So, the BEA law changed, what should a buyer do?

16 Dec 2010

Superfund site drumpile - will the new BEA protect you?

Yesterday, I told you about the first major change to Michigan’s “superfund” law in 15 years.  Late yesterday, we started to see what those changes mean for you.  The MDNRE, knowing this was coming and coming with immediate effect, began to launch new guidance and forms to deal with the changes to the BEA program mandated by the legislature.

First, the MDNRE put out a 7 point important information notice highlighting major changes of what is new and what is no longer effective.   

Second, the MDNRE created a new BEA submittal form which can be found on its website

Finally (so far), they also put out a chart describing how they view BEAs relating to transactions that happen around the December 15th effective date. The short answer is that if your BEA was in to the MDNRE before December 15th or if the BEA was done and the property bought or acquired before December 15th, an “old” BEA (categories N, D or S and distinguishing old contamination from new) would still be accepted.  However, as to any BEAs in process on December 14th that had not been approved,  MDNRE will not review and approve them and will return the $750 fee – treating it as a “disclosure” or “submittal.”   The requirements for disclosure of migration have not changed.

What does this mean for you?  Well, it is more important than ever to ensure that your environmental consultant is qualified under the federal standard for conducting an “all appropriate inquiry.”  Given that MDNRE is no longer “blessing” BEAs, you also want to be sure that the consultant you use is insured and has not tied your hands contractually (as many of them include very low limits on their liability).

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