Bill Text: MI SB0891 | 2013-2014 | 97th Legislature | Engrossed
Bill Title: Environmental protection; cleanups; part 201 cleanup program; provide general amendments. Amends secs. 20101, 20107a, 20114, 20114c, 20114d, 20116, 20118, 20120a, 20120b, 20120d & 20126 of 1994 PA 451 (MCL 324.20101 et seq.) & adds sec. 20121.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2014-12-31 - Assigned Pa 0542'14 With Immediate Effect [SB0891 Detail]
Download: Michigan-2013-SB0891-Engrossed.html
SB-0891, As Passed House, December 16, 2014
HOUSE SUBSTITUTE FOR
SENATE BILL NO. 891
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 20101, 20101c, 20107a, 20114, 20114c, 20114d,
20116, 20118, 20120a, 20120b, 20120d, and 20126 (MCL 324.20101,
324.20101c, 324.20107a, 324.20114, 324.20114c, 324.20114d,
324.20116, 324.20118, 324.20120a, 324.20120b, 324.20120d, and
324.20126), section 20101 as amended and section 20101c as added by
2014 PA 258, section 20107a as amended by 2010 PA 233, sections
20114, 20114c, 20114d, 20120a, and 20120b as amended by 2012 PA
446, sections 20116 and 20118 as amended by 1995 PA 71, section
20120d as amended by 2010 PA 228, and section 20126 as amended by
2014 PA 179, and by adding section 20121.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 20101. (1) As used in this part:
(a) "Act of God" means an unanticipated grave natural disaster
or other natural phenomenon of an exceptional, inevitable, and
irresistible character, the effects of which could not have been
prevented or avoided by the exercise of due care or foresight.
(b) "Agricultural property" means real property used for
farming in any of its branches, including cultivating of soil;
growing and harvesting of any agricultural, horticultural, or
floricultural commodity; dairying; raising of livestock, bees,
fish, fur-bearing animals, or poultry; turf and tree farming; and
performing any practices on a farm as an incident to, or in
conjunction with, these farming operations. Agricultural property
does not include property used for commercial storage, processing,
distribution, marketing, or shipping operations.
(c) "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 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, and falls
within
the typical ranges published in that document.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. However, for For purposes
of a baseline
environmental
assessment, the all appropriate inquiry under 40 CFR
312.20(a)
may be conducted within 45 days after the date of
acquisition
of a property and the components of an all appropriate
inquiry
under 40 CFR 312.20(b) and 40 CFR 312.20(c)(3) may be
conducted or updated prior to or within 45 days after the earlier
of
the date of acquisition of a
property.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
either
any of the following:
(i) Cleanup criteria that satisfy the requirements for the
residential
category in section 20120a(1)(a). or (16).
(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 the 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, or 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, or 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, or parcel of
property, or portion of a parcel of property are met or satisfied
and
both of the following conditions are met:
(A)
The site-specific criteria do not depend on any land use
or
resource use restriction to ensure protection of the public
health,
safety, or welfare or the environment.
(B)
Hazardous 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 of a property by a lender
on which it has foreclosed on a security interest or the expiration
of a lawful redemption period, whichever occurs first.
(w)
"Free product" means a hazardous substance in a liquid
phase
equal to or greater than 1/8 inch of measurable thickness
that
is not dissolved in water and that has been released into the
environment.
(w) (x)
"Fund" means the cleanup
and redevelopment fund
established in section 20108.
(x) (y)
"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) (z)
"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) (aa)
"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 who loans money for the purchase of or
improvement of real property.
(xiii) Any person who retains or receives a security interest to
service a debt or to secure a performance obligation.
(aa) (bb)
"Local health department"
means that term as defined
in section 1105 of the public health code, 1978 PA 368, MCL
333.1105.
(bb) (cc)
"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) (dd)
"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 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) (ee)
"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) (ff)
"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) (gg)
"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) (hh)
"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) (ii)
"Panel" means the
response activity review panel
created in section 20114e.
(mm) (jj)
"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) (kk)
"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) (ll) "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) (mm)
"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) (nn)
"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) (oo)
"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) (pp)
"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) (qq)
"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) (rr)
"Response activity costs"
or "costs of response
activity" means all costs incurred in taking or conducting a
response activity, including enforcement costs.
(xx) (ss)
"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) (tt)
"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) (uu)
"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) (vv)
"Target detection limit"
means the detection limit
for a hazardous substance in a given environmental medium that is
specified 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) (ww)
"Threatened release" or
"threat of release" means
any circumstance that may reasonably be anticipated to cause a
release.
(ddd) (xx)
"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.
20101c. Property where onto
which stamp sands have been
deposited is not subject to regulation under this part unless the
property otherwise contains hazardous substances in excess of the
concentrations that satisfy cleanup criteria for unrestricted
residential use.
Sec. 20107a. (1) A person who owns or operates property that
he or she has knowledge is a facility shall do all of the following
with respect to hazardous substances at the facility:
(a) Undertake measures as are necessary to prevent
exacerbation.
