As you are likely aware, there are a number of environmental regulatory changes taking place in Michigan. The Michigan Department of Natural Resources and Environment (MDNRE or DNRE) has changed more than in name alone; and this too may again change as rumors circulate about Governor elect Snyder again splitting the department. We have attended several working group meetings and have had many in-depth discussions regarding how these changes may affect our clients. Below, we have provided a few noteworthy changes to Michigan Public Act 451 that you may want to consider.
Despite rumors to the contrary, the Baseline Environmental Assessment (BEA) was not eliminated. There has, however, been significant changes, including aligning the BEA process more with the Federal All Appropriate Inquiry (AAI) rules and more specifically, the Bonafide Perspective Purchaser. Further, the BEA “N,” “D,” and “S” designations will be eliminated. It is also worth noting that instead of a multitude of cleanup criteria, there will be two; residential and non-residential. Non-residential will default to the current industrial criteria.
As it relates to No Further Action (NFA) – when all cleanup criteria has been satisfied, you can submit a report to seek an NFA determination. MDNRE must review your submittal within 150 days (or 180 days if public notice is required). A no response by MDNRE within the time frame is a default approval. A word to the wise going forward would be to consider cautiously acquisition of properties with NFA determinations, as it could be a default determination (i.e., due diligence should be a verb).
Municipalities have historically been exempt from the Due Care obligations under Part 201 of PA 451; this will no longer be true. Due Care, for those not aware, is basically a provision within Part 201 that says if you have “contamination” above residential levels, (e.g., a purchaser qualifies for a Baseline Environmental Assessment), you must have a plan in place outlining how you are fulfilling your due care obligations. Depending on the nature and extent of the contaminant and the type of land use, Due Care plans can be very simple to very complex. Due care plans will have a different look, as they will now have to reflect the requirements of continuing obligations under AAI.
Again, this is a very brief overview of some of the changes that may affect you and your future decisions. If you have questions or need additional information, please contact Matthew Schroeder, PE (firstname.lastname@example.org) or Jeffrey Bolin, CHMM (email@example.com) at 248.932.0228.