SB-1345, As Passed House, December 1, 2010

SUBSTITUTE FOR

SENATE BILL NO. 1345

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 received by the department 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, 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 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 only 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.

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

(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 may include a request that, upon

approval, the facility be designated as a residential closure. 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.

(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.

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. In addition, the environmental consultant shall

attach a certificate of insurance demonstrating that the

environmental consultant has obtained at least all of the following

from a carrier that is authorized to conduct business in this

state:

(a) Statutory worker compensation insurance as required in

this state.

(b) Professional liability errors and omissions insurance.

This policy may not exclude bodily injury, property damage, or

claims arising out of pollution for environmental work and shall be

issued with a limit of not less than $1,000,000.00 per claim.

not less than $1,000,000.00 per claim, if not included under the

professional liability errors and omissions insurance required

under subdivision (b). The insurance requirement under this

subdivision is not required for environmental consultants who do

not perform contracting functions.

(d) Commercial general liability insurance with limits of not

less than $1,000,000.00 per claim and $2,000,000.00 aggregate.

(e) Automobile liability insurance with limits of not less

than $1,000,000.00 per claim.

(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 received by the department 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, to the

extent practical, state with specificity all of 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.

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 participation 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.~~

(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~~ As an alternative to the

categorical criteria under subsection (1), the department may

approve a response activity plan or a no further action report

containing site-specific criteria that satisfy the requirements of

section 20120b and other 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

or no further action report 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 or no further action report 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 or no further action report 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 or no further action report

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.

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) The department may also approve cleanup criteria if

necessary to address conditions that prevent a hazardous substance

from being reliably measured at levels that are consistently

achievable in samples from the facility in order to allow for

comparison with generic cleanup criteria. A person seeking approval

of a criterion under this subsection shall document the basis for

determining that the relevant published target detection limit

cannot be achieved in samples from the facility.

(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~~ 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.

(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.

(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~~ a discharge of venting groundwater ~~is provided for in~~

~~a remedial action plan that is approved by the department,~~ complies

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.~~

(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.

(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~~ Not later than 2 years after the effective date of

the 2010 amendatory act that amended this section, 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. Following this

revision, the department shall periodically evaluate whether new

information is available regarding the cleanup criteria and shall

make revisions as appropriate. The department shall prepare and

submit to the legislature a report detailing any revisions made to

cleanup criteria under this section.

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 or other factors.

(2) Site-specific criteria approved under subsection (1) may,

as appropriate:

(a) Use the algorithms for calculating generic criteria

established by rule or propose and use different algorithms.

(b) Alter any value, parameter, or assumption used to

calculate generic criteria.

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.

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.

(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

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.

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.

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).

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 proceed under section 20114a to undertake the

following response activities:

(a) A person may undertake evaluation activities associated

with a response activity providing for venting groundwater using

groundwater-surface water interface monitoring wells or alternative

monitoring points.

(b) A person may undertake response activities that rely on

monitoring from groundwater-surface water interface monitoring

wells to demonstrate compliance under subsection (1)(a).

a person may undertake response activities that rely on monitoring

from alternative monitoring points to demonstrate compliance with

subsection (1)(a) if the person submits to the department a notice

of alternative monitoring points at least 30 days prior to relying

on those alternative monitoring points that contains substantiating

evidence that the alternative monitoring points comply with this

section.

(3) A person must proceed under section 20114b to undertake

response activities that rely on monitoring from alternative

monitoring points to demonstrate compliance with subsection (1)(a)

if 1 or more of the following conditions apply to the venting

groundwater:

(a) An applicable criterion is based on acute toxicity

endpoints.

(b) The venting groundwater contains a bioaccumulative

chemical of concern as identified in the water quality standards

for surface waters developed pursuant to part 31 and for which the

person is liable under this part.

protected for coldwater fisheries identified in the following

publications:

(i) "Coldwater Lakes of Michigan," as published in 1976 by the

department of natural resources.

(ii) "Designated Trout Lakes and Regulations," issued September

10, 1998, by the director of the department of natural resources

under this authority of part 411.

(iii) "Designated Trout Streams for the State of Michigan," as

issued under order of the director of the department of natural

resources, FO-210.08, on November 8, 2007.

(d) The venting groundwater is entering a surface water body

designated as an outstanding state resource water or outstanding

international resource water as identified in the water quality

standards for surface waters developed pursuant to part 31.

(4) Alternative monitoring points may demonstrate compliance

with this section if the alternative monitoring points meet the

following standards:

(a) The locations where venting groundwater enters surface

water have been sufficiently identified to allow monitoring for the

evaluation of compliance with criteria. Sufficient identification

shall include all of the following:

(i) Identification of the location of alternative monitoring

points within areas of venting groundwater.

(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

alternative 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.

(b) The alternative monitoring points allow for venting

groundwater to be sampled at a point before mixing with surface

water. This requirement does not preclude location of alternative

monitoring points in a floodplain.

representative monitoring of groundwater quality at the

groundwater-surface water interface, taking into account all of the

following:

(i) Temporal and spatial variability of hazardous substance

concentrations in groundwater in the plume.

(ii) Seasonal or periodic changes in groundwater flow.

(iii) Other natural or human-made features that affect

groundwater flow.

(d) 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

alternative monitoring points are identified.

(e) Sentinel monitoring points are 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, if needed, to be implemented that will prevent the

exceedance. Sentinel monitoring points shall include, at a minimum,

monitoring points upland of the surface water body.

(5) If a person intends to utilize mixing zone-based

groundwater-surface water interface criteria under subsection

(1)(b) or site-specific criteria under subsection (1)(c) in

conjunction with alternative monitoring points, the person shall

submit to the department a response activity plan that includes the

following:

(a) A demonstration of compliance with the standards in

subsection (4).

(b) If compliance with a mixing zone-based groundwater-surface

water interface criterion under subsection (1)(b) is to be

determined with data from the alternative monitoring points,

documentation that it is possible to accurately estimate the volume

of venting groundwater.

(6) For the purpose of this section, surface water does not

include groundwater or enclosed sewers or utility lines.

(7) If the department denies a response activity plan

containing a proposal for alternative monitoring points, the

department shall state the reasons for denial, including the

scientific and technical basis for the denial.

(8) Notwithstanding any other provision of this part, a

response activity plan that includes a mixing zone relating to

groundwater venting to surface water is subject to a 30-day public

comment period.

(9) A person may appeal a decision of the department in a

response activity plan or no further action report regarding

venting groundwater as a scientific or technical dispute under

section 20114e.

(10) As used in this section, "groundwater-surface water

interface monitoring well" means a vertical well installed in the

saturated zone as close as practicable to surface water with a

screened interval or intervals that are representative of the

groundwater venting to the surface water.

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.

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. 1346.

(b) Senate Bill No. 1348.

(d) House Bill No. 6363.

(e) House Bill No. 6359.