Buying Contaminated Property Without The Risk

The recent amendments to Part 201 of the Environmental Code (formerly the Michigan Environmental Response Act, "Act 307") provide for an exemption from strict liability for new owners of contaminated property.

The new amendments impose liability for environmental cleanups only on those parties which cause contamination. A person wishing to purchase property which has been contaminated is often deterred by environmental liability and cleanup costs. To foster reuse of contaminated properties, the Michigan Legislature provided an exemption to persons who become owners of a contaminated property after June 5, 1995 (the effective date of the amendments). The exemption is obtained by performing a Baseline Environmental Assessment (BEA).

The purpose of a BEA is to provide a means for distinguishing existing contamination from contamination which may result in the future. The BEA allows parties to cleanup and be liable only for contamination they cause, and not pre-existing problems.

The BEA is a study which must be designed specifically for each case. The amount of Phase II Environmental Site Assessment activities (e.g. soil and groundwater sampling) will depend upon past and future uses of the property, engineering or administrative controls to prevent additional contamination, and client needs. The BEA process typically includes:

• A Phase I Environmental Site Assessment (the ASTM method is referenced).
• A Phase II Environmental Site Assessment to confirm that the site has levels of contaminants above the residential criteria.
• A thorough description of past uses and chemical use, and a thorough description of the planned use of the facility, including anticipated chemical use.
• If the anticipated use of the property is not known or the future use is similar to past uses, additional investigation may be necessary to define existing conditions.
• The BEA must be submitted to the Michigan Department of Environmental Quality (MDEQ).
• As an option, new owners can obtain a written determination of the exemption by submitting the BEA and supporting information to the MDEQ and a $750 fee.

The process for completing a BEA is described in the Figure provided below. To print the only the Figure below please follow this link.

Regardless of liability, owners of contaminated property have an obligation to exercise "due care" to prevent exacerbation of existing contamination. An optional process called a Section 7a Compliance Analysis can be prepared to receive a written determination of compliance with the Due Care provision from the MDEQ.

Envirologic Technologies, Inc. has been and continues to be involved in the development and discussions regarding implementation of these new regulations. We understand the complex issues presented by these new standards. If you intend to sell, purchase, or expand your property, consideration of the benefits of the BEA process is advised.

Call Envirologic Technologies, Inc. today to see how the BEA can benefit you. Contact Mr. David Stegink, Environmental Compliance Manager, or your Project Manager at (616) 342-1100.

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