Bill Text: MI SB0365 | 2019-2020 | 100th Legislature | Introduced
Bill Title: Environmental protection; cleanups; environmental remediation and oversight; enhance. Amends secs. 20101, 20114d, 20114e, 20120a & 20120b of 1994 PA 451 (MCL 324.20101 et seq.) & repeals sec. 20120f of 1994 PA 451 (MCL 324.20120f).
Spectrum: Partisan Bill (Democrat 9-0)
Status: (Introduced - Dead) 2019-06-11 - Referred To Committee On Environmental Quality [SB0365 Detail]
Download: Michigan-2019-SB0365-Introduced.html
SENATE BILL No. 365
June 11, 2019, Introduced by Senators MCCANN, IRWIN, BRINKS, BULLOCK, ANANICH, WOJNO, GEISS and POLEHANKI and referred to the Committee on Environmental Quality.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 20101, 20114d, 20114e, 20120a, and 20120b (MCL
324.20101, 324.20114d, 324.20114e, 324.20120a, and 324.20120b), as
amended by 2018 PA 581; and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 20101. (1) As used in this part:
(a) "Act of God" means an unanticipated grave natural disaster
or other natural phenomenon of an exceptional, inevitable, and
irresistible character, the effects of which could not have been
prevented or avoided by the exercise of due care or foresight.
(b) "Agricultural property" means real property used for
farming in any of its branches, including cultivating of soil;
growing and harvesting of any agricultural, horticultural, or
floricultural commodity; dairying; raising of livestock, bees,
fish, fur-bearing animals, or poultry; turf and tree farming; or
performing any practices on a farm as an incident to, or in
conjunction with, these farming operations. Agricultural property
does not include property used for commercial storage, processing,
distribution, marketing, or shipping operations.
(c) "All appropriate inquiry" means an evaluation of
environmental conditions at a property at the time of purchase,
occupancy, or foreclosure that reasonably defines the existing
conditions and circumstances at the property in conformance with 40
CFR 312 (2014).
(d) "Attorney general" means the department of the attorney
general.
(e) "Background concentration" means the concentration or
level of a hazardous substance that exists in the environment at or
regionally proximate to a facility that is not attributable to any
release at or regionally proximate to the facility. A person may
demonstrate that a hazardous substance is not present at a level
that exceeds background concentration by any of the following
methods:
(i) The hazardous substance complies with the statewide
default background levels under table 2 as referenced in R 299.46
of the Michigan Administrative Code.
(ii) The hazardous substance is listed in table 2, 3, or 4 of
the department's 2005 Michigan background soil survey, is present
in a soil type identified in 1 or more of those tables, and meets 1
of the following:
(A) If a glacial lobe area in table 2, 3, or 4 lists an
arithmetic or geometric mean for the hazardous substance that is
represented by 9 or more samples, the concentration of that
hazardous substance is the lesser of the following:
(I) Two standard deviations of that mean for the soil type and
glacial lobe area in which the hazardous substance is located.
(II) The uppermost value in the typical range of data for the
hazardous substance in table 1 of the department's 2005 Michigan
background soil survey.
(B) If a glacial lobe area in table 2, 3, or 4 lists a
nonparametric median for the hazardous substance that is
represented by 10 or more samples, the concentration of that
hazardous substance is the lesser of the following:
(I) The 97.5 quantile for the soil type and glacial lobe area
in which the hazardous substance is located.
(II) The uppermost value in the typical range of data for the
hazardous substance in table 1 of the department's 2005 Michigan
background soil survey.
(C) The concentration of the hazardous substance meets a level
established using the 2005 Michigan background soil survey in a
manner that is approved by the department.
(iii) The hazardous substance is listed in any other study or
survey conducted or approved by the department and is within the
concentrations or falls within the typical ranges published in that
study or survey.
(iv) A site-specific demonstration.
(f) "Baseline environmental assessment" means a written
document that describes the results of an all appropriate inquiry
and the sampling and analysis that confirm that the property is or
contains a facility. For purposes of a baseline environmental
assessment, the all appropriate inquiry may be conducted or updated
prior to or within 45 days after the earlier of the date of
purchase, occupancy, or foreclosure.
(g) "Board" means the brownfield redevelopment board created
in section 20104a.
(h) "Certificate of completion" means a written response
provided by the department confirming that a response activity has
been completed in accordance with the applicable requirements of
this part and is approved by the department.
(i) "Cleanup criteria for unrestricted residential use" means
any of the following:
(i) Cleanup criteria that satisfy the requirements for the
residential category in section 20120a(1)(a).
(ii) Cleanup criteria for unrestricted residential use under
part 213.
(iii) Site-specific cleanup criteria approved by the
department for unrestricted residential use pursuant to sections
20120a and 20120b.
(j) "Department" means the director or his or her designee to
whom the director delegates a power or duty by written instrument.
(k) "Director" means the director of the department of
environmental quality.
(l) "Directors" means the directors or their designees of the
departments of environmental quality, community health, agriculture
and rural development, and state police.
(m) "Disposal" means the discharge, deposit, injection,
dumping, spilling, leaking, or placing of any hazardous substance
into or on any land or water so that the hazardous substance or any
constituent of the hazardous substance may enter the environment or
be emitted into the air or discharged into any groundwater or
surface water.
