Part 213: 2012 Amendments

Changes & Implementation

Dennis EagleField Operations Section,

Remediation & Redevelopment Division eagled@michigan.gov

517-335-4918

Part 213: Today’s Discussion

• Three versions of Part 213 in < 1 yr

• Multiple changes affecting regulatory and practical application of the statute

• What changes will be covered

–Important “Definitions” –Department and regulated community obligations –Other important statutory deletions and additions–Not discussing - liability provisions; specific technical issues

Part 213: “In The Beginning”

• 324.21301a Purpose and applicability of part.

• (1) This part is intended to provide remedies USING A PROCESS AND PROCEDURES SEPARATE AND DISTINCT FROM THE PROCESS, PROCEDURES, AND CRITERIA ESTABLISHED UNDER PART 201 for sites posing a threat to the public health, safety, or welfare, or to the environment, as a result of releases from underground storage tank systems…

Part 213: New Department Obligation

• Sec. 21301b(3) …corrective actions by nonliable parties

• (3) Notwithstanding any other provision of this part, a person that is not liable under this part may conduct corrective actions under this part in the same manner as a person that is liable under this part. Notwithstanding any other provision of this part, the department shall provide responses to nonliable parties conducting corrective actions for reports submitted under this part in the same manner that it provides responses to persons that are liable under this part.

Part 213: Definition Changes

• "Consultant" means a person that meets the requirements set forth in section 21325. (also defined as “qualified underground storage tank consultant”)

• "Contamination" or “Contaminated” means the presence

of a regulated substance in soil, surface water, or groundwater or air that has been released from an underground storage tank system at a concentration exceeding the level set forth in the RCBA tier I screening levels established under section 20120a(1)(a) and (b).

Part 213: Definition Changes (cont.)

• “Free product” – Deleted

• “NAPL”, “DNAPL”, “LNAPL”, “Migrating NAPL”, “Mobile NAPL” & “Residual NAPL Saturation” definitions added

• Sidebar: NAPL policy out soon– Delineation of residual NAPL expected

– Possibility of closing site with residual and mobile NAPL present using multiple lines of evidence

– Migrating NAPL must be addressed

Part 213: Definition Changes (cont.)

Part 213: Definition Changes (cont.)

Part 213: Definition Changes (cont.)

• RBCA definition now includes 3 standards “incorporated by reference”: – E1739-95 RBCA Applied at Petroleum Release Sites– E2081-00 Standard Guide for RBCA– E2531-06 Development of CSMs and Remediation Strategies

for LNAPLs

• Standards vs Appendices• Implementing ASTM standards as requirements• CSMs required for all sites – LNAPL CSMs

Part 213: “Corrective Action” Changes

• Owner or operator may fulfill corrective action obligations under Part 201, in its sole discretion, if:

– the release at a site is not solely the release from a UST system;– the release from the UST system involves venting groundwater,

addressing the venting groundwater may be done under the procedures in Sec. 20120e [see Sec. 21304a]

• Important: Part 201 changes to soil removal or relocation are not incorporated into Part 213 – except that prior department approval for moving off site or

relocating on site is no longer required [see Sec. 21304b]

Part 213: “Corrective Action” Changes

• Addition of Sec. 21304c – Documentation of Due Care

– Incorporation of Part 201 due care provisions – [Sec. 20107a]– Applies to person having knowledge a property is contaminated

• Addition of Sec. 21304d – Disclosure– disclosure required when transfer interest in real property that

the person has knowledge is a site – must disclose any land or resource use restrictions that apply to

the property

Part 213: “Corrective Action” Changes

• Report of release; initial response actions [sec. 21307]

– Upon confirmation of a release … the owner or operator that is liable under section 21323a shall report the release to the department within 24 hours after discovery.

– Using the process outlined by RBCA regarding NAPL, take steps necessary and feasible under this part to address unacceptable immediate risks.

– Deleted: Requirement to report free product within 24 hrs of discovery and initiate free product recovery

Part 213: “Corrective Action” Changes

Part 213: “Corrective Action” Changes

• Initial Assessment Report (IAR) [sec. 21308a]

– Submit to the department within 180 days (previously 90 days)

– A description of the mobile or migrating NAPL investigation and, if the evaluation … concludes that NAPL is recoverable and removal is necessary … to abate an unacceptable risk pursuant to …RBCA, a description of the removal…

– The department shall not require any additional information beyond that required in the IAR - but the O/O shall provide supporting documentation upon request by the department. (Huh?)