(b) Exercise due care by undertaking response activity
necessary to mitigate unacceptable exposure to hazardous
substances, mitigate fire and explosion hazards due to hazardous
substances, and allow for the intended use of the facility in a
manner that protects the public health and safety.
(c) Take reasonable precautions against the reasonably
foreseeable acts or omissions of a third party and the consequences
that foreseeably could result from those acts or omissions.
(d) Provide reasonable cooperation, assistance, and access to
the persons that are authorized to conduct response activities at
the facility, including the cooperation and access necessary for
the installation, integrity, operation, and maintenance of any
complete or partial response activity at the facility. Nothing in
this subdivision shall be interpreted to provide any right of
access not expressly authorized by law, including access authorized
pursuant to a warrant or a court order, or to preclude access
allowed pursuant to a voluntary agreement.
(e) Comply with any land use or resource use restrictions
established or relied on in connection with the response activities
at the facility.
(f) Not impede the effectiveness or integrity of any land use
or resource use restriction employed at the facility in connection
with response activities.
(2) The owner's or operator's obligations under this section
shall be based upon the current numeric cleanup criteria under
section 20120a(1) or site-specific criteria approved under section
20120b.
(3) A person who violates subsection (1) who is not otherwise
liable under this part for the release at the facility is liable
for response activity costs and natural resource damages
attributable to any exacerbation and any fines or penalties imposed
under this part resulting from the violation of subsection (1) but
is not liable for performance of additional response activities
unless the person is otherwise liable under this part for
performance of additional response activities. The burden of proof
in a dispute as to what constitutes exacerbation shall be borne by
the party seeking relief.
(4) Compliance with this section does not satisfy a person's
obligation to perform response activities as otherwise required
under this part.
(5) Subsection (1)(a) to (c) does not apply to the state or to
a local unit of government that is not liable under section
20126(1)(c) or (3)(a), (b), (c), or (e) or to the state or a local
unit of government that acquired property by purchase, gift,
transfer, or condemnation prior to June 5, 1995 or to a person who
is exempt from liability under section 20126(4)(c). However, if the
state or local unit of government, acting as the operator of a
parcel of property that the state or local unit of government has
knowledge is a facility, offers access to that parcel on a regular
or continuous basis pursuant to an express public purpose and
invites the general public to use that property for the express
public purpose, the state or local unit of government is subject to
this section but only with respect to that portion of the facility
that is opened to and used by the general public for that express
purpose, and not the entire facility. Express public purpose
includes, but is not limited to, activities such as a public park,
municipal office building, or municipal public works operation.
Express public purpose does not include activities surrounding the
acquisition or compilation of parcels for the purpose of future
development.
(6) Subsection (1)(a) to (c) does not apply to a person who is
exempt from liability under section 20126(3)(c) or (d) except with
regard to that person's activities at the facility.
Sec. 20114. (1) Except as provided in subsection (4), an owner
or operator of property who has knowledge that the property is a
facility
and who is liable under section 20126 shall do all of the
following with respect to a release for which the owner or operator
is liable under section 20126:
(a)
Determine Subject to
subsection (6), determine the nature
and
extent of a the release at the facility.
(b) Make the following notifications:
(i) If the release is of a reportable quantity of a hazardous
substance under 40 CFR 302.4 and 302.6 (July 1, 2012 edition),
report the release to the department within 24 hours after
obtaining knowledge of the release.
(ii) If the owner or operator has reason to believe that 1 or
more hazardous substances are emanating from or have emanated from
and are present beyond the boundary of his or her property at a
concentration in excess of cleanup criteria for unrestricted
residential use, notify the department and the owners of property
where the hazardous substances are present within 30 days after
obtaining knowledge that the release has migrated.
(iii) If the release is a result of an activity that is subject
to permitting under part 615 and the owner or operator is not the
owner of the surface property and the release results in hazardous
substance concentrations in excess of cleanup criteria for
unrestricted residential use, notify the department and the surface
owner within 30 days after obtaining knowledge of the release.
(c)
Immediately stop or prevent the an
ongoing release at the
source.
(d)
Immediately implement source control or removal measures
to address, remove, or contain hazardous substances that are
released after June 5, 1995 if those measures are technically
practical,
are cost effective, and provide protection to abate an
unacceptable risk to the public health, safety, or welfare or the
environment. At a facility where hazardous substances are released
after June 5, 1995, and those hazardous substances have not
affected groundwater but are likely to, groundwater contamination
shall be prevented if it can be prevented by measures that are
technically
practical, cost effective, and provide protection to
abate an unacceptable risk to the public health, safety, or welfare
or the environment.
(e) Immediately identify and eliminate any threat of fire or
explosion or any direct contact hazards.
(f)
Immediately initiate removal of a hazardous substance that
is
in a liquid phase, that is not dissolved in water, and that has
been
released.Initiate a remedial
action that is necessary and
feasible to address unacceptable risks associated with residual
NAPL saturation, migrating NAPL, and mobile NAPL using best
practices for managing NAPL, including, but not limited to, best
practices developed by the American society for testing and
materials or the interstate technology and regulatory council.