(n) "Enforcement costs" means court expenses, reasonable
attorney fees of the attorney general, and other reasonable
expenses of an executive department that are incurred in relation
to enforcement under this part.
(o) "Environment" or "natural resources" means land, surface
water, groundwater, subsurface strata, air, fish, wildlife, or
biota within this state.
(p) "Environmental contamination" means the release of a
hazardous substance, or the potential release of a discarded
hazardous substance, in a quantity which is or may become injurious
to the environment or to the public health, safety, or welfare.
(q) "Evaluation" means those activities including, but not
limited to, investigation, studies, sampling, analysis, development
of feasibility studies, and administrative efforts that are needed
to determine the nature, extent, and impact of a release or threat
of release and necessary response activities.
(r) "Exacerbation" means the occurrence of either of the
following caused by an activity undertaken by the person who owns
or operates the property, with respect to contamination for which
the person is not liable:
(i) Migration of contamination beyond the boundaries of the
property that is the source of the release at levels above cleanup
criteria for unrestricted residential use unless a criterion is not
relevant because exposure is reliably restricted as otherwise
provided in this part.
(ii) A change in facility conditions that increases response
activity costs.
(s) "Facility" means any area, place, parcel or parcels of
property, or portion of a parcel of property where a hazardous
substance in excess of the concentrations that satisfy the cleanup
criteria for unrestricted residential use has been released,
deposited, disposed of, or otherwise comes to be located. Facility
does not include any area, place, parcel or parcels of property, or
portion of a parcel of property where any of the following
conditions are satisfied:
(i) Response activities have been completed under this part or
the comprehensive environmental response, compensation, and
liability act, 42 USC 9601 to 9675, that satisfy the cleanup
criteria for unrestricted residential use.
(ii) Corrective action has been completed under the resource
conservation and recovery act, 42 USC 6901 to 6992k, part 111, or
part 213 that satisfies the cleanup criteria for unrestricted
residential use.
(iii) Site-specific criteria that have been approved by the
department for application at the area, place, parcel of property,
or portion of a parcel of property are met or satisfied and
hazardous substances at the area, place, or property that are not
addressed by site-specific criteria satisfy the cleanup criteria
for unrestricted residential use.
(iv) Hazardous substances in concentrations above unrestricted
residential cleanup criteria are present due only to the placement,
storage, or use of beneficial use by-products or inert materials at
the area, place, or property in compliance with part 115.
(v) The property has been lawfully split, subdivided, or
divided from a facility and does not contain hazardous substances
in excess of concentrations that satisfy the cleanup criteria for
unrestricted residential use.
(vi) Natural attenuation or other natural processes have
reduced concentrations of hazardous substances to levels at or
below the cleanup criteria for unrestricted residential use.
(t) "Feasibility study" means a process for developing,
evaluating, and selecting appropriate response activities.
(u) "Financial assurance" means a performance bond, escrow,
cash, certificate of deposit, irrevocable letter of credit,
corporate guarantee, or other equivalent security, or any
combination thereof.
(v) "Foreclosure" means possession by a lender of a property
on which it has foreclosed on a security interest or the expiration
of a lawful redemption period, whichever occurs first.
(w) "Fund" means the cleanup and redevelopment fund
established in section 20108.
(x) "Hazardous substance" means 1 or more of the following,
but does not include fruit, vegetable, or field crop residuals or
processing by-products, or aquatic plants, that are applied to the
land for an agricultural use or for use as an animal feed, if the
use is consistent with generally accepted agricultural management
practices at the time of the application or stamp sands:
(i) Any substance that the department demonstrates, on a case
by case basis, poses an unacceptable risk to the public health,
safety, or welfare, or the environment, considering the fate of the
material, dose-response, toxicity, or adverse impact on natural
resources.
(ii) Hazardous substance as defined in the comprehensive
environmental response, compensation, and liability act, 42 USC
9601 to 9675.
(iii) Hazardous waste as defined in part 111.
(iv) Petroleum as described as a regulated substance in
section 21303.
(y) "Interim response activity" means the cleanup or removal
of a released hazardous substance or the taking of other actions,
prior to the implementation of a remedial action, as may be
necessary to prevent, minimize, or mitigate injury to the public
health, safety, or welfare, or to the environment. Interim response
activity also includes, but is not limited to, measures to limit
access, replacement of water supplies, and temporary relocation of
people as determined to be necessary by the department. In
addition, interim response activity means the taking of other
actions as may be necessary to prevent, minimize, or mitigate a
threatened release.
(z) "Lender" means any of the following:
(i) A state or nationally chartered bank.
(ii) A state or federally chartered savings and loan
association or savings bank.
(iii) A state or federally chartered credit union.
(iv) Any other state or federally chartered lending
institution.
(v) Any state or federally regulated affiliate or regulated
subsidiary of any entity listed in subparagraphs (i) to (iv).
(vi) An insurance company authorized to do business in this
state pursuant to the insurance code of 1956, 1956 PA 218, MCL
500.100 to 500.8302.
(vii) A motor vehicle sales finance company subject to the
motor vehicle sales finance act, 1950 (Ex Sess) PA 27, MCL 492.101
to 492.141, with net assets in excess of $50,000,000.00.
(viii) A foreign bank.
(ix) A retirement fund regulated pursuant to state law or a
pension fund regulated pursuant to federal law with net assets in
excess of $50,000,000.00.
