In the final "lame duck" moments of the 2010
Legislative Session, the Michigan Legislature approved a five-bill
package of amendments to Part 201 of Michigan Natural Resources and
Environmental Protection Act (NREPA). This move comes about four
months after the State Senate passed these reforms on Aug. 17,
2010, on which we previously reported. This legislation is the
result of years of dialogue among various stakeholders and is an
attempt to fix problem areas in the Part 201 clean-up program that
were not working to the satisfaction of the MDNRE or the regulated
community. The legislation was signed into law by Governor Granholm
on Dec. 14, 2010, as she prepares to exit office, and the
legislation is to take immediate effect.
The MDNRE is reportedly working on a transition plan, but the
expected changes to reorganize MDNRE and appointment of a new
Director by Governor-elect Snyder will no doubt delay some of these
implementation steps and any rule-making.
The significant aspects of the Part 201 legislation are set out
Baseline Environmental Assessment (BEA) will be
preserved but substantially replaced by the Federal "All
Appropriate Inquiry" and bona fide prospective purchaser
provisions. However, some basis (either doing sampling or using
available data) will be necessary to characterize the property as a
"Facility." There will be no process for BEA approval by
MDNRE, no categories based on future hazardous substance usage
(None/Different/Same), and no requirement that a
"baseline" be established to distinguish new releases
from old contamination (although this may still be good practice).
The new BEA process will continue to provide liability protection
for persons assuming control of property with historic
No Further Action (NFA) process will provide for
clean-up completion or closure following either self-implemented
remedial action or a MDNRE-approved Response Activity Plan. The
MDNRE has 150 days to review NFA requests or Response Activity
Plans (180 days if the plan is subject to public review and
comment), or they will be deemed approved automatically.
Self-implemented cleanup efforts are allowed and encouraged and new
liability protection (under Section 26) is established for a party
holding a NFA report or letter. Land use changes are allowed at the
new developer's expense.
Clean-Up Criteria will be simplified to
"Residential" and "Non-Residential" (f/k/a
Industrial) instead of the current multitude of clean-up criteria,
and site-specific clean-up criteria may be allowed. Specific
changes will clarify groundwater-surface water interface (GSI)
criteria under Rule 716/Part 31 (water quality standards) and the
remediating party can propose a "site specific approach"
with alternative compliance points and use of monitoring wells.
Ordinances will be permitted in lieu of institutional controls and
clean-up criteria will be updated annually by rulemaking. If a
cleanup criterion is lower than either the method detection limit
or background concentration for that hazardous substance, then the
higher value will control as the criterion.
Response Activity Review Panel will be established
to address technical issues (not liability determinations) arising
from Response Activity Plan or NFA denials. Members of this panel
will be appointed by the MDNRE Director, and the Review Panel's
decisions will be subject to final action by the Director and
potential judicial appeal. Petition fees to the Panel will be
$3,500 per petition.
Due Care obligations under Section 7a will be
expanded to align with federal "Continuing Obligations"
(access, cleanup cooperation, deed restrictions). Due care
exemptions will no longer exist for municipalities if they invite
the public to use the contaminated property they own.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In September, California's Office of Environmental Health Hazard Assessment ("OEHHA") announced that it had adopted amendments to the regulations governing California's Proposition 65, which requires that businesses provide a "clear and reasonable warning" before exposing an individual to any chemicals that California has determined cause cancer or reproductive harm.
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