Bill Text: MI HB4212 | 2019-2020 | 100th Legislature | Introduced


Bill Title: Environmental protection; cleanups; cleanup to residential and safe drinking water standards; require unless technically infeasible. Amends secs. 20118, 20120a, 20120b, 20120e & 20121 of 1994 PA 451 (MCL 324.20118 et seq.).

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2019-02-20 - Bill Electronically Reproduced 02/19/2019 [HB4212 Detail]

Download: Michigan-2019-HB4212-Introduced.html

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE BILL No. 4212

 

 

February 19, 2019, Introduced by Reps. Rabhi, Brixie, Pohutsky, Robinson, Tyrone Carter, Wittenberg, Manoogian, Ellison, Hoadley, Neeley, Hood, Lasinski, Warren, LaGrand, Camilleri, Pagan, Sowerby, Gay-Dagnogo, Hammoud, Cynthia Johnson and Tate and referred to the Committee on Natural Resources and Outdoor Recreation.

 

     A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

by amending sections 20118, 20120a, 20120b, 20120e, and 20121 (MCL

 

324.20118, 324.20120a, 324.20120b, 324.20120e, and 324.20121),

 

sections 20118, 20120a, and 20120b as amended and section 20121 as

 

added by 2014 PA 542 and section 20120e as amended by 2012 PA 190.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 20118. (1) The department may take response activity or

 

approve of response activity proposed by a person that is

 

consistent with this part and the rules promulgated under this part

 

relating to the selection and implementation of response activity

 

that the department concludes is necessary and appropriate to

 

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

 

     (2) Remedial action undertaken under subsection (1) may

 

address all or a portion of contamination at a facility as follows:


     (a) Remedial action may address 1 or more releases at a

 

facility.

 

     (b) Remedial action may address 1 or more hazardous substances

 

at a facility.

 

     (c) Remedial action may address contamination in 1 or more

 

environmental media at a facility.

 

     (d) Remedial action may address contamination within the

 

entire facility or only a portion of a facility.

 

     (e) Remedial action may address contamination at a facility

 

through any combination of subdivisions (a) through to (d).

 

     (3) Remedial action undertaken under subsection (1) shall

 

accomplish all of the following:

 

     (a) Assure Ensure the protection of the public health, safety,

 

and welfare, and the environment with respect to the environmental

 

contamination addressed by the remedial action.

 

     (b) Except as otherwise provided in subsections (4) and (5),

 

attain a degree of cleanup and control of the environmental

 

contamination addressed by the remedial action that meets both of

 

the following requirements:

 

     (i) To the extent technically feasible, meets the cleanup

 

criteria for unrestricted residential use and restores any affected

 

aquifer to state drinking water standards as that term is defined

 

in section 2 of the safe drinking water act, 1976 PA 399, MCL

 

325.1002.

 

     (ii) Otherwise complies with all applicable or relevant and

 

appropriate requirements, rules, criteria, limitations, and

 

standards of state and federal environmental law.


     (c) Except as otherwise provided in subsections (4) and (5),

 

be consistent with any cleanup criteria incorporated in rules

 

promulgated under this part for the environmental contamination

 

addressed by the remedial action.

 

     (4) The department may select or approve of a remedial action

 

meeting the criteria provided for in section 20120a that does not

 

attain a degree of control or cleanup of hazardous substances that

 

complies with R 299.3(5) or R 299.3(6) of the Michigan

 

administrative code, Administrative Code, or both, if the

 

department makes a finding that the degree of control or cleanup

 

that will be achieved is the greatest technically feasible and that

 

the selected or approved remedial action is protective of the

 

public health, safety, and welfare, and the environment.

 

Notwithstanding any other provision of this subsection, the

 

department shall not approve of a remedial action that does not

 

attain a degree of control or cleanup of hazardous substances that

 

complies with R 299.3(5) or R 299.3(6) of the Michigan

 

administrative code Administrative Code if the remedial action is

 

being implemented by a person who is liable under section 20126 and

 

the release was grossly negligent or intentional, unless attaining

 

that degree of control is technically infeasible, or the adverse

 

environmental impact of implementing a remedial action to satisfy

 

the rule would exceed the environmental benefit of that remedial

 

action.

 

     (5) A remedial action may be selected or approved pursuant to

 

under subsection (4) with regard to R 299.3(5) or R 299.3(6), or

 

both, of the Michigan administrative code, Administrative Code, if


the department determines, based on the administrative record, that

 

1 or more of the following conditions are satisfied:

 

     (a) Compliance with R 299.3(5) or R 299.3(6), or both, of the

 

Michigan administrative code Administrative Code is technically

 

impractical.infeasible.