(x) A state or federal agency authorized by law to hold a
security interest in real property or a local unit of government
holding a reversionary interest in real property.
(xi) A nonprofit tax exempt organization created to promote
economic development in which a majority of the organization's
assets are held by a local unit of government.
(xii) Any other person that loans money for the purchase of or
improvement of real property.
(xiii) Any person that retains or receives a security interest
to service a debt or to secure a performance obligation.
(aa) "Local health department" means that term as defined in
section 1105 of the public health code, 1978 PA 368, MCL 333.1105.
(bb) "Local unit of government" means a county, city,
township, or village, an agency of a local unit of government, an
authority or any other public body or entity created by or pursuant
to state law. Local unit of government does not include this state
or the federal government or a state or federal agency.
(cc) "Method detection limit" means the minimum concentration
of a hazardous substance that can be measured and reported with 99%
confidence that the analyte concentration is greater than zero and
is determined from analysis of a sample in a given matrix that
contains the analyte.
(dd)
"Migrating NAPL" means that terms term as
it is defined
in section 21302.
(ee) "Mobile NAPL" means that term as it is defined in section
21302.
(ff) "NAPL" means that term as it is defined in section 21303.
(gg) "No further action letter" means a written response
provided by the department under section 20114d confirming that a
no further action report has been approved after review by the
department.
(hh) "No further action report" means a report under section
20114d detailing the completion of remedial actions and including a
postclosure plan and a postclosure agreement, if appropriate.
(ii) "Nonresidential" means that category of land use for
parcels of property or portions of parcels of property that is not
residential. This category of land use may include, but is not
limited to, any of the following:
(i) Industrial, commercial, retail, office, and service uses.
(ii) Recreational properties that are not contiguous to
residential property.
(iii) Hotels, hospitals, and campgrounds.
(iv) Natural areas such as woodlands, brushlands, grasslands,
and wetlands.
(jj) "Operator" means a person who is in control of or
responsible for the operation of a facility. Operator does not
include either of the following:
(i) A person who holds indicia of ownership primarily to
protect the person's security interest in the facility, unless that
person participates in the management of the facility as described
in section 20101a.
(ii) A person who is acting as a fiduciary in compliance with
section 20101b.
(kk) "Owner" means a person who owns a facility. Owner does
not include either of the following:
(i) A person who holds indicia of ownership primarily to
protect the person's security interest in the facility, including,
but not limited to, a vendor's interest under a recorded land
contract, unless that person participates in the management of the
facility as described in section 20101a.
(ii) A person who is acting as a fiduciary in compliance with
section 20101b.
(ll) "Panel" means the response activity review panel
established under section 20114e.
(mm) "Permitted release" means 1 or more of the following:
(i) A release in compliance with an applicable, legally
enforceable permit issued under state law.
(ii) A lawful and authorized discharge into a permitted waste
treatment facility.
(iii) A federally permitted release as defined in the
comprehensive environmental response, compensation, and liability
act, 42 USC 9601 to 9675.
(nn) "Postclosure agreement" means an agreement between the
department and a person who has submitted a no further action
report that prescribes, as appropriate, activities required to be
undertaken upon completion of remedial actions as provided for in
section 20114d.
(oo) "Postclosure plan" means a plan for land use or resource
use restrictions or permanent markers at a facility upon completion
of remedial actions as provided for in section 20114c.
(pp) "Release" includes, but is not limited to, any spilling,
leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing of a hazardous
substance into the environment, or the abandonment or discarding of
barrels, containers, and other closed receptacles containing a
hazardous substance. Release does not include any of the following:
(i) A release that results in exposure to persons solely
within a workplace, with respect to a claim that these persons may
assert against their employers.
(ii) Emissions from the engine exhaust of a motor vehicle,
rolling stock, aircraft, or vessel.
(iii) A release of source, by-product, or special nuclear
material from a nuclear incident, as those terms are defined in the
atomic energy act of 1954, 42 USC 2011 to 2286i, if the release is
subject to requirements with respect to financial protection
established by the nuclear regulatory commission under 42 USC 2210,
or any release of source by-product or special nuclear material
from any processing site designated under 42 USC 7912(a)(1) or 42
USC 7942(a).
(iv) If applied according to label directions and according to
generally accepted agricultural and management practices at the
time of the application, the application of a fertilizer, soil
conditioner, agronomically applied manure, or pesticide, or fruit,
vegetable, or field crop residuals or processing by-products,
aquatic plants, or a combination of these substances. As used in
this subparagraph, fertilizer and soil conditioner have the meaning
given to these terms in part 85, and pesticide has the meaning
given to that term in part 83.
(v) Application of fruits, vegetables, field crop processing
by-products, or aquatic plants to the land for an agricultural use
or for use as an animal feed, if the use is consistent with
generally accepted agricultural and management practices at the
time of the application.
(vi) The relocation of soil under section 20120c.
(vii) The placement, storage, or use of beneficial use by-
products or inert materials at the site of storage or use if in
compliance with part 115.
(qq) "Remedial action" includes, but is not limited to,
cleanup, removal, containment, isolation, destruction, or treatment
of a hazardous substance released or threatened to be released into
the environment, monitoring, maintenance, or the taking of other
actions that may be necessary to prevent, minimize, or mitigate
injury to the public health, safety, or welfare, or to the
environment.
