HB-4617, As Passed Senate, December 7, 2005

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 4617

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 20101 and 20120a (MCL 324.20101 and

324.20120a), section 20101 as amended by 1996 PA 383 and section

20120a as added by 1995 PA 71.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 20101. (1) As used in this part:

     (a) "Act of God" means an unanticipated grave natural disaster

or other natural phenomenon of an exceptional, inevitable, and

irresistible character, the effects of which could not have been

prevented or avoided by the exercise of due care or foresight.

     (b) "Agricultural property" means real property used for

farming in any of its branches, including cultivating of soil;

growing and harvesting of any agricultural, horticultural, or

floricultural commodity; dairying; raising of livestock, bees,

fish, fur-bearing animals, or poultry; turf and tree farming; and

performing any practices on a farm as an incident to, or in

conjunction with, these farming operations. Agricultural property

does not include property used for commercial storage, processing,

distribution, marketing, or shipping operations.

     (c) "Area of concern" means a geographic area identified by

the department that meets all of the following conditions:

     (i) The area is composed of more than 50 parcels of property.

     (ii) The primary concern with regard to necessary response

activities within the area is the presence of persistent,

bioaccumulative, and toxic pollutants, other than mercury or

polychlorinated biphenyls (PCBs).

     (iii) The predominant mechanisms of transport of the substances

described in subparagraph (ii) within the area are air deposition

and deposition of contaminated soil and sediment carried by flood

waters.

(d)  (c) "Attorney general" means the department of the

attorney general.

(e)  (d) "Baseline environmental assessment" means an

evaluation of environmental conditions which exist at a facility at

the time of purchase, occupancy, or foreclosure that reasonably

defines the existing conditions and circumstance at the facility so

that, in the event of a subsequent release, there is a means of

distinguishing the new release from existing contamination.

(f)  (e) "Board" means the brownfield redevelopment board

created in section 20104a.

(g)  (f) "Department" means the director of the department of

environmental quality or his or her designee to whom the director

delegates a power or duty by written instrument.

(h)  (g) "Director" means the director of the department of

environmental quality.

(i)  (h) "Directors" means the directors or their designees

of the departments of environmental quality, community health,

agriculture, and state police.

(j)  (i) "Disposal" means the discharge, deposit, injection,

dumping, spilling, leaking, or placing of any hazardous substance

into or on any land or water so that the hazardous substance or any

constituent of the hazardous substance may enter the environment or

be emitted into the air or discharged into any groundwater or

surface water.

(k)  (j) "Enforcement costs" means court expenses, reasonable

attorney fees of the attorney general, and other reasonable

expenses of an executive department that are incurred in relation

to enforcement under this part or rules promulgated under this

part, or both.

(l)  (k) "Environment" or "natural resources" means land,

surface water, groundwater, subsurface  ,  strata, air, fish,

wildlife, or biota within the state.

(m)  (l) "Environmental contamination" means the release of a

hazardous substance, or the potential release of a discarded

hazardous substance, in a quantity which is or may become injurious

to the environment or to the public health, safety, or welfare.

(n)  (m) "Evaluation" means those activities including, but

not limited to, investigation, studies, sampling, analysis,

development of feasibility studies, and administrative efforts that

are needed to determine the nature, extent, and impact of a release

or threat of release and necessary response activities.

(o)  (n) "Exacerbation" means the occurrence of either of the

following caused by an activity undertaken by the person who owns

or operates the property, with respect to existing contamination:

     (i) Contamination that has migrated beyond the boundaries of

the property which is the source of the release at levels above

cleanup criteria specified in section 20120a(1)(a) unless a

criterion is not relevant because exposure is reliably restricted

pursuant to section 20120b.

     (ii) A change in facility conditions that increases response

activity costs.

(p)  (o) "Facility" means  any area, place, or  a parcel of

property or a portion of a parcel of property where a hazardous

substance in excess of the concentrations which satisfy the

requirements of section 20120a(1)(a) or (17) or the cleanup

criteria for unrestricted residential use under part 213 has been

released, deposited, disposed of, or otherwise comes to be located.

