance as defined by the RBSLs or SSTLs identified in

 

the corrective action plan. An ordinance that serves as an exposure

 

control under this subsection shall include both of the following:

 

(a) A requirement that the local unit of government notify the

 

department 30 days before adopting a modification to the ordinance

 

or the lapsing or revocation of the ordinance.

 

(b) A requirement that the ordinance be filed with the

 

register of deeds as an ordinance affecting multiple properties.

 

(4) Notwithstanding subsections (1), (2), and (3), if a

 

mechanism other than a notice of corrective action, an ordinance,

 

or a restrictive covenant is requested by an owner or operator that

 

is liable under section 21323a and the department determines that

 

the alternative mechanism is appropriate, the department may

 

approve of the alternate mechanism.

 

(5) A person that implements corrective action activities that

 

relies on land use restrictions shall provide notice of the land

 

use restrictions that are part of the corrective action plan to the

 

local unit of government in which the site is located within 30

 

days of filing of the land use restrictions with the county

 

register of deeds.

 

Sec. 21311a. (1) Within 365 days after a release has been

 

discovered, an owner or operator that is liable under section

 

21323a shall complete a final assessment report that includes a

 

corrective action plan developed under section 21309a and submit

 


the report to the department on a form created pursuant to section

 

21316. The report shall include the following information:

 

(a) A site assessment under the RBCA process, as necessary for

 

determining site classification, and the extent of contamination

 

relative to the applicable RBSLs or applicable SSTLs set forth in

 

the corrective action plan.

 

(b) Tier II and tier III evaluation, as appropriate, under the

 

RBCA process.

 

(c) A feasibility analysis. The following shall be included,

 

as appropriate, given the site conditions and the applicable RBSL

 

or applicable SSTL:

 

(i) On-site and off-site corrective action alternatives to

 

remediate contaminated soil and groundwater for each cleanup type

 

above the applicable RBSL or applicable SSTL, including

 

alternatives that permanently and significantly reduce the volume,

 

toxicity, and mobility of the regulated substances if above the

 

applicable RBSL or applicable SSTL.

 

(ii) An analysis of the recoverability and whether the NAPL is

 

mobile or migrating.

 

(iii) The costs associated with each corrective action

 

alternative including alternatives that permanently and

 

significantly reduce the volume, toxicity, and mobility of the

 

regulated substances that are above the applicable RBSL or

 

applicable SSTL.

 

(iv) The effectiveness and feasibility of each corrective

 

action alternative in meeting cleanup criteria that are above the

 

applicable RBSL or applicable SSTL.

 


(v) The time necessary to implement and complete each

 

corrective action alternative.

 

(vi) The preferred corrective action alternative based upon

 

subparagraphs (i) through (v) and an implementation schedule for

 

completion of the corrective action.

 

(d) A corrective action plan.

 

(e) A schedule for corrective action plan implementation.

 

(2) The owner or operator that is liable under section 21323a

 

shall provide supporting documentation to the data and conclusions

 

of the final assessment report upon request by the department. The

 

department shall not require any additional information beyond that

 

required under this section to be included in its final assessment

 

report.

 

Sec. 21312a. (1) Upon completion of the corrective action, the

 

owner or operator that is liable under section 21323a shall

 

complete a closure report and submit the report to the department

 

on a form created pursuant to section 21316. The report shall

 

include the following information:

 

(a) A summary of corrective action activities and

 

documentation of the basis for concluding that corrective actions

 

have been completed.

 

(b) Closure verification sampling results. Groundwater samples

 

shall be collected utilizing a low-flow technique for closure

 

verification or other method approved by the department.

 

(c) The person submitting a closure report shall include a

 

signed affidavit attesting to the fact that the information upon

 

which the closure report is based is complete and true to the best

 


of that person's knowledge. The closure report shall also include a

 

signed affidavit from the consultant who prepared the closure

 

report attesting to the fact that the corrective actions detailed

 

in the closure report comply with all applicable requirements under

 

the applicable RBCA standard and that the information upon which

 

the closure report is based is true and accurate to the best of

 

that consultant's knowledge. In addition, the consultant shall

 

attach a certificate of insurance demonstrating that the consultant

 

has obtained at least all of the insurance required under section

 

21325.

