STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion Number 6928

December 20, 1996

NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION ACT:

Use of consultants in cleaning up leaking underground storage tanks

Sections 21307a, 21310a and 21311a of the Natural Resources and Environmental Protection Act, which permit a consultant retained by an owner or operator of a leaking underground storage tank some flexibility in meeting certain of that act's requirements, do not delegate legislative authority to non-governmental entities in violation of the separation of powers provisions of Const 1963, art 3, s 2.

Honorable Alma Wheeler Smith

State Senator

State Capitol

Lansing, MI 48913

You have asked whether sections 21307a, 21310a and 21311a of the Natural Resources and Environmental Protection Act, which permit a consultant retained by an owner or operator of a leaking underground storage tank some flexibility in meeting certain of that act's requirements, delegate legislative authority to non-governmental entities in violation of the separation of powers provisions of Const 1963, art 3, s 2.

The Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, MCL 324.101 et seq; MSA 13A.101 et seq, was enacted to consolidate and codify Michigan laws relating to the environment and natural resources. See, House Legislative Analysis, SB 257 (Substitute H-3), May 11, 1994.

Part 213 of the NREPA, MCL 324.21301a et seq; MSA 13A.21301a et seq, governs the corrective action required to protect public health, safety, welfare, and the environment when an underground storage tank leak is discovered. Under section 21307, the owner or operator of a leaking underground storage tank must notify the Department of Environmental Quality (DEQ) ⁽¹⁾ within 24 hours after discovery of the leak and must take immediate action to stop the leak and to contain and recover the leaking material. Once these initial response actions are completed, section 21307a(1) requires that the owner must retain a qualified consultant from a list of consultants prepared by the DEQ under section 21542(1) of the NREPA. Thereafter, the consultant is required to complete the remaining requirements of Part 213 which include: filing an initial assessment report or executive summary of the report to the DEQ within 90 days of the discovery of the leak (section 21308a); submitting a corrective action plan if the initial response actions have not resulted in completion of corrective action (section 21309a); filing a final assessment report within 365 days after discovery of the release (section 21311a); and submitting a closure report within 30 days following the completion of corrective action (section 21312a). Under section 21304a(1), all corrective action undertaken at the site must comply with the process outlined in the standard guide for risk-based corrective action applied at petroleum release sites (RBCA), developed by the American Society for Testing and Materials (ASTM) which has been incorporated by reference into NREPA by section 21303(c). ⁽²⁾ Throughout the clean-up process, the DEQ retains its general authority under to section 21315 to "selectively audit or oversee" all aspects of corrective actions and to require the owner to submit additional information or to hire a consultant to take additional corrective action, or both, until the cleanup criteria have been met.

Your inquiry concerns certain portions of sections 21307a, 21310a, and 21311a of Part 213 of the NREPA that permit a consultant retained by an owner or operator some flexibility in meeting certain of that act's requirements. You ask whether those specific provisions constitute a delegation of governmental authority to these consultants in violation of Const 1963, art 3, s 2, which, among other things, bars delegation of legislative powers to non-governmental entities.

The powers of government are divided into the legislative, executive and judicial branches. No person exercising powers of one branch shall exercise powers properly belonging to another branch. Const 1963, art 3, s 2. The Legislature may not delegate its powers to private persons under Const 1963, art 3, s 2. Dukesherer Farms, Inc v Dep't of Agriculture Director, 405 Mich 1, 23-25; 273 NW2d 877 (1979).

The first of the three sections of the NREPA identified in your inquiry is section 21307a, which was added to the act by 1995 PA 22. Your question concerns subsection (1) of this section, which provides:

The DEQ has construed the "remaining interim steps" that are to be omitted under section 21307a(1) as including only the filing of the final assessment report under section 21311a in those situations where the consultant has filed a closure report indicating that sufficient corrective action has been taken. Although this administrative construction of the act, by necessity, spans only a short period of time, it is nevertheless reasonable, protective of public health, welfare, safety and the environment, and furthers the goals of the NREPA; it is, therefore, entitled to deference. See, Brancheau v DSS Director,, 141 Mich App 527, 533; 367 NW2d 357 (1985).