(rr) "Remedial action plan" means a work plan for performing
remedial action under this part.
(ss) "Residential" means that category of land use for parcels
of property or portions of parcels of property where people live
and sleep for significant periods of time such that the frequency
of exposure is reasonably expected or foreseeable to meet the
exposure assumptions used by the department to develop generic
residential cleanup criteria as set forth in rules promulgated
under this part. This category of land use may include, but is not
limited to, homes and surrounding yards, condominiums, and
apartments.
(tt) "Residential closure" means a property at which the
contamination has been addressed in a no further action report that
satisfies the limited residential cleanup criteria under section
20120a(1)(c) or the site-specific residential cleanup criteria
under sections 20120a(2) and 20120b, that contains land use or
resource use restrictions, and that is approved by the department
or is considered approved by the department under section 20120d.
(uu) "Residual NAPL saturation" means that term as it is
defined in part 213.
(vv) "Response activity" means evaluation, interim response
activity, remedial action, demolition, providing an alternative
water supply, or the taking of other actions necessary to protect
the public health, safety, or welfare, or the environment or the
natural resources. Response activity also includes health
assessments or health effect studies carried out under the
supervision, or with the approval of, the department of community
health and enforcement actions related to any response activity.
(ww) "Response activity costs" or "costs of response activity"
means all costs incurred in taking or conducting a response
activity, including enforcement costs.
(xx) "Response activity plan" means a plan for undertaking
response activities. A response activity plan may include 1 or more
of the following:
(i) A plan to undertake interim response activities.
(ii) A plan for evaluation activities.
(iii) A feasibility study.
(iv) A remedial action plan.
(yy) "Security interest" means any interest, including a
reversionary interest, in real property created or established for
the purpose of securing a loan or other obligation. Security
interests include, but are not limited to, mortgages, deeds of
trusts, liens, and title pursuant to lease financing transactions.
Security interests may also arise from transactions such as sale
and leasebacks, conditional sales, installment sales, trust receipt
transactions, certain assignments, factoring agreements, accounts
receivable financing arrangements, consignments, or any other
transaction in which evidence of title is created if the
transaction creates or establishes an interest in real property for
the purpose of securing a loan or other obligation.
(zz) "Source" means any storage, handling, distribution, or
processing equipment from which the release originates and first
enters the environment.
(aaa) "Stamp sands" means finely grained crushed rock
resulting from mining, milling, or smelting of copper ore and
includes native substances contained within the crushed rock and
any ancillary material associated with the crushed rock.
(bbb) "Target detection limit" means the detection limit for a
hazardous substance in a given environmental medium that is
specified
in a rule promulgated by the department on a list that it
publishes not more than once a year. The department shall identify
1 or more analytical methods, when a method is available, that are
judged to be capable of achieving the target detection limit for a
hazardous substance in a given environmental medium. The target
detection limit for a given hazardous substance is greater than or
equal to the method detection limit for that hazardous substance.
In establishing a target detection limit, the department shall
consider the following factors:
(i) The low level capabilities of methods published by
government agencies.
(ii) Reported method detection limits published by state
laboratories.
(iii) Reported method detection limits published by commercial
laboratories.
(iv) The need to be able to measure a hazardous substance at
concentrations at or below cleanup criteria.
(ccc) "Threatened release" or "threat of release" means any
circumstance that may reasonably be anticipated to cause a release.
(ddd) "Venting groundwater" means groundwater that is entering
a surface water of this state from a facility.
(2) As used in this part:
(a) The phrase "a person who is liable" includes a person who
is described as being subject to liability in section 20126. The
phrase "a person who is liable" does not presume that liability has
been adjudicated.
(b) The phrase "this part" includes "rules promulgated under
this part".
Sec. 20114d. (1) Upon completion of remedial actions that
satisfy the requirements of this part, a person may submit a no
further action report to the department. A person may submit a no
further action report under this subsection for remedial actions
addressing contamination for which the person is or is not liable.
Remedial actions included in a no further action report may address
all or a portion of contamination at a facility as follows:
(a) The remedial actions may address 1 or more releases at a
facility.
(b) The remedial actions may address 1 or more hazardous
substances at a facility.
(c) The remedial actions may address contamination in 1 or
more environmental media at a facility.
(d) The remedial actions may address contamination within the
entire facility or only a portion of a facility.
(e) The remedial actions may address contamination at a
facility through any combination of subdivisions (a) through (d).
(2) A no further action report submitted under subsection (1)
must document the basis for concluding that the remedial actions
included
in the no further action report are protective of the
public
health, safety, and welfare, and the environment with
respect
to the environmental contamination addressed by the
remedial
actions. have been completed.
A no further action report
may include a request that, upon approval, the release or
conditions addressed by the no further action report 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.
(3) 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 for the hazardous
substances and portion of the facility addressed in the no further
action report, 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.
(c) For circumstances other than those described in
subdivision (a) or (b), a postclosure plan and a proposed
postclosure agreement are required to be submitted.
(4) A proposed postclosure agreement that is submitted as part
of a no further action report must 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.
(c) A provision requiring 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 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.
(5) A postclosure agreement may waive the requirement for
permanent markers.
(6) 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 must 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 must not exclude bodily injury, property damage, or
claims arising out of pollution for environmental work and must be
issued with a limit of not less than $1,000,000.00 per claim.
