Bill Text: MI SB0437 | 2009-2010 | 95th Legislature | Introduced
Bill Title: Environmental protection; cleanups; clean-up standards; provide for. Amends secs. 20101 & 20120a of 1994 PA 451 (MCL 324.20101 & 324.20120a). TIE BAR WITH: HB 6360'10, HB 6363'10, SB 1345'10, SB 1346'10, SB 1348'10
Spectrum: Partisan Bill (Republican 11-0)
Status: (Engrossed - Dead) 2010-11-10 - Referred To Second Reading [SB0437 Detail]
Download: Michigan-2009-SB0437-Introduced.html
SENATE BILL No. 437
April 2, 2009, Introduced by Senators ALLEN, KUIPERS, SANBORN, GILBERT, RICHARDVILLE, CROPSEY, PAPPAGEORGE, BROWN, JELINEK, JANSEN and KAHN and referred to the Committee on Economic Development and Regulatory Reform.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 20101 and 20120a (MCL 324.20101 and
324.20120a), section 20101 as amended by 1996 PA 383 and section
20120a as added by 1995 PA 71.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 20101. (1) As used in this part:
(a) "Act of God" means an unanticipated grave natural disaster
or other natural phenomenon of an exceptional, inevitable, and
irresistible character, the effects of which could not have been
prevented or avoided by the exercise of due care or foresight.
(b) "Agricultural property" means real property used for
farming in any of its branches, including cultivating of soil;
growing and harvesting of any agricultural, horticultural, or
floricultural commodity; dairying; raising of livestock, bees,
fish, fur-bearing animals, or poultry; turf and tree farming; and
performing any practices on a farm as an incident to, or in
conjunction with, these farming operations. Agricultural property
does not include property used for commercial storage, processing,
distribution, marketing, or shipping operations.
(c) "Attorney general" means the department of the attorney
general.
(d) "Baseline environmental assessment" means an evaluation of
environmental conditions which exist at a facility at the time of
purchase, occupancy, or foreclosure that reasonably defines the
existing conditions and circumstance at the facility so that, in
the event of a subsequent release, there is a means of
distinguishing the new release from existing contamination.
(e) "Board" means the brownfield redevelopment board created
in section 20104a.
(f) "Department" means the director of the department of
environmental quality or his or her designee to whom the director
delegates a power or duty by written instrument.
(g) "Director" means the director of the department of
environmental quality.
(h) "Directors" means the directors or their designees of the
departments of environmental quality, community health,
agriculture, and state police.
(i) "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.
(j) "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 or rules promulgated under this
part, or both.
(k) "Environment" or "natural resources" means land, surface
water,
groundwater, subsurface , strata,
air, fish, wildlife, or
biota within the state.
(l) "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.
(m) "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.
(n) "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 existing contamination:
(i) Contamination that has migrated beyond the boundaries of
the property which is the source of the release at levels above
cleanup criteria specified in section 20120a(1)(a) unless a
criterion is not relevant because exposure is reliably restricted
pursuant to section 20120b.
(ii) A change in facility conditions that increases response
activity costs.
(o) "Facility" means any area, place, or property where a
hazardous substance in excess of the concentrations which satisfy
the requirements of section 20120a(1)(a) or (17) or the cleanup
criteria for unrestricted residential use under part 213 has been
released, deposited, disposed of, or otherwise comes to be located.
Facility
does not include any area, place, or property at which
response
where any of the following
conditions are met:
(i) Response activities have
been completed which that satisfy
the cleanup criteria for the residential category provided for in
section
20120a(1)(a) and (17). or at which corrective
(ii) Site-specific criteria applicable to the area, place, or
property that have been approved by the department are satisfied
and hazardous substances that are not addressed by the site-
specific criteria satisfy the cleanup criteria for the residential
category provided for in section 20120a(1)(a) and (17).
(iii) Corrective action has been
completed under part 213 which
that satisfies the cleanup criteria for unrestricted residential
use.
(p) "Feasibility study" means a process for developing,
evaluating, and selecting appropriate response activities.
(q) "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.
(r) "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.
(s) "Fund" means the cleanup and redevelopment fund
established in section 20108.
(t) "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, Act
No.
