Changes to Part 201 and Part 213: A benefit to Michigan’s business climate?

For far too many years, Michigan businesses have been frustrated in efforts to comply with the State’s environmental regulations under Act 451.  Site closures were difficult (if not impossible), and it seemed that there were no finalities to site investigations.  This frustration, expressed by the business community, resulted in Governor Rick Snyder’s Environmental Advisory Committee and the Michigan Department of Environmental Quality’s Collaborative Stakeholders Initiative.

Anxious for substantive change, these initiatives were largely applauded by the business community.  So with the passage of Public Act 446 of 2012 (PA 446), there is great anticipation (and maybe a little skepticism) about removing some uncertainty as it relates to environmental projects in Michigan.

A few highlights among the many changes in PA 446 include the following:

  • Clarifies that site-specific criteria may be numeric or non-numeric.  This relates to the issue of free product and provides avenues for site closure not previously available under the regulations.
  • Underground storage tank cleanups (Part 213) can now use the groundwater venting criteria in Part 201.  This acknowledges the scientific rationale used in Part 201 and applies it to Part 213.
  • Allows use of Michigan Occupational Safety and Health Administration (MIOSHA) standards to be used to evaluate and close manufacturing sites.  Previously, criteria established by the MDEQ based on conservative exposure assumptions were applied to all situations.  Now, in a workplace situation where the chemical is being used, MIOSHA criteria, which are often less restrictive, can be applied.  Defaulting to established worker exposure pathway values should be helpful in closing some (manufacturing) sites with potential indoor air issues.
  • Simplifies the regulations of soil relocation under Part 201.  This should save money by allowing for more opportunities to reuse soil on site rather than filling up landfill space.
  • For those seeking to submit a No Further Act (NFA) report, it should now be more straight forward and attainable.  An NFA is now available for those liable, as well as those not liable, for the contamination.
  • A “Certificate of Completion” is now available.  This certificate provides confirmation from the MDEQ that the response activity was completed in compliance with Part 201. The MDEQ can grant the Certificate, deny the request, or notify the submitter that there is insufficient information.  The MDEQ then must specify what information is missing and is necessary for a decision.
  • While there are many final rule changes, the amendment extends the deadline to revise (or rescind) the cleanup criteria to December 31, 2013.

Will all of these changes really make a difference?  We’ll know first-hand as we are currently assisting our clients in an attempt to “test the waters” on what many view as some very practical and much needed changes in Michigan’s environmental regulations.

If you have questions about the applicability of the changes to your site, contact Jeffrey Bolin, M.S., CHMM (jbolin@dragun.com) or Matthew Schroeder, M.S., P.E. (mschroeder@dragun.com) at 248-932-0228.

UST/AST Program Changes in Michigan

A brief “heads up” for those who may have projects in the state of Michigan.  Governor Rick Snyder has transferred the Underground Storage Tank program and Above Ground Storage Tank program from the Michigan Department of Environmental Quality to the Bureau of Fire Services (effective October 3, 2012). 

Oversight of Leaking Underground Storage Tanks will remain under the Michigan Department of Environmental Quality.

Here is a link to the Executive Order http://www.michigan.gov/documents/snyder/EO2012-14_400161_7.pdf

If you have questions about how this may impact your UST or AST project, contact Matthew Schroeder, PE (mschroeder@dragun.com) at 248-932-0228.

Changes to Michigan’s LUST Regulations

As of May 1, 2012, Michigan’s regulation (Part 213 of PA 451) designed to address Leaking Underground Storage Tanks (LUSTs) in Michigan have changed. Here are a few key points regarding the changes:

• Part 213 is clearly separated from Part 201 (Remediation).

• Free Product, which was previously defined to be at least one eighth of an inch of product, is now defined as (dense) and (light) non-aqueous phase liquids (NAPL, DNAPL, and LNAPL). More specifically, free product is
o Migrating NAPL
o Mobile NAPL
o Residual NAPL

• The Risk-Based Corrective Action (RBCA) process must be used to assess contaminated properties.

• The Michigan Department of Environmental Quality (MDEQ) must determine if they will audit a report within 90 days of submittal and must complete the review within 180 days.

• Initial assessment reports are now due in 180 days following a confirmed release (previously 90 days). A report can only be audited once. A report is considered “approved” if the MDEQ does not perform an audit or provide a written response to the owner/operator.