(g) Diligently pursue response activities necessary to achieve
the cleanup criteria established under this part. Except as
otherwise provided in this part, in pursuing response activities
under this subdivision, the owner or operator may do either of the
following:
(i) Proceed under section 20114a to conduct self-implemented
response activities.
(ii) Proceed under section 20114b if the owner or operator
wishes to, or is required to, obtain departmental approval of 1 or
more aspects of planning response activities.
(h) Upon written request by the department, take 1 or more of
the following actions:
(i) Provide a response activity plan containing a plan for
undertaking interim response activities and undertake interim
response activities consistent with that plan.
(ii) Provide a response activity plan containing a plan for
undertaking evaluation activities and undertake evaluation
activities consistent with that plan.
(iii) Pursue remedial actions under section 20114a and, upon
completion, submit a no further action report under section 20114d.
(iv) Take any other response activity determined by the
department to be technically sound and necessary to protect the
public health, safety, welfare, or the environment.
(v) Submit to the department for approval a response activity
plan containing a remedial action plan that, when implemented, will
achieve the cleanup criteria established under this part.
(vi) Implement an approved response activity plan in accordance
with a schedule approved by the department pursuant to this part.
(vii) Submit a no further action report under section 20114d
after completion of remedial action.
(2) Subsection (1) does not preclude a person from
simultaneously undertaking 1 or more aspects of planning or
implementing response activities at a facility under section 20114a
without the prior approval of the department, unless 1 or more
response activities are being conducted pursuant to an
administrative order or agreement or judicial decree that requires
prior department approval, and submitting a response activity plan
to the department under section 20114b.
(3) Except as provided in subsection (4), a person who holds
an easement interest in a portion of a property who has knowledge
that there may be a release within that easement shall report the
release to the department within 24 hours after obtaining knowledge
of the release. This subsection applies to reportable quantities of
hazardous substances established pursuant to 40 CFR 302.4 and 302.6
(July 1, 2012 edition).
(4) The requirements of subsections (1) and (3) do not apply
to a permitted release or a release in compliance with applicable
federal, state, and local air pollution control laws.
(5) This section does not do either of the following:
(a) Limit the authority of the department to take or conduct
response activities pursuant to this part.
(b) Limit the liability of a person who is liable under
section 20126.
(6) If a hazardous substance is released at a property and
there is no available analytical method or generic cleanup criteria
for that hazardous substance, the nature and extent of the
hazardous substance may be determined by any of the following
means, singly or in combination:
(a) If another hazardous substance with an available
analytical method was released at the same location and has similar
fate and mobility characteristics, determine the nature and extent
of that hazardous substance as a surrogate.
(b) For venting groundwater, use a modeling demonstration, an
ecological demonstration, or a combination of both, consistent with
section 20120e(9) and (10), to determine whether the hazardous
substance has reached surface water.
(c) Develop and propose to the department an analytical method
for approval by the department.
(d) In lieu of determining the nature and extent of the
hazardous substance release, eliminate the potential for exposure
in areas where the hazardous substance is expected to be located
through removal, containment, exposure barriers, or land use or
resource use restrictions.
(7) As used in this section, "available analytical method"
means a method that is approved and published by a governmental
agency, is conducted routinely by commercial laboratories in the
United States, and identifies and quantitatively measures the
specific hazardous substance or class of substances.
Sec. 20114c. (1) If remedial actions at a facility satisfy
cleanup criteria for unrestricted residential use, land use or
resource use restrictions or monitoring is not required.
(2) Upon completion of remedial actions at a facility for a
category of cleanup that does not satisfy cleanup criteria for
unrestricted residential use, the person conducting the remedial
actions shall prepare and implement a postclosure plan for that
facility. A postclosure plan shall include both of the following:
(a) Land use or resource use restrictions as provided in
subsection
(3).section 20121.
(b) Permanent markers to describe restricted areas of the
facility and the nature of any restrictions. A permanent marker is
not required under this subdivision if the only applicable land use
or resource use restrictions relate to 1 or more of the following:
(i) A facility at which remedial action satisfies the cleanup
criteria for the nonresidential category under section
20120a(1)(b).
(ii) Use of groundwater.
(iii) Protection of the integrity of exposure controls that
prevent contact with soil, and those controls are composed solely
of asphalt, concrete, or landscaping materials. This subparagraph
does not apply if the hazardous substances that are addressed by
the barrier exceed a cleanup criterion based on acute toxic
effects, reactivity, corrosivity, ignitability, explosivity, or
flammability.
(iv) Construction requirements or limitations for structures
that may be built in the future.
