Historical Fruit Orchards: A Sour Aftertaste
In Michigan’s Great Southwest, fruit orchards have historically dominated the region. While being fruitful for the economy, a sour aftertaste lingers in soil of historical orchards farmed prior to the 1970s. Specifically, lead arsenate pesticides were widespread and the heavy metals (e.g., arsenic and lead) can remain in soil even decades after the last spray. If historical fruit orchards are flagged during the Phase I Environmental Site Assessment (Phase I) process, it is identified as a Recognized Environmental Condition (REC).
It should be noted that agronomical pesticides applied according to label directions and according to generally accepted agricultural practices would not be considered a “release” of a hazardous substance under Section 20101 (1) of Part 201 of the Michigan’s Natural Resources and Environmental Protection Act (NREPA), P.A. 451 of 1994, as amended. According to the Michigan Department of Environment, Great Lakes, and Energy (EGLE), an owner, operator, or a purchaser of an agricultural property contaminated by agrochemicals would not be held liable under Part 201 provided that there is no evidence of an actual release, disposal, or deposit of hazardous substances (such as from pesticide mixing area or a spill area), and the agrochemical was applied in accordance with generally accepted agricultural practices as specified in exemption liability.
Moreover, EGLE would also not assert the due care or disclosure obligations specified in Section 20107a of Part 201 if there is an appropriate basis to conclude that the agricultural exemption from liability applies. When concentrations of hazardous substance(s) from an agrochemical exceed generic residential criteria, a prospective owner’s due diligence activities should involve evaluating this issue and providing a basis to conclude whether a release occurred or that the exemption applies. If the agricultural exemption applies, then the property is not a facility, and Section 20107a would not apply.
However, a prospective purchaser is cautioned that parties other than the EGLE may assert a claim that generic residential cleanup criteria established in Part 201 have not been met. Consideration should be given to the intended use of the property and to whether there may be a concern from a claim by a party other than the EGLE regarding potential exposure to regulated substances.
If you are considering purchasing a property that was once a fruit orchard prior to the 1970s, Point Blue will guide you through the due diligence and due care processes to ensure that property goals are achieved while evaluating any potential liability or exposure risk.