 

(d) A person submitting a closure report shall maintain all

 

documents and data prepared, acquired, or relied upon in connection

 

with the closure report for not less than 6 years after the date on

 

which the closure report was submitted. All documents and data

 

required to be maintained under this section shall be made

 

available to the department upon request.

 

(2) Within 60 days after receipt of a closure report under

 

subsection (1), the department shall provide the owner or operator

 

that is liable under section 21323a who submitted the closure

 

report with a confirmation of the department's receipt of the

 

report.

 

(3) The department shall not require any additional

 

information beyond that required under this section to be included

 

in a closure report.

 

Sec. 21313a. (1) Beginning on the effective date of the 2012

 

amendatory act that amended this section, May 1, 2012, except as

 

provided in subsection (6), and except for the confirmation

 


provided in section 21312a(2), if a required submittal under

 

section 21308a, 21311a, or 21312a(1) is not provided during the

 

time required, the department may impose a penalty according to the

 

following schedule:

 

(a) Not more than $100.00 per day for the first 7 days that

 

the report is late.

 

(b) Not more than $500.00 per day for days 8 through 14 that

 

the report is late.

 

(c) Not more than $1,000.00 per day for each day beyond day 14

 

that the report is late.

 

(2) Subject to subsection (6), for purposes of this section,

 

in computing a period of time, the day of the act, event, or

 

default, after which the designated period of time begins to run is

 

not included. The last day of the period is included, unless it is

 

a Saturday, Sunday, legal holiday, or holiday, in which event the

 

period runs until the end of the next day that is not a Saturday,

 

Sunday, legal holiday, or holiday.

 

(3) The department may, upon request, grant an extension to a

 

reporting deadline provided in this part for good cause upon

 

written request 15 days prior to the deadline.

 

(4) The owner or operator that is liable under section 21323a

 

may by contract transfer the responsibility for paying fines under

 

this section to a consultant retained by the owner or operator that

 

is liable under section 21323a.

 

(5) The department shall forward all money collected pursuant

 

to this section to the state treasurer for deposit in the emergency

 

response fund created in section 21507.

 


(6) A penalty shall not begin to accrue under this section

 

unless the department has first notified the person on whom the

 

penalty is imposed that he or she is subject to the penalties

 

provided in this section.

 

Sec. 21315. (1) The department shall design and implement a

 

program to selectively audit final assessment reports and closure

 

reports submitted under this part. Upon receipt of a final

 

assessment report or closure report, the department shall have 90

 

days to determine whether it will audit the report and inform the

 

owner or operator that is liable under section 21323a of its

 

intention to audit the submitted report within 7 days of the

 

determination. If the department does not inform the owner or

 

operator that is liable under section 21323a of its intention to

 

audit the report within the required time limits, the department

 

shall not audit the report. If the department determines that it

 

will conduct an audit, the audit shall be completed within 180 days

 

of the submission. The department shall inform the owner or

 

operator that is liable under section 21323a in writing of the

 

results of the audit within 14 days of the completion of the audit.

 

All audits shall be conducted based on the standards, criteria, and

 

procedures in effect at the time the final assessment report or

 

closure report was submitted.

 

(2) The department shall have 270 days from the effective date

 

of the 2012 amendatory act that amended this section until January

 

27, 2013 to selectively audit final assessment reports or closure

 

reports that were submitted within the time period beginning 6

 

months prior to and ending 60 days after the effective date of the

 


2012 amendatory act that amended this section.on or after November

 

1, 2011 but not later than July 1, 2012.

 

(3) If the department conducts an audit, the results of the

 

audit shall approve, approve with conditions, or deny the final

 

assessment report or closure report or shall notify the owner or

 

operator that is liable under section 21323a that the report does

 

not contain sufficient information for the department to make a

 

decision. If the department's response is that the report does not

 

include sufficient information, the department shall identify the

 

information that is required for the department to make a decision.

 

If a report is approved with conditions, the department's approval

 

shall state with specificity the conditions of the approval.

