Section 20120c(3) says you can do it if you apply the same degree of control in the new location that would need to have been used at the original location. But is that relocation then restricted by the requirements of Michigan’s solid waste statute (Part 111 of NREPA)? Some say it would.

The DEQ is aware of this conflict and is working on an amendment to the “other wastes regulated by statute” exemption in Rule 110. The amendment would exempt from Part 111’s scope any contaminated soils that are moved on-site provided it is done in accordance with Part 201. Right now the amendment is being held up because of the freeze that the Office of Regulatory Reform has on all State regulations while they review the ones that are considered overly burdensome.

See our Client Alert for more information on on-site and off-site soil movement under Part 201.

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The DEQ is thinking of making the drinking water pathway a “tap water” pathway (to be consistent with the EPA’s move in this direction). The DEQ’s rationale is that by focusing on “drinking water” rather than “tap water”, there are a number of exposures (such as misted water or hand washing) that aren’t factored in. A couple of other criteria that were referenced as being up for reconsideration are the groundwater to indoor air pathway and particulate inhalation pathway. Ms. Marolf also mentioned that the DEQ is considering soil gas levels as a replacement for indoor air criteria.

We’re keeping an on eye on this and will keep you posted.

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