Bill Text: MI SB1345 | 2009-2010 | 95th Legislature | Introduced
Bill Title: Environmental protection; cleanups; part 201 modification; provide for. Amends secs. 20114a, 20120a, 20120b, 20120c & 20120d of 1994 PA 451 (MCL 324.20114a et seq.); adds secs. 20114b, 20114c, 20114d, 20120 & 20120e & repeals (See bill). TIE BAR WITH: HB 6359'10, HB 6360'10, HB 6363'10, SB 1346'10, SB 1348'10
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2010-12-29 - Assigned Pa 0228'10 With Immediate Effect [SB1345 Detail]
Download: Michigan-2009-SB1345-Introduced.html
SENATE BILL No. 1345
May 25, 2010, Introduced by Senator BIRKHOLZ and referred to the Committee on Natural Resources and Environmental Affairs.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 20114a, 20120a, 20120b, 20120c, and 20120d
(MCL 324.20114a, 324.20120a, 324.20120b, 324.20120c, and
324.20120d), section 20114a as amended by 1996 PA 115, sections
20120a, 20120b, and 20120c as added by 1995 PA 71, and section
20120d as amended by 1996 PA 383, and by adding sections 20114b,
20114c, 20114d, 20120, and 20120e; and to repeal acts and parts of
acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
20114a. (1) A person who, after June 5, 1995, is
responsible
for an activity causing a release in excess of the
concentrations
that satisfy the criteria established pursuant to
section
20120a(1)(a) through (e), as appropriate for the use of the
property,
is subject to a civil fine as provided in this part
unless
a fine or penalty has already been imposed for the release
under
another part of this act. However, a civil fine shall not be
imposed
under this section against a person who made a good faith
effort
to prevent the release and to comply with the provisions of
this
part.
(2)
This section does not apply to a release from an
underground
storage tank system as defined in part 213.
(1) Subject to section 20114 and other applicable law, a
person may undertake response activities without prior approval by
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. Except as
otherwise provided in this part, conducting response activities
under this section does not relieve any person who is liable under
this part from the obligation to conduct further response
activities as may be required by the department under this part or
other applicable law.
(2) Upon completion of remedial actions that satisfy the
cleanup criteria established under this part, a person undertaking
remedial actions may submit to the department a no further action
report.
Sec. 20114b. (1) Subject to section 20114(1)(h), a person
undertaking response activity under this part may submit to the
department a response activity plan that includes a request for
department approval of 1 or more aspects of response activity.
(2) A person who submits a response activity plan under this
section and who is not subject to an administrative order or
agreement or judicial decree that requires prior department
approval of response activity shall submit a response activity plan
review request form with the response activity plan. The department
shall specify the required content of the response activity request
form and make the form available on the department's website.
(3) Upon receipt of a response activity plan submitted for
approval under this subsection, the department shall approve,
approve with conditions, or deny the response activity plan, or
shall notify the submitter that the plan does not contain
sufficient information for the department to make a decision. The
department shall provide its determination within 150 days after
the plan was submitted for approval unless the plan requires public
participation under section 20120d(2). If the plan requires public
participation under section 20120d(2), the department shall respond
within 180 days. If the department's response is that the plan does
not include sufficient information, the department shall identify
the information that is required for the department to make a
decision. If a plan is approved with conditions, the department's
approval shall state with specificity the conditions of the
approval. If the plan is denied, the department's denial shall
state with specificity the reasons for denial.
(4) If the department fails to provide a written response
within the time frames required by subsection (3), the response
activity plan is considered approved. If the department denies a
response activity plan under subsection (3), a person may
subsequently revise and resubmit the response activity plan for
approval.
(5) Any time frame required by this section may be extended by
mutual agreement of the department and a person submitting a
response activity plan. An agreement extending a time frame shall
be in writing.
(6) A person requesting approval of a response activity plan
may appeal the department's decision in accordance with section
20114e, if applicable.
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 be recorded by the property owner or
with the express written permission of the property owner. The
restrictions shall run with the land and be binding on the owner's
successors, assigns, and lessees. The restrictive covenant shall
include a survey and property description that define the areas
addressed by the remedial actions and the scope of any land use or
resource use restrictions. At a minimum, the restrictive covenant
shall do all of the following:
(a) Describe the general uses of the property that are
consistent with the cleanup criteria.
