posted on March 08, 2017 17:01
|Contamination that has migrated into a Right-of-Way has proven a challenge to site closure.
Senate Bill 717 was recently approved by the governor on December 21, 2016 and will become effective March 29, 2017. This bill amended five sections and added one section to the Part 213 of the Natural Resources and Environmental Protection Act, 1994 PA 451.
Since the state regulators approach changed years ago to allow environmental consultants to again “assess the risk” at a site, current O/O have been able to achieve closure by implementing “institutional controls”, such as “Restrictive Covenants (RC)” and “Alternative Institutional Controls (AIC)”.
For on-site contamination, RC’s have been placed on properties to limit groundwater use and/or land use restrictions. This process involved the site owners signing and recording the restrictive covenant with the county. It has been generally successful with limited issues from the MDEQ that can usually be resolved.
Offsite Contamination into a Right-of-Way
However, for contamination that has migrated offsite and into a right-of-way, an AIC has been needed to be obtained and approved from the municipality that currently owns the right-of-way. This municipality could be a city, county, and/or state. For many years, O/O have faced numerous barriers in obtaining an AIC, such as waiting on MDEQ, state, and/or county draft AIC forms to be approved and available to the public, municipalities not having any guidance in place for approval, or municipalities just being reluctant to approve leaving contamination in a right-of-way, fearing that they would be held liable.
Change in Liability
To address these issues, Senate Bill 717 explicitly identifies the existence of a public highway as an allowed AIC, if certain conditions are met, while specifying that liability for the release will remain with the O/O and not be transferred to the right-of-way municipality.
Some changes include:
- Defining a public highway as a road or highway under the jurisdiction of the state transportation department, a county road commission, or a local unit of government
- Providing that an O/O who is liable with respect to regulated substances present within a public highway above applicable standards is subject to requirements for a property O/O to take certain actions in response to contamination
- Eliminating a requirement that imposition of land or resource use restrictions be impractical in order for a property O/O who is liable for a release to choose an AIC to restrict exposure to the contamination
- Expanding the scope of an ordinance that may be used as an AIC to restrict exposure
- Including among the AIC’s a license or license agreement with the Michigan Department of Transportation (MDOT), if regulated substances are proposed to be left in place within a public highway under MDOT's jurisdiction
- Providing that the AIC’s may include reliance on the existence of a public highway, if MDOT does not grant a request for a license agreement or if the highway is owned or controlled by a county road commission or local unit of government
- Providing that, if a closure report relies on an AIC and the conditions of that AIC are changed in the future, the O/O will be liable for additional corrective action activities necessary to address any increased risk of exposure to contamination;
- Eliminating a provision regarding the approval of AIC’s by the MDEQ.
With these changes in place, the AIC process should be much faster and O/O should expect more site closures.
About the Author
Curtis Lichy, P.G., C.P.G., is a Regional Manager of Retail Petroleum Services at PM Environmental, Inc. and has served clients since 2000. He specializes in Leaking Underground Storage Tank (LUST), risk evaluation, remediation, and corrective action projects. Lichy has managed numerous projects and has received multiple regulatory closures on LUST sites.