In what has become an annual process over the last three years, the Michigan Legislature has, again, amended Michigan's primary Environmental Remediation Statute, known as Part 201 of the Natural Resources and Environmental Protection Act, P.A. 451 of 1994, as amended. The most recent changes provide for more flexibility in managing the environmental remediation process at sites of environmental contamination. The following are highlights of these changes.
Site specific cleanup criteria now allows for remediation approaches which accommodate contaminant exposure assumptions that are specific to a piece of property. In other words, if a specific remediation standard is not recognized by the MDEQ under a default criteria, a party can propose an approach which is unique to the exposure features of a specific piece of property.
The definition of a contaminated "facility" has been changed in a way that allows for parcels to be split to prevent non-contaminated portions of the property to avoid "facility" status.
The statute now allows for cleanup standards to be adjusted based upon the background level of contamination in the area, regardless of whether or not that background is due to natural or artificially created conditions. This approach prevents the waste of resources to clean up a site where contaminants may generally be located in a widespread area around a property.
Institutionally controlled remediation plans no longer require the use of only restrictive covenants or ordinances. Institutional controls can now include any other legally enforceable standard which prevents exposure to specific contaminants at a contaminated property. Examples include: public health code standards, MIOSHA standards, or similar regulatory provisions.
If a remediation plan is submitted and relies upon approved scientific methods that are different than what MDEQ typically uses, the MDEQ must consider the method and scientific assumptions. If the method is rejected by MDEQ, the new statute allows for an appeal to an impartial and independent panel.
If cleanups are approved under other statutes, then the provisions of Part 201's regulatory program will not apply to those facilities. Thus, cleanups which are approved under other applicable state or federal law, do not have to meet additional standards under Part 201.
Of course, there are a host of other changes which may be significant and applicable to your specific set of circumstances, but the above highlights many of the more generally applicable changes.
If you have specific questions about how these changes may affect your potential cleanup liability, you may talk to any one of our highly experienced environmental attorneys at no cost for your initial consultation.
*This article discusses matters of general legal interest and is not specific legal advice.