Michigan-2017-SB1244-Engrossed

SB-1244, As Passed House, December 18, 2018

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 1244

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 20101, 20114d, 20114e, 20120a, and 20120b (MCL

324.20101, 324.20114d, 324.20114e, 324.20120a, and 324.20120b),

sections 20101, 20114d, 20120a, and 20120b as amended by 2014 PA

542 and section 20114e as amended by 2014 PA 178, and by adding

section 20120f.

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~~

or performing any practices on a farm as an incident to, or in

conjunction with, these farming operations. Agricultural property

does not include property used for commercial storage, processing,

distribution, marketing, or shipping operations.

environmental conditions at a property at the time of purchase,

occupancy, or foreclosure that reasonably defines the existing

conditions and circumstances at the property in conformance with 40

CFR 312 (2014).

(d) "Attorney general" means the department of the attorney

general.

(e) "Background concentration" means the concentration or

level of a hazardous substance that exists in the environment at or

regionally proximate to a facility that is not attributable to any

release at or regionally proximate to the facility. A person may

demonstrate that a hazardous substance is not present at a level

that exceeds background concentration by any of the following

methods:

(i) The hazardous substance complies with the statewide

default background levels under table 2 as referenced in R 299.46

of the Michigan ~~administrative code.~~Administrative Code.

(ii) The hazardous substance is listed in table 2, 3, or 4 of

the department's 2005 Michigan background soil survey, is present

in a soil type identified in 1 or more of those tables, and meets 1

of the following:

(A) If a glacial lobe area in table 2, 3, or 4 lists an

arithmetic or geometric mean for the hazardous substance that is

represented by 9 or more samples, the concentration of that

hazardous substance is the lesser of the following:

(I) Two standard deviations of that mean for the soil type and

glacial lobe area in which the hazardous substance is located.

(II) The uppermost value in the typical range of data for the

hazardous substance in table 1 of the department's 2005 Michigan

background soil survey.

(B) If a glacial lobe area in table 2, 3, or 4 lists a

nonparametric median for the hazardous substance that is

represented by 10 or more samples, the concentration of that

hazardous substance is the lesser of the following:

(I) The 97.5 quantile for the soil type and glacial lobe area

in which the hazardous substance is located.

(II) The uppermost value in the typical range of data for the

hazardous substance in table 1 of the department's 2005 Michigan

background soil survey.

established using the 2005 Michigan background soil survey in a

manner that is approved by the department.

(iii) The hazardous substance is listed in any other study or

survey conducted or approved by the department and is within the

concentrations or falls within the typical ranges published in that

study or survey.

(iv) A site-specific demonstration.

(f) "Baseline environmental assessment" means a written

document that describes the results of an all appropriate inquiry

and the sampling and analysis that confirm that the property is or

contains a facility. For purposes of a baseline environmental

assessment, the all appropriate inquiry may be conducted or updated

prior to or within 45 days after the earlier of the date of

purchase, occupancy, or foreclosure.

(g) "Board" means the brownfield redevelopment board created

in section 20104a.

(h) "Certificate of completion" means a written response

provided by the department confirming that a response activity has

been completed in accordance with the applicable requirements of

this part and is approved by the department.

(i) "Cleanup criteria for unrestricted residential use" means

any of the following:

(i) Cleanup criteria that satisfy the requirements for the

residential category in section 20120a(1)(a).

(ii) Cleanup criteria for unrestricted residential use under

part 213.

(iii) Site-specific cleanup criteria approved by the

department for unrestricted residential use pursuant to sections

20120a and 20120b.

(j) "Department" means the director or his or her designee to

whom the director delegates a power or duty by written instrument.

(k) "Director" means the director of the department of

environmental quality.

(l) "Directors" means the directors or their designees of the

departments of environmental quality, community health, agriculture

and rural development, and state police.

(m) "Disposal" means the discharge, deposit, injection,

dumping, spilling, leaking, or placing of any hazardous substance

into or on any land or water so that the hazardous substance or any

constituent of the hazardous substance may enter the environment or

be emitted into the air or discharged into any groundwater or

surface water.

(n) "Enforcement costs" means court expenses, reasonable

attorney fees of the attorney general, and other reasonable

expenses of an executive department that are incurred in relation

to enforcement under this part.

(o) "Environment" or "natural resources" means land, surface

water, groundwater, subsurface strata, air, fish, wildlife, or

biota within ~~the~~ this state.

(p) "Environmental contamination" means the release of a

hazardous substance, or the potential release of a discarded

hazardous substance, in a quantity which is or may become injurious

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

(q) "Evaluation" means those activities including, but not

limited to, investigation, studies, sampling, analysis, development

of feasibility studies, and administrative efforts that are needed

to determine the nature, extent, and impact of a release or threat

of release and necessary response activities.

(r) "Exacerbation" means the occurrence of either of the

following caused by an activity undertaken by the person who owns

or operates the property, with respect to contamination for which

the person is not liable:

(i) Migration of contamination beyond the boundaries of the

property that is the source of the release at levels above cleanup

criteria for unrestricted residential use unless a criterion is not

relevant because exposure is reliably restricted as otherwise

provided in this part.

(ii) A change in facility conditions that increases response

activity costs.

(s) "Facility" means any area, place, parcel or parcels of

property, or portion of a parcel of property where a hazardous

substance in excess of the concentrations that satisfy the cleanup

criteria for unrestricted residential use has been released,

deposited, disposed of, or otherwise comes to be located. Facility

does not include any area, place, parcel or parcels of property, or

portion of a parcel of property where any of the following

conditions are satisfied:

(i) Response activities have been completed under this part or

the comprehensive environmental response, compensation, and

liability act, 42 USC 9601 to 9675, that satisfy the cleanup

criteria for unrestricted residential use.

(ii) Corrective action has been completed under the resource

conservation and recovery act, 42 USC 6901 to 6992k, part 111, or

part 213 that satisfies the cleanup criteria for unrestricted

residential use.

(iii) Site-specific criteria that have been approved by the

department for application at the area, place, parcel of property,

or portion of a parcel of property are met or satisfied and

hazardous substances at the area, place, or property that are not

addressed by site-specific criteria satisfy the cleanup criteria

for unrestricted residential use.

(iv) Hazardous substances in concentrations above unrestricted

residential cleanup criteria are present due only to the placement,

storage, or use of beneficial use by-products or inert materials at

the area, place, or property in compliance with part 115.

(v) The property has been lawfully split, subdivided, or

divided from a facility and does not contain hazardous substances

in excess of concentrations that satisfy the cleanup criteria for

unrestricted residential use.

