Michigan Q&A

1. How is Michigan's VCP organized and managed?

Answer: "Organizationally, the MDEQ is currently made up of nine program divisions under the MDEQ Director....  Each division is divided into sections, which are often divided into units.  Each division also has district offices where MDEQ field staff is located." 

2. How is a liability release obtained under Michigan's VCP?

Answer: "A person interested in purchasing, leasing, or operating on a contaminated property in Michigan since June 5, 1995, may avoid liability for existing contamination by performing a Baseline Environmental Assessment (BEA).  A BEA is an evaluation that is based on the future use of the property that reasonably defines the existing conditions and provides a means of distinguishing a new release from existing contamination.  By conducting and disclosing an adequate BEA within the required time frame (generally within 45 days of purchase, occupancy, or foreclosure) to the Michigan Department of Environmental Quality (MDEQ), the new purchaser, operator, or lessee is not considered liable for the existing contamination at the property.  A person purchasing or acquiring control of contaminated properties may seek the liability protections provided by disclosing a BEA even at properties where the liable party is required to implement response activities under an administrative or judicial order.

"A person may also submit the BEA to MDEQ for a determination under Section 20129a of the NREPA.  A determination that the BEA is satisfactory only provides the person some assurance regarding the adequacy of the BEA.  It does not provide that person with any more or less protection from liability regarding existing contamination.  The MDEQ advises people to seek a BEA determination prior to taking control of the property so that, if necessary, the BEA can be cured within the statutory time line. [More information can be found at the website: www.deq.state.mi.us/documents/deq-erd-bea-guide99.pdf .]

"The new owner, operator, or lessee is required to comply with Section 20107a of the NREPA, known as the due care provision.  Due care involves preventing exacerbation of existing contamination, mitigating unacceptable exposure to hazardous substances, and protecting against the foreseeable acts or omissions of a third party.  A person may be subject to some liability for not complying with the due care provisions to the extent the response activity costs and natural resource damages or civil penalties are attributable to that noncompliance.  The protections provided with a BEA do not extend to a new release.  A person who is responsible for a new release is liable for that release and has affirmative obligations to undertake response activities attributable to that release.  A BEA does not protect an owner or operator from liability for the contamination he or she caused."

3. What cleanup standards are used in Michigan's VCP?

Answer: "Liable parties, primarily those persons responsible for causing a release of hazardous substances, have an affirmative obligation to clean up releases of hazardous substances to achieve the cleanup criteria specified in Part 201, Environmental Remediation, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended (NREPA).  The cleanup criteria in Part 201 are land use-based, such as residential, commercial, recreational, and industrial."

4. When is an owner, operator, or lessee still liable if additional response action is necessary after a BEA was prepared and disclosed?

Answer: "The MDEQ only seeks cost recovery from persons liable for the contamination.  Therefore, if the MDEQ performs response activities at a property owned by a non-liable party, the MDEQ would generally not seek reimbursement from the property owner.  The MDEQ always retains authority to take response [actions] that it deems necessary at a facility." 

[Comment: Even a new owner, operator, or lessee may bear some response cost liability if response costs increased as a result of their failure to exercise "due care."  See Answer #2, above.]

5. What kinds of financial incentives does Michigan offer for brownfield sites?

Answer: "Michigan has several different ways of publicly funding response activities.  Brownfield redevelopment and waterfront grants and loans are provided to local units of government to fund response activities to facilitate redevelopment.  Also, funds are appropriated for the MDEQ to expend on response activities to address contamination at facilities."

6. Does Michigan have any formal "inventory" system for systematically cataloguing and tracking brownfield sites?

Answer: "While there is no formal inventory system for brownfield properties, staff of the MDEQ works closely with the local units of government to identify properties with redevelopment potential and funding sources.  Development associations and other outreach organizations also assist persons interested in redeveloping brownfields in Michigan."

7. How much authority do private contractors have to determine when and what type of response actions will be needed?

Answer: "Nearly all of the MDEQ-lead projects utilize private contractors that are on the state's level-of-effort contractor list.  A few of the publicly funded projects were... managed by private contractors [under the Private Contractors Pilot Program], but the MDEQ maintained an oversight responsibility at all times.  Additionally, even though an environmental consultant may implement response activities at a facility for a private party without MDEQ input, all final approvals for the work, and thus resolution for that person's liablity, can only come from the MDEQ."