November 4, 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 21302, 21303, 21311a, 21312a, and 21315 (MCL
324.21302, 324.21303, 324.21311a, 324.21312a, and 324.21315),
section 21302 as amended by 1995 PA 22 and sections 21303, 21311a,
21312a, and 21315 as amended by 1996 PA 116, and by adding sections
20114f and 21301c.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 20114f. Notwithstanding any provision to the contrary in
section 20114e, the response activity panel created in section
20114e shall advise the director on technical or scientific
disputes, including disputes regarding assessment of risk,
concerning final assessment reports and closure reports under part
213. A person who submitted a final assessment report or a closure
report to the department under part 213 may appeal a decision made
by the department regarding a technical or scientific dispute,
including a dispute regarding assessment of risk, concerning the
final assessment report or closure report in the same manner as
other disputes under section 20114e.
Sec. 21301c. A guideline, bulletin, interpretive statement, or
operational memorandum under this part shall not be given the force
and effect of law. A guideline, bulletin, interpretive statement,
or operational memorandum under this part is not legally binding on
any person.
Sec. 21302. As used in this part:
(a) "Biota" means the plant and animal life in an area
affected by a corrective action plan.
(b) "Consultant" means a person on the list of qualified
underground storage tank consultants prepared pursuant to section
21542.
(c)
"Contamination" means the presence of a regulated
substance
in soil or groundwater.any of
the following:
(i) A regulated substance in soil or groundwater that was
released from an underground storage tank system.
(ii) A hazardous substance in soil or groundwater that is
commingled with a regulated substance released from an underground
storage tank system.
(iii) Any breakdown product of a regulated substance or
hazardous substance described in subparagraph (i) or (ii).
(iv) Any substance that was caused by a release from an
underground storage tank system.
(d) "Corrective action" means the investigation, assessment,
cleanup, removal, containment, isolation, treatment, or monitoring
of regulated substances released into the environment, or the
taking of such other actions as may be necessary to prevent,
minimize, or mitigate injury to the public health, safety, or
welfare, the environment, or natural resources.
(e) "De minimis spill" means a spill of petroleum as that term
is described in section 21303(d)(ii) that contaminates not more than
20 cubic yards of soil per underground storage tank or 50 cubic
yards of soil per location, in which groundwater has not been
affected by the spill, and which is abated pursuant to section
21306.
(f) "Free product" means a regulated 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.
(g) "Groundwater" means water below the land surface in the
zone of saturation.
(h) "Hazardous substance" means that term as it is defined in
section 20101.
(i) (h)
"Heating oil" means
petroleum that is no. 1, no. 2,
no. 4-light, no. 4-heavy, no. 5-light, no. 5-heavy, and no. 6
technical grades of fuel oil; other residual fuel oils including
navy special fuel oil and bunker c; and other fuels when used as
substitutes for 1 of these fuel oils. Heating oil is typically used
in the operation of heating equipment, boilers, or furnaces.
(j) (i)
"Local unit of
government" means a city, village,
township, county, fire department, or local health department 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.
Sec. 21303. As used in this part:
(a) "Operator" means a person who is presently, or was at the
time of a release, in control of, or responsible for, the operation
of an underground storage tank system and who is liable under part
201.
(b) "Owner" means a person who holds, or at the time of a
release who held, a legal, equitable, or possessory interest of any
kind in an underground storage tank system or in the property on
which an underground storage tank system is located including, but
not limited to, a trust, vendor, vendee, lessor, or lessee and who
is liable under part 201.
(c) "RBCA" means the American society for testing and
materials
(ASTM) document documents
entitled standard guide for
risk-based corrective action applied at petroleum release sites,
designation E 1739-95, standard guide for development of conceptual
site models and remediation strategies for non-aqueous-phase
liquids related to the subsurface, designation E 2531-06, and guide
for
risk-based corrective action, designation E 2801, which is are
hereby incorporated by reference.
(d) "Regulated substance" means any of the following:
(i) A substance defined in section 101(14) of title I of the
comprehensive environmental response, compensation, and liability
act
of 1980, Public Law 96-510, 42 U.S.C. USC 9601, but not
including a substance regulated as a hazardous waste under subtitle
C of the solid waste disposal act, title II of Public Law 89-272,
42
U.S.C. USC 6921
to 6939e.
(ii) Petroleum, including crude oil or any fraction of crude
oil that is liquid at standard conditions of temperature and
pressure (60 degrees Fahrenheit and 14.7 pounds per square inch
absolute). Petroleum includes but is not limited to mixtures of
petroleum with de minimis quantities of other regulated substances
and petroleum-based substances composed of a complex blend of
hydrocarbons derived from crude oil through processes of
separation, conversion, upgrading, or finishing such as motor
fuels, jet fuels, distillate fuel oils, residual fuel oils,
lubricants, and petroleum solvents.
