Evaluating Environmental Risk – Part Four
March 11, 2022
Demonstrating compliance with ongoing “due care” obligations is a requirement for owners and operators of contaminated property and is also a necessary requirement for maintaining liability protection afforded through a Baseline Environmental Assessment (BEA). Due care requirements apply to liable and non-liable owners and operators alike and generally focus on preventing unacceptable exposures to contamination and not exacerbating contaminant conditions. As such, due care includes evaluating the contaminant conditions relative to the land use and applicable human health exposure pathways. Documentation demonstrating compliance with due care obligations must be provided to the Department of Environment, Great Lakes and Energy (EGLE) if they request it.
A critical component of demonstrating ongoing compliance with due care is maintaining appropriate documentation/records of response activities (e.g., routine inspection and maintenance of engineering controls that prevent unacceptable health exposures). For circumstances where it’s necessary to gain EGLE’s concurrence that an owner/operator is in compliance with due care, a Documentation of Due Care Compliance (DDCC) report can be prepared and submitted to EGLE for review. A DDCC is a report detailing the due care evaluation and documenting compliance with due care in a specific format required by EGLE.
Due Care Obligations
- Prevent exacerbation of contaminant conditions
- Prevent unacceptable exposures to contaminants
- Take reasonable precautions
- Provide reasonable cooperation, assistance and access to state and liable parties
- Comply with land use and resource use restrictions
- Manage abandoned containers
- Send notice to affected adjacent property owners
Due Care is perhaps the most important evaluation in the due diligence process. It reveals actions and costs that owners and operators may need to take to manage their contaminated property. An understanding of due care helps inform the evaluation of the highest and best use of a site.
Envirologic’s infographic will help you understand the scope of Due Care obligations and provides a Due Diligence flowchart.
View the complete infographic (PDF).
Check out our entire series of Due Diligence infographics:
- What is a Phase I ESA? (PDF)
- What is a Phase II ESA? (PDF)
- What is a Baseline Environmental Assessment? (PDF)
- What is Due Care? (PDF)
Questions? Please contact our Manager of Due Diligence Services, Erik Peterson.