A determination that a parcel or portion of a parcel of property is

a facility due to soil contamination that is made after the

effective date of the 2005 amendments to this section or that is

made for property within an area of concern shall be based upon

testing conducted according to scientifically accepted methods on

soil collected from the parcel or portion of the parcel. In the

House Bill No. 4617 as amended December 7, 2005

absence of testing, a parcel or a portion of a parcel of property

may be considered a facility if the owner of the property and the

department, in writing, based on the presence of hazardous

substances in the vicinity of the property, agree to the

designation. <<HOWEVER, IF A PERSON WHO IS OR MAY BE LIABLE UNDER

SECTION 20126 FOR ANY CONTAMINATION ON THE PROPERTY DISAGREES WITH THE

DESIGNATION, THAT PERSON MAY CONTEST SUCH DESIGNATION BY TESTING THE

PROPERTY IN A TIMELY MANNER AFTER OBTAINING WRITTEN NOTICE OF SUCH A

DETERMINATION FROM THE DEPARTMENT AND ACCESS IS PROVIDED BY THE OWNER.>>

If

the testing determines that hazardous substances in excess of the

concentrations necessary to designate the parcel or portion of the

parcel a facility are not found to be present on the property, the

person or persons conducting the testing shall be reimbursed by the

department for the costs of the testing. Facility does not include

any area, place, or  either of the following:

     (i) A parcel of property or a portion of a parcel of property

at which response activities have been completed which satisfy the

cleanup criteria for the residential category provided for in

section 20120a(1)(a) and (17) or at which corrective action has

been completed under part 213 which satisfies the cleanup criteria

for unrestricted residential use.

     (ii) A remediated site.

(q)  (p) "Feasibility study" means a process for developing,

evaluating, and selecting appropriate response activities.

(r)  (q) "Foreclosure" means possession of a property by a

lender on which it has foreclosed on a security interest or the

expiration of a lawful redemption period, whichever occurs first.

(s)  (r) "Free product" means a hazardous substance in a

liquid phase equal to or greater than 1/8 inch of measurable

thickness that is not dissolved in water and that has been released

into the environment.

(t)  (s) "Fund" means the cleanup and redevelopment fund

established in section 20108.

(u)  (t) "Hazardous substance" means 1 or more of the

following, but does not include fruit, vegetable, or field crop

residuals or processing by-products, or aquatic plants, that are

applied to the land for an agricultural use or for use as an animal

feed, if the use is consistent with generally accepted agricultural

management practices developed pursuant to the Michigan right to

farm act,  Act No. 93 of the Public Acts of 1981, being sections

286.471 to 286.474 of the Michigan Compiled Laws  1981 PA 93, MCL

286.471 to 286.474:

     (i) Any substance that the department demonstrates, on a case

by case basis, poses an unacceptable risk to the public health,

safety, or welfare, or the environment, considering the fate of the

material, dose-response, toxicity, or adverse impact on natural

resources.

     (ii) Hazardous substance as defined in the comprehensive

environmental response, compensation, and liability act of 1980,

Public Law 96-510, 94 Stat. 2767  42 USC 9601 to 9675.

     (iii) Hazardous waste as defined in part 111.

     (iv) Petroleum as described in part 213.

(v)  (u) "Interim response activity" means the cleanup or

removal of a released hazardous substance or the taking of other

actions, prior to the implementation of a remedial action, as may

be necessary to prevent, minimize, or mitigate injury to the public

health, safety, or welfare, or to the environment. Interim response

activity also includes, but is not limited to, measures to limit

access, replacement of water supplies, and temporary relocation of

people as determined to be necessary by the department. In

addition, interim response activity means the taking of other

actions as may be necessary to prevent, minimize, or mitigate a

threatened release.

(w)  (v) "Lender" means any of the following:

     (i) A state or nationally chartered bank.

     (ii) A state or federally chartered savings and loan

association or savings bank.

     (iii) A state or federally chartered credit union.

     (iv) Any other state or federally chartered lending institution

or regulated affiliate or regulated subsidiary of any entity listed

in this subparagraph or subparagraphs (i) to (iii).

