HOUSE BILL No. 5953

September 27, 2012, Introduced by Rep. Huuki and referred to the Committee on Natural Resources, Tourism, and Outdoor Recreation.

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 11502, 11503, 11504, 11505, 11542, 20101,

20114e, and 20126 (MCL 324.11502, 324.11503, 324.11504, 324.11505,

324.11542, 324.20101, 324.20114e, and 324.20126), sections 11502,

11503, and 11505 as amended by 2007 PA 212, section 11504 as

amended by 1996 PA 359, section 11542 as amended by 2004 PA 325,

section 20101 as amended by 2010 PA 229, section 20114e as amended

by 2012 PA 109, and section 20126 as amended by 2010 PA 227, and by

adding sections 11551 and 11552.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 11502. (1) "Agronomic rate" means a rate that meets both

of the following requirements:

     (a) Is generally recognized by the agricultural community or

is calculated for a particular property to improve the physical

nature of soil, such as structure, tilth, water retention, pH, or

porosity, or to provide the amount of macro or micro nutrients

needed by the crop, forest, or vegetation grown on the land.

     (b) Takes into account and minimizes runoff, the percolation

of excess nutrients beyond the root zone, and the potential for the

liberation of metals from the soil into groundwater.

     (2) (1) "Applicant" includes any person.

(3) (2) "Ashes" means the residue from the burning of wood,

coal, coke, refuse, scrap wood, tires, biomass, wastewater sludge,

fossil fuels including coal or coke, or other combustible

materials.

     (4) "Beneficial use 1" means use as aggregate, road material,

or building material that in ultimate use is or will be bonded or

encapsulated by cement, limes, or asphalt.

     (5) "Beneficial use 2" means use as construction fill, soil

stabilizer, or road base that is placed at least 4 feet above the

seasonal groundwater table, does not come into contact with a

surface water body, and is covered by cement, asphalt pavement, or

other material approved by the department.

     (6) "Beneficial use 3" means use as a road shoulder material

that is placed at least 4 feet above the seasonal groundwater

table, does not come into contact with a surface water body, is

sloped, and is covered by asphalt pavement, concrete, 6 inches of

gravel, or other material approved by the department.

     (7) "Beneficial use 4" means land applied, or mixed with

another material and land applied, for an agricultural,

silvicultural, or horticultural purpose if all of the following are

met:

     (a) The material is applied at an agronomic rate.

     (b) The use does not violate part 31 or part 55 or create a

nuisance.

     (c) The person relying on this exclusion prepares and

maintains for 5 years records identifying the site or sites of

storage and application, the owner of each site, and the volume

applied at the site of application and shall make such records

available to the department upon request.

     (8) "Beneficial use 5" means any of the following uses:

     (a) To stabilize, neutralize, solidify, or otherwise treat

waste for ultimate disposal at a facility licensed under this part

or part 111.

     (b) To treat wastewater, wastewater treatment sludge, or

wastewater sludge in compliance with part 31 at a private or

publicly owned wastewater treatment plant.

     (c) To remediate hazardous substances as part of a response

activity under part 201 or part 213 or a corrective action under

part 111.

     (d) As construction material at a landfill licensed under this

part.

     (9) "Beneficial use by-product" means the following materials

if the materials are used as specified and the requirements of

section 11551(1) and (2) are met:

     (a) Coal or wood ash, except for flue gas desulfurization

material, used for beneficial use 1, 2, 3, 4, or 5.

     (b) Pulp and paper mill ash used for beneficial use 1, 2, 4,

or 5.

     (c) Railroad tie ash used for beneficial use 1, 2, 4, or 5.

     (d) Tire ash used for beneficial use 1, 2, 4, or 5.

     (e) Unpainted scrap wood ash used for beneficial use 1, 2, 4,

or 5.

     (f) Cement kiln dust used as a flue gas scrubbing reagent or

for beneficial use 1, 2, 3, 4, or 5.

     (g) Lime kiln dust used as a flue gas scrubbing reagent or for

beneficial use 1, 2, 3, 4, or 5.

     (h) Stamp sands used for beneficial use 1, 2, or 3.

     (i) Foundry sand from ferrous or aluminum foundries used for

beneficial use 1, 2, or 3.

     (j) Pulp and paper mill material used for beneficial use 4.

     (k) Spent media from sandblasting newly manufactured,

unpainted steel used for beneficial use 1, 2, or 3.

     (l) Dewatered grinding sludge from public transportation agency

road projects used for beneficial use 1 or 4.

     (m) Water treatment residuals from the treatment and

conditioning of water for domestic use or from a community water

supply used for beneficial use 4 or 5.

     (n) Soil that is washed or otherwise removed from sugar beets

that has not more than 35% moisture content used for beneficial use

4.

     (o) Flue gas desulfurization material used for beneficial use

1.

     (p) Other materials and uses approved by the department

pursuant to section 11552.

(10) (3) "Beverage container" means an airtight metal, glass,

paper, or plastic container, or a container composed of a

combination of these materials, which, at the time of sale,

contains 1 gallon or less of any of the following:

     (a) A soft drink, soda water, carbonated natural or mineral

water, or other nonalcoholic carbonated drink.

     (b) A beer, ale, or other malt drink of whatever alcoholic

content.

     (c) A mixed wine drink or a mixed spirit drink.

(11) (4) "Bond" means a financial instrument executed on a

form approved by the department, including a surety bond from a

surety company authorized to transact business in this state, a

certificate of deposit, a cash bond, an irrevocable letter of

credit, insurance, a trust fund, an escrow account, or a

combination of any of these instruments in favor of the department.

The owner or operator of a disposal area who is required to

establish a bond under other state or federal statute may petition

the department to allow such a bond to meet the requirements of

this part. The department shall approve a bond established under

other another state statute or a federal statute if the bond

provides equivalent funds and access by the department as other

financial instruments allowed by this subsection.

