The Cleanup Pendulum

Years ago, a friend and I had lunch with a former chief of the Michigan Environmental Response Division. One of the topics on the agenda was changes to Michigan’s cleanup program. Changes implemented during our lunch partner’s tenure began to categorize cleanups as one of three types. Type A cleanups were conducted to achieve non-detect levels of contaminants. Type B cleanups were risk-based. Type C cleanups relied on management practices to eliminate exposure. Prior to those changes, most cleanups were required to achieve non-detect levels of contaminants.

Of the new cleanup categories, Type C cleanups were the most controversial. They were not really cleanups as the term was commonly understood at that time. Nothing was removed or treated. Instead, restrictions, like a soil cap and/or fence were placed around the contamination to prevent exposure.

Our lunch partner was troubled by Type C cleanups. What happened if the responsible party ceased to exist or ran out of money? Who would be responsible to maintain the restrictions? The answers were obvious.

Everyone at the table acknowledged the shifting political winds were blowing the cleanup pendulum in a different direction. We expected those winds to gain strength. They did. A couple years later, they blew the ABC cleanup categories away and replaced them with the system of restrictive management practices used today.

A real pendulum does not swing in one direction forever, friction and air resistance eventually causes it to stop. Similarly, the cleanup pendulum does not swing in one direction forever either. Senate Bill 606, part of a proposed package of bills seeking to amend Michigan’s cleanup laws seeks to move the cleanup pendulum in another direction.

Supporters of SB 606 justify the change in direction by pointing to the number of “orphan sites” located throughout the State. These sites are places where the party responsible for a cleanup is no longer viable and the State shoulders the cost of any cleanup. As predicted by our lunch partner 30 years ago, the number of orphan sites exceeds the ability of the State to pay for them.

Section 20118 of NREPA currently allows a person to conduct a cleanup that falls short of satisfying cleanup criteria for unrestricted residential use if the cleanup utilizes land use or resource use restrictions. Senate Bill 606 proposes to change Section 20118. It would curtail utilization of land use and resource restrictions and instead, require a person to meet the unrestricted residential cleanup criteria to the extent it is “technically feasible.” A companion bill, Senate Bill 605, defines “technically feasible” as reasonably achievable using currently available remediation methods.

If passed, Senate Bill 606 would not move the pendulum back to the days of non-detect. It should result in a higher degree of cleanup however at sites where it is technically feasible to achieve the higher standard and the responsible party has sufficient funds to pay for it. While the number of new orphan sites should drop, absent any new funding, SB 606 does nothing to affect the number of existing orphan sites.