Are legislative changes afoot for cleanup care?


A proposed change to a law on environmental cleanup regulations aims to bolster the “due care” responsibilities property owners face when developing land.

The current law, Part 201 of Michigan’s Natural Resources and Environmental Protection Act, 1994 PA 451, “requires that owners and operators take measures to ensure that existing contamination on a property does not cause unacceptable risks and is not exacerbated,” according to the state of Michigan.

Tom Wackerman, president of ASTI Environmental, a firm that provides environmental and engineering services to industry and government entities, said the draft of the new legislation makes adjustments to the due care and remediation side of environmental cleanup.

“There’s been a trend in environmental legislation moving away from the assessment side and moving toward due care,” Wackerman said. “The Michigan Department of Environmental Quality focuses a lot now on due care.

“The concept of due care is driven by the intended future use of the property. If I want to put a factory on it, the requirements are different than if I want to put single-family homes, because the population who lives in single-family homes is a much more vulnerable population. They spend up to 24 hours a day in their homes, as opposed to eight-hour days in factories.”

The new legislation would mean cleanup criteria on some properties “are getting more stringent and some are getting less stringent” depending on the property’s use, Wackerman said.

The biggest change, Wackerman said, has to do with remediation.

“What we do in terms of assessing a property, Phase I, Phase II, baseline assessments, will be unchanged,” he said. “(The Part 201 legislation) is going to affect due care and require some more remediation. Due care is all about ‘How can I protect human health?’”

Wackerman said decisions must be made about whether to control or fix “volatile organics” on each property.

“When you control the problem, you’ll set up a due care plan to do with operation and maintenance,” he said. “The alternative is to fix the problem, digging it up and taking it to a landfill or treating the groundwater and soil.”

He said the same types of legislative trends for environmental cleanup are going on at the federal level. Although changes to the Michigan legislation are in the work stage, and the MDEQ is seeking comment, Wackerman said he doubts the legislation will pass exactly as is.

He said equally as important to the changes to Part 201 is the idea of how environmental cleanup is evolving in the marketplace.

“In the ’70s, it was about command and control. Then we moved toward process management: You have these standards and have to figure out how to do it. Now, we’ve moved more toward managing by objectives: How are you going to manage your cleanup and due care to meet the standards?

“(With the latter approach), they set up the end point, and you just have to make sure you get there.”

Wackerman said management by objectives is mostly a voluntary action, except if the project is receiving federal funds, then standards often are stricter.

But either way, the trend is moving toward promoting human health and well being.

“We have a pretty defined process now, so there’s a push toward presumptive remedies, where you go in and design for the worst case because it’s the best approach to protecting human health,” he said. “You implement that due care plan, and then you go into maintenance.

“Ten, 15 years ago we weren’t doing that. Now, we’re focusing on remedies.”

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