SENATE BILL No. 1328

 

 

September 25, 2012, Introduced by Senator CASPERSON and referred to the Committee on Natural Resources, Environment and Great Lakes.

 

 

 

     A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

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

 

20114e, 20120a, 20120b, 20126, and 21304a (MCL 324.19608,

 

324.19612, 324.20101, 324.20104, 324.20114, 324.20114c, 324.20114e,

 

324.20120a, 324.20120b, 324.20126, and 324.21304a), 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, section 20114e as amended by 2012 PA

 

109, sections 20120a and 20120b as amended and section 20114c as

 

added by 2010 PA 228, section 20126 as amended by 2010 PA 227, and

 

section 21304a as amended by 2012 PA 108, and by adding section

 

20114f; and to repeal acts and parts of acts.

 


THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     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.

 

     (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.

 

     (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 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.

 

     (6) A person, including the department, conducting a response

 

activity at a facility, or other area necessary for implementation

 

of that response activity, is not required to obtain a state or

 

local permit for the response activity if each of the following

 

requirements is met to the greatest extent practicable considering

 

the exigencies of the situation when carrying out the response

 

activity:

 

     (a) The person conducts the response activity in accordance

 

with a response activity plan or a remedial action plan approved by

 

the department.

 

     (b) The person satisfies the standards or requirements of an

 

otherwise applicable state or local permit.

 

     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. 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 under this part, and initial assessment reports, final

 

assessment reports, and closure reports 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, or a request for a certificate of completion

 

under this part or an initial assessment report, final assessment

 

report, or closure report 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, initial

 

assessment report, final assessment report, or closure report 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,

 

initial assessment report, final assessment report, or closure

 

report. 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. 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 may demonstrate 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 use of the facility is subject to the Michigan

 


occupational safety and health act, 1974 PA 154, MCL 408.1001 to

 

MCL 408.1094.

 

     (b) The hazardous substance is included in a hazard

 

communication program.

 

     (c) The person complies with the Michigan occupational safety

 

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

 

rules promulgated under that act applicable to the exposure to the

 

hazardous substance.

 

     (20) Response activity screening levels established by the

 

department under this part may be used as any of the following:

 

     (a) Screening levels to determine whether conditions at a

 

property require further evaluation.

 

     (b) A basis for making a determination that a property is a

 

facility.

 

     (c) A basis for determining that a response activity satisfies

 

the requirements of this part if response activity screening levels

 

are met or satisfied.

 

     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. 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. 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 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 of an underground

 

storage tank system may choose to perform response activities or

 

otherwise address a release or threat of a release 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 may choose 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 of the

 

underground storage tank system may choose to address the venting

 

groundwater pursuant to part 201 in lieu of corrective actions

 

addressing the venting groundwater pursuant to this part.

 

     Enacting section 1. (1) Subpart 1 of part 147 of the natural

 

resources and environmental protection act, 1994 PA 451, MCL

 

324.14701 to 324.14705, is repealed.

 

     (2) R 299.3301 to R 299.3319 of the Michigan administrative

 

code are rescinded.

 


     Enacting section 2. (1) R 299.5105, R 299.5107, R 299.5109, R

 

299.5111, R 299.5113, R 299.5117, R 299.5401 to R 299.5415, R

 

299.5530, R 299.5532, R 299.5534, R 299.5536, R 299.5538, R

 

299.5540, R 299.5732, R 299.5742, and R 299.5901 to R 299.5919 of

 

the Michigan administrative code are rescinded.

 

     (2) R 299.5101, R 299.5103, R 299.5115, R 299.5520, R

 

299.5522, R 299.5524, R 299.5526, R 299.5528, R 299.5542, R

 

299.5701, R 299.5703, R 299.5705, R 299.5706, R 299.5706a, R

 

299.5707, R 299.5708 to R 299.5726, R 299.5728, R 299.5730, R

 

299.5734, R 299.5736, R 299.5738, R 299.5740, and R 299.5744 to R

 

299.5752 of the Michigan administrative code are rescinded

 

effective December 31, 2013.