 

     (b) The remedial action selected or approved will, within a

 

reasonable period of time, attain a standard of performance that is

 

equivalent to that required under R 299.3(5) or R 299.3(6) of the

 

Michigan administrative code.Administrative Code.

 

     (c) The adverse environmental impact of implementing a

 

remedial action to satisfy R 299.3(5) or R 299.3(6), or both, of

 

the Michigan administrative code Administrative Code would exceed

 

the environmental benefit of the remedial action.

 

     (d) The remedial action provides for the reduction of

 

hazardous substance concentrations in the aquifer through a

 

naturally occurring process that is documented to occur at the

 

facility and both of the following conditions are met:

 

     (i) It it has been demonstrated that there will be no adverse

 

impact on the environment as the result of migration of the

 

hazardous substances during the remedial action. , except for that

 

part of the aquifer approved by the department in connection with

 

the remedial action.

 

     (ii) The remedial action includes enforceable land use

 

restrictions or other institutional controls necessary to prevent

 

unacceptable risk from exposure to the hazardous substances, as

 

defined by the cleanup criteria approved as part of the remedial

 

action.


     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. residential, unless that

 

category is technically infeasible, in which case the category

 

shall be the technically feasible cleanup category with the most

 

stringent cleanup criteria. The categories are as follows:

 

     (a) Residential.

 

     (b) Nonresidential.

 

     (c) Limited residential.

 

     (d) Limited nonresidential.

 

     (2) As an alternative to If it is technically infeasible to

 

meet 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. 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 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 standards established pursuant to under section 5 of

 

the safe drinking water act, 1976 PA 399, MCL 325.1005, or (b) the

 

national secondary drinking water regulations established pursuant

 

to under 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 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), (b), or (c) unless

 

the department determines that compliance with this subsection is

 

not necessary because the use of the aquifer is reliably restricted

 

or controlled under provisions of a postclosure plan or a

 

postclosure agreement or by site-specific criteria approved by the

 

department under section 20120b.technically infeasible, in which

 

case the cleanup criterion shall be the most stringent criterion

 

that is technically feasible.

 

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

 

no further action report in categories set forth in subsection

 

(1)(b) to (d), unless the person 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

 

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) The need for soil remediation to protect an aquifer from

 

hazardous substances in soil shall 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) 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 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

 

Environmental Protection Agency has determined that application of

 

the model is appropriate for the hazardous substance in question.

 

     (10) If the target detection limit or the background

 

concentration for a hazardous substance is greater than a cleanup

 

criterion developed for a category pursuant to under subsection

 

(1), the criterion shall be the 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, 15 USC 2601 to 2692.2697.

 

     (13) Remedial action to address the release of uncontaminated

 

mineral oil satisfies cleanup criteria under this part for

 

groundwater or for soil if all visible traces of mineral oil are

 

removed from groundwater and soil.

 

     (14) Approval by the department of remedial action based on

 

the categorical standard in subsection (1)(a) 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, be scientifically valid, and best

 

represent actual site conditions and exposure potential.

 

     (15) If a discharge of venting groundwater complies with this

 

part, a permit for the discharge is not required.

 

     (16) Remedial actions that rely on categorical cleanup

 

criteria developed pursuant to under 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


this part.

 

     (17) Not later than December 31, 2013, the department shall

 

evaluate and revise the cleanup criteria derived under this

 

section. The evaluation and any revisions shall must incorporate

 

knowledge gained through research and studies in the areas of fate

 

and transport and risk assessment and shall must take into account

 

best practices from other states, reasonable and realistic

 

conditions, and sound science. Following this revision, the

 

department shall must periodically evaluate whether new information

 

is available regarding the cleanup criteria and shall must 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.

 

     (18) A person demonstrates compliance with indoor air

 

inhalation criteria for a hazardous substance at a facility under

 

this part if all of the following conditions are met:

 

     (a) The facility is an establishment covered by the

 

classifications provided by sector 31-33 manufacturing, of the

 

North American industry classification system, Industry

 

Classification System, United States, 2012, 2017, published by the

 

office of management and budget.Office of Management and Budget.

 

     (b) The person complies with the Michigan occupational safety

 

and health act, 1974 PA 154, MCL 408.1001 to 408.1094, and the

 

rules promulgated under that act applicable to the exposure to the

 

hazardous substance, including, but not limited to, the

 

occupational health standards, for part 301, air contaminants for

 

general industry, R 325.51101 to R 325.51108 of the Michigan


administrative code.Administrative Code.