 

(4) If the department does not perform an audit and provide a

 

written response in accordance with subsection (1) to a final

 

assessment report or closure report submitted after June 15, 2012,

 

the report is considered approved. An owner or operator that is

 

liable under section 21323a may request written confirmation from

 

the department that the report is considered approved under this

 

section, and the department shall provide written confirmation

 

within 14 days of the request.

 

(5) Any time frame required by this section may be extended by

 

mutual agreement of the department and an owner or operator that is

 

liable under section 21323a submitting a final assessment or

 

closure report. An agreement extending a time frame shall be in

 

writing.

 

(6) If an audit conducted under this section does not confirm

 

that corrective action has been conducted in compliance with this

 


part or does not confirm that applicable RBSLs or SSTLs have been

 

met, the department shall include both of the following in the

 

written response as required in subsection (1):

 

(a) The specific deficiencies and the section or sections of

 

this part or rules applicable to this part or applicable RBCA

 

standard that support the department's conclusion of noncompliance

 

or that applicable RBSLs or SSTLs have not been met.

 

(b) Recommendations about corrective actions or documentation

 

that may address the deficiencies identified under subsection

 

(6)(a).

 

(7) If the department denies a final assessment report or

 

closure report under this section, an owner or operator that is

 

liable under section 21323a shall either revise and resubmit the

 

report for approval, submit a petition for review of scientific or

 

technical disputes to the response activity review panel pursuant

 

to section 20114e and pay a fee in the amount of $300.00 in lieu of

 

the $3,500.00 fee set forth in section 20114e(7), or submit a

 

petition to the department's office of administrative hearings for

 

a contested case hearing pursuant to section 21332.

 

(8) Notwithstanding section 21312a, after conducting an audit

 

under this section, the department may issue a closure letter for

 

any site that meets the applicable RBSL or SSTL pursuant to section

 

21304a.

 

(9) The department shall only audit a report required under

 

this part 1 time. If the report does not contain sufficient

 

information for the department to make a decision or the

 

department's audit identifies deficiencies as described in

 


subsection (6), the department may audit a revised report if

 

sufficient information is provided for the department to make a

 

decision or, to evaluate whether the identified deficiencies have

 

been corrected, which shall be completed within 90 days of the

 

revised report's submission to the department.

 

Sec. 21316a. (1) A person shall not knowingly deliver a

 

regulated substance to an underground storage tank system that has

 

had a placard affixed to it under subsection (2). A person that

 

knowingly delivers a regulated substance to an underground storage

 

tank system that has had a placard affixed to it under subsection

 

(2) is guilty of a misdemeanor punishable by imprisonment for not

 

more than 90 days or a fine of not more than $500.00, or both. A

 

person is considered to have knowledge if placards have been

 

affixed to the underground storage tank system at the property and

 

are visible at the time of the delivery.

 

(2) The department, upon discovery of the operation of an

 

underground storage tank system in violation of this part, rules

 

promulgated under this part, part 211, or rules promulgated under

 

part 211, shall provide notification prohibiting delivery of

 

regulated substances to the underground storage tank system by

 

affixing a placard providing notice of the violation in plain view

 

to the underground storage tank system. The department shall

 

provide a minimum of 15 days' notice to the liable owner or

 

operator that is liable under section 21323a prior to affixing a

 

placard for violations of this part or rules promulgated under this

 

part, unless the violation causes an imminent and substantial

 

endangerment to the public health, safety, or welfare or the

 


environment.

 

(3) A person shall not remove, deface, alter, or otherwise

 

tamper with a placard affixed to an underground storage tank system

 

pursuant to subsection (2). A person that knowingly removes,

 

defaces, alters, or otherwise tampers with a placard affixed to an

 

underground storage tank system pursuant to subsection (2) such

 

that the notification is not discernible is guilty of a misdemeanor

 

punishable by imprisonment for not more than 90 days or a fine of

 

not more than $500.00, or both.

 

(4) The attorney general or, upon request by the department,

 

county prosecuting attorney may commence criminal actions for

 

violation of subsections (1) and (3) in the circuit court of the

 

county where the violation occurred.

