April 1996
The MDEQ has established three categories for BEA documents:Categories A, B and C.
Category A is a facility where the new owner will not use any hazardous substances on the property. Therefore, any impacts found on the site is assumed to be from prior use. This has been the easiest BEA petition to have approved by the MDEQ. It requires an investigation of the nature of the impacts and the general location of the impact, sufficient to determine if the impacts are acceptable for the intended future use.
Category B is a facility at which the new owner intends to use a hazardous substance, but one that is different from the substance that is currently a contaminate at the site. Consequently, it would be possible to distinguish historic impacts from future impacts. An example of such a site would be property that formerly was occupied by a metal plating operation and with identified metals impacts, and now will be occupied by an operation which will use solvents. Such a site requires a detailed investigation of the nature and general area (partial extent) of contamination, sufficient to determine if the impacts are acceptable for the intended future use, and to establish that no impacts associated with the intended future use exist.
Category C is a facility where the new owner intends to use the same hazardous substances as those already found on the property, or where the hazardous substance has not been identified. Such a BEA petition is the most difficult to have approved. To date only two Category C petitions have been issued in Michigan. The MDEQ requires a complete investigation of the nature of contamination, including both vertical and horizontal extent sufficient to determine if the impacts are acceptable for the intended future use, and to distinguish historic from future impacts.
All BEA documents, regardless of category, must satisfy the following conditions:
If the MDEQ approves the BEA, then it agrees that the specified contamination already exists at the facility. Therefore, in the future, the new owner will not be liable for that contamination. The new owner, however, remains liable for any future contamination or exacerbation of the contamination after the purchase of the property.
The concept of intended future use is central to site closure. The MDEQ has developed numeric cleanup standards for impacted properties in three categories; Residential, Commercial and Industrial. Each category has specific impact levels that are considered acceptable for unrestricted use of that type of site. For example, if a property exceeds the residential criteria, but is below the industrial criteria, it may be used without restrictions for industrial purposes. However, if that same property was intended to be used for residential development, then it would require remediation to comply with the Residential criteria.
Although a BEA procedure is advantageous to the prospective buyer of property, the existing owner must be cautious when it provides them with 'knowledge' of existing impacts. Under the new regulations, once an owner has knowledge that his or her property is a 'facility' as defined by the Act, then they have an 'affirmative obligation' to cleanup any impacts for which they are liable. Consequently, sellers of industrial property often do not want to learn the results of a BEA procedure conducted by a prospective buyer for fear of assuming the cleanup obligations entailed by that 'knowledge'.
Affirmative obligations may also extend to non-liable owners and operators and can include taking steps to prevent exacerbation of existing impacts, use of reasonable precautions for any actions of a third part, and taking due care to ensure that there is no harm to human health or the environment. In addition, the owner of a 'facility' is obligated to tell a purchaser that the property is a facility if he has knowledge of that fact. Finally, the owner/operator of a "facility" must prevent any future release, and implement source control or removal measures if a release occurs, determine the nature and extent of any release, and diligently pursue response activities.
A well done BEA document is one that gets quickly approved by the MDEQ. To obtain MDEQ approval, the BEA must include all the information requested and presented in the form specified by the MDEQ, within the allotted time frame. The MDEQ has provided very specific instructions as to what information is required for a BEA and in what form it should be presented. Category A and B BEA documents require less documentation than Category C, and consequently take less time for approval.
The MDEQ closely evaluates the qualifications of the environmental professional who prepared the BEA document and conducted the preliminary investigations. Environmental professionals are required to submit their resume along with a signed affidavit. Having an environmental professional with extensive experience and an established working relationships with the MDEQ will expedite this phase of the review.
Consequently, the key factor for a BEA petitioner is to work with an environmental consultant experienced with Michigan's natural and regulatory environment. There is seldom a second chance to get a BEA approved; therefore it must be done right the first time.
For more information on environmental programs for your business, contact Mr. Thomas Wackerman, Managing Partner at Applied Science &Technology, Inc. at 800.395.ASTI or visit our homepage
Michigan has recently enacted Part 148 of Act 451, Environmental Audit Privilege and Immunity. How will this legislation effect the way you conduct compliance audits, Phase I Site Assessments, and other environmental investigations? See it in our next issue.
On May 1st, Applied Science & Technology, Inc. will present an update on managing property purchases under Part 201. This will be a free evening presentation in Ann Arbor, Michigan. For reservations or more information call Lenna Dietrich at 1-800.395.ASTI.
Applied Science & Technology, Inc. staff is presenting a one semester course on Environmental Information Management using the Internet. at Wayne State University in Detroit, Michigan. The course starts May 1996 and is taught entirely on the Internet. For more information call Tom Wackerman at 800.395.ASTI or send email request to twacker@chem1.eng.wayne.edu
15thPayment for sulfur dioxide emission allowances from the 1996 direct sales for a new unit must be submitted to the EPA. [CAA: 40 CFR 73.76, FR 12/17/91]
15thProducers or importers of Class I or Class II controlled substances must submit EPA reports. [CAA: 40 CFR 82.13, FR 05/10/95]
19thOwners or operators of a new source commencing construction after 12/31/92, and subject to the organic HAP controls for synthetic organic chemical manufacturing industry, must submit the semiannual report. [CAA: 40 CFR 63.1527, FR 04/22/94]
26thEmployers subject to process safety management standards under 29 CFR 1910.119 or 1926.64 must complete an initial analysis of at least 75 percent of its process to identify, evaluate, and control hazardous processes covered by the standards. [OSHA: 29 CFR 1910 and 1926, FR 06/30/93]
TECH-BITS is a monthly publication of Applied Science &Technology, Inc. (ASTI), P.O. Box 1328, Ann Arbor, Michigan, 48106. For a free mail subscription call 800.395.ASTI. For a free electronic subscription, send an email message to twacker@chem1.eng.wayne.edu, referencing Tech-Bits in the body of the message.
TECH-BITS is intended to provide information concerning current environmental issues, and is not intended to provide technical or legal advice regarding any particular situation. Questions about individual situations should be addressed to your environmental engineer. Copyright 1995 by ASTI