 

     (c) The hazardous substance is included in the facility's

 

hazard communication program under section 14a of the Michigan

 

occupational safety and health act, 1974 PA 154, MCL 408.1014a, and

 

the occupational health standards, part 430, hazard communication,

 

rules, R 325.77001 to R 325.77004 of the Michigan administrative

 

code, Administrative Code, except that unless the hazardous

 

substance is in use in the facility, the requirement to have a

 

material safety data sheet in the workplace requires only a generic

 

material safety data sheet for the hazardous substance and the

 

labeling requirements do not apply.

 

     (19) The department shall make available the algorithms used

 

to calculate all residential and nonresidential generic cleanup

 

criteria, and tables listing, by hazardous substance, all toxicity,

 

exposure, and other algorithm factors or variables used in the

 

department's calculations.

 

     Sec. 20120b. (1) The department shall approve numeric or

 

nonnumeric 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, with the exception of the risk targets


specified in section 20120a(4).

 

     (c) Take into consideration the depth below the ground surface

 

of contamination, which may reduce the potential for exposure and

 

serve as an exposure barrier.

 

     (d) Be based on information related to the specific facility

 

or information of general applicability, including peer-reviewed

 

scientific literature.

 

     (e) Use probabilistic methods of calculation.

 

     (f) Use nonlinear-threshold-based calculations where

 

scientifically justified.

 

     (g) Take into account a land use or resource use restriction.

 

     (3) If there is not a generic cleanup criterion for a

 

hazardous substance in regard to a relevant exposure pathway,

 

releases of the hazardous substance may be addressed through any of

 

the following means, singly or in combination:

 

     (a) Eliminate exposure to the hazardous substance through

 

removal, containment, exposure barriers, or land use or resource

 

use restrictions.

 

     (b) If another hazardous substance is expected to have similar

 

fate, mobility, bioaccumulation, and toxicity characteristics,

 

apply the cleanup criteria for that hazardous substance as a

 

surrogate. Before using a surrogate, the person shall notify the

 

department, provide a written explanation why the surrogate is

 

suitable, and request approval. If the department does not notify

 

the person that it disapproves the use of the chosen surrogate

 

within 90 days after receipt of the notice, the surrogate is

 

considered approved. A hazardous substance may be used as a


surrogate for a single hazardous substance or for a class or

 

category of hazardous substances.

 

     (c) For venting groundwater, use a modeling an ecological

 

demonstration, an ecological a modeling demonstration, or a

 

combination of both, consistent with section 20120e(9) and (10), to

 

demonstrate that the hazardous substance is not likely to migrate

 

to a surface water body or has not or will not impair the existing

 

or designated uses for a surface water body.

 

     (d) If toxicity information is available for the hazardous

 

substance, develop site-specific cleanup criteria for the hazardous

 

substance pursuant to under subsections (1) and (2), or develop

 

simplified site-specific screening criteria based upon toxicity and

 

concentrations found on site, and request department approval. If

 

the department does not notify the person that it disapproves the

 

site-specific criteria or screening criteria within 90 days after

 

receipt of the request, the criteria are considered approved.

 

     (e) Any other method approved by the department.

 

     Sec. 20120e. (1) Subject to other requirements of this

 

section, 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 GSI criteria, which are the water quality

 

standards for surface waters developed by the department pursuant

 

to under part 31. The use of surface water quality standards or

 

variances shall be is allowable in any of the cleanup categories

 

provided for in section 20120a(1).


     (b) A variance from the surface water quality standards as

 

approved by the department under part 31. A variance shall be used

 

only if the variance is requested by a person performing response

 

activities with respect to venting groundwater.

 

     (c) Mixing zone-based GSI criteria established under this

 

part, which are consistent with part 31. The use of mixing zone-

 

based GSI criteria shall be are allowable in any of the categories

 

provided for in section 20120a(1) and (2) and shall be are

 

allowable for criteria based on chronic-based or acute-based

 

surface water quality criteria.

 

     (d) Site-specific criteria established under section 20120b or

 

this subdivision or a combination of both. The use of mixing zones

 

established under this part may be applied to, or included as,

 

site-specific criteria. Biological criteria may be used as site-

 

specific criteria. If biological criteria are used, then sentinel

 

wells shall must be used for a period as needed to determine if the

 

biological criteria may be exceeded due to future increased mass

 

loading to the surface water from the venting plume. Numerical

 

evaluations of analyses of the samples from the sentinel wells

 

shall must be performed in connection with this determination.

 

     (e) An ecological demonstration under subsection (9).

 

     (f) A modeling demonstration under subsection (10).

 

     (2) Whole effluent toxicity testing shall not be required or

 

be a criterion or be the basis for any criteria under subsection

 

(1) for venting groundwater except for samples taken at the GSI.