 

Sec. 21319a. (1) In accordance with this section, if the

 

department determines that there may be an imminent risk to the

 

public health, safety, or welfare, or the environment, because of a

 

release or threatened release, the department may require an owner

 

or operator that is liable under section 21323a to take action as

 

may be necessary to abate the danger or threat.

 

(2) The department may issue an administrative order to an

 

owner or operator that is liable under section 21323a requiring

 

that person to perform corrective actions relating to a site, or to

 

take any other action required by this part. An order issued under

 

this section shall state with reasonable specificity the basis for

 

issuance of the order and specify a reasonable time for compliance.

 

(3) Within 30 days after issuance of an administrative order

 

under this section, a person to whom the order was issued shall

 


indicate in writing whether the person intends to comply with the

 

order.

 

(4) A person who, without sufficient cause, violates or fails

 

to properly comply with an administrative order issued under this

 

section is liable for either or both of the following:

 

(a) A civil fine of not more than $25,000.00 for each day

 

during which the violation occurs or the failure to comply

 

continues. A fine imposed under this subsection shall be based upon

 

the seriousness of the violation and any good faith efforts by the

 

violator to comply with the administrative order.

 

(b) For exemplary damages in an amount at least equal to the

 

amount of any costs of corrective action incurred by the state as a

 

result of a failure to comply with an administrative order but not

 

more than 3 times the amount of these costs.

 

(5) A person to whom an administrative order was issued under

 

this section may appeal the administrative order pursuant to

 

section 21333.

 

Sec. 21323a. (1) Notwithstanding any other provision of this

 

act, and except as otherwise provided in this section and section

 

21323c, the following persons are liable under this part:

 

(a) The owner or operator if the owner or operator is

 

responsible for an activity causing a release or threat of release.

 

(b) An owner or operator who became an owner or operator on or

 

after March 6, 1996, unless the owner or operator complies with

 

both of the following:

 

(i) A baseline environmental assessment is conducted prior to

 

or within 45 days 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 provides a 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.

 

(c) The estate or trust of a person described in subdivisions

 

(a) and (b).

 

(2) Subject to section 21304c, an owner or operator who

 

complies with subsection (1)(b) is not liable for contamination

 

existing at the property on which an underground storage tank

 

system is located at the earlier of the date of purchase,

 

occupancy, or foreclosure, unless the person is responsible for an

 

activity causing the contamination. Subsection (1)(b) does not

 

alter a person's liability with regard to a subsequent release or

 

threat of release from an underground storage tank system 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

 

property on which an underground storage tank system is located

 

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 state or a local unit of government that acquired

 

ownership or control of the property involuntarily through

 


bankruptcy, tax delinquency, abandonment, a transfer from a lender

 

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 property is transferred by the state or by

 

another local unit of government that is not liable under

 

subsection (1), or the state or a local unit of government that

 

acquired ownership or control of property 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 property, holds or acquires an interest in

 

property by dedication in a plat, or by dedication pursuant to the

 

public highways and private roads act, 1909 PA 283, MCL 220.1 to

 

239.6, or otherwise holds or acquires an interest in property for a

 

transportation or utility corridor, including sewers, pipes, and

 

pipelines, or public rights-of-way.

 

(c) A person that holds an easement interest in property 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 that owns severed subsurface mineral rights or

 

severed subsurface formations or who leases subsurface mineral

 

rights or formations.

 

(e) The state or a local unit of government that leases

 

property to a person if the state or the local unit of government

 

is not liable under this part for environmental contamination at

 


the property.

 

(f) A person that acquires property as a result of the death

 

of the prior owner or operator of the property, whether by

 

inheritance, devise, or transfer from an inter vivos or

 

testamentary trust.

 

(g) A person that did not know and had no reason to know that

 

the property was contaminated. To establish that the person did not

 

know and did not have a reason to know that the property was

 

contaminated, 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 section shall

 

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 regulated 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.

 

(h) 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.

 

(i) A lessee who uses the leased property for a retail,

 

office, or commercial purpose regardless of the level of the

 

lessee's regulated substance use unless the lessee is otherwise

 

liable under this section.

 


(4) Notwithstanding subsection (1), the following persons are

 

not liable under this part:

 

(a) A lender that engages in or conducts a lawful marshaling

 

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 property.

