November 10, 2010, Introduced by Senator BRATER and referred to the Committee on Natural Resources and Environmental Affairs.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 20120a and 21304a (MCL 324.20120a and
324.21304a), section 20120a as added by 1995 PA 71 and section
21304a as amended by 1996 PA 116.
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 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
1,000,000 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, 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).
(9) The need for soil remediation to protect an aquifer from
hazardous substances in soil shall be determined by R 299.5711(2)
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. 2601 to 2629,
2641
to 2656, 2661 to 2671, and 2681 to 2692 15 USC 2601 to 2695d.
(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 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 standards 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 , and 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 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.
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.
(2) Subject to subsections (3) and (4), the department shall
establish cleanup criteria for corrective action activities
undertaken under this part using the process outlined in RBCA. The
department shall utilize only reasonable and relevant exposure
assumptions and pathways in determining the cleanup criteria.
(3) If a regulated substance poses a carcinogenic risk to
humans, the cleanup criteria 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 1,000,000 individuals using
the exposure assumptions and pathways established by the department
and 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 a cleanup criterion for groundwater 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 a consultant retained by 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) Notwithstanding any other provision of this part, 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.