     (12) "Cement kiln dust" means particulate matter collected in

air emission control devices serving Portland cement kilns.

(13) (5) "Certificate of deposit" means a negotiable

certificate of deposit held by a bank or other financial

institution regulated and examined by a state or federal agency,

the value of which is fully insured by an agency of the United

States government. A certificate of deposit used to fulfill the

requirements of this part shall be in the sole name of the

department with a maturity date of not less than 1 year and shall

be renewed not less than 60 days before the maturity date. An

applicant who uses a certificate of deposit as a bond shall receive

any accrued interest on that certificate of deposit upon release of

the bond by the department.

(14) (6) "Certified health department" means a city, county,

or district department of health that is specifically delegated

authority by the department to perform designated activities as

prescribed by this part.

(15) (7) "Coal or wood ash" means either or both of the

following:the noncombusted residue remaining after the combustion

of coal, wood, or both, including, but not limited to, bottom ash,

fly ash, boiler slag, or fluidized-bed combustion ash.

     (a) The residue remaining after the ignition of coal or wood,

or both, and may include noncombustible materials, otherwise

referred to as bottom ash.

     (b) The airborne residues from burning coal or wood, or both,

that are finely divided particles entrained in flue gases arising

from a combustion chamber, otherwise referred to as fly ash.

(16) (8) "Collection center" means a tract of land, building,

unit, or appurtenance or combination thereof that is used to

collect junk motor vehicles and farm implements under section

11530.

(17) (9) "Composting facility" means a facility where

composting of yard clippings or other organic materials occurs

using mechanical handling techniques such as physical turning,

windrowing, or aeration or using other management techniques

approved by the director.

(18) (10) "Consistency review" means evaluation of the

administrative and technical components of an application for a

permit or license or evaluation of operating conditions in the

course of inspection, for the purpose of determining consistency

with the requirements of this part, rules promulgated under this

part, and approved plans and specifications.

(19) (11) "Corrective action" means the investigation,

assessment, cleanup, removal, containment, isolation, treatment, or

monitoring of constituents, as defined in a facility's approved

hydrogeological monitoring plan, released into the environment from

a disposal area, or the taking of other actions related to the

release as may be necessary to prevent, minimize, or mitigate

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

or natural resources that is consistent with 42 USC 6941 to 6949a

and regulations promulgated thereunder.

     Sec. 11503. (1) "De minimis" refers to a small amount of

material or number of items, as applicable, commingled and

incidentally disposed of with other solid waste.

     (2) "Department" means the department of environmental

quality.

     (3) "Director" means the director of the department.

     (4) "Discharge" includes, but is not limited to, any spilling,

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

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

into the environment which that is or may become injurious to the

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

     (5) "Disposal area" means 1 or more of the following at a

location as defined by the boundary identified in its construction

permit or engineering plans approved by the department:

     (a) A solid waste transfer facility.

     (b) Incinerator.

     (c) Sanitary landfill.

     (d) Processing plant.

     (e) Other solid waste handling or disposal facility utilized

in the disposal of solid waste.

     (6) "Enforceable mechanism" means a legal method whereby the

state, a county, a municipality, or another person is authorized to

take action to guarantee compliance with an approved county solid

waste management plan. Enforceable mechanisms include contracts,

intergovernmental agreements, laws, ordinances, rules, and

regulations.

     (7) "Escrow account" means an account that is managed by a

bank or other financial institution whose account operations are

regulated and examined by a federal or state agency and which that

complies with section 11523b.

     (8) "Farm" means that term as defined in section 2 of the

Michigan right to farm act, 1981 PA 93, MCL 286.472.

     (9) "Farm operation" means that term as defined in section 2

of the Michigan right to farm act, 1981 PA 93, MCL 286.472.

     (10) "Financial assurance" means the mechanisms used to

demonstrate that the funds necessary to meet the cost of closure,

postclosure maintenance and monitoring, and corrective action will

be available whenever they are needed.

     (11) "Financial test" means a corporate or local government

financial test or guarantee approved for type II landfills under 42

USC 6941 to 6949a and regulations promulgated thereunder. An owner

or operator may use a single financial test for more than 1

facility. Information submitted to the department to document

compliance with the test shall include a list showing the name and

address of each facility and the amount of funds assured by the

test for each facility. For purposes of the financial test, the

owner or operator shall aggregate the sum of the closure,

postclosure, and corrective action costs it seeks to assure with

any other environmental obligations assured by a financial test

under state or federal law.

     (12) "Flue gas desulfurization material" means the material

recovered from air pollution control systems that capture sulfur

dioxide from the combustion of wood, coal, or fossil fuels, or

other combustible materials if the other combustible materials

constitute less than 50% by weight of the total combusted material

and the department determines in writing that the other combustible

materials do not materially affect the character of the residue.

Flue gas desulfurization material includes synthetic gypsum.

(13) (12) "Food processing residuals" means any of the

following:

     (a) Residuals of fruits, vegetables, aquatic plants, or field

crops.

     (b) Otherwise unusable parts of fruits, vegetables, aquatic

plants, or field crops from the processing thereof.

     (c) Otherwise unusable food products which do not meet size,

quality, or other product specifications and which were intended

for human or animal consumption.

     (14) "Foundry sand" means casting silica sand, including

binding material and carbonaceous additives, from ferrous and

nonferrous foundries.

     (15) "GAAMPS" are the generally accepted agricultural

management practices under the Michigan right to farm act, 1981 PA

93, MCL 286.471 to 286.474.

(16) (13) "Garbage" means rejected food wastes including waste

accumulation of animal, fruit, or vegetable matter used or intended

for food or that results from the preparation, use, cooking,

dealing in, or storing of meat, fish, fowl, fruit, or vegetable

matter.

     (17) "Lime kiln dust" means particulate matter collected in

air emission control devices serving lime kilns.