 

(b) The owner or operator of A person that owns or operates

 

property onto which contamination has migrated unless that person

 

is responsible for an activity causing the release that is the

 

source of the contamination.

 

(c) A person that owns or operates property on 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 that is liable

 

under this section.

 

(d) Any person for environmental contamination addressed in a

 

closure report that is approved by the department or is considered

 

approved under section 21312a. 21315(4). Notwithstanding this

 

subdivision, a person may be liable under this part for the

 

following:

 

(i) A subsequent release not addressed in the closure report if

 

the person is otherwise liable under this part for that release.

 

(ii) Environmental contamination that is not addressed in the

 


closure report and for which the person is otherwise liable under

 

this part.

 

(iii) If the closure report relies on land use or resource use

 

restrictions, an owner or operator a person who desires to change

 

those restrictions is responsible for any corrective action

 

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

 

closure report.

 

(iv) If the closure report relies on monitoring necessary to

 

assure the effectiveness and integrity of the corrective action, an

 

owner or operator who is otherwise liable that is liable under

 

section 21323a for environmental contamination addressed in a

 

closure report is liable under this part for additional corrective

 

action activities necessary to address any potential exposure to

 

the environmental contamination demonstrated by the monitoring in

 

excess of the levels relied on in the closure report.

 

(v) If the corrective actions that were the basis for the

 

closure report fail to meet performance objectives that are

 

identified in the closure report or section 21304a, an owner or

 

operator who is otherwise liable that is liable under section

 

21323a for environmental contamination addressed in the closure

 

report is liable under this part for corrective action necessary to

 

satisfy the performance objectives or otherwise comply with this

 

part.

 

(5) Notwithstanding any other provision of this part, the

 

state or a local unit of government or a lender who has not

 

participated in the management of the property is not liable under

 


this part for costs or damages as a result of corrective action

 

taken in response to a release or threat of release. For a lender,

 

this subsection applies only to corrective action undertaken prior

 

to 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 state or local unit of government.

 

(6) In establishing liability under this section, the

 

department bears the burden of proof.

 

(7) An owner or operator who was in compliance with subsection

 

(1)(b) prior to the effective date of the amendatory act that added

 

this subsection May 1, 2012 is considered to be in compliance with

 

subsection (1)(b).

 

Sec. 21323j. (1) Except as otherwise provided in this part, a

 

person, including a local unit of government on behalf of its

 

citizens, whose health or enjoyment of the environment is or may be

 

adversely affected by a release from an underground storage tank

 

system or threat of release from an underground storage tank

 

system, by a violation of this part or a rule promulgated or order

 

issued under this part, or by the failure of the directors to

 

perform a nondiscretionary act or duty under this part, may

 

commence a civil action against any of the following:

 

(a) An owner or operator who is liable under section 21323a

 

for injunctive relief necessary to prevent irreparable harm to the

 

public health, safety, or welfare or the environment from a release

 

or threatened release in relation to that underground storage tank

 

system on the property on which the underground storage tank system

 


is located.

 

(b) A person that is liable under section 21323a for a

 

violation of this part or a rule promulgated under this part or an

 

order issued under this part in relation to that underground

 

storage tank system on the property on which the underground

 

storage tank system is located.

 

(c) One or more of the directors if it is alleged that 1 or

 

more of the directors failed to perform a nondiscretionary act or

 

duty under this part.

 

(2) The circuit court has jurisdiction in actions brought

 

under subsection (1)(a) to grant injunctive relief necessary to

 

protect the public health, safety, or welfare or the environment

 

from a release or threatened release. The circuit court has

 

jurisdiction in actions brought under subsection (1)(b) to enforce

 

this part or a rule promulgated or order issued under this part by

 

ordering such action as may be necessary to correct the violation

 

and to impose any civil fine provided for in this part for the

 

violation. A civil fine recovered under this section shall be

 

deposited in the general fund. The circuit court has jurisdiction

 

in actions brought under subsection (1)(c) to order 1 or more of

 

the directors to perform the nondiscretionary act or duty

 

concerned.