 

     (3) The pathway addressed by GSI criteria under subsection (1)

 

shall be considered a relevant pathway when a remedial


investigation or application of best professional judgment leads to

 

the conclusion that a hazardous substance in groundwater is

 

reasonably expected to vent to surface water in concentrations that

 

exceed the generic GSI criteria. The factors to be considered in

 

determining whether the pathway is relevant include all of the

 

following:

 

     (a) Whether there is a hydraulic connection between

 

groundwater and the surface water in question.

 

     (b) The proximity of surface water to source areas and areas

 

of the groundwater contaminant plume that currently, or may in the

 

future be expected to, exceed the generic GSI criteria.

 

     (c) Subject to subsection (23)(g), whether the receiving

 

surface water is a surface water of the state as that term is

 

defined in part 31 section 3101 and rules promulgated under that

 

part 31.

 

     (d) The direction of groundwater movement.

 

     (e) The presence of artificial structures or natural features

 

that would alter hydraulic pathways. This includes, but is not

 

limited to, highly permeable zones, utility corridors, and

 

seawalls.

 

     (f) The mass of hazardous substances present at the facility

 

that may affect groundwater.

 

     (g) Documented facility-specific evidence of natural

 

attenuation, if any.

 

     (h) Whether or not a sewer that has an outfall to surface

 

water has openings in the portion of the sewer where the sewer and

 

the groundwater contaminant plume intersect that allows the


groundwater contaminant plume to migrate into the sewer. If it can

 

be demonstrated that the sewer is sufficiently tight to prevent

 

inflow to the sewer where the groundwater contaminant plume

 

intersects the sewer or if the sewer is otherwise impervious, based

 

on accepted industry standards, to prevent inflow from groundwater

 

into the sewer at that location, then the GSI pathway with respect

 

to the sewer is not relevant and shall not apply.

 

     (4) For purposes of determining the relevance of a pathway

 

under subsection (3), both of the following apply:

 

     (a) GSI monitoring wells are not required in order to make a

 

determination if other information is sufficient to make a judgment

 

that the pathway is not relevant.

 

     (b) Fate and transport modeling may be used, if appropriate,

 

to support a professional judgment.

 

     (5) A person may proceed under section 20114a to undertake the

 

following response activities involving venting groundwater:

 

     (a) Evaluation activities associated with a response activity

 

providing for venting groundwater using alternative monitoring

 

points, an ecological demonstration, a modeling demonstration, or

 

any combination of these. If a person who is liable under section

 

20126 decides not to take additional response activities to address

 

the GSI pathway based on alternative monitoring points, an

 

ecological demonstration, a modeling demonstration, or a

 

determination under subsection (14), or any combination of these,

 

the person shall notify the department and request department

 

approval. A notification and request for approval under this

 

subdivision shall not be considered an admission of liability under


section 20126.

 

     (b) Response activities that rely on GSI monitoring wells to

 

demonstrate compliance under subsection (1)(a).

 

     (c) Except Subject to subdivision (a) and except as provided

 

in subdivision (a) and subsection (6), 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 before relying on those alternative

 

monitoring points that contains substantiating evidence that the

 

alternative monitoring points comply with this section.

 

     (d) Response activities implemented by a person who is not

 

liable under section 20126 that rely on a modeling demonstration,

 

or rely on an ecological demonstration, or a combination of these,

 

to demonstrate compliance with subsection (1)(a).

 

     (6) A person shall proceed under section 20114b to undertake

 

response activities that rely on monitoring from alternative

 

monitoring points or rely on an ecological demonstration, a

 

modeling demonstration, or a combination of these, 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 under part 31 and for

 

which the person is liable under this part.


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

 

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 the 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.

 

     (7) A person shall proceed under section 20114b to undertake

 

response activities that rely on monitoring from alternative

 

monitoring points, or rely on an ecological demonstration, or rely

 

on a modeling demonstration or that use mixing zone-based GSI

 

criteria, or any combination of these, as applicable, to

 

demonstrate compliance with subsection (1)(b), (c), (d), (e), or

 

(f).

 

     (8) Alternative monitoring points may be used to demonstrate

 

compliance with subsection (1) if the alternative monitoring points

 

meet the following standards:

 

     (a) The locations where venting groundwater enters surface

 

water have been reasonably identified to allow monitoring for the


evaluation of compliance with criteria. This 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 approximate boundaries of the areas

 

where the groundwater plume vents to surface water. This

 

documentation shall must 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 reasonably

 

representative of the higher concentrations of hazardous substances

 

present in the groundwater at the GSI.

 

     (b) The alternative monitoring points allow for venting

 

groundwater to be sampled at the GSI. Devices used for sampling at

 

alternative monitoring points may be beyond the water's edge and on

 

top of or into the sediments, at the GSI.