(3)
Land use or resource use restrictions that assure the
effectiveness
and integrity of any containment, exposure barrier,
or
other land use or resource use restrictions necessary to assure
the
effectiveness and integrity of the remedy shall be described in
a
restrictive covenant. A restrictive covenant developed to comply
with
this part shall be in a format made available on the
department's
website, with modifications to reflect the facts
applicable
to the facility. The restrictive covenant shall be
recorded
with the register of deeds for the county in which the
property
is located within 21 days after the completion of the
remedial
actions or within 21 days after the completion of
construction
of the containment or barrier, as appropriate. The
restrictive
covenant shall only be recorded by the property owner
or
with the express written permission of the property owner. The
restrictions
shall run with the land and be binding on the owner's
successors,
assigns, and lessees. The restrictive covenant shall
include
a survey and property description that define the areas
addressed
by the remedial actions and the scope of any land use or
resource
use restrictions. At a minimum, the restrictive covenant
shall
do all of the following:
(a)
Describe the general uses of the property that are
consistent
with the cleanup criteria.
(b)
Restrict activities at the facility that may interfere
with
remedial actions, operation and maintenance, monitoring, or
other
measures necessary to assure the effectiveness and integrity
of
the remedial actions.
(c)
Restrict activities that may result in exposures above
levels
attained in the remedial actions.
(d)
Grant to the department the ability to enforce the
restrictive
covenant by legal action in a court of appropriate
jurisdiction.
(4)
A person shall not record a restrictive covenant
indicating
approval by the department unless the department has
approved
the recording of the restrictive covenant.
(3) (5)
A person who implements a
postclosure plan shall
provide notice of the land use or resource use restrictions to the
department and to the zoning authority for the local unit of
government in which the facility is located within 30 days after
recording the land use or resource use restrictions with the
register of deeds.
(6)
The department, with the approval of the state
administrative
board, may place restrictive covenants related to
land
use or resource use restrictions on deeds of state-owned
property.
(4) (7)
Implementation of remedial actions
does not relieve a
person who is liable under section 20126 of that person's
responsibility to report and provide for response activity to
address a subsequent release or threat of release.
(5) (8)
Implementation by any person of
remedial actions
without department approval does not relieve that person of an
obligation to undertake response activities or limit the ability of
the department to take action to require response activities
necessary to comply with this part by a person who is liable under
section 20126.
Sec. 20114d. (1) Upon completion of remedial actions that
satisfy 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)
shall document the basis for concluding that the remedial actions
have been completed. A no further action report may include a
request that, upon approval, the 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 shall include all of the following:
(a) Provisions for monitoring, operation and maintenance, and
oversight necessary to assure the effectiveness and integrity of
the remedial action.
(b) Financial assurance to pay for monitoring, operation and
maintenance, oversight, and other costs determined by the
department to be necessary to assure the effectiveness and
integrity of the remedial action.
(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 modify the terms of a
postclosure
plan as follows:
(a)
If the exposure to hazardous substances addressed in the
no
further action report may be reliably restricted by an
institutional
control in lieu of a restrictive covenant, and
imposition
of land use or resource use restrictions through
restrictive
covenants is impractical, the postclosure agreement may
allow
for a remedial action under section 20120a(1)(c) or (d) or
(2)
to rely on an institutional control in lieu of a restrictive
covenant
in a postclosure plan. Mechanisms that may be considered
under
this subsection include, but are not limited to, an ordinance
that
restricts the use of groundwater or an aquifer in a manner and
to
a degree that protects against unacceptable exposures. An
ordinance
that serves as an exposure control pursuant to this
subsection
shall be published and maintained in the same manner as
zoning
ordinances and shall include a requirement that the local
unit
of government notify the department at least 30 days prior to
adopting
a modification to the ordinance, or to the lapsing or
revocation
of the ordinance.
(5) (b)
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 shall also include a signed affidavit from an
environmental consultant who meets the professional qualifications
described in section 20114e(2) and who prepared the no further
action report, attesting to the fact that the remedial actions
detailed in the no further action report comply with all applicable
requirements and that the information upon which the no further
action report is based is complete and true to the best of that
person's knowledge. In addition, the environmental consultant shall
attach a certificate of insurance demonstrating that the
environmental consultant has obtained at least all of the following
from a carrier that is authorized to conduct business in this
state:
(a) Statutory worker compensation insurance as required in
this state.
(b) Professional liability errors and omissions insurance.
This policy may not exclude bodily injury, property damage, or
claims arising out of pollution for environmental work and shall be
issued with a limit of not less than $1,000,000.00 per claim.
(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 shall, to the
extent practical, state with specificity all of the reasons for
denial. If the no further action report, including any required
postclosure plan and postclosure agreement, is approved, the
department shall provide the person submitting the no further
action report with a no further action letter. The department shall
review and provide a written response within the time frames
required by this subsection for at least 90% of the no further
action reports submitted to the department under this section in
each calendar year.
(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 shall 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 shall include the proposed changes to the original no
further action report and an accompanying rationale for the
proposed change. The process for review and approval of an amended
no further action report is the same as the process for no further
action reports.