 

(3) An action shall not be filed under subsection (1)(a) or

 

(b) unless all of the following conditions exist:

 

(a) The plaintiff has given at least 60 days' notice in

 

writing of the plaintiff's intent to sue, the basis for the suit,

 

and the relief to be requested to each of the following:

 


(i) The department.

 

(ii) The attorney general.

 

(iii) The proposed defendants.

 

(b) The state has not commenced and is not diligently

 

prosecuting an action under this part or under other appropriate

 

legal authority to obtain injunctive relief concerning the

 

underground storage tank system or the property on which the

 

underground storage tank system is located or to require compliance

 

with this part or a rule or an order under this part.

 

(4) An action shall not be filed under subsection (1)(c) until

 

the plaintiff has given in writing at least 60 days' notice to the

 

directors of the plaintiff's intent to sue, the basis for the suit,

 

and the relief to be requested.

 

(5) In issuing a final order in an action brought pursuant to

 

this section, the court may award costs of litigation, including

 

reasonable attorney and expert witness fees, to the prevailing or

 

substantially prevailing party.

 

(6) This section does not affect or otherwise impair the

 

rights of any person under federal, state, or common law.

 

(7) An action under subsection (1)(a) or (b) shall be brought

 

in the circuit court for the circuit in which the alleged release,

 

threatened release, or other violation occurred. An action under

 

subsection (1)(c) shall be brought in the circuit court for Ingham

 

county.

 

(8) All unpaid costs and damages for which a person is liable

 

under this section part constitute a lien in favor of the state

 

upon a property that has been the subject of corrective action by

 


the state and is owned by that person. A lien under this subsection

 

has priority over all other liens and encumbrances except liens and

 

encumbrances recorded before the date the lien under this

 

subsection is recorded. A lien under this subsection arises when

 

the state first incurs costs for corrective action at the property

 

for which the person is responsible.

 

(9) If the attorney general determines that the lien provided

 

in subsection (8) is insufficient to protect the interest of the

 

state in recovering corrective action costs at a property, the

 

attorney general may file a petition in the circuit court of the

 

county in which the facility is located seeking either or both of

 

the following:

 

(a) A lien upon the property owned by the person described in

 

subsection (8), subject to corrective action that takes priority

 

over all other liens and encumbrances that are or have been

 

recorded on the property.

 

(b) A lien upon real or personal property or rights to real or

 

personal property, other than the property which was the subject of

 

corrective action, owned by the person described in subsection (8),

 

having priority over all other liens and encumbrances except liens

 

and encumbrances recorded prior to the date the lien under this

 

subsection is recorded. However, the following are not subject to

 

the lien provided for in this subsection:

 

(i) Assets of a qualified pension plan or individual retirement

 

account under the internal revenue code.

 

(ii) Assets held expressly for the purpose of financing a

 

dependent's college education.

 


(iii) Up to $500,000.00 in nonbusiness real or personal property

 

or rights to nonbusiness real or personal property, except that not

 

more than $25,000.00 of this amount may be cash or securities.

 

(10) A petition submitted pursuant to subsection (9) shall set

 

forth with as much specificity as possible the type of lien sought,

 

the property that would be affected, and the reasons the attorney

 

general believes the lien is necessary. Upon receipt of a petition

 

under subsection (3), the court shall promptly schedule a hearing

 

to determine whether the petition should be granted. Notice of the

 

hearing shall be provided to the attorney general, the property

 

owner, and any persons holding liens or perfected security interest

 

in the real property subject to corrective action. A lien shall not

 

be granted under subsection (3) (9) against the owner of the

 

property if the owner is not liable under section 21323a.

 

(11) In addition to the lien provided in subsections (8) and

 

(9), if the state incurs costs for corrective action that increases

 

the market value of real property that is the location of a release

 

or threatened release, the increase in the value caused by the

 

state-funded corrective action, to the extent the state incurred

 

unpaid costs and damages, constitutes a lien in favor of the state

 

upon the real property. This lien has priority over all other liens

 

or encumbrances that are or have been recorded upon the property.