 

     (c) Sentinel monitoring points are used in conjunction with

 

the alternative monitoring points for a period as needed to assure

 

ensure that any potential exceedance of an applicable surface water

 

quality standard can be identified with sufficient notice to allow

 

additional response activity, if needed, to be implemented that

 

will address the exceedance. Sentinel monitoring points shall must

 

include, at a minimum, monitoring points upland of the surface

 

water body.

 

     (9) An ecological demonstration may be used to demonstrate

 

compliance with subsection (1) if the ecological demonstration


meets the following:

 

     (a) The boundaries of the area where the groundwater plume

 

vents to surface water are documented as provided in subsection

 

(8)(a)(ii).

 

     (b) Sampling data for the area described in subdivision (a),

 

when compared to other reasonably proximate areas of that surface

 

water body, do not show an impairment of existing or designated

 

uses for that surface water body caused by, or contributed to by,

 

the venting plume, or do not show that the venting plume will

 

cause, or contribute, to impairment of existing or designated uses

 

of that surface water body in a situation where the area of the

 

surface water immediately outside the venting area of the venting

 

plume shows an impairment of existing or designated uses.

 

     (c) Sampling data for the area described in subdivision (a) do

 

not show exceedances of applicable criteria under subsection (1) in

 

the surface water body caused by, or contributed to by, the venting

 

plume.

 

     (d) The sampling data in subdivisions (b) and (c) may be data

 

on benthic organisms, fish, and the water column of the surface

 

water, which data may be in the form of an in situ bioassay or a

 

biological community assessment.

 

     (e) Sentinel monitoring in on-land wells is performed for a

 

period as needed to show that the groundwater plume is not likely

 

to migrate to the surface water body and vent in the future in a

 

mass amount and rate that would impair the existing or designated

 

uses for that surface water body, or cause or contribute to

 

exceedances of surface water quality standards in the surface water


body.

 

     (10) A modeling demonstration may be used to demonstrate

 

compliance with subsection (1) if the modeling demonstration meets

 

all of the following:

 

     (a) The modeling methodology is generally recognized as a

 

means to model venting groundwater plumes or is an innovative

 

method that is scientifically justifiable.

 

     (b) The results of the modeling show that the venting plume at

 

the GSI complies with the applicable criteria under subsection (1)

 

or supports the ecological demonstration, as applicable.

 

     (c) The model is supported by site-specific information and

 

appropriate field measurements.

 

     (11) If alternative monitoring points or an ecological

 

demonstration or a modeling demonstration or a combination of these

 

is used for the response activity and sentinel wells are installed,

 

a contingency plan for potential additional response activity may

 

be required.

 

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

 

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

 

subsection (1)(d) in conjunction with alternative monitoring

 

points, an ecological demonstration, or a modeling demonstration,

 

or a combination of these, 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 (6), (7), or (8), as applicable.

 

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

 

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


determined with data from the alternative monitoring points,

 

documentation that it is possible to reasonably estimate the volume

 

and rate of venting groundwater.

 

     (c) A site-specific monitoring plan that takes into account

 

the basis for the site-specific criterion or mixing zone criterion.

 

     (13) If there is an exceedance of an applicable GSI criterion

 

based on acute toxicity at a compliance monitoring point applicable

 

at a particular facility, then action shall be taken as follows:

 

     (a) A person that is implementing the response activity at

 

that facility and that determines that there is an exceedance shall

 

notify the department of that condition within 7 days of obtaining

 

knowledge discovering that the exceedance is occurring.

 

     (b) If the person described in subdivision (a) is a person

 

liable under section 20126, then that person shall, within 30 days

 

of the date on which notice is required under subdivision (a), do 1

 

or more of the following:

 

     (i) Commence response activity to address the exceedance at

 

the applicable compliance monitoring point and submit a schedule to

 

the department for the response activity.

 

     (ii) Submit a notice of intent to the department to propose an

 

alternative monitoring point or perform an ecological demonstration

 

or perform a modeling demonstration or a combination of these. The

 

notice shall include a schedule for submission of the proposal.

 

     (iii) Submit a notice of intent to the department to propose a

 

site-specific criterion or a mixing zone criterion under sections

 

20120a and 20120b. The notice shall must include a schedule for

 

submission of the proposal.


     (c) The department may approve a schedule as submitted under

 

subdivision (b) or direct require reasonable modifications in the

 

schedule. The department may grant extensions of time for actions

 

required under subdivision (b) and for activities in an approved or

 

department-modified schedule if the person is acting in good faith

 

and site conditions inhibit progress or completion of the activity.

 

The department's decision to grant an extension or impose a

 

schedule modification shall must consider the practical problems

 

associated with carrying out the response activity and the nature

 

and extent of the exceedances of applicable GSI criteria.