(vi) Natural attenuation or other natural processes have

reduced concentrations of hazardous substances to levels at or

below the cleanup criteria for unrestricted residential use.

(t) "Feasibility study" means a process for developing,

evaluating, and selecting appropriate response activities.

(u) "Financial assurance" means a performance bond, escrow,

cash, certificate of deposit, irrevocable letter of credit,

corporate guarantee, or other equivalent security, or any

combination thereof.

(v) "Foreclosure" means possession ~~of a property~~ by a lender

of a property on which it has foreclosed on a security interest or

the expiration of a lawful redemption period, whichever occurs

first.

(w) "Fund" means the cleanup and redevelopment fund

established in section 20108.

(x) "Hazardous substance" means 1 or more of the following,

but does not include fruit, vegetable, or field crop residuals or

processing by-products, or aquatic plants, that are applied to the

land for an agricultural use or for use as an animal feed, if the

use is consistent with generally accepted agricultural management

practices at the time of the application or stamp sands:

(i) Any substance that the department demonstrates, on a case

by case basis, poses an unacceptable risk to the public health,

safety, or welfare, or the environment, considering the fate of the

material, dose-response, toxicity, or adverse impact on natural

resources.

(ii) Hazardous substance as defined in the comprehensive

environmental response, compensation, and liability act, 42 USC

9601 to 9675.

(iii) Hazardous waste as defined in part 111.

(iv) Petroleum as described as a regulated substance in

section 21303.

(y) "Interim response activity" means the cleanup or removal

of a released hazardous substance or the taking of other actions,

prior to the implementation of a remedial action, as may be

necessary to prevent, minimize, or mitigate injury to the public

health, safety, or welfare, or to the environment. Interim response

activity also includes, but is not limited to, measures to limit

access, replacement of water supplies, and temporary relocation of

people as determined to be necessary by the department. In

addition, interim response activity means the taking of other

actions as may be necessary to prevent, minimize, or mitigate a

threatened release.

(z) "Lender" means any of the following:

(i) A state or nationally chartered bank.

(ii) A state or federally chartered savings and loan

association or savings bank.

(iii) A state or federally chartered credit union.

(iv) Any other state or federally chartered lending

institution.

(v) Any state or federally regulated affiliate or regulated

subsidiary of any entity listed in subparagraphs (i) to (iv).

(vi) An insurance company authorized to do business in this

state pursuant to the insurance code of 1956, 1956 PA 218, MCL

500.100 to 500.8302.

(vii) A motor vehicle sales finance company subject to the

motor vehicle sales finance act, 1950 (Ex Sess) PA 27, MCL 492.101

to 492.141, with net assets in excess of $50,000,000.00.

(viii) A foreign bank.

(ix) A retirement fund regulated pursuant to state law or a

pension fund regulated pursuant to federal law with net assets in

excess of $50,000,000.00.

(x) A state or federal agency authorized by law to hold a

security interest in real property or a local unit of government

holding a reversionary interest in real property.

(xi) A nonprofit tax exempt organization created to promote

economic development in which a majority of the organization's

assets are held by a local unit of government.

(xii) Any other person ~~who~~ that loans money for the purchase

of or improvement of real property.

(xiii) Any person ~~who~~ that retains or receives a security

interest to service a debt or to secure a performance obligation.

(aa) "Local health department" means that term as defined in

section 1105 of the public health code, 1978 PA 368, MCL 333.1105.

(bb) "Local unit of government" means a county, city,

township, or village, an agency of a local unit of government, an

authority or any other public body or entity created by or pursuant

to state law. Local unit of government does not include this state

or the federal government or a state or federal agency.

(cc) "Method detection limit" means the minimum concentration

of a hazardous substance that can be measured and reported with 99%

confidence that the analyte concentration is greater than zero and

is determined from analysis of a sample in a given matrix that

contains the analyte.

(dd) "Migrating NAPL" means that terms as it is defined in

section 21302.

(ee) "Mobile NAPL" means that term as it is defined in section

21302.

(ff) "NAPL" means that term as it is defined in section 21303.

(gg) "No further action letter" means a written response

provided by the department under section 20114d confirming that a

no further action report has been approved after review by the

department.

(hh) "No further action report" means a report under section

20114d detailing the completion of remedial actions and including a

postclosure plan and a postclosure agreement, if appropriate.

(ii) "Nonresidential" means that category of land use for

parcels of property or portions of parcels of property that is not

residential. This category of land use may include, but is not

limited to, any of the following:

(i) Industrial, commercial, retail, office, and service uses.

(ii) Recreational properties that are not contiguous to

residential property.

(iii) Hotels, hospitals, and campgrounds.

(iv) Natural areas such as woodlands, brushlands, grasslands,

and wetlands.

(jj) "Operator" means a person who is in control of or

responsible for the operation of a facility. Operator does not

include either of the following:

(i) A person who holds indicia of ownership primarily to

protect the person's security interest in the facility, unless that

person participates in the management of the facility as described

in section 20101a.

(ii) A person who is acting as a fiduciary in compliance with

section 20101b.

(kk) "Owner" means a person who owns a facility. Owner does

not include either of the following:

(i) A person who holds indicia of ownership primarily to

protect the person's security interest in the facility, including,

but not limited to, a vendor's interest under a recorded land

contract, unless that person participates in the management of the

facility as described in section 20101a.

(ii) A person who is acting as a fiduciary in compliance with

section 20101b.

(ll) "Panel" means the response activity review panel ~~created~~

in established under section 20114e.

(mm) "Permitted release" means 1 or more of the following:

(i) A release in compliance with an applicable, legally

enforceable permit issued under state law.

(ii) A lawful and authorized discharge into a permitted waste

treatment facility.

(iii) A federally permitted release as defined in the

comprehensive environmental response, compensation, and liability

act, 42 USC 9601 to 9675.

(nn) "Postclosure agreement" means an agreement between the

department and a person who has submitted a no further action

report that prescribes, as appropriate, activities required to be

undertaken upon completion of remedial actions as provided for in

section 20114d.

(oo) "Postclosure plan" means a plan for land use or resource

use restrictions or permanent markers at a facility upon completion

of remedial actions as provided for in section 20114c.

(pp) "Release" includes, but is not limited to, any spilling,

leaking, pumping, pouring, emitting, emptying, discharging,

injecting, escaping, leaching, dumping, or disposing of a hazardous

substance into the environment, or the abandonment or discarding of

barrels, containers, and other closed receptacles containing a

hazardous substance. Release does not include any of the following:

(i) A release that results in exposure to persons solely

within a workplace, with respect to a claim that these persons may

assert against their employers.

