Bill Text: MI SB0872 | 2013-2014 | 97th Legislature | Introduced
Bill Title: Environmental protection; cleanups; use of and development on stamp sands; allow. Amends sec. 20101 of 1994 PA 451 (MCL 324.20101) & adds sec. 20101c.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2014-07-16 - Assigned Pa 0258'14 [SB0872 Detail]
Download: Michigan-2013-SB0872-Introduced.html
SENATE BILL No. 872
March 13, 2014, Introduced by Senator CASPERSON and referred to the Committee on Natural Resources, Environment and Great Lakes.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending section 20101 (MCL 324.20101), as amended by 2013 PA
141, and by adding section 20101c.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 20101. (1) As used in this part:
(a) "Act of God" means an unanticipated grave natural disaster
or other natural phenomenon of an exceptional, inevitable, and
irresistible character, the effects of which could not have been
prevented or avoided by the exercise of due care or foresight.
(b) "Agricultural property" means real property used for
farming in any of its branches, including cultivating of soil;
growing and harvesting of any agricultural, horticultural, or
floricultural commodity; dairying; raising of livestock, bees,
fish, fur-bearing animals, or poultry; turf and tree farming; and
performing any practices on a farm as an incident to, or in
conjunction with, these farming operations. Agricultural property
does not include property used for commercial storage, processing,
distribution, marketing, or shipping operations.
(c) "All appropriate inquiry" means an evaluation of
environmental conditions at a property at the time of purchase,
occupancy, or foreclosure that reasonably defines the existing
conditions and circumstances at the property in conformance with 40
CFR 312.
(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 a background concentration for a hazardous substance by
any of the following methods:
(i) The hazardous substance complies with the statewide default
background levels under R 299.5746 of the Michigan administrative
code.
(ii) The hazardous substance is listed in the department's 2005
Michigan background soil survey and falls within the typical ranges
published in that document.
(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 a
facility. However, for purposes of a baseline environmental
assessment, the all appropriate inquiry under 40 CFR 312.20(a) may
be conducted within 45 days after the date of acquisition of a
property and the components of an all appropriate inquiry under 40
CFR 312.20(b) and 40 CFR 312.20(c)(3) may be conducted or updated
within 45 days after the date of acquisition of a property.
(g) "Board" means the brownfield redevelopment board created
in section 20104a.
(h) "Certificate of completion" means a written response
provided by the department confirming that a response activity has
been completed in accordance with the applicable requirements of
this part and is approved by the department.
(i) "Cleanup criteria for unrestricted residential use" means
either of the following:
(i) Cleanup criteria that satisfy the requirements for the
residential category in section 20120a(1)(a) or (16).
(ii) Cleanup criteria for unrestricted residential use under
part 213.
(j) "Department" means the director of the department of
environmental quality or his or her designee to whom the director
delegates a power or duty by written instrument.
(k) "Director" means the director of the department of
environmental quality.
(l) "Directors" means the directors or their designees of the
departments of environmental quality, community health, agriculture
and rural development, and state police.
(m) "Disposal" means the discharge, deposit, injection,
dumping, spilling, leaking, or placing of any hazardous substance
into or on any land or water so that the hazardous substance or any
constituent of the hazardous substance may enter the environment or
be emitted into the air or discharged into any groundwater or
surface water.
(n) "Enforcement costs" means court expenses, reasonable
attorney fees of the attorney general, and other reasonable
expenses of an executive department that are incurred in relation
to enforcement under this part.
(o) "Environment" or "natural resources" means land, surface
water, groundwater, subsurface strata, air, fish, wildlife, or
biota within the state.
(p) "Environmental contamination" means the release of a
hazardous substance, or the potential release of a discarded
hazardous substance, in a quantity which is or may become injurious
to the environment or to the public health, safety, or welfare.
(q) "Evaluation" means those activities including, but not
limited to, investigation, studies, sampling, analysis, development
of feasibility studies, and administrative efforts that are needed
to determine the nature, extent, and impact of a release or threat
of release and necessary response activities.
(r) "Exacerbation" means the occurrence of either of the
following caused by an activity undertaken by the person who owns
or operates the property, with respect to contamination for which
the person is not liable:
(i) Contamination that has migrated beyond the boundaries of
the property which is the source of the release at levels above
cleanup criteria for unrestricted residential use unless a
criterion is not relevant because exposure is reliably restricted
as otherwise provided in this part.
(ii) A change in facility conditions that increases response
activity costs.
(s) "Facility" means any area, place, or property where a
hazardous substance in excess of the concentrations that satisfy
the cleanup criteria for unrestricted residential use has been
released, deposited, disposed of, or otherwise comes to be located.
