__Corporate transactions and real property acquisitions require professional consideration of the risks and potential liability issues associated with owning contaminated or potentially contaminated property.  Like corporate audits, due diligence during the purchase of real property involves assessment of known and suspected conditions.  Standard steps in due diligence include preparation of a Phase One report to gather an overview of site conditions and history, which may lead to a Phase Two report on sampling to investigate and/or assess contamination.

In Michigan, state statutes authorize preparation of a BEA (“baseline environmental assessment”) as a mechanism to identify contamination for a new owner or tenant in order to meet statutory criteria to avoid becoming liable based upon status as the entity responsible for the property.

The holder of a BEA, despite its protection against liability, has responsibility to exercise “due care,” essentially focused on avoiding human health exposure or exacerbation of contamination.  A professional due care plan can help a non-liable property owner protect that status as well as protecting human health and the environment.  Failure to prepare or comply with a due care plan can result in exposure to liability and loss of the BEA protections.