Due Care Plans and Documentation
Although a buyer of a facility may not be liable for existing contamination at a site, the buyer must still ensure that future activities conducted at the site will not worsen existing conditions at the site or pose unacceptable risks to future site occupants or users. If it is determined that the site meets the definition of a “facility,” then the buyer must document compliance with Section 20107a due care obligations. A Due Care Plan is based on the BEA and additional discussions with the buyer regarding future operations of the site. A Due Care Plan would document the actions to be taken to address the due care obligations specified under Section 20107a of Part 201. These obligations include:
- taking measures as necessary to prevent exacerbation of existing contamination;
- undertaking any response activity necessary to mitigate unacceptable exposures to hazardous substances and allow for the intended use of the facility in a manner that protects public health and safety; and
- taking reasonable precautions against acts or omissions of a third party and the consequences that could result from those acts or omissions.
Unacceptable exposures may be mitigated through engineering controls (e.g., concrete and asphalt) and/or institutional controls (e.g., a deed restriction that prohibits installation of drinking water wells on the property). A Section 20107a due care demonstration would include the following information:
- previous and proposed hazardous substance use at the facility,
- detailed characteristics of property use,
- any plans for response activities, and
- an evaluation and demonstration of compliance with the due care obligations (i.e., exacerbation, due care and reasonable precautions).
Under Part 201, the buyer of a facility has six months from the date of purchase or occupancy of the site in which to submit the Due Care Plan if a determination of adequacy is sought from the MDNRE. If a determination of adequacy is not sought, then the owner of a “facility” must have documentation of their compliance with their due care obligations available to the MDNRE upon request within eight months of the date of purchase, occupancy or foreclosure of the site
For more information email Karen Hathaway or call her at our Grand Rapids office - (616) 554-3210.
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