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September 18, 2014

Michigan Lame Duck Legislative Changes to Environmental Cleanup of Contaminated Sites and Leaking Underground Storage Tanks

Michigan's "lame duck" legislature enacted changes that affect environmental cleanup of contaminated sites and leaking underground storage tanks. Following the amendments made to the Natural Resources & Environmental Protection Act "NREPA" Part 201 (environmental remediation) in December 2010 and the Part 213 (leaking underground storage tanks ("LUST")) in May 2012, Senate Bill 1328 makes further changes to Michigan's program to cleanup contaminated sites. Many of these legislative reforms passed early in the day on December 14th are the result of the Collaborative Stakeholder Initiative process in which Barnes & Thornburg participated. The main clean-up reforms are summarized below.

"Certificates of Completion."  A "certificate of completion" may now be issued by MDEQ after a response activity has been conducted by a person. This is likely most beneficial for a specific investigation or interim response action, to provide proof that the work was satisfactorily completed. For more significant remedial actions, parties will likely pursue a No Further Action ("NFA") determination as discussed below. If a person had undertaken the response activity without MDEQ's prior approval, then the MDEQ has 150 days to make a completion determination. If the MDEQ pre-approved the response activity, then the deadline for the determination is shortened to 90 days. Like with other requests to the MDEQ, such as for a NFA determination, MDEQ's decisions are appealable to the Response Activity Panel, and if the MDEQ does not issue a written decision within the given statutory timeframe, then the application is considered approved.

Scope of "No Further Action" ("NFA") Requests.  The statute now clarifies that NFA requests can be brought by either liable or non-liable parties, and, most significantly, provides that NFA requests do not have to be made for a whole facility, for all media, and for all pathways (which had been the Michigan Attorney General's prior interpretation). The amended statute now allows NFAs to be requested based on a particular release, specific hazardous substance(s), one media (e.g., groundwater only), part of a facility, or any combination thereof.  This provides greater flexibility to persons conducting clean-ups, and some positive reinforcement for completed remedial actions. Of course it is expected that MDEQ determinations on partial NFAs will appropriately reserve the Department's rights as to any remaining contamination.

Indoor Air Criteria.  Previously, if the volatile compound (like TCE) at issue for an environmental response action was also still being used in the facility, parties were faced with a situation where Part 201 cleanup criteria might be competing with MIOSHA standards. To eliminate the duplicative and potentially inconsistent criteria, a person can now demonstrate compliance with Part 201 indoor air criteria by using the MIOSHA standard, regardless of whether the substance is actually still used in the manufacturing process. To do so, though, the facility has to be in one of the NAICS manufacturing sectors (sectors 31-33) - to avoid higher criteria being applied at residential sites - and the hazardous substance must be included in the facility's hazard communication program.

"Due Care" Determinations.  To accommodate certain lending scenarios where a person is required by a lender to obtain agency approval of Section 7a "due care" continuing obligations at a property (such as with loans from the Small Business Administration), the recent revisions now provide a mechanism for the MDEQ to conduct a review and provide this approval. Importantly, MDEQ is required to provide its determination within 45 business days (as compared with typical 150-180 days for other plans).  If the MDEQ declines to provide approval, its decision is appealable to the Response Activity Review Panel. This "due care" documentation approval procedure is provided for under both Part 201 and Part 213. 

Relocation of Contaminated Soil.  The revised statute exempts relocated soil from the definition of "solid waste" under Part 115 and exempts it from the definition of a "release." This change now allows contaminated soil to be relocated from or within a site if it will not pose a threat to health, safety, welfare or the environment, but it cannot be relocated to a location that is not a facility. Previously, relocation of contaminated soil was prohibited without MDEQ approval as part of a remedial action plan.  Prior MDEQ approval is required for off-site relocation under certain conditions. The amendment also allows soil relocation on-site, so long as the owner complies with their Section 7a "due care" continuing obligations. 

Flexibility for LUST Corrective Action. The new revisions to Part 213 confirm that an owner or operator may choose whether to fulfill its corrective action obligations under Part 213 or Part 201, in the circumstance where a contaminant release or threat of release is not solely from LUSTs. These reforms also allow venting groundwater issues to be handled under the June 2012 Part 201 legislative changes that addressed the groundwater - surface water interface ("GSI") clean-up criteria.

Clarification of Liable/Non-liable Parties under Part 213. The new amendments to Part 213 clarify terminology throughout the leaking UST statute to distinguish which provisions apply to all "owners and operators," and which provisions only apply to those who are liable for cleanup. 

Other Statutory changes:

  • The MDEQ's deadline for revising the cleanup criteria administrative rules is extended until December 31, 2013.

  • There are new provisions for how a person may demonstrate "background" concentrations for a hazardous substance, to avoid or minimize remedial actions for naturally-occurring substances. 

  • The exclusion from the definition of "release" for the application of pesticides has been changed to say pesticides are excluded if applied per the methods developed "under the Right to Farm Act."

  • A person who owned or occupied a residential condominium unit is now exempt from strict (no-fault) liability for contamination, under certain circumstances.

  • The provision of an alternate water supply is now included in the definition of "response activity."

  • The statute clarifies that parties who are exempt from liability under Part 213 are not liable for claims for corrective action costs, fines or penalties, natural resources damages or equitable relief under Part 17, Part 31 or common law.

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