(c) Contractor pollution liability insurance with limits of
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.
(7) 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.
(8) 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 must, 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.
(9) If the department fails to provide a written response
within the time frames required by subsection (8), the no further
action report is considered approved.
(10) A person requesting approval of a no further action
report under subsection (8) may appeal the department's decision in
accordance with section 20114e.
(11) 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 must be
in writing.
(12) 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 must 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. 20114e. (1) The director shall establish a response
activity review panel to advise him or her on technical or
scientific disputes, including disputes regarding assessment of
risk, response activity plans, no further action reports,
certificates of completion, and documentation of due care
compliance under this part, and initial assessment reports, final
assessment reports, closure reports, and documentation of due care
compliance under part 213.
(2) The panel must consist of 15 individuals, appointed by the
director. Each member of the panel must meet all of the following
minimum requirements:
(a) Meet 1 or more of the following:
(i) Hold a current professional engineer's or professional
geologist's license or registration from a state, tribe, or United
States territory, or the Commonwealth of Puerto Rico, and have the
equivalent of 6 years of full-time relevant experience.
(ii) Have a baccalaureate degree from an accredited
institution of higher education in a discipline of engineering or
science and the equivalent of 10 years of full-time relevant
experience.
(iii) Have a master's degree from an accredited institution of
higher education in a discipline of engineering or science and the
equivalent of 8 years of full-time relevant experience.
(b) Remain current in his or her field through participation
in continuing education or other activities.
(3) An individual is not eligible to be a member of the panel
if any of the following is true:
(a) The individual is a current employee of any office,
department, or agency of this state.
(b) The individual is a party to 1 or more contracts with the
department and the compensation paid under those contracts
represented more than 5% of the individual's annual gross revenue
in any of the preceding 3 years.
(c) The individual is employed by an entity that is a party to
1 or more contracts with the department and the compensation paid
to the individual's employer under these contracts represented more
than 5% of the employer's annual gross revenue in any of the
preceding 3 years.
(d) The individual was employed by the department within the
preceding 3 years.
(4) An individual appointed to the panel serves for a term of
3 years and may be reappointed for 1 additional 3-year term. After
serving 2 consecutive terms, the individual shall not be a member
of the panel for a period of at least 2 years before being eligible
to be appointed to the panel again. The terms for members first
appointed must be staggered so that not more than 5 vacancies are
scheduled to occur in a single year. Individuals appointed to the
panel serve without compensation. However, members of the panel may
be reimbursed for their actual and necessary expenses incurred in
the performance of their official duties as members of the panel.
(5) A vacancy on the panel shall be filled in the same manner
as the original appointment.
(6) The business that the panel may perform shall be conducted
at a public meeting of the panel held in compliance with the open
meetings act, 1976 PA 267, MCL 15.261 to 15.275.
(7)
A person who submitted a response activity plan; remedial
action
plan; postclosure plan; a no
further action report; a
request for certificate of completion or documentation of due care
compliance under this part; or an initial assessment report, final
assessment report, closure report, or documentation of due care
compliance under part 213 may appeal a decision made by the
department regarding a technical or scientific dispute, including a
dispute regarding an assessment of risk, response activity plan, no
further action report, request for certificate of completion,
initial assessment report, final assessment report, closure report,
or documentation of due care compliance by submitting a petition to
the director. However, an issue that was addressed as part of the
final decision of the director under section 21332 or that is the
subject of a contested case hearing under section 21332 is not
eligible for review by the panel. The petition must include the
issues in dispute, the relevant facts upon which the dispute is
based, factual data, analysis, opinion, and supporting
documentation for the petitioner's position. The petitioner shall
also submit a fee of $3,500.00. If the director believes that the
dispute may be able to be resolved without convening the panel, the
director may contact the petitioner regarding the issues in dispute
and may negotiate a resolution of the dispute. This negotiation
period must not exceed 45 days. If the dispute is resolved without
convening the panel, any fee that is submitted with the petition
shall be returned.
(8) If a dispute is not resolved pursuant to subsection (7),
the director shall schedule a meeting of 5 members of the panel,
selected on the basis of their relevant expertise, within 45 days
after receiving the original petition. If the dispute involves an
underground storage tank system, at least 3 of the members selected
must have relevant experience in the American Society for Testing
and Materials risk-based corrective action processes described in
part 213. A member selected for the dispute resolution process
shall agree not to accept employment by the person bringing the
dispute before the panel, or to undertake any employment concerning
the facility in question for a period of 1 year after the decision
has been rendered on the matter if that employment would represent
more than 5% of the member's gross revenue in any of the preceding
3 years. The director shall provide a copy of all supporting
documentation to members of the panel who will hear the dispute. An
alternative member may be selected by the director to replace a
member who is unable to participate in the dispute resolution
process. Any action by the members selected to hear the dispute
requires a majority of the votes cast. The members selected for the
dispute resolution process shall elect a chairperson of the dispute
resolution process. At a meeting scheduled to hear the dispute,
representatives of the petitioner and the department must each be
afforded an opportunity to present their positions to the panel.
The fee that is received by the director along with the petition
shall be forwarded to the state treasurer for deposit into the
fund.