     (14) "Scrap wood" means wood or wood product that is 1 or more

of the following:

     (a) Plywood, pressed board, oriented strand board, or any

other wood or wood product mixed with glue or filler.

     (b) Wood or wood product treated with creosote or

pentachlorophenol.

     (c) Any other wood or wood product designated as scrap wood in

rules promulgated by the department.

     (15) "Treated wood" means wood or wood product that has been

treated with 1 or more of the following:

     (a) Chromated copper arsenate (CCA).

     (b) Ammoniacal copper quat (ACQ).

     (c) Ammoniacal copper zinc arsenate (ACZA).

     (d) Any other chemical designated in rules promulgated by the

department.

     (16) "Wood" means trees, branches, bark, lumber, pallets, wood

chips, sawdust, or other wood or wood product but does not include

scrap wood, treated wood, painted wood or painted wood product, or

any wood or wood product that has been contaminated during

manufacture or use.

     Sec. 11504. (1) "Health officer" means a full-time

administrative officer of a certified city, county, or district

department of health department.

     (2) "Inert material" means a substance that will not leach,

decompose, or dissolve , or in any other way form a so as to form

an unacceptably contaminated leachate upon contact with water , or

other liquids determined by the department as likely to be found at

the disposal area, percolating through the substance. area of

disposal or use. The following materials are inert materials:

     (a) Rock.

     (b) Trees, stumps, and other similar land-clearing debris

cleared from a site that is buried on the site or another location,

with the approval of the owner of that location, if all of the

following conditions are met:

     (i) The debris is not buried in a wetland or floodplain.

     (ii) The debris is placed at least 3 feet above the groundwater

table as observed at the time of placement.

     (iii) The placement of the debris does not violate federal,

state, or local law or create a nuisance.

     (c) Uncontaminated excavated soil. Excavated soil is

considered uncontaminated if, based on knowledge of past land use

and soil conditions and in the absence of a soil analysis, which is

not required, there is no reason to believe that the soil is

contaminated. Otherwise, a determination whether excavated soil is

contaminated shall be based on a soil analysis. If a soil analysis

is performed, the soil is considered uncontaminated if any

hazardous constituent in the material meets 1 or more of the

following requirements:

     (i) It is listed in the department's 2005 Michigan background

soil survey and falls within the typical ranges for the relevant

soil or soil fraction, such as topsoil, sand, or clay.

     (ii) It falls below part 201 residential direct contact

criteria. This sub-subparagraph does not apply unless hazardous

constituents in leachate from the material, using EPA methods 1311

or 1312, fall below part 201 health-based residential drinking

water criteria, and do not violate any surface water quality

standard established under part 31.

     (d) Excavated soil from a site of environmental contamination,

corrective action, or response activity if the constituents in the

soil do not exceed cleanup criteria for unrestricted residential

use as defined in section 20101.

     (e) Uncontaminated dredgings.

     (f) Construction brick, masonry, pavement, or broken concrete

that is reused for fill, rip rap, slope stabilization, or other

construction, if all of the following conditions are met:

     (i) The use of the material does not violate section 3108, part

301, or part 303.

     (ii) The material is not materially contaminated.

     (iii) The material does not include exposed reinforcing bars.

     (g) Portland cement clinker produced by a cement kiln using

wood, fossil fuels, or solid waste as a fuel or feedstock, but not

including cement kiln dust generated in the process.

     (h) Asphalt pavement or concrete pavement that meets all of

the following requirements:

     (i) Has been removed from a public right-of-way.

     (ii) Has been stockpiled or crushed for reuse as aggregate

material.

     (iii) Does not include exposed reinforcement bars.

     (i) Cuttings, drilling materials, and fluids used to drill or

complete a well installed pursuant to part 127 of the public health

code, 1978 PA 368, MCL 333.12701 to 333.12771.

     (j) Any other material determined at any time by the

department in writing to be inert.

     (3) "Insurance" means insurance that conforms to the

requirements of 40 C.F.R. CFR 258.74(d) provided by an insurer who

has a certificate of authority from the Michigan commissioner of

insurance to sell this line of coverage. An applicant for an

operating license shall submit evidence of the required coverage by

submitting both of the following to the department:

     (a) A certificate of insurance that uses wording approved by

the department.

     (b) A certified true and complete copy of the insurance

policy.

     (4) "Landfill" means a disposal area that is a sanitary

landfill.

     (5) "Letter of credit" means an irrevocable letter of credit

that complies with 40 C.F.R. CFR 258.74(c).

     (6) "Low-hazard industrial waste" means industrial material

that has a low potential for groundwater contamination when managed

in accordance with this part. The following materials may be

managed as low-hazard industrial wastes if not excluded from the

definition of "solid waste" in section 11506(1):

     (a) Coal or wood ash.

     (b) Cement kiln dust.

     (c) Pulp or paper mill waste.

     (d) Sludge from the treatment and conditioning of water for

domestic use.

     (e) Residue from the thermal treatment of petroleum

contaminated soil, media, or debris.

     (f) Sludge from the treatment and conditioning of water from a

community water supply.

     (g) Foundry sand.

     (h) Any other material determined by the department in writing

to be a low-hazard industrial waste.

(7) (6) "Medical waste" means that term as it is defined in

part 138 of the public health code, Act No. 378 of the Public Acts

of 1978, being sections 1978 PA 368, MCL 333.13801 to 333.13831. of

the Michigan Compiled Laws.

(8) (7) "Municipal solid waste incinerator" means an

incinerator that is owned or operated by any person, and meets all

of the following requirements:

     (a) The incinerator receives solid waste from off site and

burns only household waste from single and multiple dwellings,

hotels, motels, and other residential sources, or this household

waste together with solid waste from commercial, institutional,

municipal, county, or industrial sources that, if disposed of,

would not be required to be placed in a disposal facility licensed

under part 111.

