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Industry Insider

By Randy Gross
Director of Environmental & Regulatory Affairs
Michigan Manufacturers Association
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MMA and its members have long supported and partnered in cleanup and redevelopment efforts throughout Michigan. However, the state’s current Cleanup and Redevelopment Program (Part 201) is overly complex, bureaucratic and has no clear endpoint for cleanups. This has led MMA to take on a leadership role in developing and advocating for necessary reforms to Part 201.

Over the past year, several efforts have been moving forward in an attempt to restructure the Part 201 program. MMA, along with a coalition of other business groups, developed a proposal that would streamline the program and lead to the ultimate goal of more closures.

On May 10, the Senate Natural Resources and Environment Committee began holding hearings on the proposed rewrite of Part 201, as developed by the business community. MMA testified in support of the package of bills (Senate Bills 437 and 1345-1349) that include a number of key reforms centering on streamlining the process, creating flexibility and allowing sites to achieve finality. On 5/26/10, the Committee met again and voted out a bipartisan six-bill package.

Key reforms contained in the package include:

Achieving closure

The inability to obtain closure from the Department of Natural Resources and Environment (DNRE) has been detrimental to the program and the state, resulting in less redevelopment of brownfield sites.

Under the proposed changes in the bills, individuals will be allowed to self implement a cleanup, without pre-approval from DNRE, and obtain final closure through a No Further Action (NFA) report. Once the cleanup is finished, the individual can submit the NFA report for department sign-off. The DNRE then has 150 days to deny or approve the NFA report, and any denial must specify the reason. If the agency fails to meet these time frames, the NFA report is deemed approved and liability protection attaches.

Groundwater Surface Water Interface (GSI) and mixing zones

The rules, and their interpretations regarding GSI and mixing zones, have served as one of the greatest impediments to obtaining closure to a site. Evaluation of water quality at the GSI is important; however, the current bureaucratic process fails to provide clear direction for obtaining the water quality standards.

The proposed bills allow for more flexibility in monitoring water quality at the GSI, allowing the regulated community to present more accurate data. This change puts Michigan in line with how other Great Lakes states are operating and is also consistent with Environmental Protection Agency (EPA) guidance.

Creation of review panel

During the cleanup process, it is common for disputes to arise between private sector experts and the DNRE. Under current law, the only avenue of appeal is through the courts, where they generally defer to the expertise of the DNRE due to the technical nature of the subject.

The bills create a technical review panel of experts to serve as an appeals board and advise the DNRE director on all technical, scientific and risk assessment disputes.

Liability protection

The Part 201 statute is intended to protect those who were not responsible for a contaminated site and protect responsible parties from liability once they clean up a site to the appropriate standards. Site cleanups can cost millions of dollars and too often, businesses are never granted a closure designation.

Fortunately, the package not only retains the concept of liability protection, but also allows applicants to achieve closure and liability protection by instituting land use and resource use controls or deed restrictions. These concepts are some of the most basic tools in controlling risk at a site. DNRE’s acceptance of these tools as an adequate remedy will save the regulated community millions of dollars, while protecting people and the environment as required by law.

Site specific criteria

While Part 201 currently allows for the use of site-specific criteria in place of generic criteria, too often the current process does not include the most up-to-date science or practical facts about the property.

The legislation allows landowners more flexibility in using site-specific criteria, including the ability to take into account recent scientific advances, data specific to that site and non-numeric site-specific criteria.

Benchmarking

Measures are important to determine if a program is successful and to benchmark our state’s competitiveness to other states. The proposed rewrite requires DNRE to report on its website a number of key performance measures including the number of plans approved, the number of reports approved, and the number of baseline environmental assessments received to name a few.

These are just a few of the reforms in this package of bills that incorporate the changes necessary to provide the tools to cleanup and close sites, encourage redevelopment, and ultimately stimulate Michigan’s economy.

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