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.