(b) Restrict activities at the facility that may interfere
with remedial actions, operation and maintenance, monitoring, or
other measures necessary to assure the effectiveness and integrity
of the remedial actions.
(c) Restrict activities that may result in exposures above
levels attained in the remedial actions.
(d) Grant to the department the ability to enforce the
restrictive covenant by legal action in a court of appropriate
jurisdiction.
(4) A person shall not record a restrictive covenant
indicating approval by the department unless the department has
approved the recording of the restrictive covenant.
(5) A person who implements a postclosure plan shall provide
notice of the land use or resource use restrictions to the
department and to the zoning authority for the local unit of
government in which the facility is located within 30 days after
recording the land use or resource use restrictions with the
register of deeds.
(6) The department, with the approval of the state
administrative board, may place restrictive covenants related to
land use or resource use restrictions on deeds of state-owned
property.
(7) Implementation of remedial actions does not relieve a
person who is liable under section 20126 of that person's
responsibility to report and provide for response activity to
address a subsequent release or threat of release.
(8) Implementation by any person of remedial actions without
department approval does not relieve that person of an obligation
to undertake response activities or limit the ability of the
department to take action to require response activities necessary
to comply with this part by a person who is liable under section
20126.
Sec. 20114d. (1) Upon completion of remedial actions that
satisfy applicable cleanup criteria established under this part,
and all other requirements of this part that are applicable to
remedial action, a person may submit a no further action report to
the department. The no further action report shall document the
basis for concluding that the remedial actions have been completed.
A no further action report shall be submitted with a form developed
by the department. The department shall make this form available on
its website.
(2) A no further action report submitted under subsection (1)
shall be submitted with the following, as applicable:
(a) If the remedial action at the facility satisfies the
cleanup criteria for unrestricted residential use, neither a
postclosure plan or a proposed postclosure agreement is required to
be submitted.
(b) If the remedial action requires only land use or resource
use restrictions and financial assurance is not required or the
financial assurance is de minimis, a postclosure plan is required
but a proposed postclosure agreement is not required to be
submitted.
(c) For facilities other than those described in subdivision
(a) or (b), a postclosure plan and a proposed postclosure agreement
are required to be submitted.
(3) A proposed postclosure agreement that is submitted as part
of a no further action report shall include all of the following:
(a) Provisions for monitoring, operation and maintenance, and
oversight necessary to assure the effectiveness and integrity of
the remedial action.
(b) Financial assurance to pay for monitoring, operation and
maintenance, oversight, and other costs determined by the
department to be necessary to assure the effectiveness and
integrity of the remedial action.
(c) A provision requiring notice to the department of the
owner's intent to convey any interest in the facility 14 days prior
to consummating the conveyance. A conveyance of title, an easement,
or other interest in the property shall not be consummated by the
property owner without adequate and complete provision for
compliance with the terms and conditions of the postclosure plan
and the postclosure agreement.
(d) A provision granting the department the right to enter the
property at reasonable times for the purpose of determining and
monitoring compliance with the postclosure plan and postclosure
agreement, including the right to take samples, inspect the
operation of the remedial action measures, and inspect records.
(4) A postclosure agreement may modify the terms of a
postclosure plan as follows:
(a) If the exposure to hazardous substances may be reliably
restricted by an institutional control in lieu of a restrictive
covenant, and imposition of land use or resource use restrictions
through restrictive covenants is impractical, the postclosure
agreement may allow for a remedial action under section
20120a(1)(c) or (d) or (2) to rely on an institutional control in
lieu of a restrictive covenant in a postclosure plan. Mechanisms
that may be considered under this subsection include, but are not
limited to, an ordinance that restricts the use of groundwater or
an aquifer in a manner and to a degree that protects against
unacceptable exposures. An ordinance that serves as an exposure
control pursuant to this subsection shall be published and
maintained in the same manner as zoning ordinances and shall
include a requirement that the local unit of government notify the
department at least 30 days prior to adopting a modification to the
ordinance, or to the lapsing or revocation of the ordinance.
(b) A postclosure agreement may waive the requirement for
permanent markers.
(5) The person submitting a no further action report shall
include a signed affidavit attesting to the fact that the
information upon which the no further action report is based is
complete and true to the best of that person's knowledge. The no
further action report shall also include a signed affidavit from an
environmental consultant who meets the professional qualifications
described in section 20114e(2) and who prepared the no further
action report, attesting to the fact that the remedial actions
detailed in the no further action report comply with all applicable
requirements and that the information upon which the no further
action report is based is complete and true to the best of that
person's knowledge.
