The Ticking Reopener “Timebomb”

9 Oct 2013

For 18 years, Michigan has touted its BEA program as the best in the US for land purchasers.  It has been viewed as a virtual “get out of jail free” card relating to environmental contamination.  This May, the MDEQ issued a guidance document regarding vapor intrusion and closures.  I blogged about it previously.

This guidance poses a significant challenge to property owners because of the dramatically lower standards it imposes on volatile contaminants.  By example, MDEQ ratcheted down the level for dry cleaning solvents in groundwater from 25,000 parts per billion (ppb) to 9.4 ppb (and possibly as low as 5 ppb).

There is a serious risk that owners of former gas stations, manufacturers and dry cleaner sites, even those with BEAs, may have to investigate and even remediate contamination that, for the last 18 years was deemed “ok.”

Michigan law requires even non liable landowners to exercise due care including conducting response activity to mitigate unacceptable exposures and allow for the intended use of the facility in a manner that protects the public health and safety.  We are starting to hear that lenders and the MDEQ are making noises about applying the new vapor closure guidance as a due care reopener.  The MDEQ reports that it has received over 17,000 BEAs.  This new guidance (which may be subject to a number of challenges) opens the possibility that anyone who bought a property and thought their BEA protected them could be in an expensive fix.

Is the 18 year ride over?

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