     (v) An insurance company authorized to do business in this

state pursuant to the insurance code of 1956,  Act No. 218 of the

Public Acts of 1956, being sections 500.100 to 500.8302 of the

Michigan Compiled Laws 1956 PA 218, MCL 500.100 to 500.8302.

     (vi) A motor vehicle finance company subject to the motor

vehicle finance act,  Act No. 27 of the Extra Session of 1950,

being sections 492.101 to 492.141 of the Michigan Compiled Laws

1950 (Ex Sess) PA 27, MCL 492.101 to 492.141, with net assets in

excess of $50,000,000.00.

     (vii) A foreign bank.

     (viii) A retirement fund regulated pursuant to state law or a

pension fund regulated pursuant to federal law with net assets in

excess of $50,000,000.00.

     (ix) A state or federal agency authorized by law to hold a

security interest in real property or a local unit of government

holding a reversionary interest in real property.

     (x) A nonprofit tax exempt organization created to promote

economic development in which a majority of the organization's

assets are held by a local unit of government.

     (xi) Any other person who loans money for the purchase of or

improvement of real property.

     (xii) Any person who retains or receives a security interest to

service a debt or to secure a performance obligation.

(x)  (w) "Local health department" means that term as defined

in section 1105 of the public health code,  Act No. 368 of the

Public Acts of 1978, being section 333.1105 of the Michigan

Compiled Laws 1978 PA 368, MCL 333.1105.

(y)  (x) "Local unit of government" means a county, city,

township, or village, an agency of a local unit of government, an

authority or any other public body or entity created by or pursuant

to state law. Local unit of government does not include the state

or federal government or a state or federal agency.

(z)  (y) "Operator" means a person who is in control of or

responsible for the operation of a facility. Operator does not

include either of the following:

     (i) A person who holds indicia of ownership primarily to

protect the person's security interest in the facility, unless that

person participates in the management of the facility as described

in section 20101a.

     (ii) A person who is acting as a fiduciary in compliance with

section 20101b.

(aa)  (z) "Owner" means a person who owns a facility. Owner

does not include either of the following:

     (i) A person who holds indicia of ownership primarily to

protect the person's security interest in the facility, including,

but not limited to, a vendor's interest under a recorded land

contract, unless that person participates in the management of the

facility as described in section 20101a.

     (ii) A person who is acting as a fiduciary in compliance with

section 20101b.

(bb)  (aa) "Permitted release" means 1 or more of the

following:

     (i) A release in compliance with an applicable, legally

enforceable permit issued under state law.

     (ii) A lawful and authorized discharge into a permitted waste

treatment facility.

     (iii) A federally permitted release as defined in the

comprehensive environmental response, compensation, and liability

act of 1980,  Public Law 96-510, 94 Stat. 2767  42 USC 9601 to

9675.

     (cc) "Persistent, bioaccumulative, and toxic pollutant" means

a substance that is toxic and long-lasting in the environment that

can build up in the food chain to levels that are harmful to human

and ecosystem health.

(dd)  (bb) "Release" includes, but is not limited to, any

spilling, leaking, pumping, pouring, emitting, emptying,

discharging, injecting, escaping, leaching, dumping, or disposing

of a hazardous substance into the environment, or the abandonment

or discarding of barrels, containers, and other closed receptacles

containing a hazardous substance. Release does not include any of

the following:

     (i) A release that results in exposure to persons solely within

a workplace, with respect to a claim that these persons may assert

against their employers.

     (ii) Emissions from the engine exhaust of a motor vehicle,

rolling stock, aircraft, or vessel.

     (iii) A release of source, by-product, or special nuclear

material from a nuclear incident, as those terms are defined in

the atomic energy act of 1954, chapter 1073, 68 Stat. 919  42 USC

2014, if the release is subject to requirements with respect to

financial protection established by the nuclear regulatory

commission under  section 170 of chapter 14 of title I of the

atomic energy act of 1954, chapter 1073, 71 Stat. 576, 42  U.S.C.

USC 2210, or any release of source by-product or special nuclear

material from any processing site designated under  section

102(a)(1) of title I or 302(a) of title III of the uranium mill

tailings radiation control act of 1978, Public Law 95-604, 42

U.S.C. USC 7912  and  or 42 USC 7942.