(6) A person submitting a no further action report shall
maintain all documents and data prepared, acquired, or relied upon
in connection with the no further action report for not less than
10 years after the later of the date on which the department
approves the no further action report under this section, or the
date on which no further monitoring, operation, or maintenance is
required to be undertaken as part of the remedial action covered by
the report. All documents and data required to be maintained under
this section shall be made available to the department upon
request.
(7) Upon receipt of a no further action report submitted under
this subsection, the department shall approve or deny the no
further action report or shall notify the submitter that the report
does not contain sufficient information for the department to make
a decision. If the no further action report requires a postclosure
agreement, the department may negotiate alternative terms than
those included within the proposed postclosure agreement. The
department shall provide its determination within 150 days after
the report was submitted for approval under this subsection unless
the report requires public participation under section 20120d(2).
If the report requires public participation under section
20120d(2), the department shall respond within 180 days. If the
department's response is that the report does not include
sufficient information, the department shall identify the
information that is required for the department to make a decision.
If the report is denied, the department's denial shall state with
specificity the reasons for denial. If the no further action
report, including any required postclosure plan and postclosure
agreement, is approved, the department shall provide the person
submitting the no further action report with a no further action
letter. The department shall review and provide a written response
within the time frames required by this subsection for at least 90%
of the no further action reports submitted to the department under
this section in each calendar year.
(8) If the department fails to provide a written response
within the time frames required by subsection (7), the no further
action report is considered approved.
(9) A person requesting approval of a no further action report
under subsection (7) may appeal the department's decision in
accordance with section 20114e.
(10) Any time frame required by this section may be extended
by mutual agreement of the department and a person submitting a no
further action report. An agreement extending a time frame shall be
in writing.
(11) Following approval of a no further action report under
this section, the owner or operator of the facility addressed by
the no further action report may submit to the department an
amended no further action report. The amended no further action
report shall include the proposed changes to the original no
further action report and an accompanying rationale for the
proposed change. The process for review and approval of an amended
no further action report is the same as the process for no further
action reports.
Sec. 20120. (1) All of the following shall be considered when
a person is selecting a remedial action or the department is
selecting or approving a remedial action:
(a) The effectiveness of alternatives in protecting the public
health, safety, and welfare and the environment.
(b) The long-term uncertainties associated with the proposed
remedial action.
(c) The persistence, toxicity, mobility, and propensity to
bioaccumulate of the hazardous substances.
(d) The short- and long-term potential for adverse health
effects from human exposure.
(e) Costs of remedial action, including long-term maintenance
costs. However, the cost of a remedial action shall be a factor
only in choosing among alternatives that adequately protect the
public health, safety, and welfare and the environment, consistent
with the requirements of section 20120a.
(f) Reliability of the alternatives.
(g) The potential for future response activity costs if an
alternative fails.
(h) The potential threat to human health, safety, and welfare
and the environment associated with excavation, transportation, and
redisposal or containment.
(i) The ability to monitor remedial performance.
(j) For remedial actions that require the opportunity for
public comment under section 20120d, the public's perspective about
the extent to which the proposed remedial action effectively
addresses requirements of this part.
(2) Evaluation of the factors in subsection (1) shall consider
all factors in balance with one another as necessary to achieve the
objectives of this part. No single factor in subsection (1) shall
be considered the most important.
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)
Commercial Nonresidential.
Beginning on the effective date
of the 2010 amendatory act that amended this section, the
nonresidential cleanup criteria shall be the former industrial
categorical cleanup criteria developed by the department pursuant
to this section until new nonresidential cleanup criteria are
developed and published by the department pursuant to subsection
(17).
(c)
Recreational.
(d)
Industrial.
(e)
Other land use based categories established by the
department.
(c) (f)
Limited residential.
(d) (g)
Limited commercial nonresidential.
(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 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, Act No. 399 of the Public Acts of 1976,
being
section 325.1005 of the Michigan Compiled Laws 1976 PA 399,
MCL 325.1005,
or (b) criteria for adverse aesthetic characteristics
derived
pursuant to R 299.5709 of the Michigan administrative code
the 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), or (b), or (c) unless the
department determines
that
compliance with this rule subsection
is not necessary because
the
use of the aquifer is reliably restricted pursuant to section
20120b(4)
or (5). under provisions of a
postclosure plan or a
postclosure agreement.