(9) Within 45 days after hearing the dispute, the members of
the panel who were selected for and participated in the dispute
resolution process shall make a recommendation regarding the
petition and provide written notice of the recommendation to the
director of the department and the petitioner. The written
recommendation must include the specific scientific or technical
rationale for the recommendation. The panel's recommendation
regarding the petition may be to adopt, modify, or reverse, in
whole or in part, the department's decision that is the subject of
the petition. If the panel does not make its recommendation within
this 45-day time period, the decision of the department is the
final decision of the director.
(10) Within 60 days after receiving written notice of the
panel's recommendation, the director shall issue a final decision,
in writing, regarding the petition. However, this time period may
be extended by written agreement between the director and the
petitioner. If the director agrees with the recommendation of the
panel, the department shall incorporate the recommendation into its
response to the response activity plan, no further action report,
request for certificate of completion, initial assessment report,
final assessment report, closure report, or documentation of due
care compliance. If the director rejects the recommendation of the
panel, the director shall issue a written decision to the
petitioner with a specific rationale for rejecting the
recommendation of the panel. If the director fails to issue a final
decision within the time period provided for in this subsection,
the recommendation of the panel shall be considered the final
decision of the director. The final decision of the director under
this subsection is subject to review pursuant to section 631 of the
revised judicature act of 1961, 1961 PA 236, MCL 600.631.
(11) Upon request of the director, the panel shall make a
recommendation to the department on whether a member should be
removed from the panel for noncompliance with this part. Prior to
making this recommendation, the panel may convene a peer review
panel to evaluate the conduct of the member.
(12) A member of the panel shall not participate in the
dispute resolution process for any appeal in which that member has
a conflict of interest. The director shall select a member of the
panel to replace a member who has a conflict of interest under this
subsection. For purposes of this subsection, a member has a
conflict of interest if a petitioner has hired that member or the
member's employer on any environmental matter within the preceding
3 years.
(13)
As used in this section, :
(a) "Dispute" means any disagreement
over a technical,
scientific, or administrative issue, including, but not
limited to,
disagreements over assessment of risk, response
activity plans,
remedial action plans, no further action reports,
certificates of
completion, documentation of due care compliance
under this part,
determinations of whether a person has submitted
sufficient
information for the department to make a decision
regarding a
submittal under this part or part 213, and initial
assessment
reports, final assessment reports, closure reports,
postclosure
plans, and documentations of due care compliance
under part 213.
(b)
"Relevant "relevant
experience" means active
participation
in the preparation, design, implementation, and assessment of
remedial investigations, feasibility studies, interim response
activities, and remedial actions under this part or experience in
the
American society Society for testing Testing and materials
Materials risk-based corrective action processes described in part
213. This experience must demonstrate the exercise of sound
professional judgment and knowledge of the requirements of this
part or part 213, or both.
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) Nonresidential.
(c) Limited residential.
(d) Limited nonresidential.
(2) 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. 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 that are determined by the department to appropriately
characterize patterns of human exposure associated with certain
land uses. The department shall consider only reasonable and
relevant exposure pathways and factors 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. When developing and
promulgating
cleanup criteria under subsection (1), the department
shall
do all of the following:
(a)
Except as set forth in subdivision (c), for each hazardous
substance,
use final toxicity values from the United States
Environmental
Protection Agency integrated risk information system,
or
more recent United States Environmental Protection Agency Office
of
Pesticide Programs toxicity values for pesticides that are
incorporated
by the integrated risk information system in place of
values
that have been archived by the integrated risk information
system,
if available. If the United States Environmental Protection
Agency
has determined that there is insufficient scientific data to
derive
a value for inclusion in the integrated risk information
system,
the department shall not derive or adopt such a value for
that
hazardous substance. If a value is not available in the
integrated
risk information system, the department shall apply the
following
order of precedence when selecting toxicity values:
(i) The best value from the agency for toxic
substances and
disease
registry final minimal risk levels for hazardous substances
or
the United States Environmental Protection Agency provisional
peer-reviewed
toxicity values.
(ii) If a value is not available under subparagraph (i), the
best
final value from the United States Environmental Protection
Agency
health effects assessment summary table, or final values
adopted
by other states, the World Health Organization, Canada, or
the
European Union.
(iii) If a value is not available under subparagraph (i) or
(ii), a value developed by the department if there is
sufficient
supporting
toxicity data and information available in the peer-
reviewed
published scientific literature.
(b)
Apply the following order of precedence when selecting
chemical
or physical data for the development of cleanup criteria:
(i) The best relevant experimentally measured data.
(ii) If data is not available under subparagraph (i), the best
relevant
modeled or estimated data.
(c)
If the department desires to use a toxicity value or input
that
is different than a value that is available on the United
States
Environmental Protection Agency integrated risk information
system,
or more recent United States Environmental Protection
Agency
Office of Pesticide Programs toxicity values for pesticides
that
are incorporated by the integrated risk information system in
place
of values that have been archived by the integrated risk
information
system, or desires to establish a value when the
Environmental
Protection Agency determined that there was
insufficient
scientific data to do so when last evaluated by the
Environmental
Protection Agency, the department shall provide
public
notice and a written explanation of its intent to do so and
conduct
a stakeholder process to obtain input. After obtaining
stakeholder
input, the department may promulgate a rule to use an
alternative
value in accordance with the order of precedence set
forth
in subdivision (a)(i)
through (iii), if
the department
demonstrates
all of the following:
(i) The integrated risk information system value is
based on a
determination
that is at least 10 years old.
