New UST legislation signed

2 May 2012

Michigan has been lagging in closures of underground storage tanks for some time.   Back in the days of the MUSTFA program which funded tank removals and cleanups based on a 7/8 cent charge per gallon at the pump (extended for another 3 years), tanks were practically flying out of the ground and closures were quickly achieved.  After the money dried up, MDEQ began to take tougher stances and everything ground to a halt.  Reportedly, Michigan has 9100 “open” UST sites – the second most in the Country.

However, following the pattern set out by the successful Part 201 legislation enacted in 2010, a number of stakeholders have pushed a package of bills that were signed by the Governor this week.  These bills, now Public Acts 108, 109, 110, 111, 112, and 113,  will streamline and hopefully speed up the closure process by, among other things:

  • Allowing the MDEQ to audit only final assessment and closure reports, rather than auditing at all steps of the corrective action process;
  • Shortening the period for MDEQ to decide it would or would not audit a report;
  • Allow MDEQ to audit a report only once;
  • Make clearer that a report would be considered approved if MDEQ did not audit it or provide a written response to the owner or operator;
  • Allow an owner or operator whose report was denied to seek approval from the Part 201 Review Panel or petition MDEQ’s Office of Administrative Hearings for a contested case hearing;
  • Provide for a lien in favor of the State for all unpaid costs and damages for which a person was liable and allow that lien to have superpriority status when needed;
  • Prohibit MDEQ from requiring a report to include information beyond that specified in Part 213;
  • Revising the penalties for a person who fails to comply with an administrative order requiring corrective action; and
  • Provide that MDEQ guidelines, bulletins, interpretive statements, operational memoranda, or forms would be advisory, and could not be given the force of law.

The hope is that this will provide clarity, consistency and encouragement to the MDEQ and the regulated community – largely owners of existing and former gas stations – so that they can achieve closure.  Given the slow progress of the Part 201 changes thus far, only time will tell.

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