Who has Due Care Obligations?

The owners and operators of property known to be contaminated, which may include businesses, industries, home owners, schools, parks, local units of government, etc., are required to take actions to ensure that existing contamination on a property does not cause unacceptable risks, and the contamination is not exacerbated or worsened.  There are limited exemptions to the due care obligations.

Section 20107a(5) and Section 21304c(5) provides exemptions to a portion of the due care obligations in specific circumstances.  These parties are not subject to the obligations in Section 20107a (1)(a through c) or Section 21304c(1)(a-c), but these parties do have the obligations in Section 20107a(1)(d through f) and Section 21304c(1)(a-c). The following owners or operators are exempt from Section 20107a(1)(a-c) and Section 21304c(a-c).

  • An owner or operator of property where the contamination is migrating onto the property;
  • An owner or operator of a utility franchise on the property;
  • An owner or operator of the severed mineral rights to the property;
  • A person that holds an easement interest to provide service, for the purpose of conveying or providing goods or services, including but not limited to, utilities, sewers, roads, railways, and pipelines, or to acquire access;
  • A person that holds or leases severed subsurface mineral rights or formations.
  • Local Unit of Government (LUG) or the state that:
    • Voluntarily acquired property and conducted a baseline environmental assessment;
    • Involuntarily acquired title or gained control of the property by virtue of its governmental functions, or by transfer from the state or a LUG that is not liable under Part 201 or Part 213, or by seizure, receivership, or forfeiture pursuant to the operation of law or by court order
    • Has an easement interest, other interest, for a transportation or utility corridor, or public right of way;
    • Holds an easement interest to provide service, for the purpose of conveying or providing goods or services, including but not limited to, utilities, sewers, roads, railways, and pipelines, or to acquire access;
    • Is not liable and is leasing the property to a non-liable party;
    • Acquired the property by purchase, gift, transfer, or condemnation prior to June 5, 1995 (Part 201) or March 6, 1996 (Part 213).

However, the exemption does not apply if the LUG or state invites the general public to use the property, such as public parks, municipal office buildings, municipal public works operations, schools, etc., unless the contamination is migrating or has migrated onto the property.