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Old Tank Sites Subject to New DEQ Initiative

leaking underground tanksThe MDEQ is increasing its review of dormant but open leaking underground storage tank (“LUST”) sites.  This informal initiative is designed to resolve site status at open LUST locations.  The MDEQ is requesting access to most open LUST sites to perform investigative work.  One risk, though, is that owners of such sites may be required to reimburse the MDEQ for this work.

MDEQ requests access regardless of previous environmental reports showing no levels of contamination.  While the prior reports do not constitute a final closure of a LUST site, they may demonstrate that these old sites do not pose a threat.  Presumably, the MDEQ’s effort will result in a reduction in the number of listed contaminated sites throughout Michigan.

If an owner requests additional information, such as a work plan, or somehow delays a response to the request, the MDEQ may classify such a response as a “denial”.  In the case of a denial for access, the MDEQ will refer the matter to its Compliance and Enforcement Section for further evaluation.  The MDEQ may then conduct a liability determination, which may take several months, to determine if the owner is a liable party.  If liable parties are identified, the MDEQ will issue a request under Part 213 for the owner to conduct an initial assessment report or a final assessment report regarding the open LUST release.

If a liable party cannot be found, the site will revert to “orphan” status and the State will continue to spend resources to investigate the LUST release at the site.  Court proceedings may be necessary to obtain access.

The MDEQ will typically not provide a complete work plan to the Owner when it requests site access due to time and budget constraints.  The owner is typically allowed to take split samples of soil or groundwater samples.  Owners have an option to conduct additional work at their sites to control information and otherwise acquire information relevant to the MDEQ’s request.  Where time has lapsed and other contaminants may become relevant, it is important to enlist the support of a competent environmental consultant as well as a lawyer to determine the best course of action.

About Tyler D. Tennent

Tyler D. Tennent is a Member of Dawda, Mann, Mulcahy & Sadler, PLC. He concentrates his practice in the areas of land use, environmental, tax incentives, sustainability, real estate, general corporate and related litigation. Mr. Tennent has significant litigation expertise representing parties in commercial, land use, and environmental litigation, including local, state and federal administrative appellate actions and regulatory proceedings.

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