Facility does not include any area, place, or property where any of
the following conditions are satisfied:
(i) Response activities have been completed under this part
that satisfy the cleanup criteria for unrestricted residential use.
(ii) Corrective action has been completed under part 213 that
satisfies the cleanup criteria for unrestricted residential use.
(iii) Site-specific criteria that have been approved by the
department for application at the area, place, or property are met
or satisfied and both of the following conditions are met:
(A) The site-specific criteria do not depend on any land use
or resource use restriction to ensure protection of the public
health, safety, or welfare or the environment.
(B) Hazardous substances at the area, place, or property that
are not addressed by site-specific criteria satisfy the cleanup
criteria for unrestricted residential use.
(t) "Feasibility study" means a process for developing,
evaluating, and selecting appropriate response activities.
(u) "Financial assurance" means a performance bond, escrow,
cash, certificate of deposit, irrevocable letter of credit,
corporate guarantee, or other equivalent security, or any
combination thereof.
(v) "Foreclosure" means possession of a property by a lender
on which it has foreclosed on a security interest or the expiration
of a lawful redemption period, whichever occurs first.
(w) "Free product" means a hazardous substance in a liquid
phase equal to or greater than 1/8 inch of measurable thickness
that is not dissolved in water and that has been released into the
environment.
(x) "Fund" means the cleanup and redevelopment fund
established in section 20108.
(y) "Hazardous substance" means 1 or more of the following,
but does not include stamp sands or any 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:
(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 in part 213.
(z) "Interim response activity" means the cleanup or removal
of a released hazardous substance or the taking of other actions,
prior to the implementation of a remedial action, as may be
necessary to prevent, minimize, or mitigate injury to the public
health, safety, or welfare, or to the environment. Interim response
activity also includes, but is not limited to, measures to limit
access, replacement of water supplies, and temporary relocation of
people as determined to be necessary by the department. In
addition, interim response activity means the taking of other
actions as may be necessary to prevent, minimize, or mitigate a
threatened release.
(aa) "Lender" means any of the following:
(i) A state or nationally chartered bank.
(ii) A state or federally chartered savings and loan
association or savings bank.
(iii) A state or federally chartered credit union.
(iv) Any other state or federally chartered lending institution
or regulated affiliate or regulated subsidiary of any entity listed
in this subparagraph or subparagraphs (i) to (iii).
(v) 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.
(vi) A motor vehicle finance company subject to the motor
vehicle finance act, 1950 (Ex Sess) PA 27, MCL 492.101 to 492.141,
with net assets in excess of $50,000,000.00.
(vii) A foreign bank.
(viii) 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.
(ix) 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.
(x) 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.
(xi) Any other person who loans money for the purchase of or
improvement of real property.
(xii) Any person who retains or receives a security interest to
service a debt or to secure a performance obligation.
(bb) "Local health department" means that term as defined in
section 1105 of the public health code, 1978 PA 368, MCL 333.1105.
(cc) "Local unit of government" means a county, city,
township, or village, an agency of a local unit of government, an
authority or any other public body or entity created by or pursuant
to state law. Local unit of government does not include the state
or federal government or a state or federal agency.
(dd) "Method detection limit" means the minimum concentration
of a hazardous substance which 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.
(ee) "No further action letter" means a written response
provided by the department under section 20114d confirming that a
no further action report has been approved after review by the
department.
(ff) "No further action report" means a report under section
20114d detailing the completion of remedial actions and including a
postclosure plan and a postclosure agreement, if appropriate.
(gg) "Operator" means a person who is in control of or
responsible for the operation of a facility. Operator does not
include either of the following:
(i) A person who holds indicia of ownership primarily to
protect the person's security interest in the facility, unless that
person participates in the management of the facility as described
in section 20101a.
(ii) A person who is acting as a fiduciary in compliance with
section 20101b.
(hh) "Owner" means a person who owns a facility. Owner does
not include either of the following:
(i) A person who holds indicia of ownership primarily to
protect the person's security interest in the facility, including,
but not limited to, a vendor's interest under a recorded land
contract, unless that person participates in the management of the
facility as described in section 20101a.
(ii) A person who is acting as a fiduciary in compliance with
section 20101b.
(ii) "Panel" means the response activity review panel created
in section 20114e.
(jj) "Permitted release" means 1 or more of the following:
(i) A release in compliance with an applicable, legally
enforceable permit issued under state law.
(ii) A lawful and authorized discharge into a permitted waste
treatment facility.
(iii) A federally permitted release as defined in the
comprehensive environmental response, compensation, and liability
act, 42 USC 9601 to 9675.
(kk) "Postclosure agreement" means an agreement between the
department and a person who has submitted a no further action
report that prescribes, as appropriate, activities required to be
undertaken upon completion of remedial actions as provided for in
section 20114d.