Sec. 20116. (1) A person who has knowledge or information or
is on notice through a recorded instrument that a portion or the
entirety
of a parcel of his or her real that person's property is a
facility shall not transfer an interest in that real property
unless he or she provides written notice to the purchaser or other
person
to which the property is transferred that the real property
is
a facility and discloses disclosing
the known general nature and
extent of the hazardous substance release and any land or resource
use restrictions that are known by the person to apply. A
restrictive covenant or notice that contains the required
information that is recorded in the deed records for the property
satisfies this requirement.
(2) The owner of real property for which a notice required in
subsection
(1) has been recorded may, upon completion of all a
response
activities activity under
this part for the facility, as
approved
by the department, record with the
register of deeds for
the
appropriate county a certification that all the response
activity
required in an approved remedial action plan has been
completed.
(3)
A person shall not transfer an interest in real property
unless
the person fully discloses any land or resource use
restrictions
that apply to that real property as a part of remedial
action
that has been or is being implemented in compliance with
section
20120a.
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) at a
minimum
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 (d).
(3) Remedial action undertaken under subsection (1) shall
accomplish all of the following:
(a) Assure 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),
and
(6), attain a degree of cleanup and
control of hazardous
substances
the environmental
contamination addressed by the
remedial action that 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),
and
(6), be consistent with any cleanup
criteria incorporated in
rules promulgated under this part for the environmental
contamination addressed by the remedial action.
(3)
The cost effectiveness of alternative means of complying
with
this section shall be considered by the department only in
selecting
among alternatives that meet all of the criteria of
subsection
(2).
(4)
Remedial actions that permanently and significantly reduce
the
volume, toxicity, or mobility of the hazardous substances are
to
be preferred.
(4) (5)
The department may select or
approve of a remedial
action
plan 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 299.5705(5) R 299.3(5) or R
299.5705(6)
R 299.3(6) of the Michigan administrative code, or
both, if the department makes a finding that the 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
plan
that does not attain a degree of
control or cleanup of
hazardous
substances that complies with R 299.5705(5) R 299.3(5) or
R
299.5705(6) R 299.3(6) of the Michigan administrative code if the
remedial
action plan 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) (6)
A remedial action plan may
be selected or approved
pursuant
to subsection (5) (4) with regard to R 299.5705(5) R
299.3(5)
or R 299.5705(6), R 299.3(6), or both, of the Michigan
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 299.5705(5) R
299.3(5) or R 299.5705(6),
R 299.3(6), or both, of the Michigan administrative code is
technically impractical.
(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 299.5705(5) R 299.3(5) or R
299.5705(6)
R 299.3(6) of the Michigan administrative code.
(c) The adverse environmental impact of implementing a
remedial
action to satisfy R 299.5705(5) R
299.3(5) or R
299.5705(6),
R 299.3(6), or both, of the Michigan 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 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 specified in and approved by the department in
connection
with the remedial action. plan.
(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. plan.
(7)
If the department approves of a remedial action plan
pursuant,
in part, to subsections (5) and (6), the administrative
record
for the facility shall include a complete explanation of the
basis
of the department's decision under subsections (5) and (6).
In
addition, the intent of and the basis for the exercise of
authority
provided for in subsections (5) and (6) shall be part of
an
analysis of the recommended alternatives if 1 is required
pursuant
to R 299.5605(1)(a) of the Michigan administrative code.
(8)
A remedial action plan approved by the department shall
include
an analysis of source control measures already implemented
or
proposed, or both. A remedial action plan may incorporate by
reference
an analysis of source control measures provided in a
feasibility
study.
(9)
Any liability a person may have under this part shall be
unaffected
by a decision of the department pursuant to subsection
(5),
(6), or (7), including liability for natural resources damages
pursuant
to section 20126a(1)(c).
(10)
An aquifer monitoring plan shall be part of all remedial
action
plans that address aquifer contamination. The aquifer
monitoring
plan shall include all of the following:
(a)
Information addressed by R 299.5519(2)(a) to (l) of the
Michigan
administrative code.
(b)
Identification of points of compliance for judging the
effectiveness
of the remedial action.
(c)
Identification of points of compliance if standards based
on
section 20120a(1)(a) are required to be met as part of the
remedial
action.
(11)
The department may determine that a monitoring plan is
not
required pursuant to subsection (10) if the person conducting
the
remedial action demonstrates that the horizontal and vertical
extent
of hazardous substance concentrations in the aquifer above
those
allowed by the criteria based on section 20120a(1)(a) will
not
significantly increase in the absence of active removal of
those
hazardous substances from the aquifer. The department's
determination
pursuant to this subsection shall be based on the
administrative
record and include an explanation of the basis for
the
determination.
(12)
The department shall encourage the use of innovative
cleanup
technologies. Before July 1, 1995, the department shall
undertake
3 pilot projects to demonstrate innovative cleanup
technologies
at facilities where money from the fund is used.
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. The nonresidential cleanup criteria shall
be
the former industrial categorical cleanup criteria developed by
the
department pursuant to this section until new nonresidential
cleanup
criteria are developed and published by the department
pursuant
to subsection (17).
(c) 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 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 standard 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 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.
(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 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 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.
