News

Michigan Legislature Passes Important Environmental Cleanup Bill

Senate Bill 891 (“SB 891”) is on its way to Gov. Snyder’s office after being passed by Michigan legislators during the lame duck session. Intended to clarify Michigan’s environmental cleanup statute, SB 891 amends portions of and adds a section to Part 201 of the Natural Resources and Environmental Protection Act (“NREPA”).

SB 891 does the following:

• Revises the definition of “background concentration” to include specific references to the Michigan Department of Environmental Quality (“MDEQ”) Michigan Background Soil Survey 2005
• Revises the definition of “facility” by adding the phrase “parcel or parcels of property, or portion of a parcel of property.” The revised definition additionally clarifies when a property is not a “facility” to provide consistency with the recent beneficial use by-product/inert material revisions of Part 115.
• Defines “migrating NAPL”, “mobile NAPL”, and “NAPL” – to be consistent with those provided in Part 213.
• Defines “residential” and “nonresidential” with regard to cleanup categories and the generic cleanup criteria (“GCC”).
• Revises the definition of “release” to include what does not constitute a release (i.e., reference to recent beneficial use by-product/inert material revisions of Part 115).
• Defines “source”.
• Eliminates the requirement in Section 20114 to “immediately implement source control and removal measures”, instead requiring implementation of measures to “address, remove, or contain hazardous substances” if those measures are cost effective and “abate an unacceptable risk to the public health, safety, or welfare or the environment.”
• Adds a requirement in Section 20114 to address unacceptable risks posed by NAPL, considering ASTM and ITRC best practices and remedial actions that are “necessary and feasible.”
• Provides a means to determine the nature and extent of contamination where a hazardous substance is released for which there is no available analytical method or GCC.
• Removes certain provisions related to when a postclosure agreement may modify a postclosure plan.
• Clarifies the disclosure provisions of Section 20116.
• Clarifies Section 20118 by providing that remedial action undertaken at a facility may address one or more releases, one or more hazardous substances, contamination in one or more environmental media, a portion of a facility or the entire facility, or any combination of these.
• Requires the MDEQ to make available the algorithms used to calculate GCC.
• Creates Section 20121, which amends the requirements pertaining to restrictive covenants and alternative instruments to impose land and resource use restrictions.
• Adds a provision whereby an owner or operator seeking liability protection via a Baseline Environmental Assessment (“BEA”) where the timing requirement has not been met (e.g., the BEA was conducted within 45 days of purchase, occupancy or foreclosure and disclosed to the MDEQ within 6 months), can request a determination from the MDEQ that its failure to comply with the timeframe requirements was “inconsequential”.
• Provides that a corrective action conducted under the hazardous waste provisions of Part 111 may be implemented using the Part 201 cleanup criteria and processes.

As previously stated, these amendments were largely intended to clarify the provisions of Part 201 and assist the MDEQ in implementing those provisions according to legislative intent. SB 891 will be given immediate effect.

For a link to the full text of SB 891, click here: http://www.legislature.mi.gov/documents/2013-2014/billconcurred/Senate/pdf/2014-SCB-0891.pdf

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