Changes in Brownfield Laws Will Help Michigan

Michigan's brownfield contaminated site cleanup program, once considered by many to be the best in the nation, is today largely dysfunctional. The main problem is that it is nearly impossible to get closure — once you check in you can never check out. Businesses are reluctant to invest money to clean up contaminated sites when they are at the whim of state environmental regulators for a never ending series of additional cleanup requirements.

Michigan made significant changes in how it deals with brownfield cleanups by amending state environmental cleanup laws in the mid 1990s. Michigan abandoned the federal model which makes a business responsible for cleanup costs just by being in the chain of title even if they were not responsible for the contamination. Instead Michigan lawmakers with bipartisan support adopted a causation standard that says if you caused the pollution you pay to clean it up and if you did not cause the pollution you are not responsible for costs. Another significant change in the law was to tailor cleanup standards to environmental and human health risks rather than the previous requirement that all sites be cleaned up to background levels. These two changes in the law opened up a floodgate of investment in brownfields around the state.

The changes to Michigan cleanup law proved to be popular to with businesses, mayors and other local government officials, but they were not popular with many DEQ employees who were now forced to make more difficult decisions rather than just relying on strict background cleanup standards. While the leadership of the agency changed with a new governor, many of the employees who were not enamored by the new law remained. These same employees have been largely successful in undermining the intent of the new environmental cleanup law by imposing numerous cleanup requirements through administrative dictates such as operational and policy memos.

The current dysfunctional state cleanup program has resulted in the bipartisan introduction of Senate Bills 437, 1345, 1346, 1347, 1348 and 1349 which attempt to fix failures with the current program. The proposed bills contain several good ideas that if implemented would be helpful in getting the Michigan brownfield cleanup program back on track. Although helpful, statutory changes alone will not fully fix the problem. State environmental officials must have an incentive to follow the law rather than undermine it. State tax payers should not be expected to fund state employees who are more committed to their own agenda than they are to carrying out state law.

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