MDEQ requests access regardless of previous environmental reports showing no levels of contamination. While the prior reports do not constitute a final closure of a LUST site, they may demonstrate that these old sites do not pose a threat. Presumably, the MDEQ’s effort will result in a reduction in the number of listed contaminated sites throughout Michigan.

If an owner requests additional information, such as a work plan, or somehow delays a response to the request, the MDEQ may classify such a response as a “denial”. In the case of a denial for access, the MDEQ will refer the matter to its Compliance and Enforcement Section for further evaluation. The MDEQ may then conduct a liability determination, which may take several months, to determine if the owner is a liable party. If liable parties are identified, the MDEQ will issue a request under Part 213 for the owner to conduct an initial assessment report or a final assessment report regarding the open LUST release.

If a liable party cannot be found, the site will revert to “orphan” status and the State will continue to spend resources to investigate the LUST release at the site. Court proceedings may be necessary to obtain access.

The MDEQ will typically not provide a complete work plan to the Owner when it requests site access due to time and budget constraints. The owner is typically allowed to take split samples of soil or groundwater samples. Owners have an option to conduct additional work at their sites to control information and otherwise acquire information relevant to the MDEQ’s request. Where time has lapsed and other contaminants may become relevant, it is important to enlist the support of a competent environmental consultant as well as a lawyer to determine the best course of action.

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On January 24, 2012, the Michigan Senate passed a bill to amend Michigan’s Part 213 by revising procedures for the cleanup and management of environmental contamination at LUST sites.

Significant points of the bills:
(1) A requirement that LUST be remediated pursuant to Standard Guide for Risk Based Corrective Action Applied at the Petroleum Release Sites (“RBCA”) which were developed by ASTM. The MDEQ would not develop its own classification system. The MDEQ is prohibited from implementing additional rules for Part 213 of the Act.

(2) The consultants shall submit an initial assessment report within 180 days following a release. The MDEQ would audit the closure report and final assessment and not other submittals or aspects of the corrective action;

(3) With respect to timing, the MDEQ would have 90 days after receipt of the closure report to determine whether it would audit and then have 180 days to complete the audit. The MDEQ would only have an opportunity to audit the report;

(4) If the MDEQ does not perform an audit and a written response, it will be deemed approved. If a report is denied, the owner and operator can revise the report and resubmit it for review. The owner and operator in the alternative, upon receipt of a denial, can seek review by the Response Activity Review Panel (which was established under Part 201), or petition the MDEQ’ s Office of Administrative Hearings for a contested case hearing;

(5) A person may be an innocent purchaser within the meaning of Part 213 if they conducted a BEA, making the UST program consistent with Part 201. It is the MDEQ’s burden of proof to establish liability under Part 213. Liable parties can seek contribution from other liabilities in a civil action.

(6) Parties that are liable could be at risk for up to $50 Million in damages for the destruction of natural resources. The penalty scheme has been revised so that the Attorney General, on behalf of the MDEQ, can commence a civil action against liable parties. The State may pursue a lien to recover costs and damages incurred as a result of a UST. The State’s lien would have priority over other liens;

(7) The State has the authority to enter into covenants not to sue with liable parties under certain circumstances;

The bill package as passed by the Senate has been referred to the House. The House has referred this bill to its Committee on Natural Resources, Tourism and Outdoor Recreation. The Committee will review the Senate Bill to determine whether to recommend approval by the House. We will continue to monitor the passing of these bills.

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