     (iv) If applied according to label directions and according to

generally accepted agricultural and management practices, the

application of a fertilizer, soil conditioner, agronomically

applied manure, or pesticide, or fruit, vegetable, or field crop

residuals or processing by-products, aquatic plants, or a

combination of these substances. As used in this subparagraph,

fertilizer and soil conditioner have the meaning given to these

terms in part 85, and pesticide has the meaning given to that term

in part 83.

     (v) A release does not include fruits, vegetables, field crop

processing by-products, or aquatic plants, that are applied to the

land for an agricultural use or for use as an animal feed, if the

use is consistent with generally accepted agricultural and

management practices developed pursuant to the Michigan right to

farm act,  Act No. 93 of the Public Acts of 1981, being sections

286.471 to 286.474 of the Michigan Compiled Laws 1981 PA 93, MCL

286.471 to 286.474.

(ee)  (cc) "Remedial action" includes, but is not limited to,

cleanup, removal, containment, isolation, destruction, or treatment

of a hazardous substance released or threatened to be released into

the environment, monitoring, maintenance, or the taking of other

actions that may be necessary to prevent, minimize, or mitigate

injury to the public health, safety, or welfare, or to the

environment.

(ff)  (dd) "Remedial action plan" means a work plan for

performing remedial action under this part.

     (gg) "Remediated site" means a parcel of property or a portion

of a parcel of property at which all response activities required

to meet applicable standards under this part have been completed.

However, remediated site does not include a parcel of property or a

portion of a parcel of property under any of the following

circumstances:

     (i) A new release occurs after the date on which the response

activities required to meet applicable standards under this part

were completed.

     (ii) A prior release is discovered at the site that was not

previously identified or addressed by the response activities

completed to meet applicable standards under this part.

     (iii) Institutional or engineered controls, or both, designed to

assure the long-term reliability and efficacy of the response

activities required to meet applicable standards under this part

have failed or are not being operated and maintained in compliance

with an approved plan for environmental response activities.

     (iv) Changes in the use or uses of the site render invalid the

risk assessment scenarios and assumptions which were the basis for

the selection of applicable standards under this part.

(hh)  (ee) "Response activity" means evaluation, interim

response activity, remedial action, demolition, or the taking of

other actions necessary to protect the public health, safety, or

welfare, or the environment or the natural resources. Response

activity also includes health assessments or health effect studies

carried out under the supervision, or with the approval of, the

department of public health and enforcement actions related to any

response activity.

(ii)  (ff) "Response activity costs" or "costs of response

activity" means all costs incurred in taking or conducting a

response activity, including enforcement costs.

(jj)  (gg) "Security interest" means any interest, including

a reversionary interest, in real property created or established

for the purpose of securing a loan or other obligation. Security

interests include, but are not limited to, mortgages, deeds of

trusts, liens, and title pursuant to lease financing transactions.

Security interests may also arise from transactions such as sale

and leasebacks, conditional sales, installment sales, trust receipt

transactions, certain assignments, factoring agreements, accounts

receivable financing arrangements, consignments, or any other

transaction in which evidence of title is created if the

transaction creates or establishes an interest in real property for

the purpose of securing a loan or other obligation.

(kk)  (hh) "Site" means the location of environmental

contamination.

(ll)  (ii) "Threatened release" or "threat of release" means

any circumstance that may reasonably be anticipated to cause a

release.

     (2) As used in this part, the phrase "a person who is liable"

includes a person who is described as being subject to liability in

section 20126. The phrase "a person who is liable" does not presume

that liability has been adjudicated.

     Sec. 20120a. (1) The department may establish cleanup criteria

and approve of remedial actions in the categories listed in this

subsection. The cleanup category proposed shall be the option of

the person proposing the remedial action, subject to department

approval, considering the appropriateness of the categorical

criteria to the facility. The categories are as follows:

     (a) Residential.

     (b) Commercial.

     (c) Recreational.

     (d) Industrial.

     (e) Other land use based categories established by the

department.

     (f) Limited residential.

     (g) Limited commercial.

     (h) Limited recreational.

     (i) Limited industrial.

