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.

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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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