Tag: institutional controls

Polluter accountability bills Introduced in Michigan Legislature

Published on June 10th, 2025 by - Blog Posts

New bills would help clean up, prevent environmental contamination

June 11, 2025

Polluter accountability legislation, including Senate Bills 385, 368, 387, 391, 392, and 393, was introduced this week by State Senators. Several of the bills have already been introduced in the House as HB 4636-4640, and the remaining bills will be introduced this week. The package would save taxpayers millions of dollars and result in a cleaner, healthier environment. FLOW submitted written testimony in favor of the legislation.

Senate Bill 392 would dramatically reduce the creation of “dead zones,” or areas where groundwater contamination is pervasive, by requiring that it be cleaned up to residential standards (except where that is technically infeasible). Current law has facilitated the frequent use of institutional controls, like deed restrictions and local ordinances, to prohibit the use of contaminated areas rather than clean them up. SB 392 would promote active cleanup of contaminated sites to better protect public health and the environment. As of June 2025, there were 4760 institutional controls in Michigan.

Senate Bill 391 would provide more information to the Michigan Department of Environment, Great Lakes, and Energy (EGLE) and the public about sites and cleanups by requiring reports on past pollutant releases, reporting on self-managed cleanups of releases, post-cleanup monitoring to detect migration of contaminants in groundwater, and that owner/operators file due care plans detailing how they will fulfill their duty to protect the public. Other bills in the new package would streamline the process EGLE follows to revise and strengthen cleanup criteria; increase transparency in the cleanup program; and provide a cause of action in court for funding medical monitoring needed by people exposed to contamination.

The legislation introduced this week is similar to bills that passed the Senate last fall, but did not receive consideration in the House. The need for reform is especially urgent as Michigan grapples with over 300 confirmed PFAS contamination sites, and thousands more suspected locations – many without a responsible party identified. Polluter accountability laws would create a legal pathway to hold manufacturers and industrial polluters liable for cleanups and long-term health impacts.

Michigan had a “polluter pay” law in place between 1990 and 1995, which held owners and operators of contaminated sites strictly liable for their cleanup. The law generated approximately $100 million in polluter payments, but it was repealed in 1995 by the Legislature and then-Governor John Engler. The repeal has cost Michigan taxpayers over $1.5 billion in cleanup funding over the past 25 years.  There are more than 24,000 contaminated sites in Michigan, with groundwater and soil too polluted to use. Approximately 11,000 of those sites are considered to be “orphaned” without a legally responsible owner. They comprise an area that is cumulatively twice the size of the City of Grand Rapids. Many of the orphaned and unremediated sites are located in or near low-income communities and communities of color, exacerbating environmental injustice and putting already vulnerable populations at heightened health risks.

EGLE estimates that approximately $13 billion in public funds will be needed to clean up all orphan sites, where those responsible for the pollution are now bankrupt or defunct. Billions more will be needed from private parties that caused contamination of other sites. Polluter accountability laws can help ensure these funds are available for cleanup.

“The rollback has compromised the health and safety of Michigan residents, and put an unfair financial burden on taxpayers who are forced to bear the cost of cleaning up messes created by corporate polluters,” said Liz Kirkwood, executive director of FLOW. “Common sense reforms to bring back polluter accountability will enable Michigan to chart a cleaner, healthier future and help communities and businesses thrive.”

The so-called “institutional controls” – deed restrictions and local ordinances that substitute in many locations for cleanup – were studied by FLOW and the Institute for Water Research at Michigan State University. The study found that the true economic, ecological, and social costs of relying on land and water use restrictions to address contamination are likely significantly higher than estimated.

In several locations around the state where contamination has not been cleaned up, toxic chemicals have volatilized into homes, businesses, and even a day care center, necessitating evacuations to protect the occupants.

Michigan can no longer afford to let polluters off the hook. For too long, families, small businesses, and communities have borne the health and financial costs of toxic contamination they didn’t cause. Restoring polluter accountability is not only common sense–it’s a moral and fiscal imperative. These reforms will ensure that those who profit from pollution pay to clean it up. The Legislature has a clear opportunity to correct decades of environmental injustice and protect Michigan’s water, land, and public health for generations to come. FLOW and its partners urge the Michigan Legislature to act swiftly on this bill package to restore polluter accountability. With mounting cleanup costs, growing public health threats, and an increasingly contaminated groundwater system, delay is not an option. The time to act is now.