(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 shall meet the cleanup criteria for
unrestricted
residential use or shall provide for acceptable land
use
or resource use restrictions in a postclosure plan or a
postclosure
agreement.
(16) (17)
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) (18)
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 incorporate
knowledge gained through research and studies in the areas of fate
and transport and risk assessment and shall take into account best
practices from other states, reasonable and realistic conditions,
and sound science. Following this revision, the department shall
periodically evaluate whether new information is available
regarding the cleanup criteria and shall make revisions as
appropriate. The department shall prepare and submit to the
legislature a report detailing any revisions made to cleanup
criteria under this section.
(18) (19)
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 325.77003 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 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 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.
Sec. 20120d. (1) At a facility where state funds will be spent
to develop or implement a remedial action plan or where the
department determines there is a significant public interest,
within 30 days after the completion of a remedial investigation for
the facility, the department shall provide the county and the
township, city, or village in which the facility is located a
notice of the completion of the remedial investigation, a summary
of the remedial investigation, and notice of an opportunity for
residents of the local unit of government to meet with the
department regarding the remedial investigation and any proposed
feasibility study for the facility. Upon a request for a public
meeting by the governing body of the local unit of government or by
25 citizens of the local unit of government, the department shall,
within 30 days of the request, meet with persons in the local unit
of government. The person or persons requesting the public meeting
shall publicize and provide accommodations for the meeting. The
meeting shall be held in the local unit of government in which the
facility is located. The department shall provide copies of the
notices and summary required in this subsection to the governing
body of the local unit of government, to the known persons who are
liable under section 20126, and to the main public library of the
local unit of government in which the facility is located. The
department shall send representatives to the meeting who are
familiar with the facility and who are involved with determining
the appropriate remedial actions to be taken at the facility.
Persons who are liable under section 20126 for the facility may
send representatives to the meeting.
(2)
Before approval of a proposed remedial action plan, which
is
to be implemented with money from the fund, or is response
activity plan, or no further action report based on categorical
criteria
provided for in section 20120a(1)(c) or (d) or (2), or if
section
20118(5) or (6) applies, or site
specific criteria provided
for in section 20120a(2) and where the department determines that
there is significant public interest, the department shall do all
of the following:
(a) Publish a notice and brief summary of the proposed
remedial action plan, response activity plan, or no further action
report.
(b) Provide for public review and comment pertinent to
documents
relating to the proposed remedial action plan, including,
if
applicable, the feasibility study that outlines alternative
remedial
action measures considered.response
activity plan, or no
further action report.
(c) Provide an opportunity for a public meeting at or near the
facility when any of the following occur:
(i) The department determines that there is a significant
public interest or that for any other reason a public meeting is
appropriate.
(ii) A city, township, or village in which the facility is
located, by a majority vote of its governing body, requests a
public meeting.
(iii) A local health department with jurisdiction in the area in
which the facility is located requests a public meeting.
(d) Provide a document that summarizes the major issues raised
by the public and how they are to be addressed by the final
approved remedial action plan, response activity plan, or no
further action report.
(3) For purposes of this section, publication shall include,
at a minimum, publication in a local newspaper or newspaper of
general circulation in this state. In addition, the administrative
record shall be made available by the department for inspection by
members of the public at or near the facility and in Lansing.
(4) The department shall prepare a summary document that
explains the reasons for the selection or approval of a remedial
action
plan, under subsection (2). response activity plan, or no
further action report. In addition, the department shall compile an
administrative record of the decision process that results in the
selection of a remedial action plan. The administrative record
shall contain all of the following:
(a) Remedial investigation data regarding the facility.
(b)
If applicable, a feasibility study and potential remedial
actions planned or completed.
(c) If applicable, a summary document that explains the
reasons why a remedial investigation or feasibility study was not
conducted.
(d) Applicable comments and information received from the
public, if any.
(e) If applicable, a document that summarizes the significant
concerns raised by the members of the public and how they are to be
addressed.
(f) Other information appropriate to the facility.
(5) If comments or information are submitted for inclusion in
the administrative record that are not included in the
administrative record, a brief explanation of why the information
was not considered relevant shall be sent to the party by the
department and included in the record.
Sec. 20121. (1) A person may impose land or resource use
restrictions to reduce or restrict exposure to hazardous
substances, to eliminate a potential exposure pathway, to assure
the effectiveness and integrity of containment or exposure
barriers, to provide for access, or to otherwise assure 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 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.
(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 adopting a
modification to the ordinance or prior to 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 before or after the effective date of the
amendatory act that added this section, 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 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. This
section does not invalidate or render unenforceable any instrument
or interest that is otherwise enforceable under the law of this
state.
Sec. 20126. (1) Notwithstanding any other provision or rule of
law and except as provided in subsections (2), (3), (4), and (5)
and section 20128, the following persons are liable under this
part:
(a) The owner or operator of a facility if the owner or
operator is responsible for an activity causing a release or threat
of release.
(b) The owner or operator of a facility at the time of
disposal of a hazardous substance if the owner or operator is
responsible for an activity causing a release or threat of release.
