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What is due care and what are your obligations?
Due care describes the actions a person must undertake and are necessary to protect people from exposure to contamination present in soil, groundwater, and subsurface vapors; allow for the safe use of contaminated property; and provide notifications to affected parties, such as utilities and easement holders, or to neighboring properties upon the migration of contamination.
In general, the obligations are comprised of actions to:
- Immediately prevent fire and explosive conditions.
- Prevent anyone using the property from unacceptable exposures to the existing contamination.
- Prevent the taking of actions at the property that cause the existing contamination to migrate off or beyond the property boundaries.
- Take reasonable precautions against the foreseeable acts of third parties, such as employees, contractors, utility workers, etc.
- Cooperate with and provide access to the person responsible for cleaning up the existing contamination and don't interfere with their actions.
- Be aware of and comply with any land or resource use restrictions placed on the property due to the existing contamination. An example might be to prevent the installation of a drinking water well into contaminated groundwater.
The brochure "What Do I Need to Know if I Own or Operate Contaminated Property" and the EGLE-RRD Due Care Guide provide a general discussion of the purpose and obligations. The obligations can be found in Part 213, Section 21304c, Part 201, Section 20107a and Part 10 of the Part 201 Administrative Rules. Your obligations may include the need complete and submit Notice of Migration (instructions) and the Notice of Abandoned Containers.
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 exposures and assure the safe use of the property. 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)(d through f). The following owners or operators are exempt from Section 21304c(a-c).
- An owner or operator of property where the contamination is migrating onto the property; the exemption only applies only to the contamination that has migrated 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.
How do I know if my property could be contaminated?
Soil and groundwater contamination can come from many sources, including past or present industrial and agricultural uses, gas tanks and gas stations, dry cleaning operations, residential fuel oil tanks, etc. Knowledge can come from many places. The county Register of Deeds can provide deed notices or restrictions. The local health department, fire department, previous owners, real estate disclosures, past or current employees, or neighbors may also have information. Samples of soil, groundwater, or soil vapor may be needed to determine if contamination does exist and at what concentrations. The Remediation and Redevelopment Division District Offices have files on some contaminated property.
EGLE maintains databases which may contain information on contaminated properties (your property may still have contamination even if it is not on these lists or in EGLE files):
When do I have due care obligations?
Not withstanding any statutory exemptions, a person has due care obligations when that person has knowledge that their property (owner or operator) is contaminated.
What do I have to do if my property is contaminated?
A person shall evaluate their property uses, determine if people may be exposed to the contamination in soil, groundwater or vapor, and take the actions necessary to prevent unacceptable exposures; and comply with the other Section 20107a and Section 21304c obligations. An Environment Professional can also assist in this evaluation. They may be listed in the phone book or on the internet under Environmental Engineers, Environmental Consultants, Soil or Groundwater Testing, etc. You may also consult with your financial institution, realtor, lawyer, or professional association for recommendations.
Determining what actions a property owner or operator needs to take is dependent upon the property use and the type of exposures that may occur. For example:
- An owner of a vacant lot with no buildings would not need to consider exposures to people from drinking contaminated groundwater or vapors accumulating inside buildings, but would need to consider exposures to contaminated soils on the surface, even persons who may be considered to be trespassing.
- An owner of a building with a drinking water well would need to consider exposures from drinking or washing in contaminated groundwater.
Do I need EGLE approval?
EGLE approval of your evaluation and the actions you have taken to comply with Section 20107a and Section 21304c obligations is not required. However, you must conduct the evaluation, maintain documentation of the actions taken, and provide documentation to EGLE upon request. You can voluntarily ask EGLE to review your Documentation of Due Care Compliance.
Due Care Documentation:
A current owner or operator may request EGLE review of their documentation of due care compliance. A Documentation of Due Care Compliance Report submitted to EGLE for review should be constructed in accordance with the Documentation of Due Care Compliance Content Resource Materials and submitted it with a Documentation of Due Care Submittal Form. Documentation must include information regarding adequate characterization of contamination, the exposure pathway evaluation; description of actions already implemented to comply with their obligations and documentation that demonstrates they are in compliance, or a conclusion that no actions were needed because no unacceptable exposures are present based on the current use of the property.
Questions can be directed to EGLE District Office that serves the county where the property is located. (district map) Or you may contact Jeanne Schlaufman, RRD, Due Care Specialist, at 586-753-3823 or firstname.lastname@example.org.
Where can I find the law and rules requiring me to take due care?