 

(12) A lien provided in subsection (8), (9), or (11) is

 

perfected against real property when a notice of lien is filed by

 

the department with the register of deeds in the county in which

 

the real property is located. A lien upon personal property

 

provided in subsection (9) is perfected when a notice of lien is

 


filed by the department in accordance with applicable law and

 

regulation for the perfection of a lien on that type of personal

 

property. In addition, the department shall, at the time of the

 

filing of the notice of lien, provide a copy of the notice of lien

 

to the owner of that property by certified mail.

 

(13) A lien under this section continues until the liability

 

for the costs and damages is satisfied or resolved or becomes

 

unenforceable through the operation of the statute of limitations

 

provided in this part.

 

(14) Upon satisfaction of the liability secured by the lien,

 

the department shall file a notice of release of lien in the same

 

manner as provided in subsection (12).

 

(15) If the department, at the time or prior to the time of

 

filing the notice of release of lien pursuant to subsection (14),

 

has made a determination that the person liable under section

 

21323a has completed all of the corrective action, the department

 

shall execute and file with the notice of release of lien a

 

document stating that all corrective action has been completed.

 

Sec. 21323m. (1) Except as provided in section 21323b(5), a

 

person that has complied with the requirements of this part or is

 

exempt from liability under this part is not subject to a claim in

 

law or equity for performance of corrective action under part 17,

 

part 31, or common law.

 

(2) A person who is exempt from liability under section 21323a

 

is not liable for a claim for corrective action costs, fines or

 

penalties, natural resources damages, or equitable relief under

 

part 17, part 31, or common law resulting from the contamination

 


existing on the site or migrating from the site on the earlier of

 

the date of purchase, occupancy, foreclosure or transfer of

 

ownership, or control of the site to the person. The liability

 

protection afforded in this subsection does not extend to a

 

violation of any permit issued under state law. This subsection

 

does not alter a person's liability for violation of section

 

21304c.

 

(3) (2) This section does not bar any of the following:

 

(a) Tort claims unrelated to performance of corrective action.

 

(b) Tort claims for damages which result from corrective

 

action.

 

(c) Tort claims related to the exercise or failure to exercise

 

responsibilities under section 21304c.

 

Sec. 21323n. (1) A person may submit to the department

 

documentation of due care compliance regarding a site. The

 

documentation of due care compliance shall be submitted on a form

 

provided by the department and shall contain documentation of

 

compliance with section 21304c prepared by a qualified underground

 

storage tank consultant, and other information required by the

 

department.

 

(2) Within 45 business days after receipt of documentation of

 

due care compliance under subsection (1) containing sufficient

 

information for the department to make a decision, the department

 

shall approve, approve with conditions, or deny the documentation

 

of due care compliance. If the department does not approve the

 

documentation of due care compliance, the department shall provide

 

the person that submitted the documentation the reasons why the

 


documentation of due care compliance was not approved.

 

(3) A person that disagrees with a decision of the department

 

under this section may submit a petition for review of scientific

 

or technical disputes to the response activity review panel

 

pursuant to section 20114e or submit a petition to the department's

 

office of administrative hearings for a contested case hearing

 

pursuant to section 21332.

 

Sec. 21326. (1) Upon request of the department for the purpose

 

of conducting an investigation, taking corrective action, or

 

enforcing this part, the owner or operator a person shall furnish

 

the department with all available information about all of the

 

following:

 

(a) The underground storage tank system and its associated

 

equipment.

 

(b) The past or present contents of the underground storage

 

tank system.

 

(c) Any releases and investigations of releases.

 

(2) The department has the right to enter at all reasonable

 

times in or upon any private or public property for any of the

 

following purposes:

 

(a) Inspecting an underground storage tank system.

 

(b) Obtaining samples of any substance from an underground

 

storage tank system.

 

(c) Requiring and supervising the conduct of monitoring or

 

testing of an underground storage tank system, its associated

 

equipment, or contents.

 

(d) Conducting monitoring or testing of an underground storage

 


tank system in cases where there is no identified responsible

 

party.

 

(e) Conducting monitoring or testing, or taking samples of

 

soils, air, surface water, or groundwater.

 

(f) Taking corrective action.

 

(g) Inspecting and copying any records related to an

 

underground storage tank system.

 

(3) All inspections and investigations undertaken by the