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Is It Clean? – Michigan Certificates of Completion and No Further Action Letters

On December 22, 2012 Governor Snyder signed Senate Bill 1328 which became effective on December 27, 2012.  The Bill amended portions of Part 201 of Michigan’s Natural Resources and Environmental Protection Act.  Among the interesting amendments to Michigan’s Part 201’s Clean-Up Program is the inclusion of a new procedural mechanism for obtaining an acknowledgement from the MDEQ that the remediation undertaken was completed and it was done in accordance with Part 201.

A party undertaking a remediation can now make a formal request for a “Certificate of Completion” to the MDEQ.  The applicant would complete a form, which is to be prepared by the MDEQ and will be made available on the MDEQ’s website.  The MDEQ can either grant the Certificate, deny the request, or notify the submitter that there is insufficient information on which the Department can make a decision.  The Department shall specify what information is missing and is necessary for a decision.  In the event of a denial, the Department is to provide specificity as to the reasons for the denial.

The amendments set forth an initial review period by the MDEQ of 150 days upon receipt of the form.  There is only a 90 day review period in the event the submitter is requesting the Certificate of Completion after completing an MDNR approved remedy remedial action.  In the event the Department fails to provide notice within the review time periods provided, a response activity is considered approved.

In the event there is a denial by the Department of a request for a Certificate of Completion, the amendments provide the submitter with opportunities to pursue an appeal of the MDNR’s decision to the Response Activity Review Panel.  The submitter would file a petition appealing the decision to the MDEQ Director and pay a fee of $3,500.

In the December 2010 amendments to Part 201, the process for issuing a No Further Action Letter (NFA) was first developed.  The NFA Letter has been only granted in a few occasions, and has generally been reserved for small clean-ups achieving residential criteria.  This was not consistent with the intended purpose of the NFA review process, and the MDEQ has, at least informally, suggested it is more open now to the evaluation of No Further Action Reports upon completion of more remedial action projects.

By contrast, the NFA review process is much more complex than the request for a Certificate of Completion.  If a party is concerned about the administrative costs associated with pursuing an NFA Letter, the Certificate of Completion does provide a much needed acknowledgement from MDEQ and a defined “end point” for parties undertaking clean-up.

The recent amendments to the provisions associated with the NFA request is a clarification that a party can pursue an NFA letter for a specific portion of a whole site, or  specific media or exposure pathway.  While many believe that the NFA provisions as originally drafted did allow for such limited requests, it took these amendments to make that clarification.

About Susan J. Sadler

Susan J. Sadler is a founding Member of Dawda, Mann, Mulcahy & Sadler, PLC. She is the head of the Environmental, Energy and Sustainability practice group. She concentrates her legal practice on a broad spectrum of environmental issues.

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