(ii) Emissions from the engine exhaust of a motor vehicle,

rolling stock, aircraft, or vessel.

(iii) A release of source, by-product, or special nuclear

material from a nuclear incident, as those terms are defined in the

atomic energy act of 1954, 42 USC 2011 to 2286i, if the release is

subject to requirements with respect to financial protection

established by the nuclear regulatory commission under 42 USC 2210,

or any release of source by-product or special nuclear material

from any processing site designated under 42 USC 7912(a)(1) or 42

USC 7942(a).

(iv) If applied according to label directions and according to

generally accepted agricultural and management practices at the

time of the application, the application of a fertilizer, soil

conditioner, agronomically applied manure, or pesticide, or fruit,

vegetable, or field crop residuals or processing by-products,

aquatic plants, or a combination of these substances. As used in

this subparagraph, fertilizer and soil conditioner have the meaning

given to these terms in part 85, and pesticide has the meaning

given to that term in part 83.

(v) Application of fruits, vegetables, field crop processing

by-products, or aquatic plants to the land for an agricultural use

or for use as an animal feed, if the use is consistent with

generally accepted agricultural and management practices at the

time of the application.

(vi) The relocation of soil under section 20120c.

(vii) The placement, storage, or use of beneficial use by-

products or inert materials at the site of storage or use if in

compliance with part 115.

(qq) "Remedial action" includes, but is not limited to,

cleanup, removal, containment, isolation, destruction, or treatment

of a hazardous substance released or threatened to be released into

the environment, monitoring, maintenance, or the taking of other

actions that may be necessary to prevent, minimize, or mitigate

injury to the public health, safety, or welfare, or to the

environment.

(rr) "Remedial action plan" means a work plan for performing

remedial action under this part.

(ss) "Residential" means that category of land use for parcels

of property or portions of parcels of property where people live

and sleep for significant periods of time such that the frequency

of exposure is reasonably expected or foreseeable to meet the

exposure assumptions used by the department to develop generic

residential cleanup criteria as set forth in rules promulgated

under this part. This category of land use may include, but is not

limited to, homes and surrounding yards, condominiums, and

apartments.

(tt) "Residential closure" means a property at which the

contamination has been addressed in a no further action report that

satisfies the limited residential cleanup criteria under section

20120a(1)(c) or the site-specific residential cleanup criteria

under sections 20120a(2) and 20120b, that contains land use or

resource use restrictions, and that is approved by the department

or is considered approved by the department under section 20120d.

(uu) "Residual NAPL saturation" means that term as it is

defined in part 213.

(vv) "Response activity" means evaluation, interim response

activity, remedial action, demolition, providing an alternative

water supply, or the taking of other actions necessary to protect

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

natural resources. Response activity also includes health

assessments or health effect studies carried out under the

supervision, or with the approval of, the department of community

health and enforcement actions related to any response activity.

(ww) "Response activity costs" or "costs of response activity"

means all costs incurred in taking or conducting a response

activity, including enforcement costs.

(xx) "Response activity plan" means a plan for undertaking

response activities. A response activity plan may include 1 or more

of the following:

(i) A plan to undertake interim response activities.

(ii) A plan for evaluation activities.

(iii) A feasibility study.

(iv) A remedial action plan.

(yy) "Security interest" means any interest, including a

reversionary interest, in real property created or established for

the purpose of securing a loan or other obligation. Security

interests include, but are not limited to, mortgages, deeds of

trusts, liens, and title pursuant to lease financing transactions.

Security interests may also arise from transactions such as sale

and leasebacks, conditional sales, installment sales, trust receipt

transactions, certain assignments, factoring agreements, accounts

receivable financing arrangements, consignments, or any other

transaction in which evidence of title is created if the

transaction creates or establishes an interest in real property for

the purpose of securing a loan or other obligation.

(zz) "Source" means any storage, handling, distribution, or

processing equipment from which the release originates and first

enters the environment.

(aaa) "Stamp sands" means finely grained crushed rock

resulting from mining, milling, or smelting of copper ore and

includes native substances contained within the crushed rock and

any ancillary material associated with the crushed rock.

(bbb) "Target detection limit" means the detection limit for a

hazardous substance in a given environmental medium that is

specified in a rule promulgated by the department. ~~on a list that~~

~~it publishes not more than once a year.~~ The department shall

identify 1 or more analytical methods, when a method is available,

that are judged to be capable of achieving the target detection

limit for a hazardous substance in a given environmental medium.

The target detection limit for a given hazardous substance is

greater than or equal to the method detection limit for that

hazardous substance. In establishing a target detection limit, the

department shall consider the following factors:

(i) The low level capabilities of methods published by

government agencies.

(ii) Reported method detection limits published by state

laboratories.

(iii) Reported method detection limits published by commercial

laboratories.

(iv) The need to be able to measure a hazardous substance at

concentrations at or below cleanup criteria.

(ccc) "Threatened release" or "threat of release" means any

circumstance that may reasonably be anticipated to cause a release.

(ddd) "Venting groundwater" means groundwater that is entering

a surface water of this state from a facility.

(2) As used in this part:

(a) The phrase "a person who is liable" includes a person who

is described as being subject to liability in section 20126. The

phrase "a person who is liable" does not presume that liability has

been adjudicated.

(b) The phrase "this part" includes "rules promulgated under

this part".

Sec. 20114d. (1) ~~Upon completion of remedial actions that~~

~~satisfy the requirements of this part, a person may submit a no~~

~~further action report to the department.~~ A person may submit a no

further action report under this subsection for remedial actions

addressing contamination for which the person is or is not liable.

Remedial actions included in a no further action report may address

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

(a) The remedial actions may address 1 or more releases at a

facility.

(b) The remedial actions may address 1 or more hazardous

substances at a facility.

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~~ must document the basis for concluding that the remedial

actions ~~have been completed.~~ included in the no further action

report are protective of the public health, safety, and welfare,

and the environment with respect to the environmental contamination

addressed by the remedial actions. 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.

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~~ must include all of the

following:

(a) Provisions for monitoring, operation and maintenance, and

oversight necessary to assure the effectiveness and integrity of

the remedial action.

(b) Financial assurance to pay for monitoring, operation and

maintenance, oversight, and other costs determined by the

department to be necessary to assure the effectiveness and

integrity of the remedial action.

owner's intent to convey any interest in the facility 14 days prior

to consummating the conveyance. A conveyance of title, an easement,

or other interest in the property shall not be consummated by the

property owner without adequate and complete provision for

compliance with the terms and conditions of the postclosure plan

and the postclosure agreement.

