Bill Text: MI SB1090 | 2011-2012 | 96th Legislature | Introduced
Bill Title: Environmental protection; cleanups; compliance with response activity requirements providing for venting groundwater; modify. Amends sec. 20120e of 1994 PA 451 (MCL 324.20120e).
Spectrum: Partisan Bill (Republican 11-0)
Status: (Passed) 2012-07-18 - Assigned Pa 0190'12 With Immediate Effect [SB1090 Detail]
Download: Michigan-2011-SB1090-Introduced.html
SENATE BILL No. 1090
April 24, 2012, Introduced by Senators CASPERSON, COLBECK, MOOLENAAR, BOOHER, MARLEAU, GREEN, PAPPAGEORGE, ROBERTSON, MEEKHOF, KOWALL and PAVLOV and referred to the Committee on Natural Resources, Environment and Great Lakes.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending section 20120e (MCL 324.20120e), as added by 2010 PA
228.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
20120e. (1) A Subject to other requirements of this
section, a person may demonstrate compliance with requirements
under this part for a response activity providing for venting
groundwater by meeting any of the following, singly or in
combination:
(a)
Generic groundwater-surface water interface GSI criteria,
which are the water quality standards for surface waters developed
by the department pursuant to part 31. The use of surface water
quality standards or variances shall be allowable in any of the
cleanup categories provided for in section 20120a(1).
(b) A variance from the surface water quality standards as
approved by the department under part 31. A variance shall be used
only if the variance is requested by a person performing response
activities with respect to venting groundwater.
(c) (b)
Mixing zone-based groundwater-surface
water interface
GSI criteria established under this part, which are consistent with
part 31. The use of mixing zone-based GSI criteria shall be
allowable in any of the categories provided for in section
20120a(1) and (2) and shall be allowable for criteria based on
chronic-based or acute-based surface water quality criteria.
(d) (c)
Site-specific criteria established
under section
20120a(2)
20120b or this subdivision or
a combination of both. The
use of mixing zones established under this part may be applied to,
or included as, site-specific criteria. Biological criteria may be
used as site-specific criteria. If biological criteria are used,
then sentinel wells shall be used for a period as needed to
determine if the biological criteria may be exceeded due to future
increased mass loading to the surface water from the venting plume.
Numerical evaluations of analyses of the samples from the sentinel
wells shall be performed in connection with this determination.
(e) An ecological demonstration under subsection (9).
(f) A modeling demonstration under subsection (10).
(2) Whole effluent toxicity testing shall not be required or
be a criterion or be the basis for any criteria under subsection
(1) for venting groundwater except for samples taken at the GSI.
(3) The pathway addressed by GSI criteria under subsection (1)
shall be considered a relevant pathway when a remedial
investigation or application of best professional judgment leads to
the conclusion that a hazardous substance in groundwater is
reasonably expected to vent to surface water in concentrations that
exceed the generic GSI criteria. The factors to be considered in
determining whether the pathway is relevant include all of the
following:
(a) Whether there is a hydraulic connection between
groundwater and the surface water in question.
(b) The proximity of surface water to source areas and areas
of the groundwater contaminant plume that currently, or may in the
future be expected to, exceed the generic GSI criteria.
(c) Subject to subsection (22)(g), whether the receiving
surface water is a surface water of the state as that term is
defined in part 31 and rules promulgated under that part.
(d) The direction of groundwater movement.
(e) The presence of artificial structures or natural features
that would alter hydraulic pathways. This includes, but is not
limited to, highly permeable zones, utility corridors, and
seawalls.
(f) The mass of hazardous substances present at the facility
that may affect groundwater.
(g) Documented facility-specific evidence of natural
attenuation, if any.
(h) Whether or not a sewer that has an outfall to surface
water has openings in the portion of the sewer where the sewer and
the groundwater contaminant plume intersect that allows the
groundwater contaminant plume to migrate into the sewer. If it can
be demonstrated that the sewer is sufficiently tight to prevent
inflow to the sewer where the groundwater contaminant plume
intersects the sewer or if the sewer is otherwise impervious, based
on accepted industry standards, to prevent inflow from groundwater
into the sewer at that location, then the GSI pathway with respect
to the sewer is not relevant and shall not apply.