Significantly, the required closure report must comport with section 21312a, which requires that the report must contain specific information including closure verification sampling results. Section 21312a(2) establishes a 60-day period for DEQ to provide written confirmation of receipt of the closure report. Finally, the DEQ retains the authority under section 21315 to audit the site at any time up to 6 months after receipt of the closure report and order any necessary additional corrective action. Any actions taken by the consultant are subject to full and timely review by the DEQ. Thus, section 21307a of the NREPA does not delegate legislative power to these consultants.

The second section of the NREPA identified in your inquiry is section 21310a, as most recently amended by 1996 PA 116. Subsections (1) and (2) of this section specify the circumstances in which the corrective actions at the site of a leaking underground storage tank shall require the implementation of "institutional controls," i.e., respectively, either a written notice recorded with the register of deeds or, in more serious cases, the establishment and recording of a restrictive covenant affecting the property. The form and content of these written notices and restrictive covenants "are subject to approval by the [DEQ]." Subsection (3) of section 21310a, however, provides that:

You have expressed concern that the above-italicized language of subsection (3) may allow a consultant to avoid the "institutional controls" and instead substitute "alternative mechanisms," and to do so without the oversight and approval of the DEQ. However, a careful reading of the remaining subsections of section 21310a, and of other related sections of the act, rather clearly indicates that any such action by a consultant remains fully subject to the supervision and approval of the DEQ.

Subsections (4) and (5) of section 21310a provide that:

As the italicized portion of subsection (4) clearly states, the DEQ retains the authority to review the appropriateness of alternative mechanisms other than those specifically authorized by section 21310a and to approve (or reject) these alternatives. Furthermore, any alternative mechanism must be included in the corrective action plan required by section 21309a and, subsequently, in the final assessment report filed pursuant to section 21311a, both of which are subject to review and approval by DEQ. Finally, any determination by the consultant to use an alternative mechanism would be subject to the general authority of the DEQ under section 21315(1) to "oversee all aspects of corrective actions undertaken" and if necessary, to require "additional corrective actions necessary to comply with this part or to protect public health, safety, or welfare, or the environment." Thus, section 21310a of the NREPA does not delegate legislative power to these consultants.

The third and final section of the NREPA identified in your request is section 21311a, as last amended by 1996 PA 116. In that section, the Legislature has required that, within 365 days after a release from an underground storage tank system is discovered, a consultant must complete a final assessment report detailing such matters as the extent of contamination, the plan of remedial corrective action to be taken, and an implementation schedule. You have expressed concern with language contained in subsection (1)(c)(v) of that section which requires the consultant to identify in the report the "preferred corrective action alternative" and, in subsection (1)(d), the "corrective action plan."

Section 21311a is essentially a reporting section. The Legislature has delineated with great precision the information that must be submitted to DEQ in the final assessment report. Under subsection (2) of this section, if the preferred corrective action alternative identified by the consultant "is based on the use of institutional controls regarding off-site migration of regulated substances, the corrective action plan shall not be implemented until it is reviewed and determined by the department to be in compliance with this part." Moreover, even in those situations where subsection (2) is inapplicable, and the consultant is thus permitted to begin implementing the plan without prior DEQ approval, the consultant's actions clearly remain subject to the authority of the DEQ, under section 21315, to review the corrective action taken and, if necessary, to order additional corrective measures. Thus, section 21311a of the NREPA does not delegate legislative power to these consultants.

It is my opinion, therefore, that sections 21307a, 21310a, and 21311a of the Natural Resources and Environmental Protection Act, which permit a consultant retained by an owner or operator of a leaking underground storage tank some flexibility in meeting certain of that act's requirements, do not delegate legislative authority to non-governmental entities in violation of the separation of powers provisions of Const 1963, art 3, s 2.

Frank J. Kelley

Attorney General