(c) An owner or operator of a facility who becomes an owner or
operator on or after June 5, 1995, unless the owner or operator
complies
with both either of the following:
(i) A baseline environmental assessment is conducted prior to
or within 45 days after the earlier of the date of purchase,
occupancy, or foreclosure, and the owner or operator provides the
baseline environmental assessment to the department and subsequent
purchaser or transferee within 6 months after the earlier of the
date of purchase, occupancy, or foreclosure. For purposes of this
section, assessing property to conduct a baseline environmental
assessment does not constitute occupancy.
(ii) The owner or operator provides a baseline
environmental
assessment
to the department and subsequent purchaser or transferee
within
6 months after the earlier of the date of purchase,
occupancy,
or foreclosure.requests and
receives from the department
a determination that its failure to comply with the time frames in
subparagraph (i) when conducting and submitting a baseline
environmental assessment was inconsequential.
(d) A person who by contract, agreement, or otherwise arranged
for disposal or treatment, or arranged with a transporter for
transport for disposal or treatment, of a hazardous substance owned
or possessed by the person, by any other person, at a facility
owned or operated by another person and containing the hazardous
substance. This subdivision does not include any of the following:
(i) A person who, on or after June 5, 1995, arranges for the
sale or transport of a secondary material for use in producing a
new product. As used in this subparagraph, secondary material means
scrap metal, paper, plastic, glass, textiles, or rubber, that has
demonstrated reuse or recycling potential and has been separated or
removed from the solid waste stream for reuse or recycling, whether
or not subsequent separation and processing is required, if
substantial amounts of the material are consistently used in the
manufacture of products that may otherwise be produced from a raw
or virgin material.
(ii) A person who, prior to June 5, 1995, arranges for the sale
or transport of a secondary material for use in producing a new
product unless the state has incurred response activity costs
associated with these secondary materials prior to December 17,
1999. As used in this subparagraph, secondary material means scrap
metal, paper, plastic, glass, textiles, or rubber, that has
demonstrated reuse or recycling potential and has been separated or
removed from the solid waste stream for reuse or recycling, whether
or not subsequent separation and processing is required, if
substantial amounts of the material are consistently used in the
manufacture of products that may otherwise be produced from a raw
or virgin material.
(iii) A person who arranges the lawful transport or disposal of
any product or container that is commonly used in a residential
household, is in a quantity commonly used in a residential
household, and was used in the person's residential household.
(iv) A person who stores or uses or arranges for the storage or
use of a beneficial use by-product or inert material in compliance
with part 115.
(e) A person who accepts or accepted any hazardous substance
for transport to a facility selected by that person.
(f) The estate or trust of a person described in subdivisions
(a) to (e).
(2) Subject to section 20107a, an owner or operator who
complies with subsection (1)(c)(i) and (ii) is not liable for
contamination existing at the facility at the earlier of the date
of purchase, occupancy, or foreclosure, unless the person is
responsible for an activity causing the contamination existing at
the facility. Subsection (1)(c) does not alter a person's liability
with regard to a subsequent release or threat of release at a
facility if the person is responsible for an activity causing the
subsequent release or threat of release.
(3) Notwithstanding subsection (1), the following persons are
not liable under this part with respect to contamination at a
facility resulting from a release or threat of release unless the
person is responsible for an activity causing that release or
threat of release:
(a) The state or a local unit of government that acquired
ownership or control of a facility involuntarily through
bankruptcy, tax delinquency, abandonment, or other circumstances in
which the government involuntarily acquires title or control by
virtue of its governmental function or as provided in this part; a
local unit of government to which ownership or control of a
facility is transferred by the state or by another local unit of
government that is not liable under subsection (1); or the state or
a local unit of government that acquired ownership or control of a
facility by seizure, receivership, or forfeiture pursuant to the
operation of law or by court order.
(b) A state or local unit of government that holds or acquires
an easement interest in a facility, holds or acquires an interest
in a facility by dedication in a plat, or by dedication pursuant to
1909 PA 283, MCL 220.1 to 239.6, or otherwise holds or acquires an
interest in a facility for a transportation or utility corridor,
including sewers, pipes, and pipelines, or public right of way.
(c) A person who holds an easement interest in a facility or
holds a utility franchise to provide service, for the purpose of
conveying or providing goods or services, including, but not
limited to, utilities, sewers, roads, railways, and pipelines; or a
person that acquires access through an easement.
(d) A person who owns severed subsurface mineral rights or
severed subsurface formations or who leases subsurface mineral
rights or formations.
(e) The state or a local unit of government that leases
property to a person if the state or the local unit of government
is not liable under this part for environmental contamination at
the property.
(f) A person who owns or occupies residential real property if
hazardous substance use at the property is consistent with
residential use.
(g) A person who acquires a facility as a result of the death
of the prior owner or operator of the facility, whether by
inheritance, devise, or transfer from an inter vivos or
testamentary trust.
