On Aug. 17, 2010, the Michigan State Senate passed sweeping reforms of Michigan’s Environmental Remediation Program, known as Part 201 of the Natural Resources and Environmental Protection Act (NREPA). This proposed legislation is the result of years of dialogue among various stakeholders and is an attempt to fix problem areas in the Part 201 clean-up program that were not working to the satisfaction of the MDNRE or the regulated community. The proposed legislation now moves to the House, where the New Economy Committee is expected to hold meetings on these reforms, with possible action in the “lame duck” session. While there is broadbased support for many of these proposals, there are significant challenges which the Michigan legislature has yet to address. Whether passage of this Part 201 legislation will be a priority is still uncertain but we will continue to monitor progress and report enactment of any significant reforms to Michigan’s Part 201 Environmental Clean-Up Program.

In the interim, the following are the significant aspects of the Senate Amendments to the Michigan Environmental Clean-Up Program:

Baseline Environmental Assessment (BEA) will be preserved but substantially replaced by the Federal “All Appropriate Inquiry” and bona fide prospective purchaser provisions; there will be no process for BEA approval by MDNRE and no requirement that a “baseline” be established to distinguish new releases from old contamination (although this may still be good practice).

No Further Action (NFA) process will provide for clean-up completion or closure which may follow self-implemented remedial action or MDNRE-approved Response Activity Plan; MDNRE has 150 days to review NFA requests or Response Activity Plans (180 days if the plan is subject to public review and comment), or they will be deemed approved automatically.

Clean-Up Criteria will be simplified to “Residential” and “Non-Residential” (f/k/a Industrial); site-specific clean-up criteria may be allowed; specific changes will clarify groundwater-surface water interface (GSI) criteria; and clean-up criteria will be updated annually by rulemaking.

Response Activity Review Panel would be established to address technical issues from Response Activity Plans or NFA denials; members of this panel will be appointed by the MDNRE Director, and the Review Panel’s decisions would be subject to final action by the Director and potential judicial appeal. Petition fees to the Panel will be $3500 per petition.