(4) For purposes of determining the relevance of a pathway
under subsection (3), both of the following apply:
(a) GSI monitoring wells are not required in order to make a
determination if other information is sufficient to make a judgment
that the pathway is not relevant.
(b) Fate and transport modeling may be used, if appropriate,
to support a professional judgment.
(5) (2)
A person may proceed under section 20114a
to undertake
the following response activities involving venting groundwater:
(a)
A person may undertake evaluation Evaluation activities
associated with a response activity providing for venting
groundwater
using groundwater-surface water interface monitoring
wells
or alternative monitoring points, an ecological
demonstration, a modeling demonstration, or any combination of
these. If a person who is liable under section 20126 decides not to
take additional response activities to address the GSI pathway
based on alternative monitoring points, an ecological
demonstration, a modeling demonstration, or a determination under
subsection (13), or any combination of these, the person shall
notify the department and request department approval. A
notification and request for approval under this subdivision shall
not be considered an admission of liability under section 20126.
(b)
A person may undertake response Response
activities that
rely
on monitoring from groundwater-surface water interface GSI
monitoring wells to demonstrate compliance under subsection (1)(a).
(c)
Except as provided in subdivision (a) and subsection (3)
(6), a person may undertake response activities
that rely on
monitoring from alternative monitoring points to demonstrate
compliance with subsection (1)(a) if the person submits to the
department a notice of alternative monitoring points at least 30
days prior to relying on those alternative monitoring points that
contains substantiating evidence that the alternative monitoring
points comply with this section.
(d) Response activities implemented by a person who is not
liable under section 20126 that rely on a modeling demonstration,
or rely on an ecological demonstration, or a combination of these,
to demonstrate compliance with subsection (1)(a).
(6) (3)
A person must shall proceed
under section 20114b to
undertake response activities that rely on monitoring from
alternative monitoring points or rely on an ecological
demonstration, a modeling demonstration, or a combination of these,
to demonstrate compliance with subsection (1)(a) if 1 or more of
the following conditions apply to the venting groundwater:
(a) An applicable criterion is based on acute toxicity
endpoints.
(b) The venting groundwater contains a bioaccumulative
chemical of concern as identified in the water quality standards
for surface waters developed pursuant to part 31 and for which the
person is liable under this part.
(c) The venting groundwater is entering a surface water body
protected for coldwater fisheries identified in the following
publications:
(i) "Coldwater Lakes of Michigan," as published in 1976 by the
department of natural resources.
(ii) "Designated Trout Lakes and Regulations," issued September
10, 1998, by the director of the department of natural resources
under
this the authority of part 411.
(iii) "Designated Trout Streams for the State of Michigan," as
issued under order of the director of the department of natural
resources, FO-210.08, on November 8, 2007.
(d) The venting groundwater is entering a surface water body
designated as an outstanding state resource water or outstanding
international resource water as identified in the water quality
standards for surface waters developed pursuant to part 31.
(7) A person shall proceed under section 20114b to undertake
response activities that rely on monitoring from alternative
monitoring points, or rely on an ecological demonstration, or rely
on a modeling demonstration or that use mixing zone-based GSI
criteria, or any combination of these, as applicable, to
demonstrate compliance with subsection (1)(b), (c), (d), (e), or
(f).
(8) (4)
Alternative monitoring points may be used to
demonstrate
compliance with this section subsection
(1) if the
alternative monitoring points meet the following standards:
(a) The locations where venting groundwater enters surface
water
have been sufficiently reasonably
identified to allow
monitoring for the evaluation of compliance with criteria.
Sufficient
This identification shall include all of the following:
(i) Identification of the location of alternative monitoring
points within areas of venting groundwater.
(ii) Documentation of the approximate boundaries of the areas
where
the groundwater plume vents to surface water. , including the
size,
shape, and location. This
documentation shall include
information about the substrate character and geology in the areas
where groundwater vents to surface water.
(iii) Documentation that the venting area identified and
alternative monitoring points include points that are reasonably
representative
of the highest higher concentrations of hazardous
substances
present in the groundwater at the groundwater-surface
water
interface, considering spatial and temporal variability.GSI.