 

     (14) Response activity beyond evaluations shall not be

 

required if venting groundwater has no effect or only a de minimis

 

effect on a surface water body. A determination under this

 

subsection may be based on mass flow and rate of groundwater

 

movement calculations. A person evaluating a venting plume that

 

determines that the plume has no effect or only a de minimis effect

 

on a surface water body shall notify the department of the

 

determination. The department may, within 90 days after receipt of

 

the determination, disapprove the determination. If the department

 

does not notify the person that it disapproves the determination

 

within the 90-day period, then the person's determination shall be

 

is final.

 

     (15) If a person has controlled the source of groundwater

 

contamination and has demonstrated that compliance with GSI

 

criteria developed under this part is unachievable, that person may

 

file a technical impracticability waiver request with the

 

department. The technical impracticability waiver shall document


the reasons why compliance is unachievable. The department shall

 

respond to the waiver within 180 days with an approval, request for

 

additional information, or denial that provides a detailed

 

description of the reasons for denial.

 

     (16) Natural attenuation of hazardous substances in venting

 

groundwater upgradient of the GSI is an acceptable form of

 

remediation and may be relied upon in lieu of any active

 

remediation of the groundwater. Natural attenuation may be

 

occurring by way of dispersion, diffusion, sorption, degradation,

 

transformative reactions, and other methods. Natural attenuation

 

may occur by dispersion or diffusion if it is technically

 

infeasible to prevent the dispersion or diffusion.

 

     (17) A permit shall is not be required under part 31 for any

 

venting groundwater contamination plume that is addressed under

 

this section.

 

     (18) Wetlands shall be protected for the groundwater surface

 

water pathway to the extent that particular designated uses, as

 

defined by part 31, which that are specific to that wetland would

 

otherwise be impaired by a groundwater contamination plume venting

 

to surface water in the wetland.

 

     (19) If a groundwater contamination plume is entering a sewer

 

that discharges to surface water, and the GSI pathway is relevant,

 

all of the following apply:

 

     (a) If the groundwater enters a storm sewer that is owned or

 

operated by an entity that is subject to federal municipal separate

 

storm sewer system regulations and a part 31 permit for the

 

discharges from the system, the contaminated groundwater entering


the sewer is subject to regulation by the entity's ordinance

 

regarding illicit discharges, but the regulation of the

 

contaminated groundwater shall does not prevent the use of

 

subdivision (b) or other provisions of this section to determine

 

the need for response activity under this part.

 

     (b) All of the following apply:

 

     (i) The compliance monitoring point may be a groundwater

 

monitoring well, if proposed by the person performing the response

 

action, or that person may choose another point for measuring

 

compliance under this subparagraph.

 

     (ii) A mixing zone may be applied that accounts for the mixing

 

which that occurs in the receiving surface water into which the

 

sewer system discharges.

 

     (iii) Attenuation that occurs in the sewer system prior to

 

before the sewer system outfall to surface water shall be

 

considered.

 

     (iv) The compliance point is at the sewer system outfall to

 

surface water, which shall account for any applicable mixing zone

 

for the sewer system outfall.

 

     (v) Monitoring to determine compliance may be performed at a

 

location where the contaminated groundwater enters the sewer or

 

downstream from that location but upstream of the sewer outfall at

 

the surface water, if practicable and representative. Appropriate

 

back calculation from the compliance point to the monitoring point

 

may be applied to account for mixing and other attenuation that

 

occurs in the sewer system before the compliance point. As

 

appropriate, such a monitoring point described in this subparagraph


may require another monitoring point in the sewer system upstream

 

from the area where the contaminated groundwater enters the sewer.

 

Upstream sampling in the sewer may be performed to determine source

 

contribution.

 

     (vi) The contaminant mass flow, and the rate and amount of

 

groundwater flow, into the sewer may be considered and may result

 

in a determination that the migration into the sewer is de minimis

 

and does not require any response activity in addition to the

 

evaluation that leads to such determination.

 

     (c) Factors in subdivision (b) may be considered and applied

 

to determine if an illicit discharge is occurring and how to

 

regulate the discharge.

 

     (20) If the department denies a response activity plan

 

containing a proposal for alternative monitoring points, an

 

ecological demonstration, or a modeling demonstration, or a

 

combination of these, the department shall must state the reasons

 

for denial, including the scientific and technical basis for the

 

denial. 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.