     (j) Other limited categories established by the department.

     (2) The department may approve a remedial action plan based on

site specific criteria that satisfy the applicable requirements of

this part and the rules promulgated under this part. The department

shall utilize only reasonable and relevant exposure pathways in

determining the adequacy of a site specific criterion.

Additionally, the department may approve a remedial action plan for

a designated area-wide zone encompassing more than 1 facility, and

may consolidate remedial actions for more than 1 facility. Within

an area of concern, the department shall incorporate into a

remedial action plan area-wide or site-specific cleanup criteria

derived from peer-reviewed bioavailability studies, peer-reviewed

site-specific human exposure data, and any other peer-reviewed

scientifically based risk assessment studies that are available and

relevant. A person who is or may be liable under section 20126 may

submit to the department studies or data described in this

subsection, or other relevant information, including information

that has not been peer reviewed, that the person believes may

assist the department in developing or approving a remedial action

plan.

     (3) The department shall develop cleanup criteria pursuant to

subsection (1) based on generic human health risk assessment

assumptions determined by the department to appropriately

characterize patterns of human exposure associated with certain

land uses. The department shall utilize only reasonable and

relevant exposure pathways in determining these assumptions. The

department may prescribe more than 1 generic set of exposure

assumptions within each category described in subsection (1). If

the department prescribes more than 1 generic set of exposure

assumptions within a category, each set of exposure assumptions

creates a subcategory within a category described in subsection

(1). The department shall specify site characteristics that

determine the applicability of criteria derived for these

categories or subcategories.

     (4) If a hazardous substance poses a carcinogenic risk to

humans, the cleanup criteria derived for cancer risk under this

section shall be the 95% upper bound on the calculated risk of 1

additional cancer above the background cancer rate per 100,000

individuals using the generic set of exposure assumptions

established under subsection (3) for the appropriate category or

subcategory. If the hazardous substance poses a risk of an adverse

health effect other than cancer, cleanup criteria shall be derived

using appropriate human health risk assessment methods for that

adverse health effect and the generic set of exposure assumptions

established under subsection (3) for the appropriate category or

subcategory. A hazard quotient of 1.0 shall be used to derive

noncancer cleanup criteria. For the noncarcinogenic effects of a

hazardous substance present in soils, the intake shall be assumed

to be 100% of the protective level, unless compound and site-

specific data are available to demonstrate that a different source

contribution is appropriate. If a hazardous substance poses a risk

of both cancer and 1 or more adverse health effects other than

cancer, cleanup criteria shall be derived under this section for

the most sensitive effect.

     (5) If a cleanup criterion derived under subsection (4) for

groundwater in an aquifer differs from either: (a) the state

drinking water standard established pursuant to section 5 of the

safe drinking water act,  Act No. 399 of the Public Acts of 1976,

being section 325.1005 of the Michigan Compiled Laws 1976 PA 399,

MCL 325.1005, or (b) criteria for adverse aesthetic characteristics

derived pursuant to R 299.5709 of the Michigan administrative code,

the cleanup criterion shall be the more stringent of (a) or (b)

unless the department determines that compliance with this rule is

not necessary because the use of the aquifer is reliably restricted

pursuant to section 20120b(4) or (5).

     (6) The department shall not approve of a remedial action plan

in categories set forth in subsection (1)(b) to (j), unless the

person proposing the plan documents that the current zoning of the

property is consistent with the categorical criteria being

proposed, or that the governing zoning authority intends to change

the zoning designation so that the proposed criteria are consistent

with the new zoning designation, or the current property use is a

legal nonconforming use. The department shall not grant final

approval for a remedial action plan that relies on a change in

zoning designation until a final determination of that zoning

change has been made by the local unit of government. The

department may approve of a remedial action that achieves

categorical criteria that is based on greater exposure potential

than the criteria applicable to current zoning. In addition, the

remedial action plan shall include documentation that the current

property use is consistent with the current zoning or is a legal

nonconforming use. Abandoned or inactive property shall be

considered on the basis of zoning classifications as described

above.

     (7) Cleanup criteria from 1 or more categories in subsection

(1) may be applied at a facility, if all relevant requirements are

satisfied for application of a pertinent criterion.

