In the nearly 30 years that Dragun has been advising clients on environmental assessment and cleanup matters, we have often used the analogy of a pendulum as it relates to cleanup criteria.  Over a period of years, with new toxicological data (and other factors), the cleanup criteria tend to swing back and forth between conservative to less conservative approaches.  And now, with a national and international focus on the vapor intrusion pathway, the trajectory of the pendulum may have been altered permanently.

Michigan’s Environmental Cleanup Criteria Changes

If you are involved in environmental assessments and remediation in Michigan, you know that we have been waiting on a pendulum adjustment.  That wait is over.

The environmental cleanup pendulum is, once again, changing in Michigan (Image Purchased from Shutterstock).

Late on Friday afternoon, April 15, 2016, the Michigan Department of Environmental Quality (MDEQ) posted the Proposed MDEQ Cleanup Criteria Rules Package pursuant to Part 201 of Michigan’s Natural Resource and Environmental Protection Act (Part 201 of NREPA).  As many of you know, this has been in the works for quite some time following recommendations from the Office of Regulatory Reform (ORR) and Collaborative Stakeholders Initiatives (CSI).  Over the last few months, Bob Wagner, Division Chief of the Remediation and Redevelopment Division (RRD), has been on a state-wide tour of speaking engagements as a precursor to this “unveiling.”

The Vapor Pathway

During MDEQ Remediation and Redevelopment Division Chief Bob Wagner’s presentations and discussions, he did not provide specifics about the proposed rules package; rather, he provided key highlights indicating that the vapor pathway and vapor intrusion would be a focal point and that the algorithms and inputs used in the criteria development (for all exposure pathways) would be a key focus.

Bob did mention that some criteria have gone up, some have gone down, and some remain unchanged.  Regardless of the posted criterion (whatever value it is), it is simply a result of considerable development of the appropriate algorithm and identification of the appropriate inputs to these algorithms (many of which would be Michigan-specific).  As I recall, Bob’s point was “do not question the cleanup value, question the input values and the algorithm that generated the number.”

It was, perhaps, an understatement when Bob Wagner said that there would be a focus on the vapor pathway because there are 30 pages that address vapor.  This includes some 50 plus equations used to calculate criteria under different scenarios.  Additionally, vapor now has its own table of criteria (Table 4. Vapor Intrusion Tier 1 Groundwater, Soil, and Vapor Screening Levels).

It is our understanding that this proposed language will be going to public comment in July 2016 and then sent to Joint Committee on Administrative Rules (JCAR) in September 2016 with a hope to have these promulgated before the end of 2016.  We will continue to review these and bring forward potential items for further scrutiny.

Impact of Environmental Assessments

Clearly, these proposed criteria will have an effect on defining a “facility” under Part 201 and defining the age-old question of “How Clean is Clean?”  If you are involved in property transactions, have due care obligations, and/or are pursuing cleanup and remediation efforts under Part 201, we encourage you to review these proposed rules and seek advice from our environmental advisors (technical and legal).

Site-Specific Environmental Advice

We are continuing to review these changes and will likely have an update as we get more specifics.  If you have a specific question about potential applicability on your site, please feel free to contact me (jbolin@dragun.com) and we can review potential strategies and approaches.