 

     (21) This section is intended to allow a person to demonstrate

 

compliance with requirements under this part for a response

 

activity involving venting groundwater, and, for this purpose, this

 

section shall be given retroactive application and shall be applies

 

retroactively and is available for use by such person. A person

 

performing response activity involving venting groundwater under


any judgment, consent judgment, order, consent order, or agreement

 

that was entered prior to the effective date of the 2012 amendatory

 

act that amended this section before June 20, 2012 may pursue,

 

alter, or terminate such response activity based on any provision

 

of this section subject to any necessary entry or approval by the

 

court in a case of a judgment, consent judgment, or court order or

 

any necessary amendment procedure to amend an agreement. The

 

department shall not oppose use of any provision of this section as

 

grounds to amend an agreement or for a court to modify or terminate

 

response activity obligations involving venting groundwater under a

 

judgment, consent judgment, or court order. A person performing

 

response activity involving venting groundwater under any remedial

 

action plan, interim response plan designed to meet criteria,

 

interim response action plan, or response activity plan that was

 

approved by the department prior to the effective date of the 2012

 

amendatory act that amended this section before June 20, 2012 may

 

submit an amended plan to the department for approval that pursues,

 

alters, or terminates response activity based on any provision of

 

this section. The department shall not oppose use of any provision

 

of this section in approving an amended plan.

 

     (22) A person that undertakes response activity under

 

subsection (4) (5) or that takes action under subsection (13)(b)

 

shall not be considered to be making an admission of liability by

 

undertaking such response activities or taking such action.

 

     (23) As used in this section:

 

     (a) "Alternative monitoring points" means alternative

 

monitoring points authorized under subsection (8).


     (b) "Ecological demonstration" means an ecological

 

demonstration authorized under subsection (1)(e).

 

     (c) "GSI" means groundwater-surface water interface, which is

 

the location at which groundwater enters surface water.

 

     (d) "GSI 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.

 

     (e) "Mixing zone-based GSI criteria" means mixing zone-based

 

GSI criteria authorized under subsection (1)(c).

 

     (f) "Modeling demonstration" means a modeling demonstration

 

authorized under subsection (1)(f).

 

     (g) "Surface water" does not include any of the following:

 

     (i) Groundwater.

 

     (ii) Hyporheic zone water.

 

     (iii) Water in enclosed sewers.

 

     (iv) Water in drainage ways and ponds used solely for

 

wastewater or storm water conveyance, treatment, or control.

 

     (v) Water in subgrade utility runs and utility lines and

 

permeable fill in and around them.

 

     Sec. 20121. (1) A If meeting the cleanup criteria for

 

unrestricted residential use and restoring any affected aquifer to

 

state drinking water standards as that term is defined in section 2

 

of the safe drinking water act, 1976 PA 399, MCL 325.1002, is

 

technically infeasible, a person may impose land or resource use

 

restrictions to for any of the following purposes:

 

     (a) To reduce or restrict exposure to hazardous substances. ,


to

 

     (b) To eliminate a potential exposure pathway. , to assure

 

     (c) To ensure the effectiveness and integrity of containment

 

or exposure barriers. , to

 

     (d) To provide for access. , or to

 

     (e) To otherwise assure ensure the effectiveness and integrity

 

of response activities undertaken at a property.

 

     (2) A restrictive covenant used to impose land or resource use

 

restrictions under subsection (1) shall, at a minimum, include all

 

of the following:

 

     (a) A legal description of the property that is subject to the

 

restrictions that is sufficient to identify the property and is

 

sufficient to record the document with the register of deeds for

 

the county where the property is located. If the property being

 

restricted constitutes a portion of a parcel, the restrictive

 

covenant shall must also include 1 of the following:

 

     (i) A legal description and a scaled drawing of the portion

 

that is restricted.

 

     (ii) A survey of the portion that is restricted.

 

     (iii) Another type of description or drawing approved by the

 

department.

 

     (b) A brief narrative description of response activities and

 

environmental contamination at the property or identify a publicly

 

accessible information repository where that information may be

 

obtained, such as a public library.

 

     (c) A description of the activity and use limitations imposed

 

on the property. The description should be drafted, to the extent


practicable, using plain, everyday language in an effort to make

 

the activity and use limitations understandable to the reader

 

without having to reference statutory or regulatory text or

 

department guidance.

 

     (d) A grant to the department of the ability to enforce the

 

restrictive covenant by legal action in a court of appropriate

 

jurisdiction.

 

     (e) A signature of the property owner or someone with the

 

express written consent of the property owner unless the

 

restrictive covenant has been ordered by a court of competent

 

jurisdiction. For condominium common elements and similar commonly

 

owned property, the restrictive covenant may be signed by an

 

authorized person.

 

     (3) In addition to the requirements of subsection (2), a

 

restrictive covenant may contain other information, restrictions,

 

requirements, and rights agreed to by the persons signing it,

 

including, but not limited to, 1 or more of the following:

 

     (a) A provision requiring notice to the department or other

 

persons upon transfer or before construction or changes in use that

 

could affect environmental contamination or increase exposure at

 

the property.

