DEPARTMENT OF ENVIRONMENTAL QUALITY

                     ENVIRONMENTAL RESPONSE DIVISION

             ENVIRONMENTAL CONTAMINATION RESPONSE ACTIVITY

(By authority conferred on the department of environmental quality by section 
20104 of 1994 PA 451, MCL 324.20104 and  Executive  Order  No.  1995-18,  MCL 
324.99903)


     PART 9. BASELINE ENVIRONMENTAL ASSESSMENTS


R 299.5901    Definitions.
  Rule 901. As used in this part:
  (a) "Act" means Act No. 451 of the Public Acts of 1994, as  amended,  being 
S324.101 et seq. of the Michigan Compiled Laws.
  (b) "Administratively incomplete," when used in reference  to  a  petition, 
means a petition that does not include 1 or more administrative or  technical 
elements required by these rules.
  (c) "Baseline environmental assessment" or "BEA" has the  same  meaning  as 
defined in section 20101(1)(d) of the act.
  (d) "Category D BEA" means a BEA that is conducted for a property where the 
hazardous substances to  be  considered  are  different  from  the  hazardous 
substances that are known or reasonably  believed  to  have  previously  been 
released at the property or are present at the property as a  result  of  the 
decomposition of the substances that were released. Hazardous  substances  to 
be considered are those that are anticipated by the submitter to be  present, 
as of the date of completion of the BEA, at the property in  a  quantity  and 
manner that constitute significant hazardous substance use after ownership or 
occupancy commences.
  (e) "Category N BEA" means a BEA that is conducted  for  a  property  where 
hazardous  substances  are  not,  as  of  the  date  the  BEA  is  conducted, 
anticipated by the submitter to be present in a quantity  and  manner  that   
constitute  significant  hazardous  substance  use  at  the  property   after 
ownership or occupancy commences.
  (f) "Category S BEA" means a BEA that is conducted for a property where the 
hazardous  substances  to  be  considered  are  the  same  as  the  hazardous 
substances that are known or reasonably  believed  to  have  previously  been 
released at the property or are present as a result of the  decomposition  of 
hazardous substances that were released, except as provided in R 299.5903(9). 
Hazardous substances to be considered are those that are anticipated  by  the 
submitter to be present, as of the date  of  completion  of  the  BEA,  in  a 
quantity and manner that constitute significant hazardous  substance  use  at 
the property after ownership or occupancy commences.
  (g) "Conducted," when  used  in  reference  to  the  date  that  a  BEA  is 
conducted, means the  date  when  all  site  history  research,  field  work, 
laboratory analysis, and data interpretation are complete and preparation  of 
the BEA report is substantially complete.
  (h) "Date of completion," when used in reference to the date of  completion 
of a BEA, means the date when the BEA report is finalized  by  the  submitter 
for initial disclosure to the department. The date of completion shall not be 
more than 15 days after the date required by section 20126(1)(c) of  the  act 
or by R 299.5903(8).
  (i) "Date of occupancy," except as provided in  R  299.5903(8),  means  the 
date when a person first becomes an operator of the property.
  (j) "Engineering control" means measures or conditions which exist  or  are 
created at the property and which are presented in the BEA as an  alternative 
or supplement to environmental data as the means by which a new  release  can 
be distinguished from existing contamination.
  (k) "Isolation zone" means an area of uncontaminated soil  or  other  media 
that can be monitored to determine whether a new  release  has  occurred.  An 
isolation zone may be presented in the BEA as an alternative or supplement to 
environmental data as the means by which a new release can  be  distinguished 
from existing contamination.
  (l) "Petition"  means  the  form  and  all  required  associated  materials 
submitted to the department to request a determination under  section  20129a 
of the act.
  (m) "Petitioner" means a person who is seeking liability protection through 
the process set forth in section 20129a of the act and these rules.
  (n) "Section 7a compliance analysis" means a report prepared in  compliance 
with R 299.5915 and submitted under section 20129a of the act that  documents 
how the use of the property by the owner or operator, or  both,  will  assure 
compliance with section 20107a of the act.
  (o) "Significant hazardous substance use" means the use, storage, handling, 
or management, at any time, of hazardous substances in quantities that exceed 
those commonly used for typical residential  or  office  purposes.   However, 
significant hazardous substance use does not include any of the following:
  (i) Gasoline, oil, or other vehicle fluids that are contained  in  vehicles 
traversing or parked at a property on a short-term basis.
  (ii) Storage of hazardous substances for retail sale in  packaging  and  in 
quantities consistent with use by occupants of residential dwellings.
  (iii)  Storage  or  management  of  aboveground  storage  tanks,   barrels, 
containers, or other receptacles containing  hazardous  substances  that  are 
appropriately identified in the BEA as being abandoned or  discarded  at  the 
time of purchase, occupancy, or foreclosure.
  (p) "Stipulated condition" means a statement included in a BEA or affidavit 
that defines a condition which is acknowledged by the  submitter  to  be  the 
basis for defining the scope of the evaluation provided  in  a  BEA  and  the 
basis for resulting liability protection.
  (q) "Submitter" means a person who is seeking,  through  a  petition  under 
section  20129a  of  the  act  or  through   a   disclosure   under   section 
20126(1)(c)(ii) of the act, liability protection by conducting and disclosing 
a BEA.

  History:  1999 MR 2, Eff. Mar. 11, 1999. 


