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 10. COMPLIANCE WITH SECTION 20107a OF ACT


R 299.51001    Definitions.
  Rule 1001. As used in this part:
  (a) "All appropriate inquiry" means the inquiry  necessary   to   determine 
what response activity is needed to comply with section 20107a of the act.
  (b) "Belowground" means buried under soil  or    debris.     "Belowground," 
when used to  describe  containers,  does  not  include    containers    that 
are  in basements or vaults or are otherwise under the ground   surface    in 
structures that allow visual inspection of the container.
  (c)  "Container"  means  a  barrel,  drum,    tank,     vessel,     surface 
impoundment, pipeline, or other receptacle, regardless of size, that contains 
a  hazardous substance.
  (d) "Mitigate" means to reduce exposure to the degree that  the    exposure 
is no longer unacceptable, consistent with R 299.51013.  With   respect    to 
fire and explosion hazards, "mitigate" means to eliminate the threat of  fire
 and explosion.
  (e) "Property" means the real property owned or operated by a  person   who 
is subject to section 20107a of the act.

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


R 299.51003     Applicability;  compliance  with  section   20107a   of   act 
generally; documentation of compliance.
  Rule 1003. (1) The requirements of this  part  apply  to  a   person    who 
is subject to section 20107a of the act and to conditions about which  he  or 
she has knowledge, based upon all appropriate inquiry.
  (2) For purposes of  compliance  with  part  10  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 or portion of the facility has been  transferred 
to the acquiring agency.
  (3) A person who is subject to section 20107a of the act   shall,    except 
as provided in R 299.51019, undertake response activity  as   necessary    to 
comply with section 20107a of the act and these rules on the property that he 
or she owns or operates and provide notices as described in R 299.51017  with 
respect to a hazardous substance that he or she has reason to   believe    is 
emanating from, or has  emanated  from,  and   is   present    beyond,    the 
boundary  of  the property that he or she owns or operates.
  (4) The requirements of section 20107a of  the  act  apply  to    all    of 
the following:
  (a) Discarded  or  abandoned  containers  that  contain  a   quantity    of 
hazardous substance which is or may become injurious to the  public   health, 
safety,  or welfare or to the environment.
  (b) A threat of release of a quantity of hazardous substance that   is   or 
may become injurious  to  the  public  health,  safety,  or  welfare  or   to 
the environment.
  (c) Hazardous substances that have otherwise been released at the property.
The requirements do not apply to hazardous substances being lawfully used  in 
operations at the property or being properly stored at the property.
  (5) A person who is subject  to  section  20107a   of   the    act    shall 
maintain documentation of compliance with section 20107a of the act and shall
 provide the documentation to the department  upon  request.   All   of   the 
following provisions apply to the documentation of compliance:
  (a)  With  regard  to  section  20107a(1)(b)  of   the    act,     required 
documentation shall consist of all of the following:
  (i) Identification of exposure pathways that are complete, or  are   likely 
to become complete, in light of  the  intended  use  of  the   property   and 
the features of the property,  including  potential  exposure  barriers  such
 as structures or pavement.
  (ii) Information about the concentrations  of  hazardous   substances    to 
which persons may be exposed  in  each  pathway  identified    through    the 
analysis described  in  paragraph  (i)  of  this   subdivision,   unless    a 
reasonable evaluation of the conditions  at  the  property    supports    the 
conclusion  that quantification  of  hazardous  substance  exposures  is  not 
necessary to determine  that  there  is  no  unacceptable  exposure  under  R 
299.51013.
  (iii) A description of the response activity or  other  measures,  such  as 
work schedule adjustments or personal protective equipment, if   any,    that 
are  or may be required to mitigate any unacceptable exposures in  compliance 
with  R 299.51013.
  (iv) Records about the implementation of   any   response    activity    or 
other measures not evident through inspection.
  (v) Copies of any notices provided under R 299.51013(6), R 299.51015, and R 
299.51017.
  (b) If compliance with  section  20107a  of  the  act  is  accomplished  by 
measures that are evident as the result of  inspection,  such   as    fences, 
pavement,  or the presence of buildings, then ongoing  documentation,  beyond
 the  initial analysis of the measures, is not required.
  (c) If a department-approved remedial action plan has been implemented at a 
facility,  then    additional    documentation     of     compliance     with 
section 20107a(1)(b) of  the  act  is  not  required  if   conditions    that 
determine exposures to hazardous substances at the property remain unchanged.
  (6) Except as provided in R 299.51017(4)(c), the  documentation    required 
by subrule (5) of this rule shall, for a  person  who  became  the  owner  or 
operator of a facility before  March  11,  1999,  be   available    to    the 
department  upon request not later than March 11, 2000.   For  a  person  who 
became the owner  or operator of a facility on or after March 11,  1999,  the 
required documentation shall be available to the department upon request  not 
later  than  8  months after the earliest of the date of purchase, occupancy, 
or  foreclosure.   The time frames specified in this subrule do not alter the 
continuing  obligation of a person who is subject to section  20107a  of  the 
act to be  in  compliance with the law and these rules.