(h) A person who did not know and had no reason to know that
the property was a facility. To establish that the person did not
know and did not have a reason to know that the property was a
facility, the person shall have undertaken at the time of
acquisition all appropriate inquiry into the previous ownership and
uses of the property consistent with good commercial or customary
practice. A determination of liability under this subdivision shall
take into account any specialized knowledge or experience on the
part of the person, the relationship of the purchase price to the
value of the property if uncontaminated by a hazardous substance,
commonly known or reasonable ascertainable information about the
property, the obviousness of the presence or likely presence of a
release or threat of release at the property, and the ability to
detect a release or threat of release by appropriate inspection.
(i) A utility performing normal construction, maintenance, and
repair activities in the normal course of its utility service
business. This subdivision does not apply to property owned by the
utility.
(j) A lessee who uses the leased property for a retail,
office, or commercial purpose regardless of the level of the
lessee's hazardous substance use.
(k) A person who holds a license, easement, or lease, or who
otherwise occupies or operates property, for the purpose of siting,
constructing, operating, or removing a wind energy conversion
system or any component of a wind energy conversion system. As used
in this subdivision, "wind energy conversion system" means that
term as defined in section 13 of the clean, renewable, and
efficient energy act, 2008 PA 295, MCL 460.1013.
(l) A person who owns or occupies a residential condominium
unit for both of the following:
(i) Contamination of the unit if hazardous substance use within
the unit is consistent with residential use.
(ii) Contamination of any general common element, limited
common element, or common area in which the person has an ownership
interest or right of occupation by reason of owning or occupying
the residential condominium unit.
(4) Notwithstanding subsection (1), the following persons are
not liable under this part:
(a)
The owner or operator of a hazardous waste treatment,
storage,
or disposal facility regulated pursuant to part 111
property at or from which there is a release or threat of release
solely
from the treatment, storage, or disposal facility, or a
waste
management unit at the facility and
the release or threat of
release is subject to corrective action under part 111 or is being
addressed as part of a corrective action under part 111. A
corrective action under part 111 may be implemented using processes
and cleanup criteria, as appropriate, under this part. However, a
release or threat of release that is subject to or that has been or
is being addressed through part 111 corrective action shall not
also be subject to remediation and department oversight under this
part.
(b) A lender that engages in or conducts a lawful marshalling
or liquidation of personal property if the lender does not cause or
contribute to the environmental contamination. This includes
holding a sale of personal property on a portion of the facility.
(c) The owner or operator of property onto which contamination
has migrated unless that person is responsible for an activity
causing the release that is the source of the contamination.
(d) A person who owns or operates a facility in which the
release or threat of release was caused solely by 1 or more of the
following:
(i) An act of God.
(ii) An act of war.
(iii) An act or omission of a third party other than an employee
or agent of the person or a person in a contractual relationship
existing either directly or indirectly with a person who is liable
under this section.
(e) Any person for environmental contamination addressed in a
no further action report that is approved by the department or is
considered approved under section 20114d. However, a person may be
liable under this part for the following:
(i) A subsequent release not addressed in the no further action
report if the person is otherwise liable under this part for that
release.
(ii) Environmental contamination that is not addressed in the
no further action report and for which the person is otherwise
liable under this part.
(iii) If the no further action report relies on land use or
resource use restrictions, an owner or operator who desires to
change those restrictions is responsible for any response
activities necessary to comply with this part for any land use or
resource use other than the land use or resource use that was the
basis for the no further action report.
(iv) If the no further action report relies on monitoring
necessary to ensure the effectiveness and integrity of the remedial
action, an owner or operator who is otherwise liable for
environmental contamination addressed in a no further action report
is liable under this part for additional response activities
necessary to address any potential exposure to the environmental
contamination demonstrated by the monitoring in excess of the
levels relied on in the no further action report.
(v) If the remedial actions that were the basis for the no
further action report fail to meet performance objectives that are
identified in the no further action report, an owner or operator
who is otherwise liable for environmental contamination addressed
in the no further action report is liable under this part for
response activities necessary to satisfy the performance objectives
or otherwise comply with this part.
(5) Notwithstanding any other provision of this part, the
state or a local unit of government or a lender who has not
participated in the management of the facility is not liable under
this part for costs or damages as a result of response activity
taken in response to a release or threat of release. For a lender,
this subsection applies only to response activity undertaken prior
to foreclosure. This subsection does not preclude liability for
costs or damages as a result of gross negligence, including
reckless, willful, or wanton misconduct, or intentional misconduct
by the state or local unit of government.
(6) In establishing liability under this section, the
department bears the burden of proof.
(7) Notwithstanding subsection (1)(c), if the owner or
operator of the facility became the owner or operator of the
facility on or after June 5, 1995 and prior to March 6, 1996, and
the facility contains an underground storage tank system as defined
in part 213, that owner or operator is liable under this part only
if the owner or operator is responsible for an activity causing a
release or threat of release.
(8) An owner or operator who was in compliance with subsection
(1)(c)(i) and (ii) prior to December 14, 2010 is considered to be in
compliance with subsection (1)(c)(i) and (ii).