(ll) "Postclosure plan" means a plan for land use or resource
use restrictions or permanent markers at a facility upon completion
of remedial actions as required under section 20114c.
(mm) "Release" includes, but is not limited to, any spilling,
leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing of a hazardous
substance into the environment, or the abandonment or discarding of
barrels, containers, and other closed receptacles containing a
hazardous substance. Release does not include any of the following:
(i) A release that results in exposure to persons solely within
a workplace, with respect to a claim that these persons may assert
against their employers.
(ii) Emissions from the engine exhaust of a motor vehicle,
rolling stock, aircraft, or vessel.
(iii) A release of source, by-product, or special nuclear
material from a nuclear incident, as those terms are defined in the
atomic energy act of 1954, 42 USC 2011 to 2297h-13, 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) A release does not include fruits, vegetables, field crop
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 and
management practices at the time of the application.
(vi) The relocation of soil under section 20120c.
(nn) "Remedial action" includes, but is not limited to,
cleanup, removal, containment, isolation, destruction, or treatment
of a hazardous substance released or threatened to be released into
the environment, monitoring, maintenance, or the taking of other
actions that may be necessary to prevent, minimize, or mitigate
injury to the public health, safety, or welfare, or to the
environment.
(oo) "Remedial action plan" means a work plan for performing
remedial action under this part.
(pp) "Residential closure" means a property at which the
contamination has been addressed in a no further action report that
satisfies the limited residential cleanup criteria under section
20120a(1)(c) or the site-specific residential cleanup criteria
under sections 20120a(2) and 20120b, that contains land use or
resource use restrictions, and that is approved by the department
or is considered approved by the department under section 20120d.
(qq) "Response activity" means evaluation, interim response
activity, remedial action, demolition, providing an alternative
water supply, or the taking of other actions necessary to protect
the public health, safety, or welfare, or the environment or the
natural resources. Response activity also includes health
assessments or health effect studies carried out under the
supervision, or with the approval of, the department of community
health and enforcement actions related to any response activity.
(rr) "Response activity costs" or "costs of response activity"
means all costs incurred in taking or conducting a response
activity, including enforcement costs.
(ss) "Response activity plan" means a plan for undertaking
response activities. A response activity plan may include 1 or more
of the following:
(i) A plan to undertake interim response activities.
(ii) A plan for evaluation activities.
(iii) A feasibility study.
(iv) A remedial action plan.
(tt) "Security interest" means any interest, including a
reversionary interest, in real property created or established for
the purpose of securing a loan or other obligation. Security
interests include, but are not limited to, mortgages, deeds of
trusts, liens, and title pursuant to lease financing transactions.
Security interests may also arise from transactions such as sale
and leasebacks, conditional sales, installment sales, trust receipt
transactions, certain assignments, factoring agreements, accounts
receivable financing arrangements, consignments, or any other
transaction in which evidence of title is created if the
transaction creates or establishes an interest in real property for
the purpose of securing a loan or other obligation.
(uu) "Stamp sands" means finely grained crushed rock resulting
from mining, milling, or smelting of copper ore and includes native
substances contained within the crushed rock and any ancillary
material associated with the crushed rock.
(vv) (uu)
"Target detection limit"
means the detection limit
for a hazardous substance in a given environmental medium that is
specified by the department on a list that it publishes not more
than once a year. The department shall identify 1 or more
analytical methods, when a method is available, that are judged to
be capable of achieving the target detection limit for a hazardous
substance in a given environmental medium. The target detection
limit for a given hazardous substance is greater than or equal to
the method detection limit for that hazardous substance. In
establishing a target detection limit, the department shall
consider the following factors:
(i) The low level capabilities of methods published by
government agencies.
(ii) Reported method detection limits published by state
laboratories.
(iii) Reported method detection limits published by commercial
laboratories.
(iv) The need to be able to measure a hazardous substance at
concentrations at or below cleanup criteria.
(ww) (vv)
"Threatened release" or
"threat of release" means
any circumstance that may reasonably be anticipated to cause a
release.
(xx) (ww)
"Venting groundwater"
means groundwater that is
entering a surface water of the state from a facility.
(2) As used in this part:
(a) The phrase "a person who is liable" includes a person who
is described as being subject to liability in section 20126. The
phrase "a person who is liable" does not presume that liability has
been adjudicated.
(b) The phrase "this part" includes "rules promulgated under
this part".
Sec. 20101c. Property where stamp sands have been deposited is
not subject to regulation under this part unless the property
otherwise contains hazardous substances in excess of the
concentrations that satisfy cleanup criteria for unrestricted
residential use.