     (8) Except as provided in subsection (4) and subsections (9)

to (13), compliance with the residential category in subsection

(1)(a) shall be based on  R 299.5709 through R 299.5711(4), R

299.5711(6) through R 299.5715 and R 299.5727 of the Michigan

administrative code. R 299.5711(5), R 299.5723, and R 299.5725 of

the Michigan administrative code shall not apply for calculations

of residential criteria under subsection (1)(a)  R 299.5706a to R

299.5710, R 299.5714, R 299.5718, and R 299.5722 to R 299.5726 of

the Michigan administrative code.

     (9) The need for soil remediation to protect an aquifer from

hazardous substances in soil shall be determined by  R 299.5711(2)

R 299.5720 of the Michigan administrative code, considering the

vulnerability of the aquifer or aquifers potentially affected if

the soil remains at the facility. Migration of hazardous substances

in soil to an aquifer is a pertinent pathway if appropriate based

on consideration of site specific factors.

     (10) The department may establish cleanup criteria for a

hazardous substance using a biologically based model developed or

identified as appropriate by the United States environmental

protection agency if the department determines all of the

following:

     (a) That application of the model results in a criterion that

more accurately reflects the risk posed.

     (b) That data of sufficient quantity and quality are available

for a specified hazardous substance to allow the scientifically

valid application of the model.

     (c) The United States environmental protection agency has

determined that application of the model is appropriate for the

hazardous substance in question.

     (11) If the cleanup criterion for a hazardous substance

determined by R 299.5707 of the Michigan administrative code is

greater than a cleanup criterion developed for a category pursuant

to subsection (1), the criterion determined pursuant to R 299.5707

of the Michigan administrative code shall be the cleanup criterion

for that hazardous substance in that category.

     (12) In determining the adequacy of a land-use based response

activity to address sites contaminated by polychlorinated

biphenyls, the department shall not require response activity in

addition to that which is subject to and complies with applicable

federal regulations and policies that implement the toxic

substances control act,  Public Law 94-469,  15  U.S.C. USC 2601

to  2629, 2641 to 2656, 2661 to 2671, and 2681 to  2692.

     (13) Response activity to address the release of

uncontaminated mineral oil satisfies R 299.5709 for groundwater or

R 299.5711  R 299.5720 for soil under the Michigan administrative

code if all visible traces of mineral oil are removed from

groundwater and soil.

     (14) Approval by the department of a remedial action plan

based on 1 or more categorical standard in subsection (1)(a) to (e)

shall be granted only if the pertinent criteria are satisfied in

the affected media. The department shall approve the use of

probabilistic or statistical methods or other scientific methods of

evaluating environmental data when determining compliance with a

pertinent cleanup criterion if the methods are determined by the

department to be reliable, to be scientifically valid, and to best

represent actual site conditions and exposure potential.

     (15) If a remedial action allows for venting groundwater, the

discharge shall comply with requirements of part 31, and the rules

promulgated under that part or an alternative method established by

rule. If the discharge of venting groundwater is provided for in a

remedial action plan that is approved by the department, a permit

for the discharge is not required. As used in this subsection,

"venting groundwater" means groundwater that is entering a surface

water of the state from a facility.

     (16) A remedial action plan shall provide response activity to

meet the residential categorical criteria, or provide for

acceptable land use or resource use restrictions pursuant to

section 20120b.

     (17) A remedial action plan that relies on categorical cleanup

criteria developed pursuant to subsection (1) shall also consider

other factors necessary to protect the public health, safety, and

welfare, and the environment as specified by the department, if the

department determines based on data and existing information that

such considerations are relevant to a specific facility. These

factors include, but are not limited to, the protection of surface

water quality and consideration of ecological risks if pertinent to

the facility based on the requirements of  R 299.5717  R 299.5728

of the Michigan administrative code.

     (18) The department shall annually evaluate and revise, if

appropriate, the cleanup criteria derived under this section. The

evaluation shall incorporate knowledge gained through research and

studies in the areas of fate and transport and risk assessment. The

department shall prepare and submit to the legislature a report

detailing revisions made to cleanup criteria under this section.