Fuel-tank cleanup leaves mess above ground, too

Michigan’s program for cleaning up leaking underground storage tank faces a major overhaul this year, one that could make cleanups simpler and less costly.

But the planned changes, which are moving through the Legislature, won’t address one of the program's biggest weaknesses: The program is grossly underfunded. Michigan spends $20 million annually cleaning up leaking underground fuel tanks, a fraction of the $177 million that is needed each year, according to state officials.

State Sen. Tom Casperson, R-Escanaba, sponsored a series of bills that would overhaul the cleanup program. The legislation has passed the Senate; the House of Representatives and Gov. Rick Snyder are expected to approve it.

The legislation would reduce state control and oversight of cleanups and require the Michigan Department of Environmental Quality to use risk-based cleanup standards for leaking underground storage tanks, or LUSTs. The standards would allow some pollution to remain in the ground -- provided it poses no threat to humans.

“I’m not trying to get rid of regulations, I just want to make clear what (cleanup) contractors can and can’t do,” Casperson said.

“Michigan’s closure rate (completion) for LUST cleanups is the worst in the country,” Casperson said. “I had a cleanup contractor who works on these sites all over the country say that Michigan’s program is the worst because there is never any closure.”

Government data support his claim.

Sixty percent of the LUST sites in Michigan have been cleaned up since cleanups at gas stations began in the 1980s; that’s the lowest closure rate in the nation, according to U.S. Environmental Protection Agency data. Last year, 171 LUST cleanups were completed in Michigan  -- less than 1 percent of the 21,673 LUST cleanups initiated since the 1980s.

Critic says proposals go too far

James Clift, policy director for the Michigan Environmental Council, said the LUST program needs improvement. But he said Casperson’s legislation would give property owners too much control in the cleanup process and hamstring the DEQ’s ability to protect public health and the environment.

“I understand their concerns with the current program and I agree with them at some level,” Clift said. “But with this package of bills, the Legislature is swinging the pendulum way too far to the other side.”

If approved, Casperson’s bills would:

* Reduce DEQ oversight and control of cleanups.

* Require the DEQ to approve or reject a proposed cleanup within 90 days.

* Limit civil damage claims related to leaking underground storage tanks to $50 million.

* Allow civil lawsuits by people affected by pollution from leaking underground storage tanks.

* Allow cleanup contractors to appeal technical disputes with DEQ staffers to an advisory board and the DEQ director.

* Prohibit the DEQ from enacting policies that are more stringent than federal regulations or what the state Legislature approves.
 
“They’re making it harder and harder for the DEQ to prove that somebody is responsible for a cleanup,” Clift said.

That could lead to the state inheriting even more privately owned LUST sites. Michigan’s “causal liability” standard focuses on people and businesses that cause pollution, not property owners. Because proving someone caused pollution is difficult, property owners can walk away from contaminated LUST sites and leave the state with the bill, according to a federal review of Michigan’s program.

Michigan currently has 4,500 “orphan” LUST sites where property owners and businesses have avoided liability for cleanups.

Casperson said the legislation would provide risk-based, “common sense” approaches to cleanups at LUST sites.

Environmental consultant Peter Bosanic said the proposed changes would allow contractors to quickly complete cleanups at 20 percent of the 9,100 polluted LUST sites in Michigan.

Funding shortfall still looms

The changes Casperson is shepherding through the Legislature don’t address funding for the LUST program.

The program is funded by a 7/8th of 1-cent fuel tax, which generates $56 million annually. Only a fraction of that revenue has gone toward cleaning up pollution sites in recent years, however; the Legislature has used most of that money to help balance Michigan’s budget, according to state records.

DEQ officials have said the agency needs $177 million annually just to keep pace with the expanding inventory of polluted LUST sites, which grows by 300 sites annually. At the current rate of work, cleaning up the 4,500 orphan LUST sites in Michigan will take 90 years and cost $1 billion, according to government estimates.

Efforts to reform the LUST program also are a race against time: The 7/8th of 1-cent gas tax that funds the state’s LUST program expires at the end of the year.

Some GOP lawmakers are threatening to kill the gas tax and strip funding from the LUST program if it isn’t overhauled this year.

“If we don’t get the LUST program cleaned up I think it will tough to get the gas tax renewed,” Casperson said. “It’s absolutely crazy to keep doing things the same way and then ask for more money. Those days are gone.”

Jeff Alexander is owner of J. Alexander Communications LLC, as well as a writer and media consultant at the National Wildlife Federation. He’s a former staff writer for the Muskegon Chronicle.