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


R 299.51005    Compliance with other laws and regulations.
  Rule 1005. (1) The obligation of a property owner  or  operator  to  comply 
with  all  laws  and  regulations  applicable  to  hazardous  substances   is 
unaffected by part 201 of the act and these  rules,  except  as  provided  in 
sections 20129a(5) and 20142 of the act.
  (2) Other laws and regulations that may be relevant to  the  management  of 
hazardous substances include, but are not limited to, the following:
  (a) Part 55 of the act (air pollution control).
  (b) Part 111 of the act (hazardous waste management).
  (c) Part 115 of the act (solid waste management).
  (d) Part 211 of the act (underground storage tank regulation).
  (e) Part 213 of the act (leaking underground storage tanks).
  (f) Part 615 of the act (supervisor of wells).
  (g) Act No. 207 of the Public Acts of 1941, as amended, being S29.1 et seq.
of the Michigan Compiled Laws, and known as the fire protection code.
  (h) The toxic substances control act, 15 U.S.C. S2601 et seq.
  (i) The resource conservation and recovery act, 42 U.S.C. S6901 et seq.
  (j) Rules and regulations promulgated under the laws listed in subdivisions 
(a) to (i) of this subrule.

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


R 299.51007    Compliance with section 20107a(1)(a) of act.
  Rule 1007. (1) The result  of  an  activity  undertaken  by  the  owner  or 
operator of a property is not exacerbation through an  increase  in  response 
activity costs if the activity satisfies both of the following conditions:
  (a) Any resulting increase in response activity cost is small  in  relation 
to the total cost of response activity that would be required to satisfy  the 
relevant land use-based cleanup criteria and other requirements  of  sections 
20120a and 20120b of the act or section 21301a of the act, as appropriate  to 
the facility, at the time the activities are undertaken.
Examples of such response activity include,  but  are  not  limited  to,  the 
placement of pavement or landscaping cover  that  constitutes  a  barrier  to 
direct contact.
  (b)  The  activity  undertaken  provides  environmental  or  public  health 
benefits.
  (2) There may also be other circumstances that an  owner  or  operator  can 
demonstrate are not a change in facility conditions which  increase  response 
activity costs.
  (3) Notwithstanding subrules (1) and (2) of this rule, if  a  determination 
is made under section  20107a(2)  of  the  act  that  an  action  constitutes 
exacerbation, then the determination of the amount owed as increased response 
activity costs shall be reduced based on consideration of the  public  health 
or environmental benefits, or both, provided by the action.
  (4) This rule shall not modify the burden of proof  set  forth  in  section 
20107a(2) of the act.

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


R 299.51009    Compliance with section  20107a(1)(b)  of  act;  discarded  or 
abandoned aboveground containers.
  Rule 1009.  (1) To be in compliance with section 20107a(1)(b)  of  the  act 
with respect to a container at the property that is on or  above  the  ground 
surface, and with respect to the portion of a container that is partially  on 
or above the ground surface, an owner or operator shall manage the  container 
in a manner that can be reasonably expected to prevent  a  release  from  the 
container in a quantity which is  or  may  become  injurious  to  the  public 
health, safety, or welfare or to the environment.  However, if the  container 
is too large to allow it to be moved practically to inspect the integrity  of 
the entire container, then the owner or operator shall prevent a release in a 
quantity that is or may become injurious to the  public  health,  safety,  or 
welfare or to the environment that would be evident from  inspection  of  the 
visible portions of the container and the surrounding surface.
  (2) If containers are located inside  a  structure  that,  upon  reasonable 
inquiry, is determined to be deteriorating, then the owner or operator  shall 
take reasonable and prudent measures to  assure  that  deterioration  of  the 
structure does not lead to damage to the containers which  may  result  in  a 
release.
  (3) If a release occurs from a container as a result of a failure to comply 
with subrule (1) or (2) of this rule, then the owner or operator  shall  stop 
the release and take all other steps necessary to  comply  with  requirements 
applicable to a new release.
  (4) The requirements of this rule shall be in addition to the  requirements 
of other applicable laws and regulations to which the owner  or  operator  is 
subject, except as provided in sections 20129a(5) and 20142 of the act.

