Regardless of whether you are liable for existing contamination on your property, Michigan law requires that you take “due care” measures to ensure that existing contamination does not pose unacceptable risks and is not exacerbated by your activities at the property. As a result of amendments to Michigan’s Part 201 statute, the duties of the owner/operator of a facility were expanded to more closely align with the federal (CERCLA) “continuing obligations” requirements. There remain, however, some important distinctions between the federal and Michigan requirements. A property owner/operator must maintain documentation that demonstrates compliance with these requirements (Documentation of Due Care Compliance Report or DDCCR). Under Part 201, due care documentation must be available to the Department of Environment, Great Lakes, and Energy (EGLE) upon request within 8 months of the earliest date of purchase, occupancy, or foreclosure. Due care and continuing obligations include the following:
- Undertake measures necessary to prevent exacerbation of existing contamination.
- Exercise due care by undertaking response activity necessary to mitigate unacceptable exposure to hazardous substances, mitigate fire and explosion hazards due to hazardous substances, and allow for the intended use of the facility in a manner that protects the public health and safety.
- Take reasonable precautions against the reasonably foreseeable acts or omissions of a third party and the consequences that foreseeably could result from those acts or omissions.
- Provide reasonable cooperation, assistance, and access to the persons that are authorized to conduct response activities at the facility, including the cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial response activity at the facility.
- Comply with any land use or resource use restrictions established or relied on in connection with the response activities at the facility.
- Not impede the effectiveness or integrity of any land use or resource use restriction employed at the facility in connection with the response activities.
- Comply with information requests and administrative subpoenas.
- Provide all legally required notices with respect to the discovery or release of any hazardous substances at the facility (including those required under federal, state and local laws).
DDCCRs are living documents that must be evaluated and updated as necessary, such as when property use changes or new information regarding site contaminants is discovered. We have assisted many clients in the development and implementation of effective due care measures.
Links of Interest:
Michigan EGLE Website on Due Care