(ii) There is more current data in the peer-reviewed
scientific
literature that is used on a general basis by the United
States
Environmental Protection Agency or multiple other regulatory
agencies
nationally for the purpose of calculating cleanup criteria
or
standards.
(iii) After assessing the body of evidence for the
hazardous
substance
using a rigorous systematic review methodology, such as
that
used by the National Toxicology Program's Office of Health
Assessment
and Translation and the European Food Safety Authority,
the
weight of scientific evidence clearly supports the use of the
proposed
value as best available science for the purpose of
calculating
generic cleanup criteria.
(d)
Use a daily exposure time for inhalation in the exposure
intake
for a nonresidential worker in an algorithm or equation used
to
calculate generic cleanup criteria under this part that is equal
to
the average number of hours, not to exceed 10 hours, that a
nonresidential
worker spends working in a 5-day work week according
to
the most appropriate governmental data or information.
(e)
When the department considers the pregnant woman as a
potential
sensitive receptor to address prenatal developmental
effects,
the department may apply a single-event exposure scenario
for
a hazardous substance, pursuant to the process set forth in
subdivision
(f), only when either of the following occurs:
(i) The United States Environmental Protection Agency
applies
a
single-event exposure scenario to establish regional screening
levels
for that hazardous substance.
(ii) The department demonstrates, after conducting a
comprehensive
assessment of the specific hazardous substance, that,
for
that specific hazardous substance, a single exposure may result
in
an adverse effect and the weight of scientific evidence supports
the
application of a single-event exposure scenario. The
department's
comprehensive assessment must evaluate the body of
scientific
evidence using a systematic review methodology, such as
that
used by the National Toxicology Program's Office of Health
Assessment
and Translation and the European Food Safety Authority.
The
comprehensive assessment must, if appropriate, take into
account
all of the following:
(A)
Whether there is data available involving single-day
exposures
to the hazardous substance during pregnancy.
(B)
The differences in sensitivity, periods of development,
and
progression of different types of developmental effects in
humans
and animals.
(C)
Differences in toxicokinetics between species.
(f)
Before conducting the comprehensive assessment in
subdivision
(e)(ii), the
department shall provide public notice and
a
written explanation of its intent to do so. Upon completion of
the
assessment, the department shall conduct a stakeholder process
to
obtain input. If, upon obtaining stakeholder input, the
department
elects to apply a single-event exposure scenario for a
particular
hazardous substance, the department shall do so in a
rule.
(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 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 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 is 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.
(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 must include documentation that the
current property use is consistent with the current zoning or is a
legal nonconforming use. Abandoned or inactive property must 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 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 if the department determines all of the
following:
(a) That application of the model results in a criterion that
more accurately reflects the risk posed.
(b) That data of sufficient quantity and quality are available
for a specified hazardous substance to allow the scientifically
valid application of the model.
(c) The United States Environmental Protection Agency has
determined that application of the model is appropriate for the
hazardous substance in question.
(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 subsection (1), the
criterion is 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.
(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, 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 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)
The department shall promulgate all generic cleanup
criteria
and target detection limits as rules. Except for generic
cleanup
criteria and target detection limits developed before
January
11, 2018, and those generic cleanup criteria determined as
set
forth in subsections (5) and (23) and section 20120e(1)(a),
generic
cleanup criteria and target detection limits, and any
modifications
or revisions to generic cleanup criteria and target
detection
limits, are not legally enforceable until promulgated as
rules.
The generic cleanup criteria and target detection limits are
subject
to all of the following:
(a)
The department may periodically repromulgate rules for any
portion
of the generic cleanup criteria to adopt and use new
toxicity
values or chemical or physical data selected pursuant to
subsection
(3)(a) and (b) or to otherwise update the generic
cleanup
criteria in accordance with this part to incorporate, as
appropriate,
(17) Not later than December 31, 2013, the department shall
evaluate and revise cleanup criteria derived under this section.
The evaluation and any revisions shall incorporate knowledge gained
through research and studies in the areas of fate and transport and
risk assessment taking into account best practices from other
states, reasonable and realistic conditions, and sound science.
Following the 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 the cleanup criteria derived under this section.
The
department may also repromulgate rules that establish target
detection
limits to update those limits in accordance with this
part.
(b)
If generic cleanup criteria are included in or relied upon
as
a basis for decision in a work plan, response activity plan,
remedial
action plan, postclosure plan, request for certificate of
completion,
or similar document, that is submitted to the
department
or approved by the department prior to the effective
date
of a rule revising those cleanup criteria, then the generic
cleanup
criteria effective at the time of submittal or prior
approval
continue to apply to the review, revision, or
implementation
of the plan, request, or document, as well as to any
future
review, approval, or disapproval of a no further action
report
or any part thereof that is based on the plan, request, or
document,
unless either of the following occur:
(i) The person making the submittal voluntarily elects
to
apply
the revised cleanup criteria.
