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.

The following is a transcript of my interview with Gary on Groundwater/Surfacewater Interface (“GSI”):

Q 1. You have followed the issue of GSI for many years. Please give us a brief overview of what GSI is and what is the scope of this exposure pathway?

GSI in the context of contaminated properties is a potential exposure or hazard pathway at locations where site groundwater provides a transport mechanism to move hazardous substances into surfacewater. It is not a relevant pathway at all properties but is frequently the case at hundreds if not thousands of Part 201 and Part 213 sites in Michigan. Michigan’s site remedial action program has for years required groundwater quality to meet standards established to protect surface water resources, and these standards, along with drinking water standards, regularly determine whether or not groundwater cleanup is required. Because it is often the case that potential drinking water pathway hazards are addressed by imposing restrictions on the use of site groundwater as a water supply source, the “GSI” criteria regularly becomes the most challenging (and costly) aspect of completing site cleanup obligations.

As GSI focuses on the “interface” between groundwater and surface water, variable groundwater, and particularly surface water, hydrologic factors (flow, elevations, etc.). At sites in Michigan, the GSI is often a dynamic transition zone between groundwater and surface water. Within this zone various geochemical and biological reactions can be acting to transform the nature of substances originating from upland locations.

Q 2. MCL 324.20120e sets forth Michigan’s statutory requirements regarding “Groundwater Venting into Surfacewater”. Under the current statute, what problems has the regulated community had with complying with this exposure risk pathway and criteria?

The generic criteria for the GSI pathway is the most stringent of all the Part 201 groundwater cleanup criteria, along with the drinking water pathway criteria. But in many cases drinking water exposure is not an exposure pathway of concern due to available alternate water supplies at the sites, so the GSI criteria routinely determines what can be a sufficient completion endpoint for closure for Part 201 sites.

I characterize two primary problems in complying with the GSI pathway and criteria as:

(a) the application of a “permitable surface water discharge paradigm” to the decision making relative, to the need for a groundwater cleanup to protect surface water resources; and

(b) the application of the GSI criteria in groundwater near sewer systems even when there is no chance for substances at that location to adversely impact surfacewaters.

The “permitable surfacewater discharge paradigm” evaluates groundwater venting to surface water as if a groundwater plume is a point source discharge for which an NPDES permit would need to be issued. The consequences of this approach have been that surfacewater quality standards that are meant to protect surfacewater flora and fauna have to be met in the groundwater even though no such resource exists at that location. This has been a large barrier to getting cleanups completed because parties are unwilling to invest the resources necessary to meet standards for which there will not be any demonstrated environmental improvement and benefit.

Q 3. You have been involved with multiple discussion groups regarding these problems with regulating the GSI pathway. Are there any groups currently reviewing statutory revisions that would affect the GSI pathway regulations or criteria?

There are two recent efforts: one is the review by the Office of Regulatory Reinvention that was initiated per the Governor’s Executive Order in 2011. The second is the Collaborative Stakeholders Initiative (“CSI”) that was initiated by the MDEQ at the start of this year. Follow up on the recommendations of those two efforts is continuing. (The recommendations are summarized here.) Draft amendments to Part 201 to address these issues and this pathway have been developed and are poised for consideration by the legislature. (A recent version of the draft legislation appears here.)

Q 4. Can you provide us with a brief overview of the overall goals of your CSI issue group, in proposing revisions to MCL 324.20120(e)?

The overall goal of our work group was to revise and improve the way the GSI pathway is addressed in order to facilitate closure and final cleanups, rather than the pathway being the issue that prevents closures and completion of actions.

Q 5. How would these proposed changes affect the efficiency and reliability of site remediation?

It will be possible to more efficiently reach appropriate decisions as to the need for groundwater cleanup to protect surfacewater resources. As a result, there will be earlier and sooner closure of site cleanups and a better return on investments and stewardship of legacy site conditions. There are certainly hundreds to thousands of sites that face this issue.

Q 6. What is your understanding as to the status of any legislative efforts to pass a statutory change to GSI?

There is a very good prognosis for future legislative action to address the issue, perhaps even before the summer recess of the current legislature. I understand there is at least one sponsor of the legislation of potential amendments that has been identified. .

Q 7. What might these proposed statutory changes mean to the regulated community if they’re passed?

In my mind it means that many long-standing, unresolved site cleanups could be brought to a closure with a reasonable investment of additional resources. The key will be Remediation Division recognizing the “permitable surface water discharge paradigm” is not applicable to decision-making for this pathway, a position acknowledged by MDEQ and stakeholders participating in the CSI.

Q 8. What sites do you think would benefit the most from this statutory change?

Any sites that are unresolved due to the groundwater/surfacewater interface pathway. This is certainly the case most often at sites that are adjacent to rivers, lakes and other waterways of the state. It will also include many sites that have been held up on this issue even if they aren’t near a waterway, but they happen to be near an indirect conveyance to waterways such as storm and sanitary sewers. These sites have essentially been held hostage to the old approach on the issue, for which the proposed legislative changes provide a much better basis for appropriate protection of surface water resources along with completing site cleanups.

Q 9. What were the big highlights of the recommendations that came out of your CSI issue group?

There were several. The recommendations include

(1) The addition of two other methods for evaluating whether or not there is a need to do groundwater cleanup to bring a site to closure relative to the GSI pathway by:

• Performing an ecological evaluation of the surfacewater conditions;
• Performing an modeling evaluation to determine the potential for adverse impacts to the surface water.