(iii) A substance listed in section 112 of part A of title I of
the
clean air act, chapter 360, 84 Stat. 1685, 42 U.S.C. USC
7412.
(e) "Release" means any spilling, leaking, emitting,
discharging, escaping, or leaching from an underground storage tank
system into groundwater, surface water, or subsurface soils.
(f) "Site" means a location where a release has occurred or a
threat of release exists from an underground storage tank system,
excluding any location where corrective action was completed which
satisfies the cleanup criteria for unrestricted residential use
under this part.
(g) "Threat of release" or "threatened release" means any
circumstance that may reasonably be anticipated to cause a release.
(h) "Tier I", "tier II", and "tier III" mean those terms as
they are used in RBCA.
(i) "Underground storage tank system" means a tank or
combination of tanks, including underground pipes connected to the
tank or tanks, which is, was, or may have been used to contain an
accumulation of regulated substances, and the volume of which,
including the volume of the underground pipes connected to the tank
or tanks, is 10% or more beneath the surface of the ground. An
underground storage tank system does not include any of the
following:
(i) A farm or residential tank of 1,100 gallons or less
capacity used for storing motor fuel for noncommercial purposes.
(ii) A tank used for storing heating oil for consumptive use on
the premises where the tank is located.
(iii) A septic tank.
(iv) A pipeline facility, including gathering lines regulated
under either of the following:
(A) The natural gas pipeline safety act of 1968, Public Law
90-481,
49 U.S.C. USC Appx
1671 to 1677, 1679a to 1682, and 1683 to
1687.
(B) Sections 201 to 215 and 217 of the hazardous liquid
pipeline safety act of 1979, title II of Public Law 96-129, 49
U.S.C.
USC Appx
2001 to 2015.
(v) A surface impoundment, pit, pond, or lagoon.
(vi) A storm water or wastewater collection system.
(vii) A flow-through process tank.
(viii) A liquid trap or associated gathering lines directly
related to oil or gas production and gathering operations.
(ix) A storage tank situated in an underground area such as a
basement, cellar, mineworking, drift, shaft, or tunnel if the
storage tank is situated upon or above the surface of the floor.
(x) Any pipes connected to a tank that is described in
subdivisions (i) to (ix).
(xi) An underground storage tank system holding hazardous
wastes listed or identified under subtitle C of the solid waste
disposal
act, title II of Public Law 89-272, 42 U.S.C. USC
6921 to
6939e, or a mixture of such hazardous waste and other regulated
substances.
(xii) A wastewater treatment tank system that is part of a
wastewater treatment facility regulated under section 307(b) of
title III or section 402 of title IV of the federal water pollution
control
act, 33 U.S.C. USC 1317
and 1342.
(xiii) Equipment or machinery that contains regulated substances
for operational purposes such as hydraulic lift tanks and
electrical equipment tanks.
(xiv) An underground storage tank system that has a capacity of
110 gallons or less.
(xv) An underground storage tank system that contains a de
minimis concentration of regulated substances.
(xvi) An emergency spill or overflow containment underground
storage tank system that is expeditiously emptied after use.
(j) "Vadose zone" means the zone between the land surface and
the water table, or zone of saturation. Vadose zone is also known
as an unsaturated zone or a zone of aeration.
Sec. 21311a. (1) Within 365 days after a release has been
discovered, a consultant retained by an owner or operator shall
complete a final assessment report that includes a corrective
action plan developed under section 21309a and submit the report to
the department on a form created pursuant to section 21316. The
report shall include, but is not limited to, the following
information:
(a) The extent of contamination.
(b) Tier II and tier III evaluation, as appropriate, under the
RBCA process.
(c) A feasibility analysis. The following shall be included,
as appropriate, given the site conditions:
(i) On-site and off-site corrective action alternatives to
remediate contaminated soil and groundwater for each cleanup type,
including alternatives that permanently and significantly reduce
the volume, toxicity, and mobility of the regulated substances.
(ii) The costs associated with each corrective action
alternative including alternatives that permanently and
significantly reduce the volume, toxicity, and mobility of the
regulated substances.
(iii) The effectiveness and feasibility of each corrective
action alternative in meeting cleanup criteria.
(iv) The time necessary to implement and complete each
corrective action alternative.
(v) The preferred corrective action alternative based upon
subparagraphs (i) through (iv) and an implementation schedule for
completion of the corrective action.
(d) A corrective action plan.
(e) A schedule for corrective action plan implementation.
(2) Within 180 days after receipt of a final assessment report
under this section, the department shall approve, approve with
conditions, or deny the final assessment report and notify the
submitter of its decision, or shall notify the submitter that the
final assessment report does not contain sufficient information for
the department to make a decision. 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, to the extent practical, state with
specificity all of the reasons for denial.
