SENATE BILL No. 351

 

 

May 7, 2013, Introduced by Senator MEEKHOF and referred to the Committee on Agriculture.

 

 

 

     A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

by amending section 20101 (MCL 324.20101), as amended by 2012 PA

 

446.

 

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 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 developed pursuant to the Michigan right to farm act,

 

1981 PA 93, MCL 286.471 to 286.474: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 developed

 

pursuant to the Michigan right to farm act, 1981 PA 93, MCL 286.471

 

to 286.474, 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 developed pursuant to the Michigan right to

 

farm act, 1981 PA 93, MCL 286.471 to 286.474.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) "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.

 

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

 

circumstance that may reasonably be anticipated to cause a release.

 

     (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".