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.