(d) A provision granting the department the right to enter the

property at reasonable times for the purpose of determining and

monitoring compliance with the postclosure plan and postclosure

agreement, including the right to take samples, inspect the

operation of the remedial action measures, and inspect records.

(5) A postclosure agreement may waive the requirement for

permanent markers.

(6) The person submitting a no further action report shall

include a signed affidavit attesting to the fact that the

information upon which the no further action report is based is

complete and true to the best of that person's knowledge. The no

further action report ~~shall~~ must also include a signed affidavit

from an environmental consultant who meets the professional

qualifications described in section 20114e(2) and who prepared the

no further action report, attesting to the fact that the remedial

actions detailed in the no further action report comply with all

applicable requirements and that the information upon which the no

further action report is based is complete and true to the best of

that person's knowledge. In addition, the environmental consultant

shall attach a certificate of insurance demonstrating that the

environmental consultant has obtained at least all of the following

from a carrier that is authorized to conduct business in this

state:

(a) Statutory worker compensation insurance as required in

this state.

(b) Professional liability errors and omissions insurance.

This policy ~~may~~ must not exclude bodily injury, property damage, or

claims arising out of pollution for environmental work and ~~shall~~

must be issued with a limit of not less than $1,000,000.00 per

claim.

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,~~ must, to

the extent practical, state with specificity all of the reasons for

denial. If the no further action report, including any required

postclosure plan and postclosure agreement, is approved, the

department shall provide the person submitting the no further

action report with a no further action letter. The department shall

review and provide a written response within the time frames

required by this subsection for at least 90% of the no further

action reports submitted to the department under this section in

each calendar year.

(9) If the department fails to provide a written response

within the time frames required by subsection (8), the no further

action report is considered approved.

(10) A person requesting approval of a no further action

report under subsection (8) may appeal the department's decision in

accordance with section 20114e.

(11) Any time frame required by this section may be extended

by mutual agreement of the department and a person submitting a no

further action report. An agreement extending a time frame ~~shall~~

must be in writing.

(12) Following approval of a no further action report under

this section, the owner or operator of the facility addressed by

the no further action report may submit to the department an

amended no further action report. The amended no further action

report ~~shall~~ must include the proposed changes to the original no

further action report and an accompanying rationale for the

proposed change. The process for review and approval of an amended

no further action report is the same as the process for no further

action reports.

Sec. 20114e. (1) The director shall establish a response

activity review panel to advise him or her on ~~technical or~~

~~scientific~~ disputes. ~~, including disputes regarding assessment of~~

~~risk, response activity plans, no further action reports,~~

~~certificates of completion, and documentations of due care~~

~~compliance under this part, and initial assessment reports, final~~

~~assessment reports, closure reports, and documentations of due care~~

~~compliance under part 213.~~

(2) The panel ~~shall~~ must consist of 15 individuals, appointed

by the director. Each member of the panel ~~shall~~ must meet all of

the following minimum requirements:

(a) Meet 1 or more of the following:

(i) Hold a current professional engineer's or professional

geologist's license or registration from a state, tribe, or United

States territory, or the Commonwealth of Puerto Rico, and have the

equivalent of 6 years of full-time relevant experience.

(ii) Have a baccalaureate degree from an accredited

institution of higher education in a discipline of engineering or

science and the equivalent of 10 years of full-time relevant

experience.

(iii) Have a master's degree from an accredited institution of

higher education in a discipline of engineering or science and the

equivalent of 8 years of full-time relevant experience.

(b) Remain current in his or her field through participation

in continuing education or other activities.

(3) An individual is not eligible to be a member of the panel

if any 1 of the following is true:

(a) The individual is a current employee of any office,

department, or agency of this state.

(b) The individual is a party to 1 or more contracts with the

department and the compensation paid under those contracts

represented more than 5% of the individual's annual gross revenue

in any of the preceding 3 years.

1 or more contracts with the department and the compensation paid

to the individual's employer under these contracts represented more

than 5% of the employer's annual gross revenue in any of the

preceding 3 years.

(d) The individual was employed by the department within the

preceding 3 years.

(4) An individual appointed to the panel ~~shall serve~~ serves

for a term of 3 years and may be reappointed for 1 additional 3-

year term. After serving 2 consecutive terms, the individual shall

not be a member of the panel for a period of at least 2 years

before being eligible to be appointed to the panel again. The terms

for members first appointed ~~shall~~ must be staggered so that not

more than 5 vacancies are scheduled to occur in a single year.

Individuals appointed to the panel ~~shall~~ serve without

compensation. However, members of the panel may be reimbursed for

their actual and necessary expenses incurred in the performance of

their official duties as members of the panel.

(5) A vacancy on the panel shall be filled in the same manner

as the original appointment.

(6) The business that the panel may perform shall be conducted

at a public meeting of the panel held in compliance with the open

meetings act, 1976 PA 267, MCL 15.261 to 15.275.

(7) A person who submitted a response activity plan; remedial

action plan; postclosure plan; a no further action report; a

request for certificate of completion or documentation of due care

compliance under this part; or an initial assessment report, final

assessment report, closure report, or documentation of due care

compliance under part 213 may appeal a decision made by the

department regarding a ~~technical or scientific~~ dispute ~~, including~~

~~a dispute regarding assessment of risk, concerning the response~~

~~activity plan, no further action report, request for certificate of~~

~~completion, initial assessment report, final assessment report,~~

~~closure report, or documentation of due care compliance~~ by

submitting a petition to the director. However, an issue that was

addressed as part of the final decision of the director under

section 21332 or that is the subject of a contested case hearing

under section 21332 is not eligible for review by the panel. The

petition ~~shall~~ must include the issues in dispute, the relevant

facts upon which the dispute is based, factual data, analysis,

opinion, and supporting documentation for the petitioner's

position. The petitioner shall also submit a fee of $3,500.00. If

the director believes that the dispute may be able to be resolved

without convening the panel, the director may contact the

petitioner regarding the issues in dispute and may negotiate a

resolution of the dispute. This negotiation period ~~shall~~ must not

exceed 45 days. If the dispute is resolved without convening the

panel, any fee that is submitted with the petition shall be

returned.