Report Brief: Institutional Controls push environmental costs on to future generations

Published on November 13th, 2024 by - Blog Posts, Reports, Reports & Media Releases

Click to download (PDF)

Out of sight, out of mind: measures designed to shield public from contamination push costs on future generations

Here in Michigan, 45% of the population gets its drinking water from groundwater, including two million who rely on private wells. Groundwater also feeds streams and rivers, and sustains wetlands. It is an invaluable resource, but Michigan has thousands of sites where groundwater is unsafe and undrinkable due to industrial pollution.

Since 1995, state policy has allowed contaminated groundwater to remain degraded, rather than requiring that contamination gets cleaned up. The legal tools that enable this are called institutional controls.

Download the summary brief (PDF) to learn more about institutional controls in Michigan, the consequences of this policy, and FLOW’s recommendations for how Michigan can do a better job protecting groundwater.

Download the full report:
Institutional Controls for Groundwater Management: Long-Term Costs and Policy Impacts

 

 

 

Michigan taxpayers left holding the bag for contamination caused by now-defunct businesses

Published on October 17th, 2024 by - Blog Posts

If there was ever any doubt that an ounce of prevention is worth a pound of cure, a recent estimate of the cost to Michigan taxpayers of cleaning up environmental contamination should have dispelled it.

According to the Michigan Department of Environment, Great Lakes and Energy (EGLE), there are some 13,000 so-called orphan sites across the state of Michigan. These are sites where no party responsible for the contamination can be identified. That is typically because the contamination happened so long ago it is unclear who caused the pollution and/or the potentially responsible parties are bankrupt.

In its new video highlighting EGLE’s efforts to address these orphan sites, the agency estimates that the cost to taxpayers of doing so could be as high as $13 billion.

FLOW and the MSU Institute for Water Research recently issued a report analyzing the costs of not cleaning up many contaminated sites. So why doesn’t the state have an up-to-date strategy for preventing contamination in the first place? Until it does, the public cost of cleanup is likely to grow beyond $13 billion as pollution taints more groundwater.

Other states have made more effort. Some have groundwater coordinating councils that bring together the state agencies that deal with groundwater. (In Michigan, four principal departments have some level of groundwater responsibility.) That helps assure a holistic view from state governments in groundwater policy and management. Michigan does not have such a council.

Some states, like Iowa, have groundwater protection acts that make education about and prevention of groundwater pollution a priority. Michigan has no such law.

And some states, like Minnesota, have groundwater monitoring programs that serve as an early warning system and design and enable the development of strategies for best management practices to prevent contamination. Michigan has no such program.

Since 2018, FLOW has been calling for a comprehensive state groundwater strategy. We will step up those efforts in the months ahead. We can do no less for a resource that provides drinking water for 45% of Michigan residents.

New Report Explores the Long-Term Costs of Relying on Institutional Controls in Responding to Groundwater Contamination

Published on September 3rd, 2024 by - Blog Posts, Reports, Reports & Media Releases

Download the report:
Institutional Controls for Groundwater Management: Long-Term Costs and Policy Impacts

The true economic, ecological, and social costs of relying on land use restrictions to address groundwater and soil contamination instead of active clean up are likely significantly higher than generally estimated. That is a conclusion of a new report submitted to the Michigan Department of Environment, Great Lakes, and Energy (EGLE).

Institutional Controls for Groundwater Management: Long-Term Costs and Policy Impacts, authored by the Institute for Water Research (IWR) at Michigan State University and by FLOW, an environmental law and policy center in Traverse City, Michigan, analyzes the effects of such measures. Institutional controls (ICs), often in the form of deed restrictions or local ordinances that prohibit the use of contaminated groundwater, have been put in place at over 2,000 sites across Michigan, affecting a cumulative area more than twice the size of the City of Grand Rapids.

The project originated with a request for proposals from EGLE to assess the long-term economic cost of using ICs and other restrictive actions to manage risks associated with groundwater contamination compared with the cost of other potential management actions.

