New legislation governing cleanups of contamination from leaking underground storage tanks (USTs) in Michigan became effective on May 1, 2012. The six-bill package amends Part 213 of Michigan's Natural Resources and Environmental Protection Act (NREPA) and makes several important changes to the framework within which liable parties address contamination from leaking underground storage tanks (LUSTs).
This legislation represents over five years of effort and negotiation between representatives of industry and the Michigan Department of Environmental Quality (MDEQ) to improve the process and efficiency of LUST investigations and cleanups, and even more importantly, to eliminate unnecessary obstacles to achieving closure at LUST sites. The legislation also clarifies that the new process and procedures will be "separate and distinct from the process, procedures and criteria" used for non-UST cleanups under Part 201 of NREPA. Nevertheless, Part 213 does incorporate the same "causation-based" liability scheme that has developed since 1995 under Part 201, including the same procedures and requirements for Baseline Environmental Assessments (BEA's), "Due Care" obligations, and specific liability exemptions.
Many of the changes to Part 213 relate to technical requirements for investigation and cleanup. For example:
- All of the provisions in Part 213 relating to the investigation, reporting and cleanup of "free product" have been replaced with procedures adopted by ASTM for addressing "Non-Aqueous Phase Liquids" (or NAPL) under the RBCA process.
- The statute now confirms that during the investigation phase, parties do not have to implement the more time consuming and expensive "low flow sampling" methodology that MDEQ had previously required. Low flow sampling techniques are now required only for closure sampling.
Other changes relate primarily to the submittal and MDEQ review of reports. For example:
- The Initial Assessment Report (IAR) will now be due 180 days after discovery of a release, rather than 90 days, as was previously required.
- MDEQ may only audit Final Assessment Reports (FAR) and Closure Reports, and must notify the owner or operator within 90 days of submittal of a report that it will be audited. The audit must be completed within 180 days, and any subsequent audit may only address the correction of deficiencies identified in the initial audit.
- If a FAR or Closure Report is not audited, it is considered approved.
Lastly, the amendments changed many of the appeal options and procedures available to owners and operators. For example:
- Disputes with MDEQ relating to IARs, FARs, and Closure Reports may be brought before the Response Activity Review Panel that was recently instituted under Part 201.
- Alternatively, owners and operators are now entitled to an administrative contested case with respect to disputes over corrective action, site specific cleanup levels, penalties, or MDEQ audits.
- An owner or operator may now appeal to circuit court if MDEQ "red-tags" a UST system.