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Environmental License Agreement (ELA)
An Environmental License Agreement (ELA) is a Michigan Department of Environmental Quality (MDEQ)-approved alternative institutional control, proposed to the Michigan Department of Transportation (MDOT) by a liable party to leave environmental contamination in place within MDOT operational right of way (ROW). An ELA may be necessary for liable parties to pursue in order to obtain site closure by the MDEQ, by way of restricting exposure to contamination remaining beneath MDOT ROW. An application for an ELA for MDOT controlled property shall be completed by the liable party through the guidelines and procedures outlined below.
An ELA is needed when all of the following conditions are met:
- Contaminants from a site of environmental contamination have impacted soil and/or groundwater on property controlled by MDOT, both operational and/or excess.
- Any potential corrective actions that may be required to achieve a MDEQ unrestricted/generic residential cleanup criteria may not be technically feasible or practical, based on the risk or cost.
- It is determined that the use of an alternative institutional control is a reliable mechanism to prevent unacceptable exposure to the remaining contamination in MDOT ROW.
120-Day MDOT Review Process
An amendment to the Natural Resources and Environmental Protection Act, Public Act 451 (1994) became effective December 28, 2016, that included a statutory review or process time for MDOT of 120 calendar days for ELAs. Prior to reaching the end of timeframe, MDOT must do one of the following: approve, deny, or request revisions. This 120-day timeframe includes reviews by the MDOT Lansing Environmental Specialist (LES), the local MDOT Transportation Service Center (TSC), and the associated MDOT Region Office. The following defines what constitutes time against the 120-day MDOT review process:
- Time will begin to accrue once the permit agent and LES concur that the application is administratively complete and is ready for review.
- The review clock stops once MDOT's review of the application has been completed and the applicant has been notified to submit a signed Form 3760 and surety, if required.
- Once MDOT receives a properly filled out, signed, and notarized Form 3760 and surety from the applicant (again, if applicable), the review clock begins to accrue time again, until the permit agent informs the applicant to begin the process to install permanent markers (predominantly required).
- The final stage of accumulation of MDOT review time is the period from when the applicant notifies the permit agent that markers have been installed and submits a Completion Notice in the Construction Permit System (CPS).
- The Completion Notice prompts the permit agent to inspect the markers. If the markers are acceptable, the permit agent amends the ELA permit and attaches the final ELA package for the applicant. Thus, bringing an end to MDOT's review time for an ELA.
Application Package Instructions
The following provides instructions and information for submission of an application package:
- Complete an application through the Construction Permit System (CPS) using the MDOT Permit Gateway (MPG).
- Upload the following documents as attachments to the permit application as part of the electronic submittal:
- A cover letter that identifies the site, the site owner, environmental professional, name of MDOT Right-of-Way (ROW) impacted by contamination, and the CPS reference number.
- Environmental License Agreement (Form 3760) filled out, but unsigned and not notarized. Also, the applicant to must obtain a MDEQ reference number for this alternate institutional control. The applicant will have to contact the MDEQ to obtain this ELA-specific tracking number, similar to a restrictive covenant.
- Technical Summary Report (TSR) of Environmental Conditions affecting property owned/operated by MDOT, prepared and including all information as instructed in the TSR of Environmental Conditions Affecting Property Controlled by MDOT (Form 3760C).
- Legal description of the property and scaled drawing(s) of the proposed Restricted Area of MDOT property, labeled as Exhibit 1.
- If all of the above items are included with the ELA permit application, the 120-day MDOT review process will begin and the applicant will be notified that the application has entered the review process. If the application is lacking any of the above-listed items, MDOT will contact the applicant prior to moving forward with the review. If you are unsure if the application is complete, contact the specialist listed below.
- Follow the CPS Applicant Guide for application payment and submission. If additional assistance or guidance is needed, contact the local MDOT TSC responsible for the area where the site is located.
- After MDOT has completed the review of the ELA application for construction risks, MDOT TSC staff will contact the applicant through the permit system to perform the following:
- Obtain appropriate signature and notarization on the Environmental License Agreement Form 3760, obtain a surety mechanism (i.e. bond, Letter of Credit, cash, etc.) [if necessary], and submit the original documents to the MDOT TSC, or
- Provide additional information or listed revisions to the application materials and resubmit the package.
- Applicants will be required to include all ELA documentation to the MDEQ when submitting either a Part 213, Closure Report, or a Part 201, No Further Action Request, including:
- Executed ELA.
- Complete TSR.
- Survey of the restricted area.
- This also includes bonding and/or permanent marker documentation, if required.
Waiver of the MDOT Environmental License Agreements
The applicant may request a waiver of the MDOT ELA when the affected property is held in easement by MDOT and the contamination in the MDOT ROW does not present any apparent construction risks to MDOT assets, construction crews, or third-party utility contractors. The waiver may be requested by providing a statement in the cover letter attached to the permit application when submitted. When a waiver of the ELA is requested, contact the TSC responsible for the area where the site is located or the LES for further instructions prior to any submittal. Form 3760 is not required for a waiver of the ELA.