(b) The alternative monitoring points allow for venting
groundwater
to be sampled at a point before mixing with surface
water.
This requirement does not preclude location of alternative
monitoring
points in a floodplain.the
GSI. Devices used for
sampling at alternative monitoring points may be beyond the water's
edge and on top of or into the sediments, at the GSI.
(c)
The alternative monitoring points allow for reliable,
representative
monitoring of groundwater quality at the
groundwater-surface
water interface, taking into account all of the
following:
(i) Temporal and spatial variability of hazardous
substance
concentrations
in groundwater in the plume.
(ii) Seasonal or periodic changes in groundwater flow.
(iii) Other natural or human-made features that affect
groundwater
flow.
(d)
The potential fate and transport mechanisms for
groundwater
contaminants, including any chemical, physical, or
biological
processes that result in the reduction of hazardous
substance
concentrations between the monitoring wells and the
alternative
monitoring points are identified.
(c) (e)
Sentinel monitoring points are used
in conjunction
with the alternative monitoring points for a period as needed to
assure that any potential exceedance of an applicable surface water
quality standard can be identified with sufficient notice to allow
additional response activity, if needed, to be implemented that
will
prevent address the exceedance. Sentinel monitoring points
shall include, at a minimum, monitoring points upland of the
surface water body.
(d) If alternative monitoring points or an ecological
demonstration or a modeling demonstration or a combination of these
is used for the response activity and sentinel wells are installed,
a contingency plan for potential additional response activity may
be required.
(9) An ecological demonstration may be used to demonstrate
compliance with subsection (1) if the ecological demonstration
meets the following:
(a) The boundaries of the area where the groundwater plume
vents to surface water are documented as provided in subsection
(8)(a)(ii).
(b) Sampling data for the area described in subdivision (a),
when compared to other reasonably proximate areas of that surface
water body, do not show an impairment of existing or designated
uses for that surface water body caused by, or contributed to by,
the venting plume, or do not show that the venting plume will cause
or contribute to impairment of existing or designated uses of that
surface water body in a situation where the area of the surface
water immediately outside the venting area of the venting plume
shows an impairment of existing or designated uses.
(c) Sampling data for the area described in subdivision (a) do
not show exceedances of applicable criteria under subsection (1) in
the surface water body caused by, or contributed to by, the venting
plume.
(d) The sampling data in subdivisions (b) and (c) may be data
on benthic organisms, fish, and the water column of the surface
water, which data may be in the form of an in situ bioassay or a
biological community assessment.
(e) Sentinel monitoring in on-land wells is performed for a
period as needed to show that the groundwater plume is not likely
to migrate to the surface water body and vent in the future in a
mass amount and rate that would impair the existing or designated
uses for that surface water body, or cause or contribute to
exceedances of surface water quality standards in the surface water
body.
(10) A modeling demonstration may be used to demonstrate
compliance with subsection (1) if the modeling demonstration meets
all of the following:
(a) The modeling methodology is generally recognized as a
means to model venting groundwater plumes or is an innovative
method that is scientifically justifiable.
(b) The results of the modeling show that the venting plume at
the GSI complies with the applicable criteria under subsection (1)
or supports the ecological demonstration, as applicable.
(c) The model is supported by site-specific information and
appropriate field measurements.
(11) (5)
If a person intends to utilize
mixing zone-based
groundwater-surface
water interface GSI criteria under subsection
(1)(b)
(1)(c) or site-specific criteria under subsection (1)(c)
(1)(d) in conjunction with alternative monitoring points, an
ecological demonstration, or a modeling demonstration, or a
combination of these, the person shall submit to the department a
response activity plan that includes the following:
(a) A demonstration of compliance with the standards in
subsection
(4).(6), (7), or (8), as
applicable.
(b) If compliance with a mixing zone-based groundwater-surface
water
interface criterion under subsection (1)(b) (1)(c) is
to be
determined with data from the alternative monitoring points,
documentation
that it is possible to accurately reasonably estimate
the volume and rate of venting groundwater.
(c) A site-specific monitoring plan that takes into account
the basis for the site-specific criterion or mixing zone criterion.
