NMECC 2016

BEAs and How to Meet Due Care Obligations

Jeanne Schlaufman DEQ, Remediation and Redevelopment Division

schlaufmanj1@michigan.gov 586-753-3823

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MECC 2016

Baseline Environmental

Assessments (BEA) Michigan’s liability scheme allows new

owners or operators to buy property without being liable to remediate contamination, if they conduct and submit a Baseline Environmental Assessment Part 201, Environmental Remediation [20126(1)(c)] Part 213, Leaking Underground Storage Tanks [21323a(1)(b)]

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MECC 2016

BEAs • Persons who “do” BEAs according to Parts 201/213 are not liable

– Only considered when property is a demonstrated to be “contaminated”

– Part 201 “facility” OR Part 213 “site” – Conduct BEA prior to purchase, occupancy or foreclosure OR – Within 45 days after – Submit to DEQ within 6 months – Disclose to subsequent purchaser or transferee – Provides liability protection for various state laws

• Some exemptions to liability without doing a BEA

– LUGs: Involuntary acquisition, condemnation, easements for

utilities, transportation, etc. – All contamination is migrating onto the property

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MECC 2016

BEAs • Content of BEA

– AAI or Phase I Environmental Assessment – Samples to determine property is contaminated – Property information (legal description, maps)

• No DEQ review and approval process

• Submitter will receive an acknowledgment letter that

BEA was received in accordance with the requirements of the law

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MECC 2016

BEA Important Points

• Time-frames for conducting and submitting

– Conduct before purchase, occupancy, or foreclosure – Not later than 45 days after – Submit to DEQ within 6 months from date of purchase, occupancy or

foreclosure

• Must document that property is a facility or site – Contamination above residential criteria/RBSLs

• Each entity needs their own BEA submittal – Owner, Operator, lessee, bank if foreclose

• Doesn’t provide protection under all circumstances

– Part 111, Part 115, RCRA, TSCA

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MECC 2016

Due Care – Obligations of Owners and Operators of Contaminated Property

a) Prevent Exacerbation b) Prevent/mitigate unacceptable exposures c) Take Reasonable Precautions d) Provide reasonable cooperation, access, and assistance e) Comply with deed restrictions f) Do not impede response actions

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MECC 2016

Who has Due Care?

– Owner and Operator of a facility/site – Liable and Nonliable – Part 201 (Sec 7a) and Part 213 (Sec 4c) – Facilities under Part 111 and 115

• Primary Exemptions

– Local Units of Government • Express public purpose

– Public/private Utility services, pipeline – Contamination migrating onto your property – BUT – only exempt from a-c, still have d-f

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MECC 2016

When do I have Due Care?

• As soon as you have knowledge the property has contamination

– Current spill or release – Obtain knowledge from other source – Personal knowledge

• On-going obligation

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MECC 2016

Property Use and Site Plan

• Information on the type of property use – Residential, institutional, industrial, commercial, recreational – Mixed use: commercial with residential upstairs, industry with an on-

site day care

• Information on the site plan – Building footprints, utilities, underground structures, open areas, play

areas, etc.

• Due Care must be specific for the site use – If use changes, due care requirements might/must also change

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MECC 2016

Office building, parking areas, utilities, etc.

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Grass Area

Residential

Gravel

MECC 2016

Identifying contamination

• Phase II Environmental Assessment – Look in areas of concern identified by the Phase I – Look for USTs and ASTs

• Geophysical evaluation

• Remedial Investigation – Define extent of known contamination

• Other Knowledge

• Soil and groundwater samples

• Determine how far the contamination extends, the highest concentrations, etc.

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MECC 2016

Contaminated Areas

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MECC 2016

Potential Contamination

• Metals in soil • Surficial or 10’ deep?

• Groundwater contamination • Municipal water or residential well?

• Volatiles in soil or groundwater Existing buildings • Applicable criteria

• Land use, assumption based criteria, site-specific

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MECC 2016

Identifying exposure pathways

– Human exposures only – Only exposure pathways that can occur

during the owner/operators tenure on the property

– Based on that owner/operators land use – Current use only – not future

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MECC 2016

Potential Unacceptable Exposures

Unacceptable Exposures: Well? Indoor Air? Ambient Air? Direct Contact?

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MECC 2016

Response Actions to Prevent Exposure

• Drinking water: – Provide alternative bottled water – Use municipal water – Install deeper (non-impacted) well

• Direct Contact from soil:

– Put barrier over soils above direct contact criteria

• Indoor Air Inhalation from soil or groundwater: – Are contaminants below or near building footprint? – Address potential for potential vapor intrusion – Construct building vapor barrier, stop infiltration through opening for piping, etc.

• Ambient Air inhalation:

– More problematic, possible barrier over surface, limiting access, etc

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MECC 2016

Reasonable Precautions (examples)

• Notify contractors for excavation, grading, construction

– Workers could be exposed to contamination – Contaminated soils need to be disposed properly

• Protect neighborhood kids that play in the vacant field belonging to the

commercial building – Owner may have provided protection for commercial exposures but those may

not be protective for kids

• Prevent release from an abandoned container with accessible valve – Valve could be vandalized causing a release

• Locate abandoned containers so that snowplow or other equipment won’t

hit container and cause a release

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MECC 2016

Notifications

Notice of Migration Utilities

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MECC 2016

Required to maintain documentation

Required Documentation – Contaminant information, evaluation results,

response actions taken – performance objectives met, justification for conclusions

– Include date(s) response actions(s) were completed, inspections conducted

– Make available to DEQ upon request within 8 months of obtaining knowledge of the contamination or becoming the owner/operator

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MECC 2016

On-going Obligations

• Monitoring and Inspection is an on-going obligation • Monitor effectiveness and integrity of response activities • Frequency is as often as needed depending on the severity

of the risk, reliability of the measure

• Re-evaluation is an on-going obligation • As property use or environmental conditions change

• Self-Implementing • Documentation must be maintained and available upon

request of the Department of Environmental Quality

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MECC 2016

DEQ Review?

• Documentation not required to be submitted - Must be available upon request • DEQ review is not required

• DEQ review can be requested

- Section 20114g and 21323n allow an owner or operator to request review of their documentation of due care compliance (DDCC)

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MECC 2016

DEQ Review of DDCC

• DEQ review can be requested - Sections 20114g and 23123n allow a current owner or operator to request review of their documentation of due care compliance (DDCC) • DEQ review within 45 business days • Stand-alone document must contain sufficient

information for the DEQ to determine the submitters is in compliance at the time of the submittal

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MECC 2016

DEQ Resources

• DEQ’s BEA web page: www.michigan.gov/bea

• DEQ’s Due Care web page: www.michigan.gov/deqduecare

Jeanne Schlaufman

schlaufmanj1@michigan.gov 586-753-3823

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