R 299.5903    Use of  evaluation  of  environmental  conditions  as  BEA  for 
certain property; property description; establishing basis   to   distinguish 
existing contamination  from  new  release;  determination   of   significant 
hazardous substance use; inclusion in BEA of data and information from  other
 studies; exemption  from  liability   not   invalidated   by    change    in 
property  use  or hazardous substance use; time to conduct  BEA  prepared  to 
establish  liability exemption for  development  of  oil  or  gas  resources; 
applicability  of  subrule (8);  "site  preparation   activities"    defined; 
sufficiency  of  BEA  completed before March 11, 1999.
  Rule 903. (1) An evaluation of environmental conditions may be  used  as  a 
BEA only for property that is a facility as defined in section 20101(1)(o) of 
the act.
  (2) The rules in this part  set  forth  the  requirements   for    a    BEA 
that describes the condition of  property  that  is  being  transferred.   If
 the property being transferred is part of a larger facility,  then  the  BEA
 may describe the conditions on that property and  need  not   address    the 
entire facility. A BEA may address a facility that is only a portion  of    a 
property being transferred. If more than 1 contiguous  property   is    being 
transferred, then each property shall be evaluated separately  to   determine 
if  it  is  a facility, regardless of whether the property   will    be    in 
common  ownership after the transfer. A BEA may include 2 or more  contiguous
 properties  that will be in common ownership after transfer if each property
 is  demonstrated in the BEA to be  a  facility.  The  BEA  will  provide  an 
exemption from liability only for the property that is specified in the  BEA,
 as  required  by  these rules.
  (3) A BEA may establish a basis to distinguish existing contamination  from 
a new release through any of the following, if the  elements  of   the    BEA 
comply with the pertinent requirements of these rules:
  (a) Environmental data that characterize conditions at the property.
  (b) Engineering controls.
  (c) Isolation zones.
  (d) Stipulated conditions.
  (4)  The  department  may  issue  a   written    determination,    on     a 
case-by-case  basis,  that  the  use,  storage,  or  handling  of   hazardous 
substances that exceed quantities commonly used for  typical  residential  or 
office  purposes   is   not  significant  hazardous  substance  use.  If  the 
department determines that  there is no  significant   hazardous    substance 
use,  then  the  hazardous  substance covered by  the  determination  can  be 
eliminated from further consideration  in the BEA.
  (5) A  BEA   submitted   by   an   owner   shall    consider    significant 
hazardous substance use by the owner and all tenants and  operators  who,  at 
the time the BEA is completed, are currently in possession of, or  are  under 
agreement  to take possession of, all or part of the property.
  (6) A BEA may include data and  information  from  studies   prepared    by 
others or conducted for other  purposes  if  the  BEA   provides   sufficient 
rationale  to demonstrate that the data are reliable and relevant  to  define 
conditions   at  the  property  at  the  time  of  purchase,  occupancy,   or 
foreclosure.
  (7) If a person has established an exemption from liability by completing a 
BEA that satisfies the requirements of part 201 of   the   act   and    these 
rules, then a change in property use or hazardous substance use  after    the 
date  of completion of the BEA will not invalidate the exemption.
  (8) For the purposes  of  a  BEA  prepared  to  establish    a    liability 
exemption for a person who is a permittee for subsurface oil,  gas,  storage, 
or  mineral rights under part 615 or part 625 of the act,  the   period    to 
conduct  a  BEA shall end 45 days after the date when a permit is  issued  to 
the person by the department, unless, in  the   case   of   oil    and    gas 
development  activities regulated under part 615  of  the  act,   notice   is 
provided  to  the  department under R 324.402 not less than 5 days in advance 
of any site preparation work.
If the notice is provided, then the period to conduct a BEA shall end 45 days 
after the date that the department receives the notice.  For the purposes  of 
these rules, notice provided to the department under R 324.402  shall  modify 
the period for completion of a BEA only if it is received by  the  department 
not less than 5 days before site preparation activities begin and is sent  to 
the department by a means that provides  proof  of  delivery.  Verbal  notice 
under R 324.402 is not sufficient to modify the  date  on  which  the  45-day 
period ends.  If an amendment to a permit to drill and operate  that  changes 
the permitted location or increases the scope of activities  allowed  at  the 
permitted location is issued by the department, then the period to conduct  a 
BEA with respect to the revised permit location  or  new  scope  of  activity 
covered by the amendment shall end 45 days after the amendment  is  issued.
The provisions of this subrule apply to persons who receive a new  permit  to 
drill and operate under part 615 of the act but  who  do  not  apply  to  the 
transfer of existing permits to drill and operate as provided by R 324.206(6) 
and (7), where site preparation activities have occurred.  For  the  purposes 
of this subrule, "site  preparation  activities"  means  any  change  to  the 
landscape, including cutting or removing trees or other  vegetation,  or  any 
earth changes at the permitted location.
  (9)  For purposes of  compliance  with  part  9  of   these    rules,    an 
acquiring agency under 1980 PA 87, MCL 231.51,  et  seq.,  and    known    as 
the  uniform condemnation procedures act, shall not become the    owner    or 
operator  of  a property that is a facility or a portion of a facility  until
 possession  of the facility of a portion  of   the   facility    has    been 
transferred  to  the acquiring agency.
  (10) A  person  submitting  a  BEA  may  consider  only   those   hazardous 
substances  that  are  present  at  the  property  in  excess  of  applicable 
residential  cleanup criteria in  determining  whether  the  BEA  will  be  a 
category S or a category D.
Hazardous substances that are detected at the  property,  but  that  are  not 
present in excess of applicable residential criteria,  may  be  dropped  from 
further consideration in the BEA if the BEA contains documentation that there 
is a reasonable basis, after all appropriate  inquiry,  including  review  of 
property use history and appropriate characterization, to conclude  that  the 
hazardous substance in question is not present above  applicable  residential 
cleanup criteria.
  (11) A BEA which was completed before March 11, 1999,  and    which    does 
not comply with the requirements of  these  rules  is  considered  inadequate
 to establish an exemption from liability if it fails   to    conform    with 
written instructions for BEAs issued by the  department  at  the   time   the 
BEA  was completed. Disclosure of such a  BEA  to  the  department  shall  be 
governed by  R 299.5919(10).

  History:  1999 MR 2, Eff. Mar. 11, 1999; 2002 MR 24, Eff. Dec. 21, 2002. 


