Exercise Due Care After Purchasing A Contaminated Property
After completing a Phase I ESA and BEA and getting a grip on the type of contamination that is present at a property, the next question we are commonly asked is…what else do I need to do? In Michigan, a due care plan is necessary for any owner/operator of a contaminated property….even if you are not liable for the contamination, you still have due care obligations. Point Blue typically prepares due care plans shortly after our client becomes the owner/operator of a contaminated property.
But what exactly is a due care plan? It’s a living document and can change as redevelopment plays out…it essentially outlines how you are safely re-using a contaminated property and complying with Section 20107a of Part 201, Environmental Remediation, and/or Section 21304c, Leaking Underground Storage Tanks, of Michigan’s NREPA. It is required that owners and operators take measures to ensure that existing contamination on a property does not cause unacceptable risks and is not exacerbated, or made any worse. Such actions include evaluating the contamination and undertaking the necessary steps to address the unacceptable risks.
The due care plan is usually the final step that a prospective property owner/operator must complete while acquiring a contaminated property. For properties with relatively low levels of contamination, this may be as simple as maintaining documentation on the existing hazards and following appropriate procedures if any activities are planned in a contaminated area, such as an excavation, which may increase the risk of human exposure to known hazards.
In situations where the contamination at a property is more serious and will pose an immediate risk to the environment and/or human health, remedial actions or notifications to potentially affected parties might be required. To meet due care requirements in more complicated situations, a new property owner would need to ensure that remedial actions are taken, verify that these remedial actions are effective, and execute any operations and maintenance activities that are required to maintain the implemented solution. In any case, full documentation of the steps taken at the site to prevent risks to the environment and human health are detailed in the due care plan.
While the due care plan is required for owners of contaminated properties, it does not necessarily need to be submitted to EGLE but should be made available to them upon request. Point Blue is committed to helping clients move smoothly through the due diligence and due care process and encourages the safe re-use of contaminated properties. We have prepared numerous due care plans over the years and are more than happy to discuss project-specific needs and goals!