(6)
For the purpose of this section, surface water does not
include
groundwater or enclosed sewers or utility lines.
(7)
If the department denies a response activity plan
containing
a proposal for alternative monitoring points, the
department
shall state the reasons for denial, including the
scientific
and technical basis for the denial.
(8)
Notwithstanding any other provision of this part, a
response
activity plan that includes a mixing zone relating to
groundwater
venting to surface water is subject to a 30-day public
comment
period.
(9)
A person may appeal a decision of the department in a
response
activity plan or no further action report regarding
venting
groundwater as a scientific or technical dispute under
section
20114e.
(12) If there is an exceedance of an applicable GSI criterion
based on acute toxicity at a compliance monitoring point applicable
at a particular facility, then action shall be taken as follows:
(a) A person that is implementing the response activity at
that facility and that determines that there is an exceedance shall
notify the department of that condition within 7 days of obtaining
knowledge that the exceedance is occurring.
(b) If the person described in subdivision (a) is a person
liable under section 20126, then that person shall, within 30 days
of the date on which notice is required under subdivision (a), do 1
or more of the following:
(i) Commence response activity to address the exceedance at the
applicable compliance monitoring point and submit a schedule to the
department for the response activity.
(ii) Submit a notice of intent to the department to propose an
alternative monitoring point or perform an ecological demonstration
or perform a modeling demonstration or a combination of these. The
notice shall include a schedule for submission of the proposal.
(iii) Submit a notice of intent to the department to propose a
site-specific criterion or a mixing zone criterion under sections
20120a and 20120b. The notice shall include a schedule for
submission of the proposal.
(c) The department may approve a schedule as submitted under
subdivision (b) or direct reasonable modifications in the schedule.
The department may grant extensions of time for actions required
under subdivision (b) and for activities in an approved or
department-modified schedule if the person is acting in good faith
and site conditions inhibit progress or completion of the activity.
The department's decision to grant an extension or impose a
schedule modification shall consider the practical problems
associated with carrying out the response activity and the nature
and extent of the exceedances of applicable GSI criteria.
(13) Response activity beyond evaluations shall not be
required if venting groundwater has no effect or only a de minimis
effect on a surface water body. A determination under this
subsection may be based on mass flow and rate of groundwater
movement calculations. A person evaluating a venting plume that
determines that the plume has no effect or only a de minimis effect
on a surface water body shall notify the department of the
determination. The department may, within 90 days after receipt of
the determination, disapprove the determination. If the department
does not notify the person that it disapproves the determination
within the 90-day period, then the person's determination shall be
final.
(14) If a person has controlled the source of groundwater
contamination and has demonstrated that compliance with GSI
criteria developed under this part is unachievable, that person may
file a technical impracticability waiver request with the
department. The technical impracticability waiver shall document
the reasons why compliance is unachievable. The department shall
respond to the waiver within 180 days with an approval, request for
additional information, or denial that provides a detailed
description of the reasons for denial.
(15) Natural attenuation of hazardous substances in venting
groundwater upgradient of the GSI is an acceptable form of
remediation and may be relied upon in lieu of any active
remediation of the groundwater. Natural attenuation may be
occurring by way of dispersion, diffusion, sorption, degradation,
transformative reactions, and other methods.
(16) A permit shall not be required under part 31 for any
venting groundwater contamination plume that is addressed under
this section.
(17) Wetlands shall be protected for the groundwater surface
water pathway to the extent that particular designated uses, as
defined by part 31, which are specific to that wetland would
otherwise be impaired by a groundwater contamination plume venting
to surface water in the wetland.
(18) If a groundwater contamination plume is entering a sewer
that discharges to surface water, and the GSI pathway is relevant,
all of the following apply:
(a) If the groundwater enters a storm sewer that is owned or
operated by an entity that is subject to federal municipal separate
storm sewer system regulations and a part 31 permit for the
discharges from the system, the contaminated groundwater entering
the sewer is subject to regulation by the entity's ordinance
regarding illicit discharges, but the regulation of the
contaminated groundwater shall not prevent the use of subdivision
(b) or other provisions of this section to determine the need for
response activity under this part.