Part 213: “Corrective Action” Changes

• Corrective Action Plan [Sec. 21309a]

– Requires an analysis of the recoverability of NAPL and whether it is mobile or migrating

– A financial assurance mechanism shall be included If the corrective action plan includes the operation of a mechanical soil or groundwater remediation system, or both.

Part 213: “Corrective Action” Changes

• Final Assessment Report

– Due 365 days after release discovery (unchanged)

– Analysis of recoverability NAPL

– Delineation of the extent of contamination to applicable RBSL

– The department shall not require any additional information beyond that required in the FAR - but the O/O shall provide supporting documentation upon request by the department. (Again?)

Part 213: “Corrective Action” Changes

• Closure Report [Sec. 21312a]

– Signed affidavit by O/O attesting to the completeness and truth of the report to the best of their knowledge

– Signed affidavit by the consultant attesting to truth and accuracy of the report and that the corrective actions comply with RBCA standards

– Consultant’s Certificate of insurance

– Department shall not require any additional information

– Within 60 days DEQ must acknowledge receipt to liable O/O

Part 213: Audit Provisions

• Must audit Final Assessment Reports and Closure Reports within 180 days of receipt (excludes IARs)

• Must make determination to audit within first 90 days– 7 days to notify O/O of intent to audit after deciding to audit– 14 days after completing audit to notify O/O of conclusion

• “Considered approved” if time frames not met by DEQ

• “Considered approved” not a carte blanche that liability obligations have ended

Part 213: Audit Provisions

• DEQ audit results must:– Approve– Approve with conditions– Deny– Insufficient information

• If report denied O/O may:– Submit revised report– Appeal to response activity review created under Sec. 20114e– File for a contested case hearing

• DEQ has 90 days to audit revised report

Reopening of “Approved Closures”

• Sec. 21323a(4)(d) – describes reasons O/Os may have continuing liability notwithstanding DEQ approved or considered approved closure reports

• (iv) – if monitoring reveals excess of the levels relied upon in the closure report – liable O/O must perform corrective action necessary to address potential exposure

• (v) – if corrective actions relied upon in closure report fail to meet performance objectives

Part 213: Liability Provisions

• Sec. 21323a through 21323m

– Essentially copied over from Part 201 and converted to Part 213 language

– Questions on liability – Compliance and Enforcement Section, RRD

• Karen Kligman, Section Chief: Kligmank@michigan.gov• Brian Muench: Muenchb@michigan.gov

Sec. 21323m – Due Care Documentation

• Person may submit documentation of due care compliance

• Within 45 days of receipt DEQ must approve, approve with conditions or deny– If documentation contains sufficient info to make a decision

• Person may– Resubmit revised documentation– appeal to response activity review panel under 20114e– petition for contest case hearing

Sec. 21325: Qualified Consultant

• Education and Experience Requirements for Qualified Underground Storage Tank Consultant (QC)

• DEQ no longer in regulatory oversight role of QCs – will check for insurance certificates required with closure reports

• Requirement that O/O use QC unintentionally removed from statute – DEQ requiring QC for IAR,FAR, & Closure Report work

BEA – 201 or 213? Or both?

• Question: Do I need to do a BEA for both the 201 and 213 statutes?

• No – liability provisions relative to BEAs are essentially identical for both statutes

• Interpretation is that one BEA will cover both statutes

“Red-tagging” under Part 213

• The department, upon discovery of the operation of an underground storage tank system in violation of this part, rules promulgated under this part, part 211, or rules promulgated under part 211, shall provide notification prohibiting delivery…by affixing a placard…etc.

• Operation of a UST system is regulated under part 211

• Effectively eliminates red-tagging under Part 213 - except where UST system is leaking and O/O not implementing Sec. 21307 initial response actions

The Conundrum of Guidance

• New Sec. 21327 – prohibits department from relying upon a guideline, bulletin, interpretive statement, operational memorandum, or form with instructions to support department’s decision to act or refuse to act.– shall not use given the force and effect of law

• Regulated community wants guidance to assist in understanding department’is view of technical issues, e.g., NAPL, vapor intrusion guidance, due care

• Continuing to develop guidance and policies with statement added that they don’t have effect of law

Part 213 Forms

• Where are the forms?

• www.michigan.gov/deq

– Select “Land” (along left column)

– Select “Leaking Underground Storage Tank Sites”

– Select “Forms and Documents” tab

Part 213: RRD Contacts

• District Offices

• Dennis Eagle, Field Operations Section– eagled@michigan.gov; (517) 335-4918

• Phil Schrantz, Chief, Field Operations Section– schrantzp@michigan.gov; (517) 241-7706

• Brian Muench, Compliance and Enforcement Section– muenchb@michigan.gov ; (517) 335-6243

Part 213

Questions?