810.513.3044 PH
Specializing in Environmental Law and Real Property Law

Kevin Lavalle

Alternative Mechanisms to Protect Against Exposure to Contamination

The Michigan Senate recently passed a bill, that if approved by the House, would make it easier to restrict exposure to contaminants from leaking underground storage tanks. Among other things, Senate Bill 717 (Substitute S-2) addresses contamination under roadways and seemingly extends due care requirements to owners/operators who are responsible for contamination underneath a public highway.

One of the more intriguing parts of Senate Bill 717 relates to land and resource use restrictions. Part 213 of NREPA requires the imposition of land and resource use restrictions when corrective action results in a final remedy that falls short of meeting residential risk based screening levels. In those circumstances, exposure to contaminants is usually restricted by use of a Notice of Corrective Action, a restrictive covenant, or in some cases, both.

In limited circumstances, if a liable party demonstrates that the imposition of land or resource use restrictions are impractical, exposure can be regulated by a mechanism other than a restrictive covenant. Usually this takes the form of a local ordinance that prohibits the use of groundwater in a manner that prevents unacceptable exposure to contaminants.

Senate Bill 717 would eliminate the need to demonstrate impracticability. It would also expand the type of permissible mechanisms to use in place of restrictive covenants. Senate Bill 717 would allow reliance on any ordinance, state law or rule that prohibits development in certain locations or restricts property to certain uses i.e. a zoning ordinance.

Part 213 requires that the MDEQ be notified when changes are made to an ordinance used to prevent exposure to contaminants. Senate Bill 717 contains a similar requirement. While some local governments might balk at such requirement in a zoning ordinance, Senate Bill 717 only requires that an ordinance adopted after its effective date (assuming it becomes law) to contain such a requirement. Because most local governments already have zoning ordinances in place, the notice requirement should not stand in the way of using a zoning ordinance in place of a restrictive covenant.

Michigan Underground Storage Tank Cleanup Fund Claims

The Michigan Underground Storage Tank Authority began accepting claims for corrective action and indemnification on January 1, 2016. Claims are limited to release(s) discovered and reported on or after December 30, 2014. There are a number of other requirements that must be met in order to be eligible to receive money from the Authority. Most notably, the release(s) must have been reported within 24 hours after discovery. The owner/operator must also be in compliance with all applicable registration and financial responsibility requirements.

If you have questions regarding the application process, contact Kevin Lavalle at 810-234-3633 or klavalle@gaultdavison.com.

Changes to Liquid Waste Regulations

The State of Michigan recently amended several laws that will significantly change the way liquid industrial wastes are regulated. The term “Liquid Industrial Waste” is being replaced by a new term, “Liquid industrial by-product.” The term liquid industrial by-product is defined similar to the former term “liquid industrial waste.” However, the list of specific materials and substances cited in the former definition has been deleted. The new term encompasses liquid materials produced by, that are incident to, or results from industrial, commercial or governmental activity. Manifests and site identification numbers are out. Shipping documents and a response plan are in. The new laws expand the remedies available for enforcement. The former statute contained a somewhat narrow remedy limited to recovery of damages to natural resources. The attorney general is now authorized to commence civil actions for violations of the amended statute including requests for injunctive relief.

Update on the Use of Baseline Environmental Assessment

By Kevin A. Lavalle, Gault Davison PC and Jeffrey A. McCormack, Arcadia Environmental, LLC.

Prior to 1995, owners and operators of property were subject to strict liability for the cleanup of contaminated property. This liability scheme, commonly referred to as “draconian” by the commentators of the time, was abolished in 1995 by the Michigan Legislature and replaced with one based on fault. Continue reading

Primer on Surface Water

Spring time in Michigan inevitably brings with it flooding problems. The first step in resolving a flooding issue is determining whether the offending water is in a natural watercourse or merely represents the natural flow of surface water. The character of the water determines which set of rules apply. Continue reading

Court of Appeals Declares Some Foreclosures Invalid

A recent decision by the Michigan Court of Appeals has the potential to set aside previously granted foreclosures. In the consolidated cases of Residential Funding Co., LLC, f/k/a Residential Funding Corp. v Saurman and Bank of New York Trust Co. v Messner, (hereinafter “Residential Funding Co.”) the court held that certain foreclosures instituted by Mortgage Electronic Registration Systems Inc. (“MERS”) were invalid. Continue reading

Michigan Ruling Restricting MERS Ability to Foreclose Given Retroactive Effect

The Michigan Court of Appeals ruled in Residential Funding Co, Inc. v Saurman, — NW2d —, 2011 WL 1516819 (Mich. App. April 21, 2011), that Mortgage Electronic Registration Systems, Inc. (MERS) could not utilize the foreclosure by advertisement statute when it did not own the underlying note. (See previous blog posting of May 4, 2011). In Richard v Schneiderman & Sherman, P.C., — N.W.2d —-, 2011 WL 3760862 (Mich.App. Continue reading

Michigan Supreme Court May Entertain Appeal of MERS Decision

The Michigan Supreme Court may weigh in on the question of whether Mortgage Electronic Registration Systems, Inc. (“MERS”) can use the foreclosure by advertisement statute. The Michigan Court of Appeals ruled in Residential Funding Co, Inc. v Saurman, — NW2d —, 2011 WL 1516819 (Mich. App. April 21, 2011), that MERS could not utilize the foreclosure by advertisement statute when it did not own the underlying note. Continue reading

MERS 1, Homeowners 0

In Residential Funding Co., LLC, f/k/a Residential Funding Corp. v Saurman, the Michigan Court of Appeals held that Mortgage Electronic Registration Systems Inc. (“MERS”) could not pursue foreclosures under Michigan’s foreclosure by advertisement statute and that certain foreclosures already obtained were invalid. MERS was created by the lending industry to make it easier to sell home loans to investors. Continue reading

RIP Michigan Economic Growth Authority Tax Credits

The Michigan Economic Growth Authority’s (MEGA) “flagship” program of offering tax credits to foster job creation ended its long run yesterday. Created in 1995, the MEGA tax credits were designed to attract and retain businesses in the State. Tax restructuring and creation of a new Corporate Income Tax sounded the death knell for the program. Continue reading