     (b) The incinerator has established contractual requirements

or other notification or inspection procedures sufficient to assure

that the incinerator receives and burns only waste referred to in

subdivision (a).

     (c) The incinerator meets the requirements of this part and

the rules promulgated under this part.

     (d) The incinerator is not an industrial furnace as defined in

40 C.F.R. CFR 260.10.

     (e) The incinerator is not an incinerator that receives and

burns only medical waste or only waste produced at 1 or more

hospitals.

(9) (8) "Municipal solid waste incinerator ash" means the

substances remaining after combustion in a municipal solid waste

incinerator.

(10) (9) "Perpetual care fund" means a perpetual care fund

provided for in section 11525.

     (10) "Trust fund" means a trust fund held by a trustee which

has the authority to act as a trustee and whose trust operations

are regulated and examined by a federal or state agency. A trust

fund shall comply with section 11523b.

     (11) "Pulp and paper mill material" means all of the following

materials if generated at a facility that produces pulp or paper:

     (a) Wastewater treatment sludge, including wood fibers,

minerals, and microbial biomass.

     (b) Rejects from screens, cleaners, and mills.

     (c) Bark, wood fibers, and chips.

     (d) Scrap paper.

     (e) Causticizing residues, including lime mud and grit and

green liquor dregs.

     (f) Any other material that the department determines has

characteristics that are similar to any of the materials listed in

subdivisions (a) to (e).

     Sec. 11505. (1) "Recyclable materials" means source separated

materials, site separated materials, high grade paper, glass,

metal, plastic, aluminum, newspaper, corrugated paper, yard

clippings, and other materials that may be recycled or composted.

     (2) "Regional solid waste management planning agency" means

the regional solid waste planning agency designated by the governor

pursuant to 42 USC 6946.

     (3) "Resource recovery facility" means machinery, equipment,

structures, or any parts or accessories of machinery, equipment, or

structures, installed or acquired for the primary purpose of

recovering materials or energy from the waste stream.

     (4) "Response activity" means an activity that is necessary to

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

includes, but is not limited to, evaluation, cleanup, removal,

containment, isolation, treatment, monitoring, maintenance,

replacement of water supplies, and temporary relocation of people.

     (5) "Rubbish" means nonputrescible solid waste, excluding

ashes, consisting of both combustible and noncombustible waste,

including paper, cardboard, metal containers, yard clippings, wood,

glass, bedding, crockery, demolished building materials, or litter

of any kind that may be a detriment to the public health and

safety.

     (6) "Salvaging" means the lawful and controlled removal of

reusable materials from solid waste.

     (7) "Scrap wood" means wood or wood product that is 1 or more

of the following:

     (a) Plywood, particle board, pressed board, oriented strand

board, fiberboard, resonated wood, or any other wood or wood

product mixed with glue, resins, or filler.

     (b) Wood or wood product treated with creosote or

pentachlorophenol.

     (c) Any other wood or wood product designated as scrap wood in

rules promulgated by the department.

(8) (7) "Site separated material" means glass, metal, wood,

paper products, plastics, rubber, textiles, garbage, or any other

material approved by the department that is separated from solid

waste for the purpose of recycling or conversion into raw materials

or new products. Site separated material does not include the

residue remaining after glass, metal, wood, paper products,

plastics, rubber, textiles, or any other material approved by the

department is separated from solid waste.

(9) (8) "Slag" means the nonmetallic product resulting from

melting or smelting operations for iron or steel.

     Sec. 11542. (1) Except as provided in subsection (5) and

except for municipal solid waste incinerator ash that is used as

provided in section 11506(6), municipal solid waste incinerator ash

shall be disposed of in 1 of the following:

     (a) A landfill that meets all of the following requirements:

     (i) The landfill is in compliance with this part and the rules

promulgated under this part.

     (ii) The landfill is used exclusively for the disposal of

municipal solid waste incinerator ash.

     (iii) The landfill design includes all of the following in

descending order according to their placement in the landfill:

     (A) A leachate collection system.

     (B) A synthetic liner at least 60 mils thick.

     (C) A compacted clay liner of 5 feet or more with a maximum

hydraulic conductivity of 1 x 10-⁷ centimeters per second.

     (D) A leak detection and leachate collection system.

     (E) A compacted clay liner at least 3 feet thick with a

maximum hydraulic conductivity of 1 x 10-⁷ centimeters per second or

a synthetic liner at least 40 mils thick.

     (b) A landfill that meets all of the following requirements:

     (i) The landfill is in compliance with this part and the rules

promulgated under this part.

     (ii) The landfill is used exclusively for the disposal of

municipal solid waste incinerator ash.

     (iii) The landfill design includes all of the following in

descending order according to their placement in the landfill:

     (A) A leachate collection system.

     (B) A composite liner, as defined in R 299.4102 of the

Michigan administrative code.

     (C) A leak detection and leachate collection system.

     (D) A second composite liner.

     (iv) If contaminants that may threaten the public health,

safety, or welfare, or the environment are found in the leachate

collection system described in subparagraph (iii)(C), the owner or

operator of the landfill shall determine the source and nature of

the contaminants and make repairs, to the extent practicable, that

will prevent the contaminants from entering the leachate collection

system. If the department determines that the source of the

contaminants is caused by a design failure of the landfill, the

department, notwithstanding an approved construction permit or

operating license, may require landfill cells at that landfill that

will be used for the disposal of municipal solid waste incinerator

ash, which are under construction or will be constructed in the

future at the landfill, to be constructed in conformance with

improved design standards approved by the department. However, this

subparagraph does not require the removal of liners or leak

detection and leachate collection systems that are already in place

in a landfill cell under construction.

     (c) A landfill that is a monitorable unit, as defined in R

299.4104 of the Michigan administrative code, and that meets all of

the following requirements:

     (i) The landfill is in compliance with this part and the rules

promulgated under this part.

