July 14, 2020

Volume X, Number 196

July 14, 2020

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July 13, 2020

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Michigan Air Toxics Program Status Quo Continued as DEQ Rejects Revisions

On April 4, the Michigan Department of Environmental Quality (DEQ) announced that Michigan’s air toxics regulatory program will continue unchanged. This announcement is significant because for the last five years Michigan DEQ and stakeholders have been working to more closely synchronize Michigan’s air toxics program with the federal Clean Air Act Hazardous Air Pollutants (HAPs) scope. The Office of Regulatory Reinvention (ORR) was created by Michigan Gov. Rick Snyder in 2011, and is credited with eliminating or revising thousands of administrative rules, including many DEQ regulations and guidance documents.

Pursuant to the Dec. 23, 2011 ORR recommendations regarding environmental regulations, the very first recommendation “A-1” included limiting the number of air toxics to the federal HAPs list, and rescinding the provision allowing the Michigan DEQ Air Quality Division to go beyond the requirements of the administrative rules.

A work group of various stakeholders pursuing the 2011 ORR recommendation developed proposed administrative rule changes restricting DEQ authority to approximately 600 air toxic chemicals. Even though the proposed rule would have reduced the number of toxic air contaminants regulated in Michigan, the proposed air contaminant list was still more than three times larger than the federal HAPs list.

Under the status quo resulting from Michigan DEQ’s rejection of the proposed rulemaking, facilities seeking new or modified air emissions permits-to-install will continue to be subjected to a complicated Michigan DEQ air toxics review. As a result, uncertainty will continue as to what perceived risks to the environment or human health might justify Michigan DEQ regulating a toxic air contaminant not specifically listed.

While the Michigan DEQ heralded its position as defense of clean air, some view this as a significant setback to regulated air emissions sources in Michigan, and another example of a Michigan environmental regulatory program that is stricter than federal EPA requirements. There is speculation that opposition to these air toxics revisions by environmental public interest groups in the context of the Flint safe drinking water crisis resulted in this environmentally unrelated decision by Michigan DEQ.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume VI, Number 98


About this Author

Joel Bowers Environmental Attorney

Environmental lawyer Joel Bowers is dedicated to finding creative solutions to even the most difficult enforcement proceedings and complex deals. Joel is experienced in transforming technical analysis into practical legal counsel that takes into account big-picture client objectives.

Joel focuses his practice on environmental compliance and enforcement, including air quality and chemical regulation. He advises on remediation, corrective action and voluntary cleanups, as well as cost recovery defense.

In addition, Joel advises on environmental diligence for commercial and real...

Charles Denton Environmental Attorney

Charlie Denton represents an array of clients in environmental and toxic tort litigation, enforcement defense, regulatory compliance solutions and pollution insurance coverage disputes. He also serves as an alternative dispute resolution (ADR) neutral mediator and arbitrator. Persistent and highly collaborative, Charlie can take complicated issues and challenges and then identify a strategic path to achieve the client’s objectives.

Charlie’s representation of industrial, municipal, institutional, educational and individual clients includes judicial and administrative environmental proceedings at the federal, state and local levels. He also represents policyholders involved in environmental coverage claim disputes and litigation with millions of dollars in the balance.

In addition, Charlie assists clients with managing environmental risks in commercial transactions, mergers, acquisitions and divestitures, as well as ISO 14000 environmental management systems. He advises on lender liability issues and environmental audits to assess potential facility contamination and regulatory compliance for the acquisition and financing of real estate, as well as waste management and remedial actions, environmental permits enforcement, and defense of citizens’ suits.

Charlie serves as a zealous advocate for his clients, focusing on their specific strategic goals and finding solutions that solve their immediate and long-term challenges. Charlie makes a point of understanding his clients’ core objectives from the onset of representation to keep their environmental matter in perspective.

Charlie serves as a federal court arbitrator/mediator/neutral evaluator, a state court facilitative mediator, and an arbitrator and mediator for private ADR proceedings. When serving as a neutral, Charlie remains personally dedicated to finding a balanced approach to dispute resolution that meets the needs and interests of the parties involved. Charlie is valued for his thoughtful understanding of the underlying business and legal issues that permeate every dispute, as well as for his calming approach to resolving the people challenges and emotional aspects that underlie most acrimony. An active listener, Charlie serves as a catalyst to working constructively with even the most disparate parties to achieve a reasonable outcome.

Charlie is actively involved with key industry, legal and environmental associations, often in leadership roles. He is the author and co-author of several publications highlighting environmental law topics, and gives frequent presentations for the American Bar Association, Michigan Chamber of Commerce, and State Bar Associations for Georgia, Michigan and Wisconsin

Cheryl Gonzales, Barnes Thornburg Law Firm, Indianapolis, Energy Law Attorney
Staff Attorney

Cheryl A. Gonzalez is a staff attorney in the Indianapolis office of Barnes & Thornburg. She is a member of the firm’s Environmental Department.

Ms. Gonzalez focuses her environmental practice primarily on state and federal regulatory issues related to the Clean Air Act and Clean Water Act, but her experience includes numerous areas of environmental law, including asbestos concerns, solid and hazardous waste matters, site remediation and underground storage tanks.

Anthony C. Sullivan, Barnes Thornburg Law Firm, Indianapolis, Environmental and Litigation Law Attorney

Anthony (Tony) C. Sullivan, a partner in Barnes & Thornburg LLP’s Indianapolis office, concentrates on environmental law. His practice focuses primarily on air and water issues, but it also covers virtually all areas of environmental law, including solid waste issues, Superfund matters, underground storage tanks, and asbestos concerns.

Mr. Sullivan’s practice generally involves litigation, counseling, and negotiation. In addition to appearing before federal courts, state courts, and administrative courts on behalf of his clients, he has...