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CSI Part II – this time, it’s brownfields

14 Mar 2014

z39237120As regular readers of this blog know, initially, I was not a huge fan of MDEQ’s 2012 CSI (Collaborative Stakeholder Initiative) process aimed at refining MDEQ’s Part 201 language and rules to enable more sites to achieve closure and get out of “contamination limbo.”  Well, the process did lead to some specific recommendations and some concrete legislative changes and it appears that closures are slowly being approved more quickly and easily.
Well, not one to rest on her laurels, Anne Couture at the MDEQ decided to try and revisit the process in 2014, this time focusing on making the “patchwork quilt” of statutes and rules regarding brownfield redevelopment, incentives, grants and loans more straightforward.  A CSI II group (of which, in full disclosure, I am a part) has had its first meeting and will be working throughout the Spring and Summer. The group has been charged with focusing on the following six specific areas:

1. Legislative;
2. Core Communities;
3. Site Reclamation Rules;
4. Demolition, Lead, Asbestos, and Dredging;
5. Liability; and
6. Program Implementation.

If you have specific concerns regarding these issues or ideas on ways to improve or streamline the brownfield process or incentives, feel free to let the MDEQ know or send me an email at asiegal@jaffelaw.com and I will be sure to pass your comments on.

And they say it couldnt happen here. Due diligence – part one.

16 Jul 2013

Often, we hear clients say, “Well, sure contamination is a risk with property used in the 1940’s or even the 1960’s but it isn’t happening today.”  I think of A Civil Action which talks about tannery wastes dating back to the early 1800’s.   The movie, Erin Brockovitch dealt with contamination caused in the 1950’s and 1960’s.  Due diligence isn’t as important on a property of recent vintage, right?

A recent story from San Francisco and stories from Delaware and from North Carolina indicate that just isn’t so.  As you can see, homeowners and employees are still learning about exposures to a known carcinogen which was used as an industrial degreaser and solvent for years.

The lesson that the business community should take away from this is – environmental due diligence is not a do-it-yourself proposition.  Any businessperson looking to buy or lease any property should ask their attorney to:

1. help hire the environmental consultant to be sure she is getting what she needs; and

2. read the environmental reports and discuss them with the consultant to be sure that she got what she needed.

Any proper environmental phase I is going to look not only at the past use of the property in question but also the current and past use of the surrounding area.  In the coming weeks, we will summarize how this process works; what is and is not included in it and how best to maximize its use.

CSI pulls into the station; the work continues at a less than glacial pace

15 Mar 2012

Yesterday, the MDEQ, released its CSI report, found here, summarizing the work done by a collaborative group of experts and MDEQ staff over the last 6 weeks (think about that, the MDEQ got something done in six weeks!).  Today, there was a presentation by the 7 work groups.  It does seem that MDEQ may finally be getting the message that the Michigan Legislature sent in 1995 that there should be some tolerance of acceptable risk.   The focus appears to be largely on changing MDEQ policy and statutory language.  I recommend that you read the 100+ page report with 90+ recommendations made, but here are a few points worth noting:

1. GSI – groundwater surface water interface was an issue we struggled with two years ago when I worked on the Part 201 legislation enacted at the end of 2010.  GSI has been one of the two most problematic criteria because MDEQ regularly used it to deny approvals of site closure.  MDEQ has rigidly and conservatively applied these criteria.  As a result of the CSI process,  legislation will be introduced soon that should recognize that not every drop of water in the ground poses a risk to surface water.

2. Brownfields – there were a number of recommendations which are of some urgency as there is a sunset date approaching for the TIF program at the end of this year and legislation is being drafted now.  I am a bit concerned that rather than streamlining this process, there may be a movement toward adding a layer bureaucracy to the approval process. I hope I’m reading the tea leaves wrong on this one.

3. Vapor Intrusion – after GSI, another impediment to closure is the possibility that contaminants might migrate upward into occupied spaces.  How this one plays out remains to be seen.

As this process continues, we will keep you apprised of legislation introduced, rule changes proposed and policies adopted.  Perhaps the MDEQ no longer views industry as the enemy – we’ll see – that’s a paradigm shift that I suspect will take a lot more than 6 weeks.  With a focus largely on policy changes (which can change with the next administration), I remain doubtful that this was a kumbaya moment.

Is a kinder, gentler, more pro-business MDEQ on the horizon?

29 Feb 2012

The Detroit News and others have been touting the recommendations (found here) of the Governor’s Office of Regulatory Reinvention (ORR) on environmental regulations.  Is this, combined with Anne Couture’s CSI program, a sign of a tipping point toward a more pro-business MDEQ as many are saying?  I give this, at best, a definite “maybe.”

While eliminating 10% of the MDEQ’s rules (as some have calculated) sounds like a good thing, on closer examination, many of the rules slated to be eliminated are redundant or have been superseded by legislation.   The CSI report is supposed to be available in about two weeks but these two reports are just that – reports.  The regulatory and statutory changes recommended (while a good starting point) still need to be drafted and enacted and that can take months, if not years, if it ever happens.

As I said last May when the ORR process started, I am a firm believer that the issue in Michigan is far less with the rules than it is with the goals and intentions of the MDEQ staff interpreting those rules, and the agency staff isn’t changing so fast.

That said, some of the ORR recommendations that focus on MDEQ policy, such as eliminating the top-secret and very contentious Quality Review Team and finally seeking nominees for the closure review panel, have already been put into effect or in motion and that absolutely is a positive sign.

 

MDEQ Reinvention? Maybe I was wrong… Maybe

7 Feb 2012

Just last week I publicly restated my doubt that Anne Couture could make any major change in the MDEQ’s ability to grant closures of sites that deserve to be closed.  My reticence was based on many factors and finally, it appears, at least two of them are fading away.

First of all, Anne has announced the end of MDEQ’s Quality Review Team (“QRT”). Some 20 years ago, the QRT was intended to be a resource for MDEQ field staffers to ensure that they had the tools to make good closure decisions and to ensure some degree of consistency between decisions being made across the State.  Over time, it evolved into one of the most attacked entities in State government.  The QRT, staffed by MDEQ, operated in complete secrecy and a person who was seeking closure was not permitted to hear the discussions between MDEQ staff and the QRT members nor respond to them.  What seemed to evolve was a “black hole” where proposed closures would go in but never come out approved.

Secondly, after over a year, the MDEQ has officially sent out letters looking for volunteers to serve on the MDEQ Response Activity Review Panel which was created pursuant to the December 2010 amendments to Part 201 of the Michigan Environmental Code.  The Panel has been long awaited and some (including me) were beginning to doubt that the staff would ever pursue seating it.  This will be staffed by non-MDEQ experts.  The Panel, which was originally my idea, was created to provide a privately staffed check and balance  for review of technical and scientific decisions by the MDEQ denying approvals of response activity plans or requests for determinations that no further action is needed under Part 201.

Assuming that the Review Panel is actually seated (the MDEQ took away the nominal per diem originally proposed, so anyone serving is volunteering their time) and that the staff is empowered to make, and begins to make, good risk-based decisions, I may just have to send Anne Couture flowers and a note of apology!