(6) The department shall not approve of a remedial action plan
in
categories set forth in subsection (1)(b) to (j) (d),
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 plan that achieves
categorical
criteria that is are 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).
(8) (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
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) (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.
(10) (11)
If the cleanup criterion for a
hazardous substance
determined
by R 299.5707 of the Michigan administrative code 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 determined
pursuant
to R 299.5707 of the Michigan administrative code shall be
the
cleanup criterion target
detection limit or background
concentration, whichever is larger, for that hazardous substance in
that category.
(11) (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.
(12) (13)
Response activity Remedial
action to address the
release
of uncontaminated mineral oil satisfies R 299.5709 cleanup
criteria
under this part 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.
(13) (14)
Approval by the department of a remedial
action plan
based
on 1 or more the categorical standard in subsection (1)(a) to
(e)
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.
(14) (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,
is provided for in a response
activity that is in
compliance with this part, 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.
(15) (16)
A remedial action plan Remedial
actions shall
provide
response activity to meet the residential
categorical
cleanup
criteria , for unrestricted residential use or shall
provide for acceptable land use or resource use restrictions
pursuant
to section 20120b. in a
postclosure plan or a postclosure
agreement.
(16) (17)
A remedial action plan Remedial
actions that relies
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 R 299.5717 of the Michigan
administrative
code this part.
(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.
(17) The department shall evaluate and, if appropriate, revise
cleanup criteria at least once every 4 years beginning 12 months
after the effective date of the amendatory act that amended this
section. The department shall make draft cleanup criteria available
for public comment for at least 90 days before issuing final
cleanup criteria. The department shall take into account relevant
comments provided by the public during the public comment period in
determining whether any changes should be made in the draft cleanup
criteria and shall summarize responses to public comments in a
document that is made available to the public at the time final
cleanup criteria are issued. The department shall also make
publicly available, in conjunction with the draft and final cleanup
criteria, the toxicological and physical-chemical data used to
develop the draft and final cleanup criteria. The department shall
publish final cleanup criteria on its internet website and
distribute notice of the availability of the criteria in a manner
calculated to effectively inform interested parties. On the
effective date of the first revision to cleanup criteria under this
subsection after the effective date of the 2010 amendatory act that
amended this section, R 299.5744, R 299.5746, R 299.5748, R
299.5750, and R 299.5752 of the Michigan administrative code are
rescinded.
Sec.
20120b. (1) If a remedial action plan is selected or
approved
by the department based on criteria for the residential
category
provided for in section 20120a(1)(a), land use
restrictions
or monitoring are not required once those standards
have
been achieved by the remedial action.
(2)
If a remedial action plan is selected or approved by the
department
based on criteria in categories provided for in section
20120a(1)(b)
to (e), a notice of approved environmental remediation
shall
be recorded with the register of deeds for the county in
which
the facility is located within 21 days after selection or
approval
by the department of the remedial action, or within 21
days
after completion of construction of the remedial action as
appropriate
to the circumstances. A notice shall be filed pursuant
to
this section only by the property owner or by another person who
has
the express written permission of the property owner. The form
and
content of the notice are subject to approval by the state. Any
restrictions
contained in the notice shall be binding on the
owner's
successors, assigns, and lessees, and shall run with the
land.
A notice of environmental remediation recorded pursuant to
this
subsection shall state which of the categories of land use
specified
in section 20120a(1)(b) to (d) are consistent with the
environmental
conditions at the property to which the notice
applies,
and that a change from that land use or uses may
necessitate
further evaluation of potential risks to the public
health,
safety, or welfare, or the environment. The notice of
approved
environmental remediation shall include a survey and
property
description that define the areas addressed by the
remedial
action plan if land use or resource use restrictions apply
to
less than the entire parcel or if different restrictions apply
to
different areas of a parcel, and the scope of any land use or
resource
use limitations. Additional requirements for financial
assurance,
monitoring, or operation, and maintenance do not apply
if
a remedial action complies with criteria provided for in section
20120a(1)(b)
to (e), unless monitoring or operation and maintenance
are
required to assure the compliance with criteria that apply
outside
the boundary of the property that is the source of the
release.
