Section 20107a of Part 201, Environmental Remediation, of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended, specifically requires that owners and operators take due care measures to ensure that existing contamination discovered on a property does not cause unacceptable risks to human health or the environment and is not exacerbated.

Such measures include evaluating the type and extent of contamination and taking the necessary response actions to mitigate that threat.  As stated in the Due Care Requirements under Section 20107a, an owner or operator of a facility shall do all of the following with respect to hazardous substances at a facility:

Prevent exacerbation of the existing contamination.

Exacerbation can occur when an activity undertaken by a person or entity who owns or occupies a property causes the existing contamination to become worse by expanding spatially, even migrating beyond the property boundaries, or is contributed to in such a way as to add additional contaminants (different from the original contamination) to the already existing or known contamination.

Prevent unacceptable human exposure and mitigate fire and explosion hazards to allow for the intended use of the
    facility in a manner that protects the public health and safety.

The existing contamination must be evaluated to determine if personnel occupying/working at the property would be exposed to levels of contaminants above the appropriate criteria (residential/commercial/industrial).  Criteria for the differing land uses are found in the Part 201 Administrative Rules.  People must be prevented from coming in contact with those contaminants that exceed appropriate criteria.  This can usually be accomplished by restricting access, installing protective barriers or by removing/remediating contaminated media (soil, groundwater, sludge, etc.).  People conducting work on site (utility/construction workers) must also be notified by the owner or entity's representative of the exiting site conditions prior to commencing work.

Take proper precautions against the reasonably foreseeable acts or omissions of a third party.

An owner or operator must try to prevent occurrences where a third party may be exposed to known onsite contamination.  These precautions may include; notifying contractors of existing contamination in order that they take proper safety precautions prior to commencing work onsite; preventing unauthorized access to the property (securing/fencing); and, removing and/or securing any storage of petroleum/hazardous materials onsite to prevent damage or tampering.

Provide notifications to the DEQ and others (fire departments, utility companies easement holders, etc.) when appropriate.

These notifications are necessary when discarded containers containing petroleum or hazardous chemicals are found on the property, a fire/explosion hazard is present, or contamination is found to be migrating off site.

Due Care Documentation

Owners and operators must maintain documentation that due care needs have been evaluated and that appropriate response actions have been taken.

It should be noted that due care requirements are not related to the owner or operator's liability for the contamination, but rather, they apply to non-liable parties and liable parties alike.  The due care requirements were designed by the state so contaminated properties could be safely redeveloped and occupied.

CEG personnel have completed or have provided project management services for a number of Due Care Plans conducted at numerous development sites throughout Michigan.  Let CEG's experience provide you with sound and economical environmental solutions as part of your development process.