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.