 

     (b) A provision granting rights of access to the department or

 

other persons. These rights may include, but are not limited to,

 

the right to enter the property for the purpose of monitoring

 

compliance with the restrictive covenant, the right to take

 

samples, and the right to implement response activities.

 

     (c) A provision subordinating a property interest that has


priority, if agreed to by the person that owns the superior

 

interest.

 

     (d) A provision granting the right to enforce the restrictive

 

covenant to persons in addition to the department, including, but

 

not limited to, the local unit of government in which the property

 

is located or the United States environmental protection

 

agency.Environmental Protection Agency.

 

     (e) A provision obligating the owner of the land subject to

 

the restrictive covenant to inspect or maintain exposure barriers,

 

permanent markers, fences, or other aspects of the response action

 

or remedy.

 

     (f) A provision limiting the restrictive covenant to a

 

specific duration, or terminating the restrictive covenant upon the

 

occurrence of a specific event or condition, such as the completion

 

of additional response activities that are approved by the

 

department.

 

     (g) A provision providing notice of hazardous substances that

 

exceed aesthetic-based cleanup criteria.

 

     (4) A restrictive covenant used to impose land or resource use

 

restrictions under this section shall be recorded with the register

 

of deeds for the county where the property is located.

 

     (5) A restrictive covenant under this section that is recorded

 

under subsection (4) does both of the following:

 

     (a) Runs with the land.

 

     (b) Is perpetual unless, by its terms, it is limited to a

 

specific duration or is terminated by the occurrence of a specific

 

event.


     (6) Upon recording, a copy of the restrictive covenant shall

 

be provided to the department together with a notice that includes

 

the street address or parcel number for the property or properties

 

subject to the covenant. A restrictive covenant that meets the

 

requirements of this section need not be approved by the department

 

except as expressly required elsewhere in this part.

 

     (7) The following instruments may impose the land or resource

 

use restrictions described in subsection (1) if they meet the

 

requirements of a restrictive covenant under this section:

 

     (a) A conservation easement.

 

     (b) A court order or judicially approved settlement involving

 

the property.

 

     (8) An institutional control may be used to impose the land or

 

resource use restrictions described in subsection (1) instead of or

 

in addition to a restrictive covenant. Institutional controls that

 

may be considered include, but are not limited to, local ordinances

 

or state laws and regulations that limit or prohibit the use of

 

contaminated groundwater, prohibit the raising of livestock,

 

prohibit development in certain locations, or restrict property to

 

certain uses, such as a zoning ordinance. A local ordinance that

 

serves as an institutional control under this section shall be

 

published and maintained in the same manner as a zoning ordinance

 

and shall include a requirement that the local unit of government

 

notify the department at least 30 days prior to before adopting a

 

modification to the ordinance or prior to before the lapsing or

 

revocation of the ordinance.

 

     (9) Alternative instruments and means may be used, with


department approval, to impose the land or resource use

 

restrictions described in subsection (1), including, but not

 

limited to, licenses and license agreements, contracts with local,

 

state, or federal units of government, health codes or regulations,

 

or government permitting requirements.

 

     (10) The department, with the approval of the state

 

administrative board, may place restrictive covenants described in

 

this section on deeds of state-owned property.

 

     (11) A restrictive covenant recorded pursuant to this part,

 

whether recorded on, before, or after the effective date of the

 

amendatory act that added this section, January 15, 2015, is valid

 

and enforceable even if 1 or more of the following situations

 

exist:

 

     (a) It is not appurtenant to an interest in real property.

 

     (b) The right to enforce it can be or has been assigned.

 

     (c) It is not of a character that has been recognized

 

traditionally at common law.

 

     (d) It imposes a negative burden.

 

     (e) It imposes an affirmative obligation on a person having an

 

interest in the real property.

 

     (f) The benefit or burden does not touch or concern real

 

property.

 

     (g) There is no privity of estate or contract.

 

     (h) The owner of the land subject to the restrictive covenant

 

and the person benefited or burdened are the same person.

 

     (12) Restrictive covenants or other instruments that impose

 

land or resource use restrictions that were recorded before the


effective date of the amendatory act that added this section

 

January 15, 2015 are not invalidated or made unenforceable by this

 

section. Except as provided in subsection (11), this section only

 

applies to a restrictive covenant or other instrument recorded

 

after the effective date of the amendatory act that added this

 

section. January 15, 2015. This section does not invalidate or

 

render unenforceable any instrument or interest that is otherwise

 

enforceable under the law of this state.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.

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