R 299.5905    Eligibility to conduct BEA; "date provided by law" defined.
  Rule 905. (1) Except as  provided  in  section  20126(2)  of  the  act  and 
subrules (2) and (4) of this rule, a person who becomes the owner or operator 
of a facility on or after the date provided by law is eligible to  conduct  a 
BEA to establish an exemption from liability for existing contamination at  a 
facility.
  (2) A person who was the operator of a facility before the date provided by 
law and who becomes the owner of the facility on or after the  date  provided 
by law without interruption in his or her status as either owner or  operator 
is not eligible or required to  complete  a  BEA  to  establish  his  or  her 
liability with respect to contamination at the facility. The liability  of  a 
person who was the operator of a facility before the date provided by law and 
who becomes the owner of the facility on or after the date  provided  by  law 
without interruption in his or her status  as  owner  or  operator  shall  be 
determined under section 20126(1)(a), (b), (d), (e), and  (f), (3),  and  (4) 
of the act, and not under section 20126(1)(c) of the act.
  (3) A person who was a lessee at a  facility  or  held  another  possessory 
interest in the facility, but was not the operator of the facility,  and  who 
becomes the owner or operator of the facility on or after the  date  provided 
by law is eligible to conduct a BEA under section 20126(1)(c) of the  act.  A 
BEA conducted by the person does not provide an exemption from liability  for 
contamination if he or she is otherwise liable under section 20126 of the act.
  (4) Except as provided in subrule (5) of this rule, an owner or an operator 
of a facility who changes status from operator to owner or owner to  operator 
on or after the date provided by law is not eligible to conduct a BEA when  a 
change in status occurs.
  (5) A person who has been the owner or operator of a facility, who then  is 
neither the owner or operator of the facility  for  a  time,  and  who  again 
becomes the owner or operator of the facility shall, if he or she  wishes  to 
establish liability protection for contamination attributable to  intervening 
owners or operators, conduct a BEA under section 20126(1)(c) of  the  act.  A 
BEA conducted by the person does not provide an exemption from liability  for 
contamination if he or she is otherwise liable under section 20126 of the act.
  (6) A land contract vendor who, on or  after  the  date  provided  by  law, 
regains possession of a facility as a result of default by  a  land  contract 
vendee and who wishes to establish an exemption from liability under  section 
20126(1)(c) of the act for contamination that exists at  the  time  the  land 
contract vendor regains possession shall conduct a BEA within 45  days  after 
the land contract vendor possession of the facility.
The BEA shall be prepared in accordance with the requirements of part 201  of 
the act and these rules. A BEA conducted  by  a  land  contract  vendor  that 
regains possession of a facility as a result of default by the land  contract 
vendee does not provide an exemption from liability for contamination if  the 
land contract vendor is otherwise liable under section 20126 of the  act  for 
that  contamination.   If  the  land  contract  vendor   institutes   summary 
proceedings to regain possession of the facility following a default  in  the 
land contract and a writ of restitution is issued and executed, the date  the 
writ of restitution is executed shall constitute the date the  land  contract 
vendor regained possession of the facility.
  (7) For the purpose of this rule, "date provided by  law"  means  March  6, 
1996, with regard to underground storage tank systems  regulated  under  part 
213 of the act, and June 5, 1995, with respect to  all  other  facilities  or 
portions of facilities.

  History:  1999 MR 2, Eff. Mar. 11, 1999.