(3)
If a remedial action plan is selected or approved by the
department
based on criteria provided for in section 20120a(1)(f)
to
(j) or (2), provisions concerning subdivisions (a) through (e)
shall
be stipulated in a legally enforceable agreement with the
department.
If the department concurs with an analysis provided in
a
remedial action plan that 1 or more of the requirements specified
in
subdivisions (b) to (e) is not necessary to protect the public
health,
safety, or welfare, or the environment and to assure the
effectiveness
and integrity of the remedial action, that element
may
be omitted from the agreement. If provisions for any of the
following,
determined by the department to be applicable for a
facility,
lapse or are not complied with as provided in the
agreement
or remedial action plan, the department's approval of the
remedial
action plan is void from the time of the lapse or
violation,
unless the lapse or violation is corrected to the
satisfaction
of the department:
(a)
Land use or resource use restrictions.
(b)
Monitoring.
(c)
Operation and maintenance.
(d)
Permanent markers to describe restricted areas of the site
and
the nature of any restrictions.
(e)
Financial assurance, in a mechanism acceptable to the
department
to pay for monitoring, operation and maintenance,
oversight,
and other costs determined by the department to be
necessary
to assure the effectiveness and integrity of the remedial
action.
(4)
If a remedial action plan relies in whole or in part on
cleanup
criteria approved pursuant to section 20120a(1)(f) to (j)
or
(2), land use or resource use restrictions to 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. The restrictive covenant shall be recorded
with
the register of deeds for the county in which the property is
located
within 21 days of the department's selection or approval of
the
remedial action plan, or within 21 days of the completion of
construction
of the containment or barrier, as appropriate to the
circumstances.
The restrictive covenant shall be filed 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. Such
restrictions
shall apply until the department determines that
hazardous
substances that are controlled by the barrier or
contained
no longer present an unacceptable risk to the public
health,
safety, or welfare, or the environment as defined by the
cleanup
criteria and exposure control requirements set forth in the
remedial
action plan. The restrictive covenant shall include a
survey
and property description that define the areas addressed by
the
remedial action plan and the scope of any land use or resource
use
limitations. The form and content of the restrictive covenant
are
subject to approval by the department and shall include
provisions
to accomplish all of the following:
(a)
Restrict activities at the facility that may interfere
with
a remedial action, operation and maintenance, monitoring, or
other
measures necessary to assure the effectiveness and integrity
of
the remedial action.
(b)
Restrict activities that may result in exposures above
levels
established in the remedial action plan.
(c)
Require notice to the department of the owner's intent to
convey
any interest in the facility 14 days prior to consummating
the
conveyance. A conveyance of title, an easement, or other
interest
in the property shall not be consummated by the property
owner
without adequate and complete provision for compliance with
the
terms and conditions of the agreement described in subsection
(3)
and the prevention of releases and exposures described in
subdivision
(b).
(d)
Grant to the department the right to enter the property at
reasonable
times for the purpose of determining and monitoring
compliance
with the remedial action plan, including the right to
take
samples, inspect the operation of the remedial action
measures,
and inspect records.
(e)
Allow the state to enforce the restriction set forth in
the
covenant by legal action in a court of appropriate
jurisdiction.
(f)
Describe generally the uses of the property that are
consistent
with the categorical criteria and limitations approved
as
part of a remedial action plan.
(5)
If the department determines that exposure to hazardous
substances
may be reliably restricted by an institutional control
in
lieu of a restrictive covenant, and that imposition of land use
or
resource use restrictions through restrictive covenants is
impractical,
the department may approve of a remedial action plan
under
section 20120a(1)(f) to (j) or (2) that relies on such
institutional
control. Mechanisms that may be considered under this
subsection
include, but are not limited to, an ordinance that
prohibits
the use of groundwater or an aquifer in a manner and to a
degree
that protects against unacceptable exposures as defined by
the
cleanup criteria approved as part of the remedial action plan.
An
ordinance that serves as an exposure control pursuant to this
subsection
shall be published and maintained in the same manner as
zoning
ordinances and shall include a requirement that the local
unit
of government notify the department at least 30 days prior to
adopting
a modification to the ordinance, or to the lapsing or
revocation
of the ordinance.
(6)
Selection or approval by the department of a remedial
action
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 at
the
facility.
