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Interview: Regulatory Change for Michigan’s GSI Criteria

I had the opportunity to interview Gary Klepper, who has a long, prestigious career in all issues associated with environmental contamination and site remediation.  Gary had a 27-year career with the Michigan Department of Environmental Quality (MDEQ) and the U.S. Geological Survey..  During the last 12 years that Gary was with the MDEQ, he held the position of District Supervisor for the Remedial Action Program.  Gary left the MDEQ in 2001, but continued his career dealing with environmental issues.  For the last 11 years, he has been a Senior Environmental Scientist, Project Manager, and Office Manager  with Conestoga-Rovers & Associates (CRA).  

The following is a transcript of my interview with Gary on Groundwater/Surfacewater Interface (“GSI”):

Q 1.       You have followed the issue of GSI for many years.  Please give us a brief overview of what GSI is and what is the scope of this exposure pathway?

GSI in the context of contaminated properties is  a potential exposure or hazard pathway at locations where site groundwater provides a transport mechanism to move hazardous substances  into surfacewater.   It is not a relevant pathway at all properties but  is frequently the case at hundreds if not thousands of Part 201 and Part 213 sites in Michigan. Michigan’s site remedial action program has for years required groundwater quality to meet standards established to protect surface water resources, and these standards, along with drinking water standards, regularly determine whether or not groundwater cleanup is required.  Because it is often the case that potential drinking water pathway hazards are addressed by imposing restrictions on the use of site groundwater as a water supply source, the “GSI” criteria regularly becomes the most challenging (and costly) aspect of completing site cleanup obligations.

As GSI focuses on the “interface” between groundwater and surface water, variable groundwater, and particularly surface water, hydrologic factors (flow, elevations, etc.).  At sites in Michigan, the GSI is often a dynamic transition zone between groundwater and surface water.  Within this zone various geochemical and biological reactions can be acting to transform the nature of substances originating from upland locations.

Q 2.       MCL 324.20120e sets forth Michigan’s statutory requirements regarding “Groundwater Venting into Surfacewater”.  Under the current statute, what problems has the regulated community had with complying with this exposure risk pathway and criteria?

The generic criteria for the GSI pathway is  the most stringent of all the Part 201 groundwater cleanup criteria, along with the drinking water pathway criteria.  But in many cases drinking water exposure is not an exposure pathway of concern due to available alternate water supplies at the sites, so  the GSI criteria routinely determines  what can be a sufficient completion endpoint for closure for Part 201 sites.

I characterize  two primary  problems in complying with the GSI pathway and criteria as:

(a)           the application of a “permitable surface water discharge paradigm” to the decision making relative, to the need for a groundwater cleanup to protect surface water resources; and

(b)           the application of the GSI criteria in groundwater near sewer  systems even when there is no chance for substances at that location to adversely impact surfacewaters.

The “permitable surfacewater discharge paradigm” evaluates groundwater venting to surface water as if a groundwater plume  is a point source discharge for which an NPDES permit would need to be issued.  The consequences of this approach have been that surfacewater quality standards that are meant to protect surfacewater flora and fauna have to be met in the groundwater even though no such resource exists at that location.  This has been a large barrier to getting cleanups completed because parties  are unwilling to invest the resources necessary to meet standards for which there will not be any demonstrated environmental improvement and benefit.

Q 3.       You have been involved with multiple discussion groups regarding these problems with regulating the GSI pathway.  Are there any groups currently reviewing statutory revisions that would affect the GSI pathway regulations or criteria? 

There are two recent efforts:  one is the review by  the Office of Regulatory Reinvention that was initiated per the Governor’s Executive Order in 2011.  The second is the Collaborative Stakeholders Initiative (“CSI”) that was initiated by the MDEQ at the start of this year.  Follow up on the recommendations of those two efforts is continuing. (The recommendations are summarized here.)  Draft  amendments to Part 201 to address these issues and this pathway have been developed and are poised for consideration by the legislature. (A recent version of the draft legislation appears here.)

Q 4.       Can you provide us with a brief overview of the overall goals of your CSI issue group, in proposing revisions to MCL 324.20120(e)?  