(ii) The department director makes a site-specific
demonstration,
based on clear and convincing evidence, that the
prior
cleanup criteria are no longer protective of the public
health,
safety, or welfare, or the environment, given the totality
of
circumstances at the site, including any site-specific factors
that
reduce exposure or risk, such as the existence of land or
resource
use restrictions that reduce or restrict exposure. This
subparagraph
does not apply if, no later than 6 months after the
promulgation
of the rule revision changing the cleanup criteria,
both
of the following conditions are met:
(A)
The person has substantially completed all active
remediation
as set forth in the approved plan, request, or similar
document,
and only monitoring, maintenance, or postclosure
activities
remain.
(B)
The person submits a request for a no further action
approval
to the department.
(c)
No further action reports that have been approved by the
department
and that rely on cleanup criteria that have been
subsequently
revised remain valid, subject to the liability
provisions
of section 20126(4)(e).
(d)
If generic cleanup criteria are included in or relied upon
as
a basis for decision in a no further action report, other than a
no
further action report described in subdivision (b)(ii), that is
submitted
to the department but not yet approved by the department
prior
to the effective date of a rule revising those cleanup
criteria,
then the generic cleanup criteria effective at the time
of
submittal continue to apply to the review, revision, and
approval
of the report unless either of the following occur:
(i) The person making the submittal voluntarily elects
to
apply
the revised cleanup criteria.
(ii) The department director makes a site-specific
demonstration,
based on clear and convincing evidence, that the
prior
generic cleanup criteria are no longer protective of the
public
health, safety, or welfare, or the environment, given the
totality
of circumstances at the site, including any site-specific
factors
that reduce exposure or risk, such as the existence of land
or
resource use restrictions that reduce or restrict exposure.
(e)
A demonstration by the department director under
subdivision
(b) or (d) that prior cleanup criteria are no longer
protective
of the public health, safety, or welfare, or the
environment,
is appealable in accordance with section 20114e.
(f)
Notwithstanding subdivisions (b) through (d), an owner's
or
operator's obligations under section 20107a shall be based upon
the
current numeric cleanup criteria under section 20120a(1) or
site-specific
criteria approved under section 20120b.
(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, United States, 2012,
published by the 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 air contaminants, R 325.51101 to
R 325.51108 of the Michigan 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 hazard communication rules, R 325.77001 to R 325.77004 of the
Michigan 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 promulgate as rules make available
the
algorithms used to calculate , modify, or revise all
residential and nonresidential generic cleanup criteria, as well as
the tables listing, by hazardous substance, all toxicity, exposure,
and other algorithm factors or variables used in the department's
calculations. ,
modifications, or revisions.
(20)
Calculation and application of toxic equivalency
quotients
are subject to the following:
(a)
The toxic equivalency factors used must only be those
adopted
by the World Health Organization.
(b)
When compounds contributed by 2 or more persons acting
independently
are combined in a toxic equivalency quotient to
assess
human health risks, harm is divisible and subject to
apportionment
of liability under subsections 20129(1) and (2).
(c)
To assess human health risks, the toxic equivalency
quotient
must be compared to generic or site-specific criteria for
the
reference hazardous substance.
(21)
Polychlorinated dibenzodioxin and dibenzofuran congeners
are
not likely to leach from soil to groundwater. The groundwater
surface
water interface protection and the residential drinking
water
protection exposure pathways are not applicable or relevant
when
assessing polychlorinated dibenzodioxin and dibenzofuran
congeners
unless the department demonstrates that those congeners
are
leaching at material concentrations through co-solvation.
(22)
Polychlorinated dibenzodioxin and dibenzofuran congeners
are
not likely to volatilize from soil or groundwater into the air.
Vapor
inhalation exposure pathways are not applicable or relevant
when
assessing polychlorinated dibenzodioxin and dibenzofuran
congeners.
(23)
For a substance that does not have generic cleanup
criteria,
if, based on the best available information, the
department
determines that the substance is a hazardous substance,
the
department may calculate generic cleanup criteria for that
hazardous
substance using toxicity values and chemical and physical
data
selected pursuant to subsection (3)(a) and (b) and in
accordance
with all other requirements of this part and publish the
generic
cleanup criteria on the department's website. Within 30
days
after publishing the new generic cleanup criteria, the
department
shall initiate rule-making to promulgate rules for the
new
criteria by filing a rule-making request under section 39 of
the
administrative procedures act, 1969 PA 306, MCL 24.239. The
rule-making
request shall only include the revisions necessary to
promulgate
the new generic cleanup criteria. The new generic
cleanup
criteria published pursuant to this subsection take effect
and
are legally enforceable when published by the department if the
department
also initiates rule-making to promulgate rules for the
new
criteria within 30 days. The new generic cleanup criteria
published
pursuant to this subsection remain effective and legally
enforceable
until replaced by a final rule or, until the director
directs
the department to withdraw the rule request under section
66(11)
of the administrative procedures act, 1969 PA 306, MCL
24.266,
or the time limitation in either section 45(1) or section
66(12)
of the administrative procedures act, 1969 PA 306, MCL
24.245
and 24.266, is not met.
Sec.
20120b. (1) Subject to subsection (4), the 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 demonstration, an
ecological 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 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.
(4)
Site-specific criteria approved by the department are not
invalidated
by subsequent changes to the generic criteria for that
hazardous
substance, including changes to toxicity, exposure, or
other
values or variables used by the department to calculate the
generic
criteria.
Enacting section 1. Section 20120f of the natural resources
and environmental protection act, 1994 PA 451, MCL 324.20120f, is
repealed.