93 of the Public Acts of 1981, being sections 286.471 to
286.474
of the Michigan Compiled Laws 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 of 1980,
Public
Law 96-510. , 94 Stat. 2767.
(iii) Hazardous waste as defined in part 111.
(iv) Petroleum as described in part 213.
(u) "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.
(v) "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, Act No. 218 of the
Public
Acts of 1956, being sections 1956
PA 218, MCL 500.100 to
500.8302. of
the Michigan Compiled Laws.
(vi) A motor vehicle finance company subject to the motor
vehicle
sales finance act, Act No. 27 of the Extra Session of
1950
,
being sections 492.101 to 492.141 of the Michigan Compiled Laws
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.
(w) "Local health department" means that term as defined in
section
1105 of the public health code, Act No. 368 of the Public
Acts
of 1978, being section 1978
PA 368, MCL 333.1105. of
the
Michigan Compiled Laws.
(x) "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.
(y) "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.
(z) "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.
(aa) "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
of 1980, Public Law 96-510. , 94 Stat. 2767.
(bb) "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, chapter 1073, 68 Stat. 919, if the
release is subject to requirements with respect to financial
protection established by the nuclear regulatory commission under
section
170 of chapter 14 of title I of the atomic energy act of
1954,
chapter 1073, 71 Stat. 576, 42 U.S.C. USC 2210,
or any
release of source by-product or special nuclear material from any
processing
site designated under section 102(a)(1) of title I or
302(a)
of title III of the uranium mill tailings radiation control
act
of 1978, Public Law 95-604, 42 U.S.C. 7912 and 7942 USC
7912(a)(1) and 7942(a).
(iv) If applied according to label directions and according to
generally accepted agricultural and management practices, 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, Act No. 93 of the Public Acts of 1981, being sections
286.471
to 286.474 of the Michigan Compiled Laws 1981 PA 93, MCL
286.471 to 286.474.
(cc) "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.
(dd) "Remedial action plan" means a work plan for performing
remedial action under this part.
(ee) "Response activity" means evaluation, interim response
activity, remedial action, demolition, 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
public health and enforcement actions related to any response
activity.
(ff) "Response activity costs" or "costs of response activity"
means all costs incurred in taking or conducting a response
activity, including enforcement costs.
(gg) "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.
(hh) "Site" means the location of environmental contamination.
(ii) "Threatened release" or "threat of release" means any
circumstance that may reasonably be anticipated to cause a release.
(2) As used in this part, 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.
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
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 1976 PA 399, MCL 325.1005, of the Michigan Compiled
Laws,
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. USC 2601
to
2629,
2641 to 2656, 2661 to 2671, and 2681 to 2692.
(13) Response activity to address the release of
uncontaminated mineral oil satisfies R 299.5709 for groundwater or
R 299.5711 for soil under the Michigan administrative code if all
visible traces of mineral oil are removed from groundwater and
soil.
(14) Approval by the department of a remedial action plan
based on 1 or more categorical standard in subsection (1)(a) to (e)
shall be granted only if the pertinent criteria are satisfied in
the affected media. The department shall approve the use of
probabilistic or statistical methods or other scientific methods of
evaluating environmental data when determining compliance with a
pertinent cleanup criterion if the methods are determined by the
department to be reliable, scientifically valid, and 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.
(19) Notwithstanding any other provision in this part, the
department shall not establish, by rule or otherwise, or enforce
cleanup criteria for a hazardous substance that are more stringent
than comparable criteria established or published by the United
States environmental protection agency for that hazardous
substance. Furthermore, cleanup criteria for a hazardous substance
established by the department prior to the effective date of the
amendatory act that added this subsection that are more stringent
than comparable criteria established or published by the United
States environmental protection agency for that hazardous substance
are subject to both of the following:
(a) The cleanup criteria are not applicable, relevant, or
appropriate within the meaning of 42 USC 9621 or 40 CFR part 300,
and shall not be identified by the state as such to the United
States environmental protection agency.
(b) The cleanup criteria shall not otherwise apply at any
area, place, or property where a response action under the
oversight of the United States environmental protection agency
pursuant to the comprehensive environmental response, compensation,
and liability act of 1980, Public Law 96-510, is underway or is
complete.