     (ii) The landfill is used exclusively for the disposal of

municipal solid waste incinerator ash.

     (iii) The landfill design includes all of the following in

descending order according to their placement in the landfill:

     (A) A leachate collection system.

     (B) A synthetic liner at least 60 mils thick.

     (C) Immediately below the synthetic liner, either 2 feet of

compacted clay with a maximum hydraulic conductivity of 1 x 10- ⁷

centimeters per second or a bentonite geocomposite liner, as

specified in R 299.4914 of the Michigan administrative code.

     (D) At least 10 feet of either natural or compacted clay with

a maximum hydraulic conductivity of 1 x 10-⁷ centimeters per second,

or equivalent.

     (d) A landfill with a design approved by the department that

will prevent the migration of any hazardous constituent into the

groundwater or surface water at least as effectively as the design

requirements of subdivisions (a) to (c).

     (e) A type II landfill, as defined described in R 299.4105 of

the Michigan administrative code, if both of the following

conditions apply:

     (i) The ash was generated by a municipal solid waste

incinerator that is designed to burn at a temperature in excess of

2500 degrees Fahrenheit.

     (ii) The ash from any individual municipal solid waste

incinerator is disposed of pursuant to this subdivision for a

period not to exceed 60 days.

     (2) Except as provided in subsection (3), a landfill that is

constructed pursuant to the design described in subsection (1)

shall be capped following its closure by all of the following in

descending order:

     (a) Six inches of top soil with a vegetative cover.

     (b) Two feet of soil to protect against animal burrowing,

temperature, erosion, and rooted vegetation.

     (c) An infiltration collection system.

     (d) A synthetic liner at least 30 mils thick.

     (e) Two feet of compacted clay with a maximum hydraulic

conductivity of 1 x 10-⁷ centimeters per second.

     (3) A landfill that receives municipal solid waste incinerator

ash under this section may be capped with a design approved by the

department that will prevent the migration of any hazardous

constituent into the groundwater or surface water at least as

effectively as the design requirements of subsection (2).

     (4) If leachate is collected from a landfill under this

section, the leachate shall be monitored and tested in accordance

with this part and the rules promulgated under this part.

     (5) As an alternative to disposal described in subsection (1),

the owner or operator of a municipal solid waste incinerator may

process municipal solid waste incinerator ash through mechanical or

chemical methods, or both, to substantially diminish the toxicity

of the ash or its constituents or limit the leachability of the ash

or its constituents to minimize threats to human health and the

environment, if processing is performed on the site of the

municipal solid waste incinerator or at the site of a landfill

described in subsection (1), if the process has been approved by

the department as provided by rule, and if the ash is tested after

processing in accordance with a protocol approved by the department

as provided by rule. The department shall approve the process and

testing protocol under this subsection only if the process and

testing protocol will protect human health and the environment. In

making this determination, the department shall consider all

potential pathways of human and environmental exposure, including

both short-term and long-term, to constituents of the ash that may

be released during the reuse or recycling of the ash. The

department shall consider requiring methods to determine the

leaching, total chemical analysis, respirability, and toxicity of

reused or recycled ash. A leaching procedure shall include testing

under both acidic and native conditions. If municipal solid waste

incinerator ash is processed in accordance with the requirements of

this subsection and the processed ash satisfies the testing

protocol approved by the department as provided by rule, the ash

may be disposed of in a municipal solid waste landfill, as defined

by R 299.4104 of the Michigan administrative code, licensed under

this part or may be used in any manner approved by the department.

If municipal solid waste incinerator ash is processed as provided

in this subsection, but does not satisfy the testing protocol

approved by the department as provided by rule, the ash shall be

disposed of in accordance with subsection (1).

     (6) The disposal of municipal solid waste incinerator ash

within a landfill that is in compliance with subsection (1) does

not constitute a new proposal for which a new construction permit

is required under section 11510, 11509, if a construction permit

has previously been issued under section 11509 for the landfill and

the owner or operator of the landfill submits 6 copies of an

operating license amendment application to the department for

approval pursuant to part 13. The operating license amendment

application shall include revised plans and specifications for all

facility modifications including a leachate disposal plan, an

erosion control plan, and a dust control plan which shall be part

of the operating license amendment. The dust control plan shall

contain sufficient detail to ensure that dust emissions are

controlled by available control technologies that reduce dust

emissions by a reasonably achievable amount to the extent necessary

to protect human health and the environment. The dust control plan

shall provide for the ash to be wet during all times that the ash

is exposed to the atmosphere at the landfill or otherwise to be

covered by daily cover material; for dust emissions to be

controlled during dumping, grading, loading, and bulk transporting

of the ash at the landfill; and for dust emissions from access

roads within the landfill to be controlled. With the exception of a

landfill that is in existence on June 12, 1989 that the department

determines is otherwise in compliance with this section, the owner

or operator of the landfill shall obtain the operating license

amendment prior to initiating construction. Prior to operation, the

owner or operator of a landfill shall submit to the department

certification from a licensed professional engineer that the

landfill has been constructed in accordance with the approved plan

and specifications. At the time the copies are submitted to the

department, the owner or operator of the landfill shall send a copy

of the operating license amendment application to the municipality

where the landfill is located. At least 30 days prior to making a

final decision on the operating license amendment, the department

shall hold at least 1 public meeting in the vicinity of the

landfill to receive public comments. Prior to a public meeting, the

department shall publish notice of the meeting in a newspaper

serving the local area.

     (7) The owner or operator of a municipal solid waste

incinerator or a disposal area that receives municipal solid waste

incinerator ash shall allow the department access to the facility

for the purpose of supervising the collection of samples or

obtaining samples of ash to test or to monitor air quality at the

facility.

     (8) As used in subsection (1), "landfill" means a landfill or

a specific portion of a landfill.

