Baseline Environmental Assessments (BEA)
The Baseline Environmental Assessment (BEA) was created by the 1995 amendments to Part 201 of the Michigan Natural Resources and Environmental Protection Act (NREPA). Entities which file properly completed BEAs with the Michigan Department of Environmental Quality in a timely manner are not liable for cleanup of existing contamination at a site under Part 201, unless that entity has caused or contributed to the contamination at the site. Therefore, tenants and owners who file appropriate BEAs are not responsible for response actions beyond any applicable due care requirements. It should be noted that property owners in each individual state are subject to their respective states' regulatory agencies and individual agency ordinances.
The term BEA, as defined by NREPA, means:
"...an evaluation of environmental conditions which exist at a Facility at the time of purchase, occupancy or foreclosure that reasonably defines the existing conditions and circumstance at the Facility so that in the event of a subsequent release, there is a means of distinguishing the new release from the existing condition..."
The main component of a BEA is that the site must be considered a "Facility". A Facility, as the word is defined in Part 201 of NREPA, is any area, place, or property where a hazardous substance in excess of the concentrations which satisfy the requirements of Section 20120a(1)(a) or (17) or the cleanup criteria for unrestricted residential use under Part 213 has been released, deposited, disposed of, or otherwise comes to be located.
A Facility is not any area, place, or property at which response activities have been completed which satisfy the cleanup criteria for the residential category provided for in NREPA, Part 201. Therefore, if contamination does not exist or is at low concentrations, a BEA cannot be filed for the Property.
To properly file a BEA, all information on the levels of contaminants must be determined within 45 days from the date of purchase, occupancy, or foreclosure. It is recommended that the data gathering process begin before purchase, occupancy, or foreclosure. This allows for additional data collection if information gaps exist in the determination of the contaminate level. The BEA must then be filed with the MDEQ, in the case of either disclosure or determination, within six months of purchase, occupancy, or foreclosure.
The BEA process does not protect the filers from federal law or remove due care obligations. Due care provisions require that a person who owns or operates property with the knowledge that it is a Facility must undertake measures to:
- Prevent exacerbation of the existing condition.
- Respond to activities to mitigate unacceptable exposure to hazardous substances and to allow the intended use of the Facility while protecting public health and safety.
- Take precaution against reasonably foreseeable acts or omissions of a third party and the subsequent consequences.
On March 11, 1999, new rules were adopted which describe the BEA process. The largest change occurred in the names of the categories under which BEAs are submitted. The three categories of BEAs as established under the MDEQ program are:
Category N
This was formerly known as Category A. Category N BEAs are acceptable for properties where new owners and operators will not use hazardous substances. This includes investors and municipalities who hold idle property for resale or lenders who simply hold idle property after foreclosure until it is transferred to another party.
Category D
This was formerly known as Category B. Category D BEAs are required where a specific new use of the property includes significant hazardous substances use of substances different from those known or likely to be the contaminants which caused the property to be a Facility.
Category S
This was formerly known as Category C. Category S BEAs are required where the designed operations of the property will involve the use of the same hazardous substances known to be or likely to be present at the Facility. Category S BEAs are also appropriate when no limits on future hazardous substance use are identified.
The current Rules and Instructions for Preparing and Disclosing a BEA encourage alternatives to distinguish existing contamination from potential future releases at the Facility. These alternatives can consist of engineering controls such as barriers and clean zones. The rules also present options such as stipulated conditions. While such conditions create exemptions to the BEA protection, these agreements increase flexibility and can help minimize the costs of BEA preparation.
For additional information and competitive cost estimates, please contact R&W at (616) 791-7100 or e-mail us at .
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Last Update: 07/11/03