R 299.5907    Minimum technical standards for categories of BEAs.
  Rule 907. (1) This rule sets forth the minimum technical standards for each 
category of a BEA. All elements from the minimum technical standards for  the 
appropriate category of a BEA shall be included in a BEA, except as  provided 
in R 299.5909. In  addition  to  the  specific  elements  required  for  each 
category of a BEA, as set forth in subrules (2), (3), (4), and  (5)  of  this 
rule, a submitter shall conduct all appropriate  inquiry  into  the  previous 
uses of the property, including a search  of  pertinent  government  records, 
consistent with good  commercial  or  customary  practice  and  describe  the 
results of the inquiry in the BEA.
  (2) A category N BEA shall include all of the following:
  (a) A legal description and scaled map or survey depicting the property.
  (b) The property tax identification numbers or ward and  item  numbers  for 
parcels that are included, in whole or in part, as property  covered  by  the 
BEA.
  (c) The names and  chemical  abstract  service  numbers,  when  a  chemical 
abstract service number is available, of all hazardous  substances  known  to 
have been released at the property.
  (d) The basis for the conclusion that the property is a facility.
  (e) Identification, by general or specific location, of known contamination 
on the property, including the environmental media affected.
  (f) Identification of all of the following that are known to be present  at 
the property after a reasonable inspection of  the  property  and  review  of 
pertinent government records:
  (i)  Abandoned  or  discarded  aboveground   storage   tanks   or   surface 
impoundments that contain hazardous substances.
  (ii) Underground storage tanks that contain hazardous substances.
  (iii) Abandoned or discarded barrels,  containers,  and  other  receptacles 
that contain hazardous substances.
  (iv)  A  general  description  of  the  contents  of  any  aboveground   or 
underground storage tank, surface impoundments, barrel, container,  or  other 
receptacle  identified  under  paragraphs  (i),  (ii),  and  (iii)  of   this 
subdivision, and any specific information known to the  submitter  about  the 
contents.
  (v) An estimate of the volume  of  the  contents  of  each  aboveground  or 
underground storage tank, surface impoundments, barrel, container,  or  other 
receptacle  identified  under  paragraphs  (i),  (ii),  and  (iii)  of   this 
subdivision, unless  it  is  impractical  to  make  an  estimate.  If  it  is 
impractical to estimate the volume of the contents of tanks, barrels, surface 
impoundments, containers, or other receptacles at the facility, then the  BEA 
shall include an explanation of why it is impractical.
  (g) Photographs that depict important features of the property and visually 
evident releases, including abandoned and discarded containers, unless it  is 
impractical to provide photographs or photographs would  not  provide  useful 
information about the property. Photographs shall be accompanied  by  all  of 
the following information:
  (i) The actual or approximate date the photograph was taken.
  (ii) A description of what the photograph illustrates.
  (iii) The location where the photograph was taken.
  (iv) The name of the person who took the photographs.
  (h) A specific statement  that  there  will  be  no  significant  hazardous 
substance use at the property and that this stipulated condition is the basis 
for being able to distinguish existing contamination from a new release.
  (3) A category D BEA shall include all of the following:
  (a) A legal description and scaled map or survey depicting the property.
  (b) The property tax identification numbers or ward and  item  numbers  for 
parcels that are included, in whole or in part, as property  covered  by  the 
BEA.
  (c) The names and  chemical  abstract  service  numbers,  when  a  chemical 
abstract service number is available, of all hazardous substances that   will 
be used or otherwise be present as a result of operations at the property  in 
a quantity   that   constitutes   significant   hazardous   substance    use. 
Identification solely by trade name, reliance on material safety data  sheets 
that list unidentified or  unspecified  substances  as  an  ingredient  in  a 
product,  or  other  imprecise  identification  of  hazardous  substances  is 
acceptable only if the information is adequate to allow a new release  to  be 
distinguished from existing contamination.
  (d) The names and chemical abstract service numbers, if  chemical  abstract 
service numbers are available, of all hazardous substances known to have been 
released at the property or to be present as a result of the decomposition of 
hazardous substances that were released.
  (e) The basis for the conclusion that the property is a facility.
  (f) Identification of all of the following that are known to be present  at 
the property after a reasonable inspection of  the  property  and  review  of 
pertinent government records:
  (i)  Abandoned  or  discarded  aboveground   storage   tanks   or   surface 
impoundments that contain  hazardous substances.
  (ii) Underground storage tanks that contain hazardous substances.
  (iii) Abandoned or discarded barrels, surface impoundments, containers, and 
other receptacles that contain hazardous substances.
  (iv)  A  general  description  of  the  contents  of  any  aboveground   or 
underground storage tank, surface impoundments, barrel, container,  or  other 
receptacle  identified  under  paragraphs  (i),  (ii),  and  (iii)  of   this 
subdivision, and any specific information known to the  submitter  about  the 
contents.
  (v) An estimate of the volume  of  the  contents  of  each  aboveground  or 
underground storage tank, surface impoundment, barrel,  container,  or  other 
receptacle that is identified under paragraphs (i), (ii), and (iii)  of  this 
subdivision, unless  it  is  impractical  to  make  an  estimate.  If  it  is 
impractical to estimate  the  volume  of  the  contents  of  tanks,  barrels, 
containers, or other receptacles at the facility, then the BEA shall  include 
an explanation of why it is  impractical.
  (g) Photographs that depict important features of the property and visually 
evident releases, including abandoned and discarded containers, unless it  is 
impractical to provide photographs or photographs would  not  provide  useful 
information about the property.
Photographs shall be accompanied by all of the following information:
  (i) The actual or approximate date the photograph was taken.
  (ii) A description of what the photograph illustrates.
  (iii) The location where the photograph was taken.
  (iv) The name of the person who took the photographs.
  (h) Identification, by general or specific location, of known contamination 
on the property, and the environmental media affected.
  (i) Environmental  data  or  other  information  to  demonstrate  that  the 
hazardous substances identified in subdivision (c) of this subrule  have  not 
been released at the facility or documentation showing why the submitter does 
not reasonably believe that 1 or  more  hazardous  substances  identified  in 
subdivision (c) of this subrule have ever been present at  the  property,  or 
both. Those hazardous substances need not be characterized in detail.
  (j)  For  BEAs  being  submitted  under  section  20129a  of  the  act,  an 
explanation of how the body of information in the BEA can be used, and why it 
is sufficient, to distinguish a new release from existing contamination.
  (4) A category S BEA shall include all of the following:
  (a) A legal description and scaled map or survey depicting the property.
  (b) The property tax identification numbers or ward and  item  numbers  for 
parcels that are included, in whole or in part, as property  covered  by  the 
BEA.
  (c) The names and  chemical  abstract  service  numbers,  when  a  chemical 
abstract service number is available, of all hazardous substances  that  will 
be used or otherwise be present as a result of operations at the property  in 
a quantity that constitutes significant hazardous substance use.
Identification solely by trade name, reliance on material safety data  sheets 
that list unidentified or  unspecified  substances  as  an  ingredient  in  a 
product,  or  other  imprecise  identification  of  hazardous  substances  is 
acceptable only if the information is adequate to allow a new release  to  be 
distinguished from existing contamination.
  (d) The names and chemical abstract service numbers, if  chemical  abstract 
service numbers are available, of all hazardous substances known to have been 
released at the property or that are present as the result  of  decomposition 
of hazardous substances that were released.
  (e) Photographs that depict important features of the property and visually 
evident releases, including abandoned and discarded containers, unless it  is 
impractical to provide photographs or photographs would  not  provide  useful 
information about the property.
Photographs shall be accompanied by all of the following information:
  (i) The actual or approximate date when the photograph was taken.
  (ii) A description of what the photograph illustrates.
  (iii) A description of the location where the photograph was taken.
  (iv) The name of the person who took the photographs.
  (f) The basis for the conclusion that the property is a facility.
  (g) Identification of all of the following that are known to be present  at 
the property after a reasonable inspection of  the  property  and  review  of 
pertinent government records:
  (i)  Abandoned  or  discarded  aboveground   storage   tanks   or   surface 
impoundments that contain  hazardous substances.
  (ii) Underground storage tanks that contain hazardous substances.
  (iii) Abandoned or discarded barrels,  containers,  and  other  receptacles 
that contain hazardous substances.
  (iv)  A  general  description  of  the  contents  of  any  aboveground   or 
underground storage tank, surface impoundments, barrel, container,  or  other 
receptacle  identified  under  paragraphs  (i),  (ii),  and  (iii)  of   this 
subdivision, and any specific information known to the  submitter  about  the 
contents.
  (v) An estimate of the volume  of  the  contents  of  each  aboveground  or 
underground storage tank, surface impoundment, barrel,  container,  or  other 
receptacle that is identified under paragraphs (i), (ii), and  (iii),  unless 
it is impractical to make an estimate. If it is impractical to  estimate  the 
volume of the contents of tanks, surface impoundments,  barrels,  containers, 
or other  receptacles  at  the  facility,  then  the  BEA  shall  include  an 
explanation of why it is impractical.
  (h) Identification and quantification of each hazardous substance  that  is 
part of the known existing contamination at the  property  if  the  hazardous 
substance will be used at the facility. Statistical analyses may be presented 
to characterize the mass of hazardous substances that are  part  of  existing 
contamination, if mass calculations are pertinent  in  distinguishing  a  new 
release from existing contamination.
  (i) For all hazardous  substances  that  will  be  used  at  the  facility, 
documentation  of  the  extent  of  existing  contamination   for   hazardous 
substances known to have been released, and  general  projections  about  the 
fate of contamination, including all of the following:
  (i)  Information  about  significant  property  features   that   influence 
contaminant migration.
  (ii) Identification of known sources of hazardous substance releases on the 
property.
  (iii) Documentation of the vertical  and  horizontal  extent  of  hazardous 
substance concentrations at the property above residential cleanup criteria.
  (j) Information to confirm the presence of,  quantify,  and  delineate  the 
horizontal  and  vertical  extent  of,  contamination  with  respect  to  any 
hazardous substance that has  potentially  been  released  on  the  property. 
Statistical analyses may be presented to characterize the mass  of  hazardous 
substances that are part of existing contamination, if mass calculations  are 
pertinent in  distinguishing  a  new  release  from  existing  contamination. 
Identification of hazardous substances subject to this subdivision  shall  be 
based on a thorough review of the property use to assess the likelihood  that 
hazardous substances not addressed  by  subdivisions  (h)  and  (i)  of  this 
subrule have been present on the  property.  Documentation  showing  why  the 
submitter reasonably believes that 1 or more hazardous substances  identified 
in subdivision (c) of this subrule have not ever been present at the property 
and the basis for the conclusion shall be  included  in  the  BEA  and  those 
hazardous substances need not be characterized in detail.  Investigation  for 
substances covered by this subdivision shall include areas of likely  release 
based  on  historical  information.  Areas  that  should  be  considered  for 
investigation include the following:
  (i) Spills.
  (ii) Seepage lagoons.
  (iii) Floor drains.
  (iv) Dry wells.
  (v) Septic tank and tile field systems.
  (vi) Buried wastes.
  (vii) Underground storage tanks.
  (k)  For  BEAs  being  submitted  under  section  20129a  of  the  act,  an 
explanation of how the body of information in the BEA can be used, and why it 
is sufficient, to distinguish a new release from existing contamination.
  (5) If an underground storage tank is known to be  present  at  a  property 
where a BEA is conducted, then the BEA shall specifically state  whether  the 
underground storage tank will be used to contain a hazardous substance  after 
the earliest of the date of purchase, occupancy, or foreclosure. The category 
of BEA required shall be determined in the following manner:
  (a) If the underground storage tank will be used  to  contain  a  hazardous 
substance, then a category  S  or  category  D  BEA  shall  be  conducted  as 
appropriate to the circumstances.
  (b) If the underground storage tank will not be used to contain a hazardous 
substance, then a category N BEA may be conducted if  a  category  N  BEA  is 
otherwise appropriate to  the  circumstances  at  the  facility  and  if  the 
underground storage tank is emptied within 45 days of  the  earliest  of  the 
date of purchase, occupancy, or foreclosure, or within the time frame allowed 
for completion of the BEA under R 299.5903(8), or, if the property  has  been 
condemned by the state or a local unit of government, within  45  days  after 
the state or a local unit of government has possession of the  portion of the 
property where the underground storage tank is located. The  department  may, 
at its discretion, extend the  45-day  period  for  emptying  an  underground 
storage tank under extenuating circumstances. Extenuating circumstances  that 
may be considered by the department in granting an extension include, but are 
not limited to, the presence of deteriorated structures that make removal  of 
the underground storage  tank  unsafe  and  severe  weather  conditions  that 
interfere with removal  of  the  underground  storage  tank.  A  request  for 
extension of the 45-day period to empty an  underground  storage  tank  under 
this subdivision shall be made in  writing  by  the  owner  or  operator  and 
received by the department before the expiration of the 45-day period.
  (c) For the purpose of this subrule, use of  an  underground  storage  tank 
does not include the storage of hazardous substances  for  45  days  or  less 
after the earliest of the date of purchase, occupancy, or foreclosure or  for 
another  period  allowed  under  subdivision  (b)  of  this  subrule  if  the 
underground storage tank is emptied within the period.
  (d) The  requirements  of  this  subrule  are  in  addition  to  any  other 
requirements  of  state  or  federal  laws  and  regulations  applicable   to 
underground storage tanks and do not limit the  obligation  of  an  owner  or 
operator under any other state or federal law or regulation with  respect  to 
an underground storage tank.
  (6) For the purpose of this rule, the term "known"  refers  to  information 
known, at the time the BEA is conducted, to the submitter of the BEA and  his 
or her agents, including the environmental professional who prepares the BEA.
  (7) A BEA report shall follow a format specified by the department.
The department may specify different formats for BEAs that are submitted with 
petitions and BEAs that are disclosed under section  20126(1)(c)(ii)  of  the 
act.