(8) If a dispute is not resolved pursuant to subsection (7),

the director shall schedule a meeting of 5 members of the panel,

selected on the basis of their relevant expertise, within 45 days

after receiving the original petition. If the dispute involves an

underground storage tank system, at least 3 of the members selected

~~shall~~ must have relevant experience in the American ~~society for~~

~~testing and materials~~ Society for Testing and Materials risk-based

corrective action processes described in part 213. A member

selected for the dispute resolution process shall agree not to

accept employment by the person bringing the dispute before the

panel, or to undertake any employment concerning the facility in

question for a period of 1 year after the decision has been

rendered on the matter if that employment would represent more than

5% of the member's gross revenue in any of the preceding 3 years.

The director shall provide a copy of all supporting documentation

to members of the panel who will hear the dispute. An alternative

member may be selected by the director to replace a member who is

unable to participate in the dispute resolution process. Any action

by the members selected to hear the dispute ~~shall require~~ requires

a majority of the votes cast. The members selected for the dispute

resolution process shall elect a chairperson of the dispute

resolution process. At a meeting scheduled to hear the dispute,

representatives of the petitioner and the department ~~shall~~ must

each be afforded an opportunity to present their positions to the

panel. The fee that is received by the director along with the

petition shall be forwarded to the state treasurer for deposit into

the fund.

(9) Within 45 days after hearing the dispute, the members of

the panel who were selected for and participated in the dispute

resolution process shall make a recommendation regarding the

petition and provide written notice of the recommendation to the

director of the department and the petitioner. The written

recommendation ~~shall~~ must include the specific scientific or

technical rationale for the recommendation. The panel's

recommendation regarding the petition may be to adopt, modify, or

reverse, in whole or in part, the department's decision that is the

subject of the petition. If the panel does not make its

recommendation within this 45-day time period, the decision of the

department is the final decision of the director.

(10) Within 60 days after receiving written notice of the

panel's recommendation, the director shall issue a final decision,

in writing, regarding the petition. However, this time period may

be extended by written agreement between the director and the

petitioner. If the director agrees with the recommendation of the

panel, the department shall incorporate the recommendation into its

response to the response activity plan, no further action report,

request for certificate of completion, initial assessment report,

final assessment report, closure report, or documentation of due

care compliance. If the director rejects the recommendation of the

panel, the director shall issue a written decision to the

petitioner with a specific rationale for rejecting the

recommendation of the panel. If the director fails to issue a final

decision within the time period provided for in this subsection,

the recommendation of the panel shall be considered the final

decision of the director. The final decision of the director under

this subsection is subject to review pursuant to section 631 of the

revised judicature act of 1961, 1961 PA 236, MCL 600.631.

(11) Upon request of the director, the panel shall make a

recommendation to the department on whether a member should be

removed from the panel for noncompliance with this part. Prior to

making this recommendation, the panel may convene a peer review

panel to evaluate the conduct of the member. ~~with regard to~~

~~compliance with this part.~~

(12) A member of the panel shall not participate in the

dispute resolution process for any appeal in which that member has

a conflict of interest. The director shall select a member of the

panel to replace a member who has a conflict of interest under this

subsection. For purposes of this subsection, a member has a

conflict of interest if a petitioner has hired that member or the

member's employer on any environmental matter within the preceding

3 years.

(13) As used in this section: ~~, "relevant~~

(a) "Dispute" means any disagreement over a technical,

scientific, or administrative issue, including, but not limited to,

disagreements over assessment of risk, response activity plans,

remedial action plans, no further action reports, certificates of

completion, documentation of due care compliance under this part,

determinations of whether a person has submitted sufficient

information for the department to make a decision regarding a

submittal under this part or part 213, and initial assessment

reports, final assessment reports, closure reports, postclosure

plans, and documentations of due care compliance under part 213.

(b) "Relevant experience" means active participation in the

preparation, design, implementation, and assessment of remedial

investigations, feasibility studies, interim response activities,

and remedial actions under this part or experience in the American

society for testing and materials risk-based corrective action

processes described in part 213. This experience must demonstrate

the exercise of sound professional judgment and knowledge of the

requirements of this part or part 213, or both.

Sec. 20120a. (1) The department may establish cleanup criteria

and approve of remedial actions in the categories listed in this

subsection. The cleanup category proposed shall be the option of

the person proposing the remedial action, subject to department

approval if required, considering the appropriateness of the

categorical criteria to the facility. The categories are as

follows:

(a) Residential.

(b) Nonresidential.

(d) Limited nonresidential.

(2) As an alternative to the categorical criteria under

subsection (1), the department may approve a response activity plan

or a no further action report containing site-specific criteria

that satisfy the requirements of section 20120b and other

applicable requirements of this part. The department shall utilize

only reasonable and relevant exposure pathways in determining the

adequacy of a site-specific criterion. Additionally, the department

may approve a remedial action plan for a designated area-wide zone

encompassing more than 1 facility, and may consolidate remedial

actions for more than 1 facility.

(3) The department shall develop cleanup criteria pursuant to

subsection (1) based on generic human health risk assessment

assumptions that are determined by the department to appropriately

characterize patterns of human exposure associated with certain

land uses. The department shall ~~utilize~~ consider only reasonable

and relevant exposure pathways and factors in determining these

assumptions. The department may prescribe more than 1 generic set

of exposure assumptions within each category described in

subsection (1). If the department prescribes more than 1 generic

set of exposure assumptions within a category, each set of exposure

assumptions creates a subcategory within a category described in

subsection (1). The department shall specify facility

characteristics that determine the applicability of criteria

derived for these categories or subcategories. When developing and

promulgating cleanup criteria under subsection (1), the department

shall do all of the following:

(a) Except as set forth in subdivision (c), for each hazardous

substance, use final toxicity values from the United States

Environmental Protection Agency integrated risk information system,

or more recent United States Environmental Protection Agency Office

of Pesticide Programs toxicity values for pesticides that are

incorporated by the integrated risk information system in place of

values that have been archived by the integrated risk information

system, if available. If the United States Environmental Protection

Agency has determined that there is insufficient scientific data to

derive a value for inclusion in the integrated risk information

system, the department shall not derive or adopt such a value for

that hazardous substance. If a value is not available in the

integrated risk information system, the department shall apply the

following order of precedence when selecting toxicity values:

(i) The best value from the agency for toxic substances and

disease registry final minimal risk levels for hazardous substances

or the United States Environmental Protection Agency provisional

peer-reviewed toxicity values.

(ii) If a value is not available under subparagraph (i), the

best final value from the United States Environmental Protection

Agency health effects assessment summary table, or final values

adopted by other states, the World Health Organization, Canada, or

the European Union.

(iii) If a value is not available under subparagraph (i) or

(ii), a value developed by the department if there is sufficient

supporting toxicity data and information available in the peer-

reviewed published scientific literature.