The overall goal of our work group was to revise and improve the way the GSI pathway is addressed in order to facilitate closure and final cleanups, rather than the pathway being the issue that prevents closures and completion of actions.

Q 5.       How would these proposed changes affect the efficiency and reliability of site remediation?

It will be possible to more efficiently  reach appropriate decisions as to the need for groundwater cleanup to protect surfacewater resources.  As a result, there will be earlier and sooner closure of site cleanups and a better return on investments and stewardship of legacy site conditions.  There are certainly hundreds to thousands of sites that face this issue.

Q 6.       What is your understanding as to the status of any legislative efforts to pass a statutory change to GSI?

There is a very good prognosis for future legislative action to address the issue, perhaps even before the summer recess of the current legislature.  I understand there is at least one sponsor of the legislation of potential amendments that has been identified.  .

Q 7.       What might these proposed statutory changes mean to the regulated community if they’re passed?

In my mind it means that many long-standing, unresolved site cleanups could be brought to a closure with a reasonable investment of additional resources.   The key will be Remediation Division recognizing the “permitable surface water discharge paradigm” is not applicable to decision-making for this pathway, a position acknowledged by MDEQ and stakeholders participating in the CSI.

Q 8.       What sites do you think would benefit the most from this statutory change?

Any sites that are unresolved due to the groundwater/surfacewater interface pathway.  This is certainly the case most often at sites that are adjacent to rivers, lakes and other waterways of the state.  It will also include many sites that have been held up on this issue even if they aren’t near a waterway, but they happen to be near an indirect conveyance to waterways such as  storm and sanitary sewers.  These sites have essentially  been  held hostage to the old approach on the issue, for which the proposed legislative changes provide a much better basis for appropriate protection of surface water resources along with completing site cleanups.

Q 9.       What were the big highlights of the recommendations that came out of your CSI issue group?

There were several.  The recommendations include

(1)    The  addition of two other methods for evaluating whether or not there is  a need to do groundwater cleanup to bring a site to closure relative to the GSI pathway by:

  • Performing  an  ecological evaluation of the surfacewater conditions;
  • Performing an modeling evaluation to determine  the potential for adverse impacts to the surface water.

(2)    Focus evaluation of conditions relative to indirect pathways to surfacewater such as via  storm and sanitary sewers based upon whether or not the groundwater contamination has the potential to adversely impact the surfacewater resources, instead of focusing on whether or not the groundwater may enter the stormwater sewer at a concentration above surfacewater standards.

(3)    Evaluate conditions relative to mercury based upon laboratory methods which achieve a quantitation limit of 0.2 ppb rather than the methods developed for ultra-low detection limits. This will assure that significant sources of potential release of mercury from groundwater into surfacewater are addressed.  This will avoid having to address  cases where mercury is detectable, but concentrations are so low that  there  really isn’t any benefit in investigating them further.

Q 10.    What do we hope to see over the six months?

We hope that the legislation is enacted to  affirms a sound scientific foundation and public policy  for making decisions about whether cleaning up groundwater is needed to protect a surfacewater resource.  This would put into practice evaluating the potential impacts to surfacewaters based upon the actual surface water impact rather than conditions in groundwater having to meet surface water quality standards.

What remains to be seen after such a foundation is laid out in the statute is exactly how that ends up being implemented by the agency.  One issue not fully sorted out that may end up being  an impediment to swiftly addressing the GSI issues is the issue of securing MDEQ’s approval for using the alternative methods proposed to be  enacted in the statute..  The CSI work group wrestled with this a bit, but so far the proposal does not encompass any real changes from existing protocols for parties needing to secure MDEQ approval.  There will certainly  be ample  opportunity to see how things actually work out,  and whether or not the requirement for MDEQ approvals in certain cases ends up being an additional step that causes further delays in achieving closures at sites.

I’d like to thank Gary Klepper for providing this information on the status of proposed changes to Part 201 and regulation of the GSI in Michigan.  We will continue to watch this issue as it evolves over the next 6 months.

Susan J. Sadler 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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