  History:  1999 MR 2, Eff. Mar. 11, 1999.


R 299.5909    Engineering controls and stipulated conditions.
  Rule 909. (1)  Alternative  approaches  may  be  used  to  satisfy  certain 
provisions of the minimum technical standards  in  conjunction  with,  or  in 
place of, some  of  the  information  required  by  R  299.5907.  Alternative 
approaches are acceptable only if they provide or contribute  to  a  reliable 
means of distinguishing between existing contamination and a new release. The 
purpose and function  of  all  engineering  controls,  isolation  zones,  and 
stipulated conditions shall be clearly defined in the BEA.
  (2) Subject to the limitations set forth in subdivision (b) of this subrule 
and in subrules (3), (4), and (5) of this rule, either
 of the following can be included  in  a  BEA,  if  the  BEA,  taken  in  its 
entirety, satisfies the requirements of section 20101(1)(d) of the act:
  (a) Engineering controls, isolation zones, or other features that provide a 
verifiable means of assuring that any release  that  occurs  after  purchase, 
occupancy,  or  foreclosure  will  be  spatially  separated   from   existing 
contaminated media, will be detected, and can be responded  to  in  a  timely 
manner so as to prevent commingling with existing contamination. A  BEA  that 
includes engineering controls, isolation zones,  or  other  similar  features 
shall include, at a minimum, the information required by R 299.5907(2).
  (b) For BEAs that are submitted with a petition, the BEA may include  1  or 
more of the following stipulated conditions specified in the  affidavit  from 
the petitioner:
  (i) The petitioner acknowledges that the BEA does  not  provide  sufficient 
environmental data with respect to a specific hazardous substance,  and  that 
the petitioner acknowledges that the BEA does not  provide  an  exemption  to 
strict liability with respect to response  activity  required  to  address  a 
release of the hazardous substance at the property.
  (ii) The petitioner acknowledges that the BEA does not  provide  sufficient 
environmental data with respect to certain areas of the  property,  and  that 
the petitioner acknowledges that the BEA does not  provide  an  exemption  to 
strict liability with  respect  to  response  activity  required  to  address 
contamination in those areas of the property.
  (3) If a BEA relies on engineering controls or other  similar  features  to 
prevent commingling of a new release with existing  contamination,  then  the 
BEA shall include stipulated conditions in an affidavit from  the  petitioner 
or submitter acknowledging that if there  is  a  failure  of  an  engineering 
control or similar feature identified in the BEA and if a release occurs as a 
result of the failure,  then  the  BEA  does  not  provide  an  exemption  to 
liability for response activity necessary to address contamination  resulting 
from the failure. The stipulated conditions in the affidavit shall also state 
that the burden of distinguishing the release attributable to the failure  of 
the engineering control from existing contamination shall  be  borne  by  the 
petitioner or submitter according to section 20129 of the act. The content of 
stipulated conditions used in conjunction  with  an  engineering  control  or 
other similar feature may be modified  from  the  affidavit  statement  on  a 
case-by-case basis, with the approval of the department, to fit the facts and 
circumstances of a particular case.
  (4) If a BEA relies on an isolation zone as a  means  of  detecting  a  new 
release, then the BEA shall include a stipulated condition  in  an  affidavit 
from the petitioner or submitter acknowledging that if  hazardous  substances 
are detected in the  isolation  zone,  then  the  BEA  does  not  provide  an 
exemption to liability for  response  activity  necessary  to  address  the   
contamination. The stipulated condition in the  affidavit  shall  also  state 
that the burden of distinguishing a new release that has migrated beyond  the 
isolation zone from existing contamination shall be borne by  the  petitioner 
or submitter according to section 20129 of the act. The content of stipulated 
conditions used in conjunction  with  an  isolation  zone  or  other  similar 
feature may be modified from the affidavit statement on a case-by-case basis, 
with the approval of the department, to fit the facts and circumstances of  a 
particular case.
  (5)  The  department  may,  on  a  case-by-case  basis,  approve  of  other 
stipulated conditions as part of a BEA petition. Stipulated conditions  other 
than those provided for in subrules (2), (3), and (4)  of  this  rule  and  R 
299.5907(2)(h) shall not be acceptable as part of a  BEA  if  the  department 
determines that the stipulated condition is to be used wholly,  or  in  large 
measure, in place of a technical requirement that can be complied with  in  a 
manner that is cost effective and practical. Stipulated conditions  that  are 
predicated on no hazardous substance release occurring are  unacceptable  for 
category S and category D BEAs.
  (6) The form of all affidavits required under this rule shall be  specified 
by the department.