(7)
A remedial action shall not be considered approved by the
department
unless a remedial action plan is submitted to the
department
and the department approves the plan. Implementation by
any
person of response activity without department approval does
not
relieve that person of an obligation to undertake response
activity
or limit the ability of the department to take action to
require
response activity necessary to comply with this act by a
person
who is liable under section 20126.
(8)
A person shall not file a notice of approved environmental
remediation
indicating approval or a determination of the
department
unless the department has approved of the filing of the
notice.
(9)
A person who implements a remedial action plan approved by
the
department pursuant to subsections (2)
to (5) shall provide
notice
of the land use restrictions that are part of the remedial
action
plan to the zoning authority for the local unit of
government
in which the facility is located within 30 days of
approval
of the plan.
(10)
The state, with the approval of the state administrative
board,
may place restrictive covenants related to land or resource
use
on deeds of state owned property.
(1) The department shall approve 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 and, for nonnumeric criteria, provide
protection equivalent to, or better than, the risk and hazard
levels set forth in section 20120a(4).
(2) Site-specific criteria may, as appropriate:
(a) Use the algorithms for calculating generic criteria
established by rule or propose and use different algorithms.
(b) Alter any default value that is established by rule and is
not expressly determined by this part.
(c) Take into consideration the depth below the ground surface
of contamination, which may reduce the potential for exposure and
serve as an exposure barrier.
(d) Be based on information related to the specific facility
or information of general applicability, including peer-reviewed
scientific literature.
(e) Use probabilistic methods of calculation.
(f) Use nonlinear-threshold-based calculations where
scientifically justified.
(3) A site-specific remedial action may include presumptive
remedies, exposure controls, use restrictions, removal actions, or
other response activities that provide protection equivalent to
meeting the risk and hazard levels under section 20120a(4).
Sec. 20120c. (1) An owner or operator shall not remove soil,
or allow soil to be removed, from a facility to an off-site
location unless that person determines that the soil can be
lawfully relocated without posing a threat to the public health,
safety, or welfare, or the environment. The determination shall
consider whether the soil is subject to regulation pursuant to part
111.
(2) For the purposes of subsection (1), soil poses a threat to
the public health, safety, or welfare, or the environment if
concentrations of hazardous substances in the soil exceed the
cleanup criterion determined pursuant to section 20120a(1) or (2)
that apply to the location to which the soil will be moved or
relocated, except that if the soil is to be removed from the
facility for disposal or treatment, the soil shall satisfy the
appropriate regulatory criteria for disposal or treatment. Any land
use or resource use restrictions that would be required for the
application of a criterion pursuant to section 20120a(1) or (2)
shall be in place at the location to which the soil will be moved.
Soil may be relocated only to another location that is similarly
contaminated, considering the general nature, concentration, and
mobility of hazardous substances present at the location to which
contaminated soil will be moved. Contaminated soil shall not be
moved to a location that is not a facility unless it is taken there
for treatment or disposal in conformance with applicable laws and
regulations.
(3) An owner or operator shall not relocate soil, or allow
soil
to be relocated, within a site of environmental contamination
facility where a remedial action plan has been approved unless that
person assures that the same degree of control required for
application of the criteria of section 20120a(1) or (2) is provided
for the contaminated soil.
(4) The prohibition in subsection (3) against relocation of
contaminated
soil within a site of environmental contamination
facility does not apply to soils that are temporarily relocated for
the purpose of implementing response activity or utility
construction if the response activity or utility construction is
completed in a timely fashion and the short-term hazards are
appropriately controlled.
(5) If soil is being moved off-site from, moved to, or
relocated on-site at a facility where a remedial action plan has
been approved by the department based on a categorical cleanup
criterion
in section 20120a(1)(f) to (j) 20120a(1)(c)
or (d) or
(2), the soil shall not be moved without prior department approval.
(6) If soil is being relocated in a manner not addressed by
subsection (5), the owner or operator of the facility from which
soil is being moved must provide notice to the department within 14
days after the soil is moved. The notice shall include all of the
following:
(a) The location from which soil will be removed.
(b) The location to which the soil will be taken.
(c) The volume of soil to be moved.
(d) A summary of information or data on which the owner or
operator is basing the determination required in subsection (2)
that the soil does not present a threat to the public health,
safety, or welfare, or the environment.
(e) If land use or resource use restrictions in a postclosure
plan or a postclosure agreement would apply pursuant to section
20120a(1)
to the soil when it is relocated,
the notice shall
include documentation that those restrictions are in place.