(b) Apply the following order of precedence when selecting

chemical or physical data for the development of cleanup criteria:

(i) The best relevant experimentally measured data.

(ii) If data is not available under subparagraph (i), the best

relevant modeled or estimated data.

that is different than a value that is available on the United

States Environmental Protection Agency integrated risk information

system, or more recent United States Environmental Protection

Agency Office of Pesticide Programs toxicity values for pesticides

that are incorporated by the integrated risk information system in

place of values that have been archived by the integrated risk

information system, or desires to establish a value when the

Environmental Protection Agency determined that there was

insufficient scientific data to do so when last evaluated by the

Environmental Protection Agency, the department shall provide

public notice and a written explanation of its intent to do so and

conduct a stakeholder process to obtain input. After obtaining

stakeholder input, the department may promulgate a rule to use an

alternative value in accordance with the order of precedence set

forth in subdivision (a)(i) through (iii), if the department

demonstrates all of the following:

(i) The integrated risk information system value is based on a

determination that is at least 10 years old.

(ii) There is more current data in the peer-reviewed

scientific literature that is used on a general basis by the United

States Environmental Protection Agency or multiple other regulatory

agencies nationally for the purpose of calculating cleanup criteria

or standards.

(iii) After assessing the body of evidence for the hazardous

substance using a rigorous systematic review methodology, such as

that used by the National Toxicology Program's Office of Health

Assessment and Translation and the European Food Safety Authority,

the weight of scientific evidence clearly supports the use of the

proposed value as best available science for the purpose of

calculating generic cleanup criteria.

(d) Use a daily exposure time for inhalation in the exposure

intake for a nonresidential worker in an algorithm or equation used

to calculate generic cleanup criteria under this part that is equal

to the average number of hours, not to exceed 10 hours, that a

nonresidential worker spends working in a 5-day work week according

to the most appropriate governmental data or information.

(e) When the department considers the pregnant woman as a

potential sensitive receptor to address prenatal developmental

effects, the department may apply a single-event exposure scenario

for a hazardous substance, pursuant to the process set forth in

subdivision (f), only when either of the following occurs:

(i) The United States Environmental Protection Agency applies

a single-event exposure scenario to establish regional screening

levels for that hazardous substance.

(ii) The department demonstrates, after conducting a

comprehensive assessment of the specific hazardous substance, that,

for that specific hazardous substance, a single exposure may result

in an adverse effect and the weight of scientific evidence supports

the application of a single-event exposure scenario. The

department's comprehensive assessment must evaluate the body of

scientific evidence using a systematic review methodology, such as

that used by the National Toxicology Program's Office of Health

Assessment and Translation and the European Food Safety Authority.

The comprehensive assessment must, if appropriate, take into

account all of the following:

(A) Whether there is data available involving single-day

exposures to the hazardous substance during pregnancy.

(B) The differences in sensitivity, periods of development,

and progression of different types of developmental effects in

humans and animals.

(f) Before conducting the comprehensive assessment in

subdivision (e)(ii), the department shall provide public notice and

a written explanation of its intent to do so. Upon completion of

the assessment, the department shall conduct a stakeholder process

to obtain input. If, upon obtaining stakeholder input, the

department elects to apply a single-event exposure scenario for a

particular hazardous substance, the department shall do so in a

rule.

(4) If a hazardous substance poses a carcinogenic risk to

humans, the cleanup criteria derived for cancer risk under this

section shall be the 95% upper bound on the calculated risk of 1

additional cancer above the background cancer rate per 100,000

individuals using the generic set of exposure assumptions

established under subsection (3) for the appropriate category or

subcategory. If the hazardous substance poses a risk of an adverse

health effect other than cancer, cleanup criteria shall be derived

using appropriate human health risk assessment methods for that

adverse health effect and the generic set of exposure assumptions

established under subsection (3) for the appropriate category or

subcategory. A hazard quotient of 1.0 shall be used to derive

noncancer cleanup criteria. For the noncarcinogenic effects of a

hazardous substance present in soils, the intake shall be assumed

to be 100% of the protective level, unless compound and site-

specific data are available to demonstrate that a different source

contribution is appropriate. If a hazardous substance poses a risk

of both cancer and 1 or more adverse health effects other than

cancer, cleanup criteria shall be derived under this section for

the most sensitive effect.

(5) If a cleanup criterion derived under subsection (4) for

groundwater in an aquifer differs from either: (a) the state

drinking water standards established pursuant to section 5 of the

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

national secondary drinking water regulations established pursuant

to 42 USC 300g-1, or (c), if there is not national secondary

drinking water regulation for a contaminant, the concentration

determined by the department according to methods approved by the

United States ~~environmental protection agency~~ Environmental

Protection Agency below which taste, odor, appearance, or other

aesthetic characteristics are not adversely affected, the cleanup

criterion ~~shall be~~ is the more stringent of (a), (b), or (c) unless

the department determines that compliance with this subsection is

not necessary because the use of the aquifer is reliably restricted

or controlled under provisions of a postclosure plan or a

postclosure agreement or by site-specific criteria approved by the

department under section 20120b.

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

no further action report in categories set forth in subsection

(1)(b) to (d), unless the person documents that the current zoning

of the property is consistent with the categorical criteria being

proposed, or that the governing zoning authority intends to change

the zoning designation so that the proposed criteria are consistent

with the new zoning designation, or the current property use is a

legal nonconforming use. The department shall not grant final

approval for a remedial action plan or no further action report

that relies on a change in zoning designation until a final

determination of that zoning change has been made by the local unit

of government. The department may approve of a remedial action plan

or no further action report that achieves categorical criteria that

are based on greater exposure potential than the criteria

applicable to current zoning. In addition, the remedial action plan

or no further action report ~~shall~~ must include documentation that

the current property use is consistent with the current zoning or

is a legal nonconforming use. Abandoned or inactive property ~~shall~~

must be considered on the basis of zoning classifications as

described above.

(7) Cleanup criteria from 1 or more categories in subsection

(1) may be applied at a facility, if all relevant requirements are

satisfied for application of a pertinent criterion.

(8) The need for soil remediation to protect an aquifer from

hazardous substances in soil shall consider the vulnerability of

the aquifer or aquifers potentially affected if the soil remains at

the facility. Migration of hazardous substances in soil to an

aquifer is a pertinent pathway if appropriate based on

consideration of site specific factors.

(9) The department may establish cleanup criteria for a

hazardous substance using a biologically based model developed or

identified as appropriate by the United States ~~environmental~~

~~protection agency~~ Environmental Protection Agency if the department

determines all of the following:

(a) That application of the model results in a criterion that

more accurately reflects the risk posed.