  History:  1999 MR 2, Eff. Mar. 11, 1999.


R 299.5911   Seeking department determination for exemption from
   liability; required forms and affidavits; department processing
   of petitions.
  Rule 911. (1) If a person wishes to petition the department  under  section 
20129a of the act for a determination that the person meets the  requirements 
for an exemption from liability under section 20126(1)(c) of the act then the 
person shall use a form specified by the department.
  (2) Each person who seeks a determination under section 20129a of  the  act 
shall submit a separate petition, unless the petitioners are joint owners  of 
the property as tenants in common, tenants in entirety, or joint tenants. The 
exception for tenants in common,  tenants  in  entirety,  and  joint  tenants 
applies only when each person will be conducting the same activities  at  the 
property and have identical relationships to the property.
  (3) A petition submitted under section 20129a of the act  and  these  rules 
shall also be accompanied by the following affidavits:
  (a) An affidavit in support of a  petition  for  a  BEA  determination  and 
optional determination of compliance with section 20107a of the act. The form 
of the affidavit shall be specified by the department. The affidavit shall be 
signed by  the  petitioner  or  a  person  legally  authorized  to  bind  the 
petitioner.
  (b) An affidavit  from  an  environmental  professional  in  support  of  a 
petition for a BEA. The form of the  affidavit  shall  be  specified  by  the 
department.  The  affidavit  shall  be   completed   by   the   environmental 
professional who was the author of, or who supervised the preparation of, the 
BEA.
  (4) If a petitioner seeks  a  determination  by  the  department  that  the 
proposed use of the facility will  satisfy  the  person’s  obligations  under 
section 20107a of the act, then the petitioner shall  provide  a  section  7a 
compliance analysis that complies with the requirements of  R  299.5915.  The 
petitioner shall also provide an affidavit of an  environmental  professional 
in support of a petition for  a  determination  of  compliance  with  section 
20107a of the act. The form of  the  affidavit  shall  be  specified  by  the 
department.  The  affidavit  shall  be   completed   by   the   environmental 
professional who was the author of, or who supervised the preparation of, the 
section 7a compliance analysis.
  (5) The  department  may  return  to  the  petitioner  as  administratively 
incomplete, and without making a determination, a BEA that does  not  include 
all elements required by these rules. If the department intends to  return  a 
BEA  without  review  or  determination  because   it   is   administratively 
incomplete, then the department shall do so within  15  business  days  after 
receipt of the petition. Return of an administratively incomplete BEA by  the 
department does not alter the deadlines for completion and disclosure of  the 
BEA that are set forth under part 201 of the act and these rules.
  (6) The department may provide comments on a BEA, form, affidavit, or other 
material associated with the BEA in a verbal and brief written  communication 
before issuing a determination.  This communication shall be directed to  the 
contact person identified by the petitioner on the petition form  or  to  the 
petitioner.
  (7) If a petitioner submits information to respond  to  the  comments  made 
through the process provided for in subrule (6)  of  this  rule,  then  the   
department shall make a determination within 15 business days of receipt of   
the additional materials. If materials that respond to the comments  are  not 
received by the department within 15 business days of the contact made  under 
subrule (6) of this rule, or within  a  time  that  the  department  and  the 
petitioner  mutually  agree  upon,  then  the  department   shall   issue   a 
determination that the person does not meet the requirements for an exemption 
under section 20126(1)(c) of the act. If, after being informed of  department 
comments under subrule (6) of this rule, the petitioner wishes to  receive  a 
determination without submitting materials to respond to the  comments,  then 
the department shall issue the determination as required by section 20129a of 
the act, within 15 days of being informed of that decision by the  petitioner 
or the petitioner's contact person identified on the petition form.
  (8) If the department does not respond to a  petition  within  15  business 
days after the petition is received by the department, either  by  issuing  a 
determination or providing comments according to  the  process  described  in 
subrule (6) of this rule, and if  the  delay  in  the  department’s  response 
prevents the petitioner from curing deficiencies in the BEA within  the  time 
frames allowed by these rules, then the time allowed for  the  petitioner  to 
cure any deficiencies shall be the time that would have been available to the 
petitioner if the department had responded on the fifteenth business day.
  (9) If any of the following deficiencies are not cured  by  the  petitioner 
within the time allowed under part 201 of the act and these rules,  then  the 
department may either issue a determination that the person does not meet the 
requirements for an exemption from liability under section 20129a of the  act 
or, at  the  option  of  the  department,  inform  the  petitioner  that  the 
deficiency prevents the department from issuing a determination that a person 
meets the requirements for an exemption from liability under  section  20129a 
of the act:
  (a) A required form or affidavit is not submitted with the petition.
  (b) A required form or affidavit lacks a complete response  to  a  required 
element, including proper notarization, signatures, and information about the 
property or the petitioner. The petitioner shall respond to  an  inapplicable 
question on a form or affidavit by stating "not applicable."
  (c) The text of a required form or affidavit is altered from  the  standard 
text, unless the department has  authorized  the  petitioner  or  affiant  to 
modify the standard text.
  (d) The fee required by section 20129a of the act and R 299.5913  of  these 
rules has not been paid.  If the department informs the  petitioner  that  it 
will not issue an affirmative determination because of  the  deficiency,  the 
department shall treat the BEA as a disclosure under section  20126(1)(c)(ii) 
of the act.
  (10) A person who submits a BEA to the department under this rule satisfies 
the requirement under section 20126(1)(c)(ii) of  the  act  that  the  person 
disclose the results of a BEA to the department.
   History:  1999 MR 2, Eff. Mar. 11, 1999.


