Recently, I attended a presentation by the Michigan Department of Environmental Quality (MDEQ) on Baseline Environmental Assessment (BEA) and Due Care. Someone in attendance asked the MDEQ when due care needs to be implemented, and the MDEQ representative said “immediately.”
Judging by this question, the reaction of others in the audience, and my general discussions with the business community, I believe many are unaware of these due care requirements and the need for on-going documentation of compliance.
Baseline Environmental Assessment
Michigan statute contains a provision that allows a commercial land purchaser or lessee to document existing contamination and not be responsible for this contamination prior to becoming the owner or operator. The information describing the pre-existing environmental conditions is summarized in the BEA.
What You Must Do After Your BEA
Additionally, Michigan law states the owner or operator of a contaminated property has “duties” related to management of the contamination (commonly known as due care). Also, the owner or operator must
Your Due Care obligations include maintaining documentation of compliance (Image Credit: Dragun Corporation).
“maintain documentation of compliance” and provide the documentation of compliance upon request of the MDEQ.
Below is a brief summary of these duties:
- Undertake measures as are necessary to prevent exacerbation.
- Exercise due care by undertaking response activity necessary to mitigate unacceptable exposure to hazardous substances, mitigate fire and explosion hazards due to hazardous substances, and allow for the intended use of the facility in a manner that protects the public health and safety.
- Take reasonable precautions against the reasonably foreseeable acts or omissions of a third party and the consequences that could result from those acts or omissions.
- Provide reasonable cooperation, assistance, and access to the persons that are authorized to conduct response activities at the facility, including the cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial response activity at the facility.
- Comply with any land use or resource use restrictions established or relied upon in connection with the response activities at the facility.
- Not impede the effectiveness or integrity of any land use or resource use restriction employed at the facility in connection with response activities.
Documentation of compliance with the above duties must be maintained from the first day of owning, or operating at, the property. The type and degree of documentation will be based on the information in the BEA. The documentation requirements are generally outlined in a “due care plan.” The due care plan includes identifying the location of the contamination, the contaminant concentrations, and the description of the on-going compliance.
Your specific due care obligations and documentation will vary depending on the type of contamination, concentration, location, and intended use of the property. The bottom line is if you have a BEA, make sure you understand and document your due care obligations.
If you have questions regarding Phase I/II Environmental Site Assessments, BEAs or due care obligations, feel free to contact me (mresch@dragun.com) at 248-932-0228, ext 133.