A party undertaking a remediation can now make a formal request for a “Certificate of Completion” to the MDEQ. The applicant would complete a form, which is to be prepared by the MDEQ and will be made available on the MDEQ’s website. The MDEQ can either grant the Certificate, deny the request, or notify the submitter that there is insufficient information on which the Department can make a decision. The Department shall specify what information is missing and is necessary for a decision. In the event of a denial, the Department is to provide specificity as to the reasons for the denial.

The amendments set forth an initial review period by the MDEQ of 150 days upon receipt of the form. There is only a 90 day review period in the event the submitter is requesting the Certificate of Completion after completing an MDNR approved remedy remedial action. In the event the Department fails to provide notice within the review time periods provided, a response activity is considered approved.

In the event there is a denial by the Department of a request for a Certificate of Completion, the amendments provide the submitter with opportunities to pursue an appeal of the MDNR’s decision to the Response Activity Review Panel. The submitter would file a petition appealing the decision to the MDEQ Director and pay a fee of $3,500.

In the December 2010 amendments to Part 201, the process for issuing a No Further Action Letter (NFA) was first developed. The NFA Letter has been only granted in a few occasions, and has generally been reserved for small clean-ups achieving residential criteria. This was not consistent with the intended purpose of the NFA review process, and the MDEQ has, at least informally, suggested it is more open now to the evaluation of No Further Action Reports upon completion of more remedial action projects.

By contrast, the NFA review process is much more complex than the request for a Certificate of Completion. If a party is concerned about the administrative costs associated with pursuing an NFA Letter, the Certificate of Completion does provide a much needed acknowledgement from MDEQ and a defined “end point” for parties undertaking clean-up.

The recent amendments to the provisions associated with the NFA request is a clarification that a party can pursue an NFA letter for a specific portion of a whole site, or specific media or exposure pathway. While many believe that the NFA provisions as originally drafted did allow for such limited requests, it took these amendments to make that clarification.

The post Is It Clean? – Michigan Certificates of Completion and No Further Action Letters appeared first on Dawda PLC.

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In support of the Governor’s goals, the MDEQ has partnered with stakeholders to formulate a plan for improvements in Michigan’s environmental programs. This effort is referred to as the Collaborative Stakeholders Initiative (“CSI”). CSI grows out of a series of recommendations prepared by the Office of Regulatory Reinvention and that was submitted to the Governor’s office.

Participants in CSI are taking a closer look at seven key issues facing Michigan’s cleanup and redevelopment programs. They include:

(1) Groundwater and Surfacewater Interface (GSI) pathway;

(2) Cleanup criteria;

(3) Vapor intrusion;

(4) Free product, source removal and Csat;

(5) Brownfield redevelopment;

(6) Part 201 Rules/Operational Memorandum Guidance; and

(7) Due care obligations.

As a backdrop to reviewing these issues and developing recommendations, participants also hope to derive the benefits of an opportunity for exchange and cooperation between the MDEQ, the regulated community and other public stakeholders. Each issue subgroup is in the process of refining their recommendations and developing action plans after having completed several intensive sessions both in Lansing and during a three-day working program at the Kellogg Biological Station on Gull Lake. There will be a public session to present these recommendations on March 15, 2012.

The action plans will include recommendations with respect to Part 201 and Part 213, Part 201 Rules, applicable Operational Memorandums, Guidance Documents, and other policies affecting the implementation of these programs. There will be an opportunity learn more about these recommendations and action plans during a webcast scheduled for March 15, 2012. More details on connecting to the webcast to follow.

As someone involved in the CSI process, it is my belief that the process and this initiative has the potential for being extremely beneficial, and may lead to many changes within Michigan’s cleanup and redevelopment program that will facilitate expedited cleanups and redevelopment while protecting the environment.

The post Reinventing Michigan’s Cleanup and Redevelopment Programs appeared first on Dawda PLC.

In May 2012, a six bill package was signed into law by Governor Snyder to amend the procedures for the cleanup of contamination caused by leaking USTs. This bill package amends Michigan’s Part 213 (Leaking UST Program). The amendments provide greater flexibility in developing a remediation plan and implementing cleanup upon identification of a leaking UST. The amendment directs leaking USTs to be remediated in a manner consistent with American Society for Testing Materials (“ASTM”) Standard Guide for Risk Based Corrective Action as applied to Petroleum Release Site (“RBCA”).

Within 180 days (it previously was 90 days) of confirming the release, the owner shall submit an initial assessment report. It is the responsibility of the owner or operator to confirm that the consultant is qualified. Previously, the MDEQ maintained an approved list of consultants.

There is an ongoing debate among consultants over what effect these changes to Part 213 will have on closure. Previously, consultants could proceed to closure when free product was present less than 1/8 of an inch. The amendments focus on free phase product which includes Non Aqueous Phase Liquids (“NAPL”). This includes migrating NAPL, Mobile NAPL, and Residual NAPL.

The DEQ will be charged with only auditing final site assessment and closure reports rather than reviewing every aspect of a corrective action. If the DEQ decides to audit a report, notice shall be given by the DEQ within 90 days. The DEQ has up to 180 days to complete its audit after receipt of the closure report. The DEQ has been afforded a 270 day time window for review of reports it received in the 6 months before the bill took effect. The DEQ only has one opportunity to audit a report. In the event the DEQ fails to audit, report, or fails to prepare a written response, it will be deemed approved. In the event the DEQ has denied the report, the owner and operator will be provided an opportunity to revise and resubmit the report for approval.

These amendments also correct the confusion over liability protection. Persons that become owners and operators of a site with a UST after June 5, 1995, and have conducted a Baseline Environmental Assessment (“BEA”) would receive liability protection that includes the UST. Other provisions associated with owner and operator liability in the amendment are designed to match the liability provisions within the Part 213 UST Program with the liability provisions in Part 201.

To the extent a person wants to change land use, resource use, or depart from restrictions set forth in the closure report, they will need to undertake the necessary additional corrective action to allow for such use changes.

The amendments also clarified the right to bring an administrative appeal. In the event that there is a dispute between a UST owner and operator and the MDEQ, the owner and operator can proceed to an administrative hearing to resolve such disputes or challenge the MDEQ’s decision before the Response Activity Review Panel originally set up pursuant to Part 201.

The MDEQ intends to provide a training program on these changes to its LUST program. As information becomes available, we will update this blog accordingly.

The post Regulatory Reform in Michigan’s Underground Storage Tank (“ust”) Program appeared first on Dawda PLC.