March 15, 2006, Introduced by Reps. Moolenaar, Caul and Kahn and referred to the Committee on Government Operations.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending section 20120a (MCL 324.20120a), as added by 1995 PA
71.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
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, considering the appropriateness of the categorical
criteria to the facility. The categories are as follows:
(a) Residential.
(b) Commercial.
(c) Recreational.
(d) Industrial.
(e) Other land use based categories established by the
department.
(f) Limited residential.
(g) Limited commercial.
(h) Limited recreational.
(i) Limited industrial.
(j) Other limited categories established by the department.
(2) The department may approve a remedial action plan based on
site specific criteria that satisfy the applicable requirements of
this part and the rules promulgated under 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 site characteristics that
determine the applicability of criteria derived for these
categories or subcategories.
(4)
If Except as otherwise
provided in this subsection, 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.
However, the cleanup criteria for a hazardous substance shall be
the action level provided by the agency for toxic substances and
disease registry, United States department of health and human
services, if one is available. 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, Act No. 399 of the Public Acts of 1976,
being
section 325.1005 of the Michigan Compiled Laws 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 cleanup criterion shall be the more stringent of (a) or (b)
unless the department determines that compliance with this rule is
not necessary because the use of the aquifer is reliably restricted
pursuant to section 20120b(4) or (5).
(6) The department shall not approve of a remedial action plan
in categories set forth in subsection (1)(b) to (j), unless the
person proposing the plan 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 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 that achieves
categorical criteria that is based on greater exposure potential
than the criteria applicable to current zoning. In addition, the
remedial action plan 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) Except as provided in subsection (4) and subsections (9)
to (13), compliance with the residential category in subsection
(1)(a)
shall be based on R 299.5709 through R 299.5711(4), R
299.5711(6)
through R 299.5715 and R 299.5727 of the Michigan
administrative
code. R 299.5711(5), R 299.5723, and R 299.5725 of
the
Michigan administrative code shall not apply for calculations
of
residential criteria under subsection (1)(a) R 299.5707 to R
299.5710, R 299.5712, R 299.5714, R 299.5716, R 299.5718, R
299.5720, R 299.5722, R 299.5724, R 299.5726, R 299.5728, and R
299.5730 of the Michigan administrative code.
(9) The need for soil remediation to protect an aquifer from
hazardous
substances in soil shall be determined by R 299.5711(2)
R 299.5718 and R 299.5726 of the Michigan administrative code,
considering 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.
(10) 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.
(11) If the cleanup criterion for a hazardous substance
determined by R 299.5707 of the Michigan administrative code is
greater than a cleanup criterion developed for a category pursuant
to subsection (1), the criterion determined pursuant to R 299.5707
of the Michigan administrative code shall be the cleanup criterion
for that hazardous substance in that category.
(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, Public Law 94-469, 15 U.S.C. USC
2601
to
2629, 2641 to 2656, 2661 to 2671, and 2681 to 2692.
(13) Response activity to address the release of
uncontaminated mineral oil satisfies R 299.5709 of the Michigan
administrative
code for groundwater or R
299.5711 R 299.5718 to R
299.5726
of the Michigan administrative code for
soil under the
Michigan
administrative code if all visible traces of mineral oil
are removed from groundwater and soil.
(14) Approval by the department of a remedial action plan
based on 1 or more categorical standard in subsection (1)(a) to (e)
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, to be scientifically valid, and to best
represent actual site conditions and exposure potential.
(15) If a remedial action allows for venting groundwater, the
discharge shall comply with requirements of part 31, and the rules
promulgated under that part or an alternative method established by
rule. If the discharge of venting groundwater is provided for in a
remedial action plan that is approved by the department, a permit
for the discharge is not required. As used in this subsection,
"venting groundwater" means groundwater that is entering a surface
water of the state from a facility.
(16) A remedial action plan shall provide response activity to
meet the residential categorical criteria, or provide for
acceptable land use or resource use restrictions pursuant to
section 20120b.
(17) A remedial action plan that relies 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
R 299.5717 R 299.5728
of the Michigan administrative code.
(18) The department shall annually evaluate and revise, if
appropriate, the cleanup criteria derived under this section. The
evaluation shall incorporate knowledge gained through research and
studies in the areas of fate and transport and risk assessment. The
department shall prepare and submit to the legislature a report
detailing revisions made to cleanup criteria under this section.