R 299.5913    Fee for review of BEA and section 7a compliance analysis.
  Rule 913. (1) The fee prescribed by law for  review  of  a  petition  shall 
accompany a petition submitted for department review under section 20129a  of 
the act. The fee shall be paid by a check or money order payable to:   "State 
of Michigan."
  (2) There is no fee for a BEA disclosed under  section  20126(1)(c)(ii)  of 
the act if the disclosure is not accompanied by a petition.
  (3) If a petition and fee are received by the  department  and  either  the 
petition states that the  property  is  not  a  facility  or  the  department 
determines after review of the BEA that the BEA does not  provide  sufficient 
information to  demonstrate  that  the  property  is  a  facility,  then  the 
department will retain the payment.
  (4) Payment of the fee for BEA petition review entitles a petitioner to all 
of the following services:
  (a) Review of, and a determination regarding, the  initial  BEA  and  other 
required materials.
  (b) One review of, and a determination regarding the adequacy of, revisions 
to  the  BEA  or  other  required  materials  if  the  initial  determination 
identifies any deficiencies in the BEA or other petition documents.
  (c) Review of, and  a  determination  regarding,  the  initial  section  7a 
compliance analysis if the petitioner exercises his or her option to  seek  a 
determination of compliance with the requirements of section  20107a  of  the 
act and review of a plan for response activity, if a  plan  is  proposed,  to 
assure compliance with section 20107a of the act.
  (d) One review of, and a determination  regarding,  a  revised  section  7a 
compliance analysis and a plan for  response  activity,  if  relevant,  if  a 
revised analysis is prepared in response to deficiencies  identified  in  the 
initial determination.
  (5) If additional iterations of the BEA or section 7a  compliance  analysis 
or a plan for response activity are submitted for  department  determination, 
then the petitioner shall pay an additional statutory fee in the same  amount 
as the initial fee, unless the  department  determines  that  payment  of  an 
additional fee is not required because of the minor nature of  any  remaining 
deficiency. Payment of the additional fee shall be made  in  accordance  with 
the requirements of this rule for the initial fee.
  (6) The department shall not issue determinations in response to submittals 
beyond the first revisions, as described in subrule (4) of  this  rule,  that 
are not accompanied by the fee. The submittals may be retained in  department 
files.
  (7) If a check is returned for  insufficient  funds,  then  the  petitioner 
shall be given 21 days in which to make the proper payment.
The 21-day period shall commence on the date the department sends notice,  by 
certified mail, return receipt requested,  of  the  demand  for  payment.  If 
proper payment is not made within 21 days, then the department may do any  of 
the following:
  (a) If the BEA review and determination was not complete, retain the BEA as 
a disclosure under section 20126(1)(c)(ii) of the act.
  (b) If the BEA review was complete and the BEA is inadequate to satisfy the 
requirements of part 201 of the act and these rules,  issue  a  determination 
that the criteria for obtaining an exemption from liability have not been met.
  (c) If an affirmative BEA  determination  has  been  issued,  rescind  that 
determination  and  retain  the   BEA   as   a   disclosure   under   section 
20126(1)(c)(ii) of the act.

  History:  1999 MR 2, Eff. Mar. 11, 1999. 


R 299.5915    Section 7a compliance analysis; submittal; content; format;
  explanation of omitted information required.
  Rule 915. (1) A person who is seeking a determination from  the  department 
that his or her proposed use  of  the  facility  will  satisfy  the  person’s 
obligations under section 20107a of  the  act  shall  prepare  and  submit  a 
section 7a compliance analysis to the department.
  (2) A section 7a compliance analysis may be submitted for  a  determination 
under section 20129a of the act only in conjunction with a petition regarding 
a BEA. The section 7a compliance analysis may be submitted with the BEA or as 
a subsequent submittal if it is submitted within 6 months from the time  that 
the BEA is complete.
  (3) If a person submits a section 7a compliance analysis separately from  a 
petition, then the section 7a compliance analysis shall be accompanied  by  a 
copy of the relevant petition form for the facility.
  (4) A section 7a compliance analysis shall include the following  elements, 
as appropriate to the facility:
  (a) Hazardous substance information, including  all  information  regarding 
previous and proposed  hazardous  substance  use  at  the  property  that  is 
relevant for the section 7a compliance analysis.
  (b) Detailed characteristics of property use, including  a  description  of 
current and proposed property use.
  (c) Plan for response activities, if response activities are necessary  for 
a person to satisfy his or her obligations under section 20107a of the act.
  (d) Evaluation and demonstration of compliance with section 7a obligations, 
including an evaluation of  the  information  provided  in  response  to  the 
requirements of the other subdivisions of this  subrule  that  discusses  and 
demonstrates how the proposed use  satisfies  a  person’s  obligations  under 
section 20107a(1)(a), (b), and (c) of the act.
  (5) A section 7a compliance analysis shall be assembled and presented in  a 
format specified by the department.
  (6) If information is omitted because it is not relevant for the  facility, 
then the section 7a compliance  analysis  shall  include  a  discussion  that 
explains which elements were omitted and why they are  not  relevant  to  the 
facility.

  History:  1999 MR 2, Eff. Mar. 11, 1999. 


