Due Care Planning

Purpose:

Plans outline measures for owner/operators to ensure compliance with "due care obligations" to prevent a potential exposure and exacerbation of contaminants.

Description of Service:

While new owners/operators do not have cleanup liability following disclosure of a BEA, they still have “due care obligations” that are detailed under Part 201 of Act 451 (the Natural Resources and Environmental Protection Act (NREPA)), of 1994, as amended, including the Part 9 Rules. The regulation imposes “Due Care Obligations” on owners and operators of contaminated properties.

These obligations are detailed as follows.  

1. Undertake measures as are necessary to prevent exacerbation; 
   
   
2. 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; 
   
   
3. 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;
    
4. 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. Nothing in this subdivision shall be interpreted to provide any right of access not expressly authorized by law, including access authorized pursuant to a warrant or a court order, or to preclude access allowed pursuant to a voluntary agreement; 
   
   
5. Comply with any land use or resource use restrictions established or relied on in connection with the response activities at the facility
    
6. Not impede the effectiveness or integrity of any land use or resource use restriction employed at the facility in connection with response activities. 

A Due Care Plan will be developed that outlines what actions need to be taken right away, as well as during and after redevelopment or transfer of ownership, to ensure the due care obligations of the new owners are met. This document is typically completed as a supplement to the BEA. Additionally, for regulatory compliance and as required by some financial programs and federal and State agencies, we also complete Response Activity Plans and Documentation of Due Care Compliance. Similar to due care planning documents, Environmental Construction Management Plans can be completed to aid in redevelopment of properties to ensure “due care obligations" are met during the construction phase of a project.