Do you know what a baseline environmental assessment is and how it could protect you and your business?
Businesses operating in Michigan must understand the potential liabilities of their actions, which often require them to assess an area’s current environment before beginning any operations. This assessment—known as a baseline environmental assessment—is essential in ensuring compliance with Michigan’s stringent due care regulations and may help prevent future fines or lawsuits.
Baseline environmental assessments are an important part of due care compliance throughout the state of Michigan. Outlined in legislation, these assessments must be conducted prior to commercial activity and provide a foundation from which any development can operate. In this article, we will discuss the importance of baseline environmental assessments, how they can help you meet compliance standards, and outline other key considerations for businesses in the state of Michigan.
Baseline Environmental Assessments (BEAs) are an important tool for providing information on the environmental conditions of a given premises. BEAs help individuals and businesses evaluate potential real estate investments, as well as protect them from liability for any existing contamination that is discovered on the property. BEAs are conducted by certified professionals who investigate soil, air and water quality to determine any current or past site-related contamination.
The Michigan Environmental Protection Act (Part 201 and Part 213) outlines the requirements for conducting and disclosing the results of a BEA to both the Michigan Department of Environment, Great Lakes, and Energy (EGLE) as well as subsequent purchasers or transferees when in possession of the property. If a person purchases, leases, or forecloses on contaminated property after completing an appropriate BEA and disclosing it to EGLE, they can be protected from liability related cleanup costs associated with that contamination. To obtain information about existing contaminants on a particular piece of property.
How exactly does a Baseline Environmental Assessments (BEA) function?
The following items must be submitted in order for a BEA to be registered with EGLE:
- Current Phase I Environmental Site Assessment (ESA, performed within the last six months)
- Analytical data demonstrating criterion exceedance(s) of contaminant(s) – must be reflective of conditions, and must be confirmed by the Quality Assurance/Quality Control documentation of the laboratory.
- A scaled site plan that identifies sites for taking samples.
- Survey conducted by ALTA and/or legal description of the location
- Form for submitting the BEA that has been signed both by the preparer (your Partner consultant) and an authorized agent of the property owner or operator
Due Care in Michigan
Even in the event that a new owner obtains a Baseline Environmental Assessment (which is then followed by an acknowledgement from EGLE), that party is still accountable for “Due Care” obligations on a site that is contaminated. When a person has knowledge of the soil, groundwater, or subsurface vapors on their property (as the owner or operator of the property), they are required to take the actions that are necessary to protect people, ecological and natural resources from exposure to contamination that may be present in those areas. These actions are referred to as “Due Care.” Due Care is defined as the actions that a person must undertake and are necessary. Further subsurface studies are sometimes required by the Due Care laws or duties in order to gain a comprehensive understanding of the complete nature and extent of the contamination (within the boundaries of the subject property).
These actions and responsibilities of the new owner/operator include, but are not limited to, taking precautions to not exacerbate existing contamination, and not changing the property use in such a way that might increase cleanup costs in the future. In addition, these actions and responsibilities of the new owner/operator must be carried out before the property can be sold. The term “exacerbation” refers to any action made by the owner of the property that has the potential to induce pollution to move off site or to make the conditions of the existing contamination onsite worse. It is necessary to take appropriate safety measures to protect against the possibility of future responsibility being caused by the act or omission of a third party. To learn more about the requirements of due care and the related considerations of due diligence, go here.
The concept of due care is prevalent whenever hazardous materials are involved. It means that anyone owning, operating or interacting with the environment should always be conscious of the potential threats to public health and safety that come from exposure to hazardous materials. Everyone is expected to use reasonable care and identify any potential risks associated with activities related to contaminated properties.
It is the responsibility of the Remediation and Redevelopment Division (RRD) to ensure that all actions taken on contaminated property follow guidelines outlined in federal, state and local regulations which are also being tackled in Phase 1 site assessment. This includes implementing necessary controls and safeguards to protect workers, visitors, neighbors, contractors and other members of the public who might possibly be exposed to contaminants as a result of their proximity to pre-existing pollution conditions or redevelopment activities. The RRD will work closely with owners, operators and purchasers at contaminated sites in order for them to understand their responsibility for due care obligations as well as proper protocols for conducting remediation activities so that unacceptable exposures are avoided.
Due care is the term used to describe a range of necessary actions taken to protect people from exposure to contamination present in soil, groundwater, and subsurface vapors. It also ensures that contaminated property can be safely used and that notifications are provided regarding the migration of contamination to affected parties such as utilities and easement holders or neighboring properties. Essential obligations include immediately preventing fire or explosive conditions, preventing unacceptable exposures from existing contamination, preventing the spreading of existing contamination beyond property boundaries, and taking reasonable precautions against foreseeable acts by third parties.
In particular due care focuses on prompt corrective action for affected areas when hazardous materials are identified. This can involve simple steps like mitigating dust from contaminated sites which result from human activity or environmental factors, to more advanced processes including eliminating or containing releases that have already occurred at a site. Responsive remedial measures must always be undertaken in accordance with applicable federal, state and local regulations. Without due diligence and regular monitoring many threats related to potential hazards remain unnoticed and therefore unresolved.
If you want to know more about Baseline Environmental Assessments and Due Care in Michigan please email info@rsbenv.com. We look forward to hearing from you.