R 299.5917   Submittal of information to cure deficiencies in BEA or  section 
7a compliance analysis; required forms and affidavits; timing.
  Rule 917. (1) Data or information collected after the  end  of  the  45-day 
period in section 20126(1)(c) of the  act  or  after  the  expiration  of  an 
extension of the 45-day period as  provided  for  in  R  299.5903(8)  may  be 
submitted to cure a deficiency in a  BEA  identified  by  the  department  in 
response to a petition submitted under section 20129a of the  act  under  the 
following circumstances:
  (a) If it is necessary to collect additional samples to cure the identified 
deficiency, data from the samples will be  accepted  only  if  the  owner  or 
operator  has  not  conducted  business  activities   involving   significant 
hazardous substance use at the property.  If  additional  samples  are  taken 
after the 45-day period in section  20126(1)(c)  of  the  act  or   after  an 
extension of the 45-day period as provided for in R 299.5903(8) has  expired, 
then an affidavit shall be included with the data stating that the  owner  or 
operator had not conducted  business  activities  that  involved  significant 
hazardous substance use at the property. The  department  shall  specify  the 
form of the affidavit that is to be used.
  (b) If additional samples are not required to cure the deficiency, then the 
use of hazardous substances does not  impair  the  opportunity  to  cure  the 
deficiency and an affidavit regarding this issue is not required.
  (2) Sample data and information gathered within the 45-day  period  may  be 
submitted any time within the 6-month period provided for in  section  20129a 
of the act to initiate the BEA petition review.
  (3) All resubmittals prepared to cure deficiencies in the initial BEA shall 
also be submitted to the department within the 6-month period provided for in 
section 20129a of the act if a department review is requested. If the  sample 
data are collected  within  the  time  frames  allowed  by  these  rules  and 
submitted within 6  months  of  completion  of  the  initial  BEA,  then  the 
department shall review the revised BEA  and  other  petition  documents  and 
issue a determination regarding the revised BEA petition if requested by  the 
petitioner.
  (4) The 6-month period allowed for submittal of  any  BEA  and  section  7a 
compliance analysis shall  be  counted  from  the  time  an  initial  BEA  is 
complete, not from the time additional data or information is prepared.
  (5) The following procedure shall be followed when submitting materials  to 
cure a deficiency in a BEA or other petition documents:
  (a) Information shall be submitted to the department’s district office that 
serves the property.
  (b) Information shall be  accompanied  by  a  letter  which  describes  the 
purpose of the submittal and which summarizes how the BEA or  other  petition 
documents, or both, have been revised. This letter shall include the petition 
number assigned by the department to the original petition.
  (6) The department will not prepare an acknowledgment  of  receipt  of  the 
materials specified in subrule (5) of this rule,  but  shall,  upon  request, 
provide a receipt for the materials that are hand-delivered.
  (7) A person who submits a request for a determination of  compliance  with 
section 20107a of the act in  conjunction  with  a  BEA  determination  shall 
submit his or her completed section 7a compliance analysis and, if  required, 
plan for response activity that will result in compliance with section 20107a 
of the act within 6 months from the date of completion of the initial BEA.
  (8) Materials submitted under subrule (7) of this rule shall be accompanied 
by a copy of the original petition that was submitted  with  the  BEA  and  a 
cover letter stating which one of the following conditions applies:
  (a) The submittal provides information to cure deficiencies in the  section 
7a compliance analysis.
  (b) The section 7a compliance analysis request is  in  conjunction  with  a 
prior request for determination under section 20129a of the act.

  History:  1999 MR 2, Eff. Mar. 11, 1999. 


R 299.5919    Disclosure of BEA  under  section  20126(1)(c)(ii)   of    act; 
forms; timing.
  Rule 919. (1)  A  person  who   wishes   to   effectuate    and    maintain 
liability protection afforded by section 20126(1)(c) of the act  is  required 
by  section 20126(1)(c)(ii) of the act to disclose the results of  a  BEA  to 
the department and subsequent purchasers or transferees. The  requirement  to
 disclose  the results of the BEA to  the  department  is  satisfied  if  the 
person  follows  the relevant procedures in this rule.
  (2) Disclosure shall be made to all persons who will  become   the    owner 
or operator of the property that was the subject of the  BEA,  unless   there 
is information which demonstrates that the property in which   interest    is 
being transferred is not a facility at the time of the transfer of interest.
  (3)  A  person  who  wishes  to   effectuate   and    maintain    liability 
protection afforded by section 20126(1)(c) of  the  act  shall  disclose  the 
contents of the BEA to the department not  later  than  8  months  after  the 
earliest of the  date of purchase, occupancy, or foreclosure.
  (4) The BEA shall be submitted to the department with a   form    specified 
by the department for this purpose.
  (5) A person who  wishes  to  maintain  liability  protection  afforded  by 
section 20126(1)(c) of the act shall disclose the contents of the  BEA  to  a 
subsequent purchaser before consummating the sale of the property, consistent
 with  the requirements of subrule (2) of this rule.
  (6) A person who  wishes  to  maintain  liability  protection  afforded  by 
section 20126(1)(c) of the act shall disclose the contents of the  BEA  to  a 
subsequent transferee before conveying interest in the  property,  consistent 
with subrule (2) of this rule.
  (7) For the  purposes  of  subrules  (5)  and  (6)  of  this   rule,    the 
requirement to disclose the results of the BEA to a subsequent  purchaser  or
 transferee may be satisfied by providing  a  summary  of  the  BEA  and,  if 
requested  by  the person to whom an interest is  being   transferred,    the 
full  BEA  report  and related materials submitted to  the  department  under 
subrules (3) and  (4)  of this rule. If a summary of a  BEA  is  provided  to 
satisfy the  requirements  of this rule, then the summary shall include,  but 
is not limited to, all of  the following information:
  (a) The reason that the property is a facility.
  (b) The category of BEA that was conducted  for  the  property,   and   the 
reason that that category of BEA was conducted.
  (c) The general nature  and  extent  of  contamination  at   the   property 
revealed by the BEA.
  (8) If the BEA is disclosed to the department not  later  than   8   months 
after the latest of the date of  purchase,   occupancy,    or    foreclosure, 
then  the owner's or operator's liability exemption shall be effective on the
 date  of purchase, occupancy, or foreclosure and shall remain in  effect  if 
the  owner or operator complies  with subrules (5) and (6) of this rule.
  (9) A person who obtained liability protection under  section   20126(1)(c) 
of the act by complying with subrules (3), (4), (5), and (6) of  this   rule, 
but who subsequently fails to comply with subrule (5) or (6) of this rule, is 
not exempt from liability as of the date of noncompliance with subrule (5) or 
(6) of this rule.
  (10)  A  person  who  wishes  to  effectuate   and    maintain    liability 
protection afforded by section  20126(1)(c)  of  the  act  and  who  has  not 
disclosed  to  the department the contents of a BEA that was complete  before
 March  11,  1999, shall complete  his  or  her  disclosure  not  later  than 
September 11, 1999.
  (11) If a person  has  conducted  a  BEA  within  45  days   of   purchase, 
occupancy, or  foreclosure,  but  has  not  yet  disclosed  the  BEA  to  the 
department and  less than 6 months has elapsed since the date  of  completion
 of  the  BEA,  then liability under section 20126(1)(c) of the   act   shall 
be  established  only after a determination has been made as to whether   the 
requirements  for  an exemption from liability under section  20126(1)(c)  of 
the act would be met if the BEA had been disclosed.

  History:  1999 MR 2, Eff. Mar. 11, 1999; 2002 MR 24, Eff. Dec. 21, 2002.