SB-1090, As Passed House, June 5, 2012

 

 

 

 

 

 

 

 

 

 

HOUSE SUBSTITUTE FOR

 

SENATE BILL NO. 1090

 

 

 

 

 

 

 

 

 

 

 

 

     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 (23)(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 (14), or any combination of these, the person shall

 

notify the department and request department approval. A

 

notification and request for approval under this subdivision shall

 

not be considered an admission of liability under section 20126.

 

     (b) 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.

 

     (9) An ecological demonstration may be used to demonstrate

 

compliance with subsection (1) if the ecological demonstration

 

meets the following:

 

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

 

vents to surface water are documented as provided in subsection

 

(8)(a)(ii).

 

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

 

when compared to other reasonably proximate areas of that surface

 

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

 

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

 

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

 

or contribute to impairment of existing or designated uses of that

 

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

 

water immediately outside the venting area of the venting plume

 

shows an impairment of existing or designated uses.

 

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

 

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

 

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

 

plume.

 

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

 

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

 

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

 

biological community assessment.

 

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

 

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

 

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

 

mass amount and rate that would impair the existing or designated

 

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

 

exceedances of surface water quality standards in the surface water

 

body.

 

     (10) A modeling demonstration may be used to demonstrate

 

compliance with subsection (1) if the modeling demonstration meets

 

all of the following:

 

     (a) The modeling methodology is generally recognized as a

 

means to model venting groundwater plumes or is an innovative

 

method that is scientifically justifiable.

 

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

 

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

 

or supports the ecological demonstration, as applicable.

 

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

 

appropriate field measurements.

 

     (11) If alternative monitoring points or an ecological

 

demonstration or a modeling demonstration or a combination of these

 

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

 

a contingency plan for potential additional response activity may

 

be required.

 

     (12) (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.

 

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

 

based on acute toxicity at a compliance monitoring point applicable

 

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

 

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

 

that facility and that determines that there is an exceedance shall

 

notify the department of that condition within 7 days of obtaining

 

knowledge 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.

 

     (14) Response activity beyond evaluations shall not be

 

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

 

effect on a surface water body. A determination under this

 

subsection may be based on mass flow and rate of groundwater

 

movement calculations. A person evaluating a venting plume that

 

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

 

on a surface water body shall notify the department of the

 

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

 

the determination, disapprove the determination. If the department

 

does not notify the person that it disapproves the determination

 

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

 

final.

 

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

 

contamination and has demonstrated that compliance with GSI

 

criteria developed under this part is unachievable, that person may

 

file a technical impracticability waiver request with the

 

department. The technical impracticability waiver shall document

 

the reasons why compliance is unachievable. The department shall

 

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

 

additional information, or denial that provides a detailed

 

description of the reasons for denial.

 

     (16) Natural attenuation of hazardous substances in venting

 

groundwater upgradient of the GSI is an acceptable form of

 

remediation and may be relied upon in lieu of any active

 

remediation of the groundwater. Natural attenuation may be

 

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

 

transformative reactions, and other methods.

 

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

 

venting groundwater contamination plume that is addressed under

 

this section.

 

     (18) Wetlands shall be protected for the groundwater surface

 

water pathway to the extent that particular designated uses, as

 

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

 

otherwise be impaired by a groundwater contamination plume venting

 

to surface water in the wetland.

 

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

 

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

 

all of the following apply:

 

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

 

operated by an entity that is subject to federal municipal separate

 

storm sewer system regulations and a part 31 permit for the

 

discharges from the system, the contaminated groundwater entering

 

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

 

regarding illicit discharges, but the regulation of the

 

contaminated groundwater shall 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.

 

     (20) If the department denies a response activity plan

 

containing a proposal for alternative monitoring points, an

 

ecological demonstration, or a modeling demonstration, or a

 

combination of these, the department shall state the reasons for

 

denial, including the scientific and technical basis for the

 

denial. A person may appeal a decision of the department in a

 

response activity plan or no further action report regarding

 

venting groundwater as a scientific or technical dispute under

 

section 20114e.

 

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

 

compliance with requirements under this part for a response

 

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

 

section shall be given retroactive application and shall be

 

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 or any necessary amendment procedure to

 

amend an agreement. The department shall not oppose use of any

 

provision of this section as grounds to amend an agreement or for a

 

court to modify or terminate response activity obligations

 

involving venting groundwater under a judgment, consent judgment,

 

or court order. A person performing response activity involving

 

venting groundwater under any remedial action plan, interim

 

response plan designed to meet criteria, interim response action

 

plan, or response activity plan that was approved by the department

 

prior to the effective date of the 2012 amendatory act that amended

 

this section may submit an amended plan to the department for

 

approval that pursues, alters, or terminates response activity

 

based on any provision of this section. The department shall not

 

oppose use of any provision of this section in approving an amended

 

plan.

 

     (22) A person that undertakes response activity under

 

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

 

not be considered to be making an admission of liability by

 

undertaking such response activities or taking such action.

 

     (23) (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.