(7) The determination required by subsections (1) and (3)
shall be based on knowledge of the person undertaking or approving
of the removal or relocation of soil, or on characterization of the
soil for the purpose of compliance with this section.
(8) This section does not apply to soil that is designated as
an
inert material pursuant to section 11507(3). of the natural
resources
and environmental protection act, Act No. 451 of the
Public
Acts of 1994, being section 324.11507 of the Michigan
Compiled
Laws.
Sec. 20120d. (1) At a facility where state funds will be spent
to develop or implement a remedial action plan or where the
department determines there is a significant public interest,
within 30 days after the completion of a remedial investigation for
the facility, the department shall provide the county and the
township, city, or village in which the facility is located a
notice of the completion of the remedial investigation, a summary
of
the remedial investigation, and notice of an opportunity for the
people
in residents of the local unit of government to meet with
the department regarding the remedial investigation and any
proposed feasibility study for the facility. Upon a request for a
public meeting by the governing body of the local unit of
government or by 25 citizens of the local unit of government, the
department shall, within 30 days of the request, meet with persons
in the local unit of government. The person or persons requesting
the public meeting shall publicize and provide accommodations for
the meeting. The meeting shall be held in the local unit of
government in which the facility is located. The department shall
provide copies of the notices and summary required in this
subsection to the governing body of the local unit of government,
to the known persons who are liable under section 20126, and to the
main public library of the local unit of government in which the
facility is located. The department shall send representatives to
the meeting who are familiar with the facility and who are involved
with determining the appropriate remedial actions to be taken at
the facility. Persons who are liable under section 20126 for the
facility may send representatives to the meeting.
(2)
The department shall maintain, and periodically publish, a
list
of remedial action plans submitted for approval that comply
with
the requirements of R 299.5515 of the Michigan administrative
code.
(2) (3)
Before approval of a proposed
remedial action plan or
a no further action report, which is to be implemented with money
from the fund, or is based on categorical criteria provided for in
section
20120a(1)(f) to (j) 20120a(1)(c)
or (d) or (2), or if
section 20118(5) or (6) applies, or the department determines that
there is significant public interest, the department shall do all
of the following:
(a) Publish a notice and brief summary of the proposed
remedial action plan.
(b) Provide for public review and comment pertinent to
documents relating to the proposed remedial action plan, including,
if applicable, the feasibility study that outlines alternative
remedial action measures considered.
(c) Provide an opportunity for a public meeting at or near the
facility when any of the following occur:
(i) The department determines that there is a significant
public interest or that for any other reason a public meeting is
appropriate.
(ii) A city, township, or village in which the facility is
located, by a majority vote of its governing body, requests a
public meeting.
(iii) A local health department with jurisdiction in the area in
which the facility is located requests a public meeting.
(d) Provide a document that summarizes the major issues raised
by the public and how they are to be addressed by the final
approved remedial action plan.
(3) (4)
For purposes of this section,
publication shall
include, at a minimum, publication in a local newspaper or
newspaper of general circulation in this state. In addition, the
administrative record shall be made available by the department for
inspection by members of the public at or near the facility and in
Lansing.
(4) (5)
The department shall prepare a
summary document that
explains the reasons for the selection or approval of a remedial
action plan under subsection (2). In addition, the department shall
compile an administrative record of the decision process that
results in the selection of a remedial action plan. The
administrative record shall contain all of the following:
(a) Remedial investigation data regarding the facility.
(b) If applicable, a feasibility study and potential remedial
actions.
(c) If applicable, a summary document that explains the
reasons why a remedial investigation or feasibility study was not
conducted.
(d) Applicable comments and information received from the
public, if any.
(e) If applicable, a document that summarizes the significant
concerns raised by the members of the public and how they are to be
addressed.
(f) Other information appropriate to the facility.
(5) (6)
If comments or information are
submitted for inclusion
in the administrative record that are not included in the
administrative record, a brief explanation of why the information
was not considered relevant shall be sent to the party by the
department and included in the record.
Sec. 20120e. (1) A person may demonstrate compliance with
requirements under this part for a response activity providing for
venting groundwater by meeting any of the following, singly or in
combination:
(a) generic groundwater-surface water interface criteria,
which are the water quality standards for surface waters developed
by the department pursuant to part 31. The use of surface water
quality standards shall be allowable in any of the cleanup
categories provided for in section 20120a(1).