     Sec. 11551. (1) To qualify as a beneficial use by-product, a

material shall meet all of the following requirements:

     (a) The material does not have any characteristic of a part

111 hazardous waste, is not a listed hazardous waste, and is not

mixed with hazardous waste.

     (b) The material is not used in quantities that exceed

generally accepted engineering, industrial, or commercial

standards.

     (c) The material is used in compliance with this part within a

reasonable time after it is generated. Either of the following

shall be presumed reasonable:

     (i) Storage prior to any use under this part for less than 3

years.

     (ii) Use, pursuant to this part and within 4 years, of at least

50% of the material stored at 1 site.

     (d) The material is stored in such a manner that its

usefulness is maintained, wind dispersal is controlled, and loss of

the material is prevented to the extent practicable.

     (e) The material is transported in a manner that prevents

accidental leakage, spillage, or wind dispersal.

     (2) By October 30 of each year, a generator of more than 1,000

cubic yards of beneficial use by-products in the immediately

preceding period of October 1 to September 30 shall submit a report

to the department containing all of the following information:

     (a) Company name, address, telephone number, and name of a

contact person.

     (b) The types of beneficial use by-products generated and

stored during that period and their approximate amounts.

     (c) The approximate amount of beneficial use by-products

shipped off-site during that period and the uses and conditions of

use.

     (3) The generator may designate the information required in

the report under subsection (2)(b) and (c) as confidential business

information. The department shall notify the generator of a request

for public records under section 5 of the freedom of information

act, 1976 PA 442, MCL 15.235, whose scope includes information

designated as confidential. Unless within 30 days after the receipt

of the notice the generator demonstrates to the satisfaction of the

department that the information designated as confidential should

not be disclosed because the information constitutes a trade secret

or secret process or is production or commercial information the

disclosure of which would jeopardize the competitive position of

the generator, the department shall grant the request for the

information. If there is a dispute over the release of information

between the generator and the person requesting the information,

the director shall make a decision to grant or deny the request. If

a request is granted, the information requested shall not be

released until 3 days have elapsed after the decision has been made

and the generator has been notified.

     (4) Except as otherwise provided in this part, storage and use

of beneficial use by-products shall comply with all other

applicable parts of this act.

     Sec. 11552. (1) Consistent with the requirements of this part,

the department shall promote and foster the use of wastes and by-

products for recycling or beneficial purposes.

     (2) Any person may request the department to approve a

material; a material for a specified use as a source separated

material; a beneficial use by-product; or another material or use

that can be approved under this part. The request shall contain a

description of the material including the process generating it;

results of analyses of representative samples of the material for

any constituents that the person has knowledge or reason to believe

could be present in the material, based on the source of the

material, its composition, or the process that created it; and, if

applicable, a description of the proposed use. The department shall

provide its determination within 150 days after the request is

received, unless the parties agree to an extension. If the

department determines that the request does not include sufficient

information, the department shall, not more than 60 days after

receipt of the request, notify the requester. The notice shall

specify the information that is required for the department to make

a decision. The 150-day period is tolled until the requestor

submits the information specified in the notice. If a request is

approved with conditions, the department's approval shall state

with specificity the conditions of approval. If the request is

denied, the department's denial shall, to the extent practical,

state with specificity all of the reasons for denial. If the

department fails to approve or deny the request within the 150-day

period, the request is considered approved. A person requesting

approval under this subsection may appeal the department's decision

to the response activity review panel as set forth in section

20114e or may seek review of any final department decision pursuant

to section 631 of the revised judicature act of 1961, 1961 PA 236,

MCL 600.631.

     (3) The department shall approve a material for a specified

use as a beneficial use by-product if all of the following

requirements are met:

     (a) The material is an industrial or commercial material that

is or has the potential to be generated in high volumes.

     (b) The proposed use serves a legitimate beneficial purpose

other than providing a means to discard the material.

     (c) A market exists for the material or there is a reasonable

potential for the creation of a new market for the material if it

is approved as a beneficial use by-product.

     (d) For a material that will be placed on the land or used in

the outdoor environment, any hazardous constituent in the material

meets 1 or more of the following requirements:

     (i) It is listed in the department's 2005 Michigan background

soil survey and falls within the typical ranges published in that

document.

     (ii) It falls below part 201 residential direct contact

criteria. This sub-subparagraph does not apply unless hazardous

constituents in leachate from the material, using EPA method 1311

or 1312, fall below part 201 health-based residential drinking

water criteria, and do not violate any relevant surface water

quality standard established under part 31.

     (iii) If constituents exceed the ranges and concentrations set

forth in subparagraphs (i) and (ii), the department determines that

the material and use are protective of the public health and

environment. In making the determination, the department shall

consider the potential for risk to human health and the environment

given the environmental fate and transport of the material in soil,

groundwater, or otherwise, for the use.

     (e) The materials and uses meet all federal and state consumer

protection and product safety laws and regulations.

     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.

     (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) "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.

     (i) "Department" means the director of the department of

natural resources and environment environmental quality or his or

her designee to whom the director delegates a power or duty by

written instrument.

     (j) "Director" means the director of the department of natural

resources and environment environmental quality.

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

departments of natural resources and environment environmental

quality, community health, agriculture and rural development, and

state police.

     (l) "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.

     (m) "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.

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

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

biota within the state.

     (o) "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.

     (p) "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.

     (q) "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.

     (r) "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.

     (iv) Hazardous substances in concentrations above residential

cleanup criteria are present due only to the storage or use of

beneficial use by-products or inert materials at the area, place,

or property in compliance with part 115.

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

evaluating, and selecting appropriate response activities.

     (t) "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.

     (u) "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.

     (v) "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.

     (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 developed pursuant to the Michigan right to farm act,

1981 PA 93, MCL 286.471 to 286.474:

     (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.

     (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

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 sales 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.

