Class A operators have primary responsibility to operate and maintain the UST, and confirm completion of all maintenance tasks.

Class B operators are generally responsible for the day-to-day operations, including maintenance and record keeping for the UST system. A Class B operator generally has an in depth understanding of the operation and maintenance aspect of the tank system.

Class C operators are generally on-site daily, and are often the initial responder to emergencies and alarms in the event of spills and releases. There can be multiple Class C operators at an individual facility. A at a minimum, there should be at least one Class C operator (or an A or B operator) on-site while the tank system is operating. Class C operators, while they are not required to pass the aforementioned exam, they must still be trained in appropriate emergency response procedures.

The test and training is to confirm that operators of a UST facility possess the necessary knowledge regarding the proper operation of a UST system. Michigan, in conjunction with the federal requirement, has an August 8, 2012 deadline for operators to obtain certification. Beginning August 2012, the Hazardous Materials Storage Tank (“HMST”) inspectors will be checking for compliance with these certification requirements. Because of the very restrictive time frame, Michigan has indicated that it will not take enforcement actions until after January 2, 2013.

The International Code Council (ICC) is in charge of Michigan-specific testing. Tank owners and operators can get additional information on the ICC testing program here.

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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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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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