• “Deficient” reports only have to resubmit deficiencies. The MDEQ review must be completed within 90 days.

• The MDEQ must provide 15-day prior notice before “red tagging” a UST.

• The MDEQ will no longer maintain the Qualified Consultant/Certified Professional (QC/CP) list. The owner/operator is now responsible for assuring the consultant meets the QC/CP requirements. Consultants will continue to sign an affidavit attesting to their qualifications.

This is just a brief overview of some of the changes. If you have any specific questions related to UST assessments or closures or any other environmental consulting matter, contact Matthew Schroeder, P.E. (mschroeder@dragun.com) at 248-932-0228.

New TRI Reporting Requirement

As you are planning for your 2012 environmental reporting, don’t forget to include hydrogen sulfide.

According to the Environmental Protection Agency (EPA), “Hydrogen sulfide was added to the TRI list of toxic chemicals in a final rule published on December 1, 1993. On August 22, 1994, EPA issued an Administrative Stay of the reporting requirements for hydrogen sulfide in order to evaluate issues brought to the Agency’s attention after promulgation of the final rule…”

However, with the Administrative Stay lifted, facilities are required to submit TRI reports for hydrogen sulfide beginning with the 2012 reporting year (reports due July 1, 2013)

For more information about the reporting requirement for hydrogen sulfide see the EPA website: http://www.epa.gov/tri/lawsandregs/hydrogensulfide/indexf.html

If you have questions or need assistance with TRI reporting, contact Matthew Schroeder, P.E. (mschroeder@dragun.com) at 248-932-0228.

Environmental Remediation “Results” and “Thrills”

I was reading Seth Godin’s blog today (http://www.sethgodin.com/sg/) and he said that clients/customers want one of three things:

  • Results
  • Thrills
  • Ego

Godin says not all three, just any one of them. I thought about this and my own buying decisions, and I can’t think of a purchase that doesn’t fit one of these three…

I was then looking at these three from the perspective of what has turned out to be a very popular (just shy of “wildly popular”) series of seminars on, of all things, environmental remediation (Burlington, ON, Troy, MI, *Grand Rapids, MI, and *Richmond Hills, ON).

While I really do believe, what draws people in is the aspect of getting results – there might be an element of thrill in finding a solution when something like a remediation has lingered…I’ll leave the ego aspect to the local haberdasher that can make you look real snappy in some new threads.

If you are looking for environmental remediation results & thrills (two out of three isn’t bad) you can contact me at (ahahn@dragun.com) or go to our website at www.dragun.com for more information about our next seminar.

*upcoming seminars

More EPA Enforcement Making News

Further to my point last week regarding administrative oversights leading to costly penalties, I was alerted to this notification over the weekend via a report from the Environmental Protection Agency, Weekly Activity Report for the Week of March 21, 2011 for Region 5.

“On March 22, 2011, Region 5 filed a Consent Agreement and Final Order (“CAFO”) with Cor-Met, Inc. of Brighton, Michigan that simultaneously commenced and concluded an administrative action alleging violations of the Resource Conservation and Recovery Act (“RCRA”). Cor-Met allegedly failed to: (1) label seven 55-gallon containers with the words “Hazardous Waste,” that were observed in an accumulation area during EPA’s inspection; and (2) failed to date the same seven 55-gallon containers with a start accumulation date. The Agency was prepared to file an administrative complaint and seek a civil penalty of $28,895 for these alleged violations.

In accordance with the RCRA penalty policy, and in consideration of Cor-Met’s cooperation and willingness to negotiate a settlement without litigation, Region 5 agreed to settle this matter for $26,005. Cor-Met also certified in the CAFO that they are presently in full compliance with all the statutory and regulatory requirements of RCRA.”

The number one trigger for a regulatory inspection (according to conventional wisdom) is a complaint by an employee or former employee.

To read more about the EPA’s Audit Policy, click here http://www.epa.gov/compliance/resources/policies/incentives/auditing/auditpolicy51100.pdf

If you would like more information about technical assistance with an environmental compliance issue, contact Matthew Schroeder, P.E. (mschroeder@dragun.com) at 248-932-0228.

Environmental Regulatory Changes in Michigan

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 (mschroeder@dragun.com) or Jeffrey Bolin, CHMM (jbolin@dragun.com) at 248.932.0228.