(2) Focus evaluation of conditions relative to indirect pathways to surfacewater such as via storm and sanitary sewers based upon whether or not the groundwater contamination has the potential to adversely impact the surfacewater resources, instead of focusing on whether or not the groundwater may enter the stormwater sewer at a concentration above surfacewater standards.

(3) Evaluate conditions relative to mercury based upon laboratory methods which achieve a quantitation limit of 0.2 ppb rather than the methods developed for ultra-low detection limits. This will assure that significant sources of potential release of mercury from groundwater into surfacewater are addressed. This will avoid having to address cases where mercury is detectable, but concentrations are so low that there really isn’t any benefit in investigating them further.

Q 10. What do we hope to see over the six months?

We hope that the legislation is enacted to affirms a sound scientific foundation and public policy for making decisions about whether cleaning up groundwater is needed to protect a surfacewater resource. This would put into practice evaluating the potential impacts to surfacewaters based upon the actual surface water impact rather than conditions in groundwater having to meet surface water quality standards.

What remains to be seen after such a foundation is laid out in the statute is exactly how that ends up being implemented by the agency. One issue not fully sorted out that may end up being an impediment to swiftly addressing the GSI issues is the issue of securing MDEQ’s approval for using the alternative methods proposed to be enacted in the statute.. The CSI work group wrestled with this a bit, but so far the proposal does not encompass any real changes from existing protocols for parties needing to secure MDEQ approval. There will certainly be ample opportunity to see how things actually work out, and whether or not the requirement for MDEQ approvals in certain cases ends up being an additional step that causes further delays in achieving closures at sites.

I’d like to thank Gary Klepper for providing this information on the status of proposed changes to Part 201 and regulation of the GSI in Michigan. We will continue to watch this issue as it evolves over the next 6 months.

The post Interview: Regulatory Change for Michigan’s Gsi Criteria 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.

Central to the amendments is support for self-implementation by liable parties of a GSI assessment. This flexibility in methodology, assessment and remedial design is coupled with some duties to give notice to the MDEQ. This amendment allows parties greater flexibility in demonstrating that response activities undertaken have appropriately addressed the risk of venting to groundwater. Parties can demonstrate compliance with Part 201 through ecological demonstration and modeling.

The amendment sets forth factors a party can rely upon to demonstrate that the GSI pathway is not relevant or the effect is de minimis. The amendments also allow parties to demonstrate that the venting of groundwater has no effect on a surfacewater body. The party can submit a request for a technical intractability waiver from the Michigan Department of Environmental Quality (“MDEQ”) if it can demonstrate that compliance with GSI criteria is not achievable. Parties that have concluded that venting groundwater has no or de minimis effect must give notice of its conclusion to the MDEQ. The MDEQ must disprove this conclusion within 90 days or it is deemed approved.

Parties have the flexibility to demonstrate that natural attenuation of hazardous substances present in groundwater is an acceptable form of remediation. Parties can now model the risk posed by groundwater contamination plume that has entered a sewer and define the remediation obligation even if the sewer discharges to a surfacewater body.

These amendments apply retroactively and allow parties to revise judgments, orders, consent judgments and other agreements that address the issue of GSI remediation.

In conjunction with this amendment, Administrative Rule 299.5716 entitled “Cleanup Criteria for Groundwater Based on Protection of Surfacewater Resources from Hazardous Substances in Venting Groundwater” was rescinded. This administrative rule had set forth the previous methodology for demonstrating compliance with GSI criteria.

The amendment to GSI provisions is the first step in many more amendments that are being considered over the next six months. Many of these other amendments under consideration will reflect a move away from an emphasis on only using complex prescriptive administrative rules to allow for self-implementation opportunities. These anticipated amendments will also provide clarifications in methods and flexibility in demonstrating environmental compliance in light of actual site conditions and anticipated use, along with consideration of all applicable risks scenarios.

We will continue to track these changes and provide updates on the status of revisions to Part 201.

The post Update on Michigan’s Groundwater Surface Water Interface Criteria and Compliance appeared first on Dawda PLC.

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.

The post Legislative Update – Leaking Underground Storage Tank Act appeared first on Dawda PLC.

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.

The post On Site Soil Movement: Part 201 or Part 111? appeared first on Dawda PLC.

In 1031 Lapeer, the tenant sought to void a lease with its landlord because the landlord failed to disclose that the premises were contaminated. The trial court ruled in favor of the tenant and the Court of Appeals upheld it because Part 201 Section 16 specifically states that if a party knows or is on notice that its property is contaminated, then it shall not transfer an interest in the property unless it has provided notice of that fact and the general nature of the contamination to the transferee. Based on the ruling in 1031 Lapeer, the notice requirement applies to sellers and landlords and failure to adhere to it can create a pretty harsh result – voiding the transaction.

Lenders have keyed in on this issue for obvious reasons; if their landlord or borrowers have redeveloped a contaminated property but have not disclosed the existence of the contamination to the tenants, the landlords are at risk of losing tenants (and thus the rent). With the current glut of retail and office space, this could mean a loss of income and the lender being saddled with a contaminated parcel – not a desirable picture from the bank’s point of view.

If you are a landlord that did not notify your tenants that the property they are renting is a Part 201 facility before they signed the lease, the bank may request that you provide the notice after the fact before the bank commits to refinance.

How do you handle that? Very carefully and with good legal counsel!

The post Baseline Environmental Assessments and Landlord Refinancing appeared first on Dawda PLC.

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.

The post DEQ Criteria appeared first on Dawda PLC.