(b) mixing zone-based groundwater-surface water interface
criteria established under this part. The use of mixing zone-based
criteria shall be allowable in any of the categories provided for
in section 20120a(1) and (2).
(c) site-specific criteria established under section
20120a(2). The use of mixing zones established under this part may
be applied to, or included as, site-specific criteria.
(2) a person may rely on monitoring points other than
groundwater-surface water interface monitoring wells. Subject to
subsection (5), alternative monitoring points are acceptable only
if approved by the department in a response activity plan under
this part, in accordance with the requirements and procedures
established under this part. A proposal for alternative monitoring
points in a response activity plan shall include all of the
following:
(a) a demonstration that the locations where venting
groundwater enters surface water have been sufficiently identified
to allow monitoring for the evaluation of compliance with criteria.
The demonstration shall include all of the following:
(i) identification of the location of proposed monitoring
points within areas of venting groundwater, including, if relevant,
monitoring of water from the groundwater-surface water transition
zone in lakes or streams, and the rationale for those locations.
(ii) documentation of the boundaries of the areas where the
groundwater plume vents to surface water, including the size,
shape, and location. This documentation shall include information
about the substrate character and geology in the areas where
groundwater vents to surface water.
(iii) documentation that the venting area identified and
proposed monitoring points include points that are representative
of the highest concentrations of hazardous substances present in
the groundwater at the groundwater-surface water interface,
considering spatial and temporal variability.
(iv) if compliance with a mixing zone-based groundwater-surface
water interface criterion is to be determined with data from the
alternative monitoring points, documentation that it is possible to
accurately estimate the volume of venting groundwater.
(b) a demonstration that the alternative monitoring points
will allow for venting groundwater to be sampled at a point before
mixing with surface water. This requirement does not preclude
location of monitoring points in a floodplain.
(c) a demonstration that the proposed alternative monitoring
points allow for reliable, representative monitoring of groundwater
quality. This demonstration shall take into account all of the
following:
(i) temporal and spatial variability of hazardous substance
concentrations in groundwater throughout the plume from the source
or sources to the points of venting to surface water.
(ii) seasonal or periodic changes in groundwater flow.
(iii) other natural or human-made features that affect
groundwater flow.
(d) identification of the potential fate and transport
mechanisms for groundwater contaminants, including any chemical,
physical, or biological processes that result in the reduction of
hazardous substance concentrations between the monitoring wells and
the proposed alternative monitoring points.
(e) identification of sentinel monitoring points that will be
used in conjunction with the alternative monitoring points to
assure that any potential exceedance of an applicable water quality
standard can be identified with sufficient notice to allow
additional response activity to be implemented that will prevent
the exceedance. Sentinel monitoring points shall include, at a
minimum, monitoring points upland of the surface water body.
(3) for the purpose of this section, surface water does not
include groundwater or enclosed sewers or utility lines or the fill
around such sewers or utility lines.
(4) if the department denies a proposal for alternative
monitoring points under this section, the department shall state
the reasons for denial, including the scientific and technical
bases for the denial.
(5) A person implementing a response activity providing for
venting groundwater that complies with generic groundwater-surface
water interface criteria may proceed under section 20114a.
(6) Notwithstanding any other provision of this part, a
response activity plan or no further action report that includes
mixing zone based groundwater-surface water interface criteria is
subject to a 30-day comment period.
(7) A person may appeal a decision of the department in a
response activity report containing a proposal for venting
groundwater related to a scientific or technical dispute, including
the use of a mixing zone, as provided for in section 20114e.
Enacting section 1. Sections 20105, 20109a, and 20129a of the
natural resources and environmental protection act, 1994 PA 451,
MCL 324.20105, 324.20109a, and 324.20129a, are repealed.
Enacting section 2. The following rules are rescinded:
(a) R 299.5209 to R 299.5219 of the Michigan administrative
code.
(b) R 299.5601 to R 299.5607 of the Michigan administrative
code.
(c) R 299.5801 to R 299.5823 of the Michigan administrative
code.
Enacting section 3. This amendatory act does not take effect
unless all of the following bills of the 95th Legislature are
enacted into law:
(a) Senate Bill No. 437 or House Bill No. 4903.
(b) Senate Bill No. 1346.
(c) Senate Bill No. 1349.
(d) Senate Bill No. 1347.
(e) Senate Bill No. 1348.