     (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 the state

or federal government or a state or federal agency.

     (cc) "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.

     (dd) "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.

     (ee) "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.

     (ff) "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.

     (gg) "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.

     (hh) "Panel" means the response activity review panel created

in section 20114e.

     (ii) "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.

     (jj) "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.

     (kk) "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.

     (ll) "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, 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 Application of 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.

     (vi) The storage or use of beneficial use by-products or inert

materials at the site of storage or use if in compliance with part

115.

     (mm) "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.

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

remedial action under this part.

     (oo) "Residential closure" means a facility 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.

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

activity, remedial action, demolition, 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.

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

means all costs incurred in taking or conducting a response

activity, including enforcement costs.

     (rr) "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.

     (ss) "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.

     (tt) "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.

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

circumstance that may reasonably be anticipated to cause a release.

     (vv) "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. 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, concerning response activity plans and no further action

reports under this part, and initial assessment reports, final

assessment reports, and closure reports under part 213.

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

the director. Each member of the panel shall 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 the 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.

     (c) The individual is employed by an entity that is a party to

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 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 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; or a no

further action report under this part; or an initial assessment

report, final assessment report, or closure report under part 213;

or a request to approve use, reuse, or recycling under section

11552 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, initial assessment report, final assessment

report, or closure report, or request under section 11552 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 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 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 have relevant experience in the American 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 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

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 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,

initial assessment report, final assessment report, or closure

report. 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. 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 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. 20126. (1) Notwithstanding any other provision or rule of

law and except as provided in subsections (2), (3), (4), and (5)

and section 20128, the following persons are liable under this

part:

     (a) The owner or operator of a facility if the owner or

operator is responsible for an activity causing a release or threat

of release.

     (b) The owner or operator of a facility at the time of

disposal of a hazardous substance if the owner or operator is

responsible for an activity causing a release or threat of release.

     (c) An owner or operator of a facility who becomes an owner or

operator on or after June 5, 1995, unless the owner or operator

complies with both of the following:

     (i) A baseline environmental assessment is conducted prior to

or within 45 days after the earlier of the date of purchase,

occupancy, or foreclosure. For purposes of this section, assessing

property to conduct a baseline environmental assessment does not

constitute occupancy.

     (ii) The owner or operator provides a baseline environmental

assessment to the department and subsequent purchaser or transferee

within 6 months after the earlier of the date of purchase,

occupancy, or foreclosure.

     (d) A person who by contract, agreement, or otherwise arranged

for disposal or treatment, or arranged with a transporter for

transport for disposal or treatment, of a hazardous substance owned

or possessed by the person, by any other person, at a facility

owned or operated by another person and containing the hazardous

substance. This subdivision does not include any of the following:

     (i) A person who, on or after June 5, 1995, arranges for the

sale or transport of a secondary material for use in producing a

new product. As used in this subparagraph, secondary material means

scrap metal, paper, plastic, glass, textiles, or rubber, which has

demonstrated reuse or recycling potential and has been separated or

removed from the solid waste stream for reuse or recycling, whether

or not subsequent separation and processing is required, if

substantial amounts of the material are consistently used in the

manufacture of products which may otherwise be produced from a raw

or virgin material.

     (ii) A person who, prior to June 5, 1995, arranges for the sale

or transport of a secondary material for use in producing a new

product unless the state has incurred response activity costs

associated with these secondary materials prior to December 17,

1999. As used in this subparagraph, secondary material means scrap

metal, paper, plastic, glass, textiles, or rubber, which has

demonstrated reuse or recycling potential and has been separated or

removed from the solid waste stream for reuse or recycling, whether

or not subsequent separation and processing is required, if

substantial amounts of the material are consistently used in the

manufacture of products which may otherwise be produced from a raw

or virgin material.

     (iii) A person who arranges the lawful transport or disposal of

any product or container commonly used in a residential household,

which is in a quantity commonly used in a residential household,

and which was used in the person's residential household.

     (iv) A person who stores or uses or arranges for the storage or

use of a beneficial use by-product or inert material in compliance

with part 115.

     (e) A person who accepts or accepted any hazardous substance

for transport to a facility selected by that person.

     (f) The estate or trust of a person described in subdivisions

(a) to (e).

     (2) Subject to section 20107a, an owner or operator who

complies with subsection (1)(c) is not liable for contamination

existing at the facility at the earlier of the date of purchase,

occupancy, or foreclosure, unless the person is responsible for an

activity causing the contamination existing at the facility.

Subsection (1)(c) does not alter a person's liability with regard

to a subsequent release or threat of release at a facility if the

person is responsible for an activity causing the subsequent

release or threat of release.

     (3) Notwithstanding subsection (1), the following persons are

not liable under this part with respect to contamination at a

facility resulting from a release or threat of release unless the

person is responsible for an activity causing that release or

threat of release:

     (a) The state or a local unit of government that acquired

ownership or control of a facility involuntarily through

bankruptcy, tax delinquency, abandonment, a transfer from a lender

pursuant to subsection (7), or other circumstances in which the

government involuntarily acquires title or control by virtue of its

governmental function or as provided in this part, a local unit of

government to which ownership or control of a facility is

transferred by the state or by another local unit of government

that is not liable under subsection (1), or the state or a local

unit of government that acquired ownership or control of a facility

by seizure, receivership, or forfeiture pursuant to the operation

of law or by court order.

     (b) A state or local unit of government that holds or acquires

an easement interest in a facility, holds or acquires an interest

in a facility by dedication in a plat, or by dedication pursuant to

1909 PA 283, MCL 220.1 to 239.6, or otherwise holds or acquires an

interest in a facility for a transportation or utility corridor,

including sewers, pipes, and pipelines, or public right of way.

     (c) A person who holds an easement interest in a facility or

holds a utility franchise to provide service, for the purpose of

conveying or providing goods or services, including, but not

limited to, utilities, sewers, roads, railways, and pipelines; or a

person that acquires access through an easement.