(b) That data of sufficient quantity and quality are available

for a specified hazardous substance to allow the scientifically

valid application of the model.

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~~ is the target detection limit or background

concentration, whichever is larger, for that hazardous substance in

that category.

(11) The department may also approve cleanup criteria if

necessary to address conditions that prevent a hazardous substance

from being reliably measured at levels that are consistently

achievable in samples from the facility in order to allow for

comparison with generic cleanup criteria. A person seeking approval

of a criterion under this subsection shall document the basis for

determining that the relevant published target detection limit

cannot be achieved in samples from the facility.

(12) In determining the adequacy of a land-use based response

activity to address sites contaminated by polychlorinated

biphenyls, the department shall not require response activity in

addition to that which is subject to and complies with applicable

federal regulations and policies that implement the toxic

substances control act, 15 USC 2601 to 2692.

(13) Remedial action to address the release of uncontaminated

mineral oil satisfies cleanup criteria under this part for

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

removed from groundwater and soil.

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

the categorical standard in subsection (1)(a) or (b) shall be

granted only if the pertinent criteria are satisfied in the

affected media. The department shall approve the use of

probabilistic or statistical methods or other scientific methods of

evaluating environmental data when determining compliance with a

pertinent cleanup criterion if the methods are determined by the

department to be reliable, scientifically valid, and best represent

actual site conditions and exposure potential.

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

part, a permit for the discharge is not required.

(16) Remedial actions that rely on categorical cleanup

criteria developed pursuant to subsection (1) shall also consider

other factors necessary to protect the public health, safety, and

welfare, and the environment as specified by the department, if the

department determines based on data and existing information that

such considerations are relevant to a specific facility. These

factors include, but are not limited to, the protection of surface

water quality and consideration of ecological risks if pertinent to

the facility based on the requirements of this part.

(17) ~~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~~ The

department shall promulgate all generic cleanup criteria and target

detection limits as rules. Except for generic cleanup criteria and

target detection limits developed before January 11, 2018, and

those generic cleanup criteria determined as set forth in

subsections (5) and (23) and section 20120e(1)(a), generic cleanup

criteria and target detection limits, and any modifications or

revisions to generic cleanup criteria and target detection limits,

are not legally enforceable until promulgated as rules. The generic

cleanup criteria and target detection limits are subject to all of

the following:

(a) The department may periodically repromulgate rules for any

portion of the generic cleanup criteria to adopt and use new

toxicity values or chemical or physical data selected pursuant to

subsection (3)(a) and (b) or to otherwise update the generic

cleanup criteria in accordance with this part to incorporate, as

appropriate, knowledge gained through research and studies in the

areas of fate and transport and risk assessment ~~and shall take~~

taking 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.~~ The department may also

repromulgate rules that establish target detection limits to update

those limits in accordance with this part.

(b) If generic cleanup criteria are included in or relied upon

as a basis for decision in a work plan, response activity plan,

remedial action plan, postclosure plan, request for certificate of

completion, or similar document, that is submitted to the

department or approved by the department prior to the effective

date of a rule revising those cleanup criteria, then the generic

cleanup criteria effective at the time of submittal or prior

approval continue to apply to the review, revision, or

implementation of the plan, request, or document, as well as to any

future review, approval, or disapproval of a no further action

report or any part thereof that is based on the plan, request, or

document, unless either of the following occur:

(i) The person making the submittal voluntarily elects to

apply the revised cleanup criteria.

(ii) The department director makes a site-specific

demonstration, based on clear and convincing evidence, that the

prior cleanup criteria are no longer protective of the public

health, safety, or welfare, or the environment, given the totality

of circumstances at the site, including any site-specific factors

that reduce exposure or risk, such as the existence of land or

resource use restrictions that reduce or restrict exposure. This

subparagraph does not apply if, no later than 6 months after the

promulgation of the rule revision changing the cleanup criteria,

both of the following conditions are met:

(A) The person has substantially completed all active

remediation as set forth in the approved plan, request, or similar

document, and only monitoring, maintenance, or postclosure

activities remain.

(B) The person submits a request for a no further action

approval to the department.

department and that rely on cleanup criteria that have been

subsequently revised remain valid, subject to the liability

provisions of section 20126(4)(e).

(d) If generic cleanup criteria are included in or relied upon

as a basis for decision in a no further action report, other than a

no further action report described in subdivision (b)(ii), that is

submitted to the department but not yet approved by the department

prior to the effective date of a rule revising those cleanup

criteria, then the generic cleanup criteria effective at the time

of submittal continue to apply to the review, revision, and

approval of the report unless either of the following occur:

(i) The person making the submittal voluntarily elects to

apply the revised cleanup criteria.

(ii) The department director makes a site-specific

demonstration, based on clear and convincing evidence, that the

prior generic cleanup criteria are no longer protective of the

public health, safety, or welfare, or the environment, given the

totality of circumstances at the site, including any site-specific

factors that reduce exposure or risk, such as the existence of land

or resource use restrictions that reduce or restrict exposure.

(e) A demonstration by the department director under

subdivision (b) or (d) that prior cleanup criteria are no longer

protective of the public health, safety, or welfare, or the

environment, is appealable in accordance with section 20114e.

(f) Notwithstanding subdivisions (b) through (d), an owner's

or operator's obligations under section 20107a shall be based upon

the current numeric cleanup criteria under section 20120a(1) or

site-specific criteria approved under section 20120b.

(18) A person demonstrates compliance with indoor air

inhalation criteria for a hazardous substance at a facility under

this part if all of the following conditions are met:

(a) The facility is an establishment covered by the

classifications provided by sector 31-33 � manufacturing, of the

North American ~~industry classification system,~~ Industry

Classification System, United States, 2012, published by the ~~office~~

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

(b) The person complies with the Michigan occupational safety

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

rules promulgated under that act applicable to the exposure to the

hazardous substance, including, but not limited to, the

occupational health standards for air contaminants, R 325.51101 to

R 325.51108 of the Michigan ~~administrative code.~~Administrative

Code.

hazard communication program under section 14a of the Michigan

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

the hazard communication rules, R 325.77001 to R 325.77004 of the

Michigan ~~administrative code,~~ 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~~ promulgate as rules

the algorithms used to calculate, modify, or revise all residential

and nonresidential generic cleanup criteria, ~~and~~ as well as the

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

other algorithm factors or variables used in the department's

calculations, modifications, or revisions.