(3) If the department fails to provide a written response
within the time frame required by subsection (2), the final
assessment report is considered approved. If the department denies
a final assessment report under subsection (2), a person may
subsequently revise and resubmit the final assessment report for
approval.
(4) Any time frame required by this section may be extended by
mutual agreement of the department and a person submitting a final
assessment report. An agreement extending a time frame shall be in
writing.
(5) A person requesting approval of a final assessment report
may appeal the department's decision in accordance with sections
20114e and 20114f, if applicable.
(6) (2)
If the preferred corrective action
alternative under
subsection (1)(c)(v) is based on the use of institutional controls
regarding off-site migration of regulated substances, the
corrective action plan shall not be implemented until it is
reviewed and determined by the department to be in compliance with
this part.
Sec. 21312a. (1) Within 30 days following completion of the
corrective action, a consultant retained by the owner or operator
shall complete a closure report and submit the report to the
department on a form created pursuant to section 21316. The report
shall include, but is not limited to, the following information:
(a) A summary of corrective action activities.
(b) Closure verification sampling results.
(c) A closure certification prepared by the consultant
retained by the owner or operator.
(2) Within 60 days after receipt of a closure report under
subsection (1), the department shall provide the consultant who
submitted the closure report with a confirmation of the
department's receipt of the report.
(3) Within 365 days after receipt of a closure report
submitted under this section, the department shall approve or deny
the closure report and notify the submitter of its decision or
shall notify the submitter that the report does not contain
sufficient information for the department to make a decision. 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, to the
extent practical, state with specificity all of the reasons for
denial.
(4) If the department fails to provide a written response
within the time frame required by subsection (3), the closure
report is considered approved.
(5) A person requesting approval of a closure report under
subsection (3) may appeal the department's decision in accordance
with sections 20114e and 20114f.
(6) Any time frame required by this section may be extended by
mutual agreement of the department and the person submitting a
closure report. An agreement extending a time frame shall be in
writing.
(7) Following approval of a closure report under this section,
the owner or operator of the facility addressed by the closure
report may submit to the department an amended closure report. The
amended closure report shall include the proposed changes to the
original closure report and an accompanying rationale for the
proposed change. The process for review and approval of an amended
closure report is the same as the process for closure reports.
Sec. 21315. (1) The department shall design and implement a
program to selectively audit or oversee all aspects of corrective
actions undertaken under this part to assure compliance with this
part. The department may audit a site at any time prior to receipt
of a closure report pursuant to section 21312a and within 6 months
after receipt of the closure report.
(2) If the department conducts an audit under this section and
the audit confirms that the cleanup criteria have been met, the
department shall provide the owner or operator with a letter that
describes the audit and its results. Notwithstanding section
21312a, after conducting an audit under this section, the
department may issue a closure letter for any site that meets the
cleanup criteria pursuant to section 21304a.
(3) If an audit conducted under this section does not confirm
that corrective action has been conducted in compliance with this
part or that cleanup criteria have been met, the department may
require an owner or operator to do either or both of the following:
(a) Provide additional information related to any requirement
of this part.
(b) Retain a consultant to take additional corrective actions
necessary to comply with this part or to protect public health,
safety, or welfare, or the environment.
(4) If an audit conducted under this section confirms that
corrective action addressed in a closure report has been conducted
in compliance with this part and that the cleanup criteria have
been met, the owner or operator, or both, responsible for the
corrective action is not liable under this part or part 201 for
additional corrective actions. Notwithstanding this subsection, a
person may be liable under this part and part 201 for the
following:
(a) A subsequent release not addressed in the closure report
if the person is otherwise liable under this part and part 201 for
that release.
(b) Environmental contamination that is not addressed in the
closure report and for which the person is otherwise liable under
this part and part 201.
(c) If the closure report relies on land use or resource use
restrictions, an owner or operator that desires to change those
restrictions is responsible for any corrective actions necessary to
comply with this part and part 201 for any land use or resource use
other than the land use or resource use that was the basis for the
closure report.
(d) If the closure report relies on monitoring necessary to
assure the effectiveness and integrity of the corrective action, an
owner or operator that is otherwise liable for environmental
contamination addressed in a closure report is liable under this
part and part 201 for additional corrective actions necessary to
address any potential exposure to the environmental contamination
demonstrated by the monitoring in excess of the levels relied on in
the closure report.
(e) If the corrective actions that were the basis for the
closure report fail to meet performance objectives that are
identified in the closure report, an owner or operator that is
otherwise liable for environmental contamination addressed in the
closure report is liable under this part and part 201 for
corrective actions necessary to satisfy the performance objectives
or otherwise comply with this part and part 201.