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.

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.

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.

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.

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.

(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.

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

(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.

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).

(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.

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.

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.

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.

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.

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.

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.

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.