According to the U.S. Environmental Protection Agency, brownfields are abandoned, idle or under-used industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination. The State of Michigan includes obsolete buildings as brownfields in “core communities.”
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To combat the financial and community drain created by abandoned industrial and commercial properties, Jackson County established a Brownfield Redevelopment Authority (BRA) in 1999 - a product of the Michigan Brownfield legislation, P.A. 381 and 382 of 1996, as amended.
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1. Are you liable for site contamination?
Under Michigan law, you are not liable for the cost of cleanup actions if:
You have not done anything to cause a release of a hazardous substance;
AND
You own or are an operator of contaminated property that you’ve acquired BEFORE June 5, 1995;
OR
You purchased/started operation at a contaminated property AFTER June 5, 1995 and were not responsible for the release that caused the contamination. You must also conduct an adequate Baseline Environmental Assessment (BEA) of your property prior to or no later than 45 days after purchase/start of operation.
The same liability principles apply to those who control, but do not own the property. They are called “operators.” People who lease property are often the operators of the brownfield.
2. What about federal regulations?
Federal Cleanup Requirements may also affect you, including liability under the Comprehensive Environmental Response Act (CERCLA or Superfund), which is quite different from requirements in Part 201. For more information concerning federal requirements contact the Michigan Department of Environmental Quality’s (MDEQ) Environmental Response Division.
3. What is meant by the word ‘facility’?
Facility is defined as any area, place or property where there is a release of a hazardous substance in an amount that exceeds the established state cleanup standard for residential property.
4. When is a property no longer considered a facility?
Property is no longer a facility when actions to remove, reduce or treat the contamination are completed, lowering the amount of contamination to a level that meets the residential cleanup standards.
5. What if you are liable for a facility?
If you are liable for a facility, you are obligated by law to take appropriate corrective action at that property. If you currently own or operate a property that you know is a facility and you caused the contamination, your obligations include:
1. Immediately stopping a release at its source
2. Controlling or eliminating any fire, explosion or direct contact hazard
3. Investigating the nature and extent of the contamination
4. Cleaning up or preventing exposure to contamination
6. What if you are not liable for a facility?
Even if you are not liable for the facility, an owner or operator has due care obligations. These obligations include taking actions to protect people on the property from exposure to hazardous substances and preventing existing conditions from getting worse.
7. What are Baseline Environmental Assessments (BEA)?
Through Michigan Legislation, Baseline Environmental Assessments (BEA) allow people to purchase or begin operating at a facility without being held liable for existing contamination. BEAs are used to gather enough information about the property being transferred so that existing contamination can be distinguished from any new releases that might occur after the new owner or operator takes over the property.
8. Where is a BEA performed?
A BEA is only performed for a property that is denoted a facility. Past use of the property is reviewed for evidence of chemical use and any other signs of possible contamination. If necessary, soil and groundwater samples are collected to evaluate any potential contamination problems.
9. How do you know what level of effort is required to do an adequate BEA?
The level of effort will be dependent on the type and amount of contamination on the property and the proposed hazardous substance use. If you are planning on using the same hazardous substances that are present, a BEA can be more complex and costly to complete because your assessment must distinguish new releases from old releases. Most property owners rely on a professional consultant to perform site studies and conduct the BEA. Contact a consultant for information on BEAs.
10. When does a BEA need to be conducted to take advantage of the liability protection under Part 201?
If you want to take advantage of the liability protection under Part 201, as a new owner/operator you must:
Conduct an adequate BEA prior to or no more than 45 days after the date of purchase, occupancy, or foreclosure - which ever occurs first;
AND
Disclose the results of the BEA to the DEQ, subsequent purchasers and lessees.
11. Who is exempt from this process?
Residential property owners are exempt from the BEA requirements if hazardous substance use at the property will be consistent with normal residential use. This includes chemical lawn treatment, paints, cleaners, and other household products in quantities found in a typical home.
Cleanup Standards
Part 201 authorizes the MDEQ to set cleanup standards by considering how the contaminated land will be used in the future. Michigan’s cleanup standards reflect the potential for human health risk from exposure to potentially harmful substances at contaminated sites.
If you are cleaning up a facility, you can choose an appropriate category of cleanup standard based on proposed site use. There are currently three main categories of land use-based cleanup standards: residential, commercial, and industrial.
Residential
The residential cleanup standards are the most restrictive criteria for site remediation, generally because it is assumed that there is the greatest opportunity for exposure to contamination in residential settings. When a facility is cleaned up to residential standards, the property is considered safe for any and all uses.
Commercial or Industrial Standards
If you propose to clean up your property based on commercial or industrial standards, you must demonstrate that your chosen category is appropriate for future land use and consistent with zoning at the property. No additional property restrictions are required, other than limiting the use of the property to commercial or industrial activities consistent with zoning.
Additional Categories
Three additional categories of cleanup standards include: limited residential, limited commercial, and limited industrial. These “limited” categories exist for circumstances that require property use restrictions beyond just zoning limitations or exposure barriers to keep people from being exposed to on-site contamination now and in the future. If you plan on cleaning up a property based on the limited categories, certain restrictions must be placed on the property deed to ensure that the use restrictions and exposure barriers remain.
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