     (d) A person who owns severed subsurface mineral rights or

severed subsurface formations or who leases subsurface mineral

rights or formations.

     (e) The state or a local unit of government that leases

property to a person if the state or the local unit of government

is not liable under this part for environmental contamination at

the property.

     (f) A person who owns or occupies residential real property if

hazardous substance use at the property is consistent with

residential use.

     (g) A person who acquires a facility as a result of the death

of the prior owner or operator of the facility, whether by

inheritance, devise, or transfer from an inter vivos or

testamentary trust.

     (h) A person who did not know and had no reason to know that

the property was a facility. To establish that the person did not

know and did not have a reason to know that the property was a

facility, the person shall have undertaken at the time of

acquisition all appropriate inquiry into the previous ownership and

uses of the property consistent with good commercial or customary

practice. A determination of liability under this section shall

take into account any specialized knowledge or experience on the

part of the person, the relationship of the purchase price to the

value of the property if uncontaminated by a hazardous substance,

commonly known or reasonable ascertainable information about the

property, the obviousness of the presence or likely presence of a

release or threat of release at the property, and the ability to

detect a release or threat of release by appropriate inspection.

     (i) A utility performing normal construction, maintenance, and

repair activities in the normal course of its utility service

business. This subsection subdivision does not apply to property

owned by the utility.

     (j) A lessee who uses the leased property for a retail,

office, or commercial purpose regardless of the level of the

lessee's hazardous substance use.

     (k) A person who holds a license, easement, or lease, or who

otherwise occupies or operates property, for the purpose of siting,

constructing, operating, or removing a wind energy conversion

system or any component of a wind energy conversion system. As used

in this subdivision, "wind energy conversion system" means that

term as defined in section 13 of the clean, renewable, and

efficient energy act, 2008 PA 295, MCL 460.1013.

     (4) Notwithstanding subsection (1), the following persons are

not liable under this part:

     (a) The owner or operator of a hazardous waste treatment,

storage, or disposal facility regulated pursuant to part 111 from

which there is a release or threat of release solely from the

treatment, storage, or disposal facility, or a waste management

unit at the facility and the release or threat of release is

subject to corrective action under part 111.

     (b) A lender that engages in or conducts a lawful marshalling

or liquidation of personal property if the lender does not cause or

contribute to the environmental contamination. This includes

holding a sale of personal property on a portion of the facility.

     (c) The owner or operator of property onto which contamination

has migrated unless that person is responsible for an activity

causing the release that is the source of the contamination.

     (d) A person who owns or operates a facility in which the

release or threat of release was caused solely by 1 or more of the

following:

     (i) An act of God.

     (ii) An act of war.

     (iii) An act or omission of a third party other than an employee

or agent of the person or a person in a contractual relationship

existing either directly or indirectly with a person who is liable

under this section.

     (e) Any person for environmental contamination addressed in a

no further action report that is approved by the department or is

considered approved under section 20114d. Notwithstanding this

subdivision, a person may be liable under this part for the

following:

     (i) A subsequent release not addressed in the no further action

report if the person is otherwise liable under this part for that

release.

     (ii) Environmental contamination that is not addressed in the

no further action report and for which the person is otherwise

liable under this part.

     (iii) If the no further action report relies on land use or

resource use restrictions, an owner or operator who desires to

change those restrictions is responsible for any response

activities necessary to comply with this part for any land use or

resource use other than the land use or resource use that was the

basis for the no further action report.

     (iv) If the no further action report relies on monitoring

necessary to assure the effectiveness and integrity of the remedial

action, an owner or operator who is otherwise liable for

environmental contamination addressed in a no further action report

is liable under this part for additional response activities

necessary to address any potential exposure to the environmental

contamination demonstrated by the monitoring in excess of the

levels relied on in the no further action report.

     (v) If the remedial actions that were the basis for the no

further action report fail to meet performance objectives that are

identified in the no further action report, an owner or operator

who is otherwise liable for environmental contamination addressed

in the no further action report is liable under this part for

response activities necessary to satisfy the performance objectives

or otherwise comply with this part.

     (5) Notwithstanding any other provision of this part, the

state or a local unit of government or a lender who has not

participated in the management of the facility is not liable under

this part for costs or damages as a result of response activity

taken in response to a release or threat of release. For a lender,

this subsection applies only to response activity undertaken prior

to foreclosure. This subsection does not preclude liability for

costs or damages as a result of gross negligence, including

reckless, willful, or wanton misconduct, or intentional misconduct

by the state or local unit of government.

     (6) In establishing liability under this section, the

department bears the burden of proof.

     (7) Beginning on the effective date of the 2010 amendatory act

that amended this section December 14, 2010, the department shall

not implement or enforce R 299.5901 to R 299.5919 of the Michigan

administrative code, except the department may implement and

enforce the following rules:

     (a) Subrules (2), (6), (8), and (9) of rule 903, R 299.5903 of

the Michigan administrative code.

     (b) Subrules (2) through (6) of rule 905, R 299.5905 of the

Michigan administrative code.

     (c) Rule 919, R 299.5919 of the Michigan administrative code.

     (8) Notwithstanding subsection (1)(c), if the owner or

operator of the facility became the owner or operator of the

facility on or after June 5, 1995 and prior to March 6, 1996, and

the facility contains an underground storage tank system as defined

in part 213, that owner or operator is liable under this part only

if the owner or operator is responsible for an activity causing a

release or threat of release.

     (9) An owner or operator who was in compliance with subsection

(1)(c) prior to the effective date of the amendatory act that added

this subsection December 14, 2010, is considered to be in

compliance with subsection (1)(c).

     Enacting section 1. This amendatory act does not take effect

unless House Bill No. 5438 of the 96th Legislature is enacted into

law.