The IWR/FLOW team conducted extensive background research at seven case study sites, reconstructing timelines and gathering relevant cost data. That research informed the subsequent economic analysis that sought to isolate costs related to IC implementation and extrapolate them into the future. The team found that when responsible parties or their consultants estimated the cost of an IC-only response as part of a remedial action plan, those estimates fell short, often significantly, of the actual costs incurred. The differences were mainly attributable to failures to anticipate contaminant migration (necessitating additional monitoring and the extension of municipal water sources) or the adoption of stricter criteria for acceptable contamination levels based on emerging science.

Despite the tendency to underestimate their true long-term costs, the analysis found that IC-driven approaches were still cheaper in the near term than active remediation efforts to restore contaminated aquifers, such as pumping and treating or soil vapor extraction. It is often more affordable for responsible parties to fall back on approaches that do not actively clean up contaminated aquifers. But choosing to let groundwater contaminants attenuate for decades (centuries in some cases) allows them to continue to migrate with the flow of groundwater, effectively writing off a public resource, resulting in orphan sites and contaminating public and private drinking water across the state of Michigan.

Though the analysis focused on more readily quantifiable costs, such as the extension of municipal water lines, monitoring well installations, and staffing, the team acknowledged the broader social and ecological impacts of not actively remediating groundwater contamination sites. These include the erosion of public trust, threats to environmental justice, the stigmatization of cities and regions, and degraded ecological function.

The team developed a decision framework tool, organized as a spreadsheet, to help evaluate the potential costs of an IC-only approach, potentially as part of the development of a remedial action plan. While the tool’s cost estimates are limited to those that the project team was able to quantify in its analysis, it also informs users of the harder to quantify societal and ecological impacts of not actively removing contaminants from the ground and encourages their consideration as part of remediation planning.

From the report: “This project highlights the need for a market-based correction that imposes much more of the impacts associated with groundwater contamination to be captured in the cost of doing business by the contaminating entities.”

In addition to the cost analyses and development of the decision framework tool, the report provides recommendations on how groundwater management policy, specifically regarding the management of ICs, could be improved. These include:

  • Prioritization of Sites: Prioritize the investigation and identification of all source areas and removal or prevention of those source areas from continuing to contaminate and migrate.
  • Natural Resources Damage Assessment: Consider a natural resource damage assessment payment to the state for any responsible party that utilizes an IC on groundwater as a part of its remedy. This fee could be a function of the extent to which the responsible party implements remedial actions to remove source materials, reduce concentrations of the contamination in the aquifer, and restrict expansion of the plume.
  • Sellers Disclosure Act: More strongly enforce the Sellers Disclosure Act, Act 92 of 1993. Require landowners with knowledge of existing contamination, institutional controls, or restrictive covenants to notify EGLE, local government, and prospective new purchasers/lessees of the contamination/RCs/ICs. Include such information in title searches for mortgages.
  • Future Hazardous Conditions: During remedy selection processes, EGLE should consider the possible future generation of hazardous conditions, such as explosive vapors (e.g., methane) from the biodegradation of organic materials (wood, charcoal, landfill content) in groundwater. Potentially affected properties should be eligible for free groundwater and soil vapor testing.
  • One-call System: Develop a one-call system like Michigan’s 811 program (MISS Dig) to include all sites with use restrictions due to soil or groundwater contamination.

“Institutional Controls are an important part of the environmental remediation toolkit. They help protect the public from exposure to dangerous chemicals. But if they are the only tool used in response to contamination, then it creates long-term economic, social, and environmental risks to be borne by current and future generations. We have to find ways to prioritize the removal of contaminants from the environment, not just shielding ourselves from them.” – Glenn O’Neil (Environmental Scientist, IWR)

“This report underscores the need for a greater emphasis on active cleanup of groundwater contamination sites. The fact that groundwater is out of sight does not mean it is worthless. It supplies drinking water to 45% of Michigan’s population. This report documents both quantitative and qualitative costs from the use of institutional controls, which generally let groundwater contamination persist.” – Liz Kirkwood (Executive Director of FLOW)

Download the full report and access an IC cost calculator tool online at: https://www.canr.msu.edu/news/ic-report