(b) All of the following apply:
(i) The compliance monitoring point may be a groundwater
monitoring well, if proposed by the person performing the response
action, or that person may choose another point for measuring
compliance under this subparagraph.
(ii) A mixing zone may be applied that accounts for the mixing
which occurs in the receiving surface water into which the sewer
system discharges.
(iii) Attenuation that occurs in the sewer system prior to the
sewer system outfall to surface water shall be considered.
(iv) The compliance point is at the sewer system outfall to
surface water, which shall account for any applicable mixing zone
for the sewer system outfall.
(v) Monitoring to determine compliance may be performed at a
location where the contaminated groundwater enters the sewer or
downstream from that location but upstream of the sewer outfall at
the surface water, if practicable and representative. Appropriate
back calculation from the compliance point to the monitoring point
may be applied to account for mixing and other attenuation that
occurs in the sewer system before the compliance point. As
appropriate, such a monitoring point may require another monitoring
point in the sewer system upstream from the area where the
contaminated groundwater enters the sewer. Upstream sampling in the
sewer may be performed to determine source contribution.
(vi) The contaminant mass flow, and the rate and amount of
groundwater flow, into the sewer may be considered and may result
in a determination that the migration into the sewer is de minimis
and does not require any response activity in addition to the
evaluation that leads to such determination.
(c) Factors in subdivision (b) may be considered and applied
to determine if an illicit discharge is occurring and how to
regulate the discharge.
(19) If the department denies a response activity plan
containing a proposal for alternative monitoring points, an
ecological demonstration, or a modeling demonstration, or a
combination of these, the department shall state the reasons for
denial, including the scientific and technical basis for the
denial. A person may appeal a decision of the department in a
response activity plan or no further action report regarding
venting groundwater as a scientific or technical dispute under
section 20114e.
(20) This section is intended to allow a person to demonstrate
compliance with requirements under this part for a response
activity involving venting groundwater, and, for this purpose, this
section shall be given retroactive application and shall be
available for use by such person. A person performing response
activity involving venting groundwater under any judgment, consent
judgment, order, consent order, or agreement that was entered prior
to the effective date of the 2012 amendatory act that amended this
section may pursue, alter, or terminate such response activity
based on any provision of this section subject to any necessary
entry or approval by the court in a case of a judgment, consent
judgment, or court order. The department shall not oppose use of
any provision of this section as grounds for a court to modify or
terminate response activity obligations involving venting
groundwater under a judgment, consent judgment, or court order. A
person performing response activity involving venting groundwater
under any remedial action plan, interim response plan designed to
meet criteria, interim response action plan, or response activity
plan that was approved by the department prior to the effective
date of the 2012 amendatory act that amended this section may
modify the plan and pursue, alter, or terminate response activity
based on any provision of this section.
(21) A person that undertakes response activity under
subsection (4) or that takes action under subsection (12)(b) shall
not be considered to be making an admission of liability by
undertaking such response activities or taking such action.
(22) (10)
As used in this section: ,
"groundwater-surface
water
interface monitoring well"
(a) "Alternative monitoring points" means alternative
monitoring points authorized under subsection (8).
(b) "Ecological demonstration" means an ecological
demonstration authorized under subsection (1)(e).
(c) "GSI" means groundwater-surface water interface, which is
the location at which groundwater enters surface water.
(d) "GSI monitoring well" means a vertical well installed in
the saturated zone as close as practicable to surface water with a
screened interval or intervals that are representative of the
groundwater venting to the surface water.
(e) "Mixing zone-based GSI criteria" means mixing zone-based
GSI criteria authorized under subsection (1)(c).
(f) "Modeling demonstration" means a modeling demonstration
authorized under subsection (1)(f).
(g) "Surface water" does not include any of the following:
(i) Groundwater.
(ii) Hyporheic zone water.
(iii) Water in enclosed sewers.
(iv) Water in drainage ways and ponds used solely for
wastewater or storm water conveyance, treatment, or control.
(v) Water in subgrade utility runs and utility lines and
permeable fill in and around them.
Enacting section 1. R 299.5716 of the Michigan administrative
code is rescinded.