(20) Calculation and application of toxic equivalency

quotients are subject to the following:

(a) The toxic equivalency factors used must only be those

adopted by the World Health Organization.

(b) When compounds contributed by 2 or more persons acting

independently are combined in a toxic equivalency quotient to

assess human health risks, harm is divisible and subject to

apportionment of liability under subsections 20129(1) and (2).

quotient must be compared to generic or site-specific criteria for

the reference hazardous substance.

(21) Polychlorinated dibenzodioxin and dibenzofuran congeners

are not likely to leach from soil to groundwater. The groundwater

surface water interface protection and the residential drinking

water protection exposure pathways are not applicable or relevant

when assessing polychlorinated dibenzodioxin and dibenzofuran

congeners unless the department demonstrates that those congeners

are leaching at material concentrations through co-solvation.

(22) Polychlorinated dibenzodioxin and dibenzofuran congeners

are not likely to volatilize from soil or groundwater into the air.

vapor inhalation exposure pathways are not applicable or relevant

when assessing polychlorinated dibenzodioxin and dibenzofuran

congeners.

(23) For a substance that does not have generic cleanup

criteria, if, based on the best available information, the

department determines that the substance is a hazardous substance,

the department may calculate generic cleanup criteria for that

hazardous substance using toxicity values and chemical and physical

data selected pursuant to subsection (3)(a) and (b) and in

accordance with all other requirements of this part and publish the

generic cleanup criteria on the department's website. Within 30

days after publishing the new generic cleanup criteria, the

department shall initiate rule-making to promulgate rules for the

new criteria by filing a rule-making request under section 39 of

the administrative procedures act, 1969 PA 306, MCL 24.239. The

rule-making request shall only include the revisions necessary to

promulgate the new generic cleanup criteria. The new generic

cleanup criteria published pursuant to this subsection take effect

and are legally enforceable when published by the department if the

department also initiates rule-making to promulgate rules for the

new criteria within 30 days. The new generic cleanup criteria

published pursuant to this subsection remain effective and legally

enforceable until replaced by a final rule or, until the director

directs the department to withdraw the rule request under section

66(11) of the administrative procedures act, 1969 PA 306, MCL

24.266, or the time limitation in either section 45(1) or section

66(12) of the administrative procedures act, 1969 PA 306, MCL

24.245 and 24.266, is not met.

Sec. 20120b. (1) ~~The~~ Subject to subsection (4), 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).

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.

ecological demonstration, or a combination of both, consistent with

section 20120e(9) and (10), to demonstrate that the hazardous

substance is not likely to migrate to a surface water body or has

not or will not impair the existing or designated uses for a

surface water body.

(d) If toxicity information is available for the hazardous

substance, develop site-specific cleanup criteria for the hazardous

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

simplified site-specific screening criteria based upon toxicity and

concentrations found on site, and request department approval. If

the department does not notify the person that it disapproves the

site-specific criteria or screening criteria within 90 days after

receipt of the request, the criteria are considered approved.

(e) Any other method approved by the department.

(4) Site-specific criteria approved by the department are not

invalidated by subsequent changes to the generic criteria for that

hazardous substance, including changes to toxicity, exposure, or

other values or variables used by the department to calculate the

generic criteria.

Sec. 20120f. (1) To satisfy the requirements of this part, a

person may evaluate, address, and manage the vapor intrusion to the

indoor air inhalation exposure pathway for a hazardous substance

using any of the following methods:

(a) Meeting all of the conditions in section 20120a(18).

(b) For purposes of evaluating and addressing the vapor

intrusion to the indoor air inhalation pathway in connection with

any release of petroleum as described as a regulated substance

defined in section 21303(h)(ii), the process outlined in the

Interstate Technology Regulatory Council petroleum vapor intrusion

guidance document (PVI-1, Oct-14).

demonstrating that the vapor intrusion to the indoor air inhalation

exposure pathway does not pose an unacceptable risk to the public

health, safety, or welfare, or the environment consistent with all

or a combination of 1 or more of the following:

(i) The United States Environmental Protection Agency "OSWER

Technical Guide for Assessing and Mitigating the Vapor Intrusion

Pathway from Subsurface Vapor Sources to Indoor Air" (OSWER

Publication 9200.2-154, June 2015).

(ii) The Interstate Technology Regulatory Council petroleum

vapor intrusion guidance document (PVI-1, Oct-14).

(iii) The United States Environmental Protection Agency's

"Documentation for EPA's Implementation of the Johnson and Ettinger

Model to Evaluate Site Specific Vapor Intrusion into Buildings

Version 6.0" (USEPA, September 2017).

(d) Indoor air sampling that accounts for actual site

conditions and demonstrates acceptable indoor air concentrations

resulting from vapor intrusion compared to any of the following:

(i) When criteria in subparagraph (ii) are not available,

regional screening levels published by the United States

Environmental Protection Agency that are applicable to residential

or nonresidential land use, as appropriate, at cancer and noncancer

risk levels specified in section 20120a(4).

(ii) Applicable indoor air inhalation generic cleanup criteria

promulgated by the department.

(iii) Site-specific criteria approved by the department.

(e) An alternative method or model for assessing vapor

intrusion risk that utilizes only site-specific variables or a

combination of site-specific or building-specific variables if the

method or model is scientifically sound and supported by adequate

site information. An alternative method or model under this

subdivision to address contamination that has migrated beyond the

boundaries of the property that is the source of the release must

be approved by the department.

(f) A method or model allowed in a promulgated rule.

(2) The indoor air inhalation pathway is not a reasonable and

relevant pathway for purposes of response activities undertaken

under this part if there is no occupied building or planned

occupied building that is within the following distances from

subsurface volatile hazardous substance contamination:

(a) For petroleum contamination, within both a 30-foot lateral

separation distance and the permissible vertical separation

distance under the Interstate Technology Regulatory Council

petroleum vapor intrusion guidance document (PVI-1, Oct-14).

(b) For any volatile hazardous substance contamination other

than petroleum, within both a 100-foot lateral separation distance

and a 100-foot vertical separation distance.

(3) If there is an occupied building or planned occupied

building within the distances from subsurface volatile hazardous

substance contamination in subsection (2), the indoor air

inhalation pathway is not necessarily a reasonable and relevant

pathway; rather, further evaluation is needed to determine whether

the indoor air inhalation pathway is reasonable and relevant

considering site-specific factors such as site-specific geology or

hydrogeology, measured contaminant concentrations, the existence of

institutional controls, including land use or resource use

restrictions, or the existence of exposure controls, exposure

barriers, or other mitigating factors, including building

ventilation or use.