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


R 299.51011    Compliance  with  section  20107a(1)(b)  of  act;  belowground 
containers.
  Rule 1011. (1) To be in compliance with section  20107a(1)(b)  of  the  act 
with respect to belowground containers at the property, an owner or  operator 
shall prevent or eliminate any unacceptable exposure to hazardous  substances 
in, or released from, a belowground container and shall  eliminate  any  fire 
and explosion hazard resulting from  hazardous  substances  in,  or  released 
from, a belowground container.
  (2) Compliance with section  20107a  of  the  act  does  not  require  that 
belowground containers be emptied, unless a  container  must  be  emptied  to 
satisfy a performance standard under this rule.  Other requirements to  which 
the owner or operator is subject may require belowground containers, such  as 
underground storage tanks, to be emptied.  R 299.51005 identifies some  other 
potentially applicable laws and rules.

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


R 299.51013    Unacceptable exposure; mitigation.
  Rule 1013. (1)  Except  as  provided  in  subrule  (6)  of    this    rule, 
the requirements of section 20107a(1)(b) of the act  and  these   rules    to 
mitigate unacceptable exposure shall  be  satisfied  if  a  person  does  all
 of  the following:
  (a) Eliminates the exposure or reducing the exposure to the  degree    that 
it is no longer unacceptable as that term is described in subrules (3),  (4), 
and (5) of this rule.
  (b)  Undertakes response  activity  at  the  property  as   necessary    to 
mitigate off-property risks resulting from erosion of surface  soils  at  the 
property or from dispersion of particulate or volatile hazardous   substances 
in  surface soils at the property.
  (c) Complies with R 299.51005, R 299.51009, R 299.51011, and  R   299.51015 
to R 299.51019 with regard to conditions at the property.
  (2) In evaluating  compliance  with  section  20107a(1)(b)  of   the   act, 
exposure pathways shall be considered pertinent only if they are  or  may  be 
complete in light of the intended use of the property and the   features   of 
the  property, including potential exposure barriers such  as  structures  or 
pavement.
  (3) Except as provided in subrules (4) and (5) of  this   rule,    exposure 
to hazardous substances is an unacceptable exposure  for  the   purposes   of 
section 20107a(1)(b) of the act if concentrations of  hazardous    substances 
to  which  persons  may  be  exposed   exceed   an    applicable    criterion 
developed  by  the department under section 20120a(1)(a) to (e) of the act.
  (4)  A  site-specific  evaluation  may  be  conducted  to   document   that 
conditions at a property do not result in an unacceptable    exposure.     In 
these  cases, comparison of exposure concentrations to criteria developed  by 
the department under section 20120a(1)(a)  to  (e)  of  the  act    is    not 
required.   Except  as provided in subrule (5) of this  rule,  an  evaluation 
relied   upon   under   this  subrule  shall  be  consistent  with  the  risk 
management objectives set forth  in section 20120a of  the  act   and    risk 
assessment  methods  acceptable  to  the department.
  (5) As described  in  this  subrule,  a   site-specific    evaluation    to 
document that conditions at the property do not result  in  an   unacceptable 
exposure through inhalation   of   indoor   air   may   be   based    on    a 
demonstration  of compliance with 1974 PA 154, MCL 408.1001 et seq., and  the 
rules  promulgated under 1974 PA 154.  This subrule applies  only  when   all 
of  the  following conditions are satisfied:
  (a) The  risk  being  evaluated  results  from  inhalation  by  workers  of 
hazardous substances in indoor air within an active commercial or  industrial 
workplace that is regulated by 1974 PA  154,  MCL  408.1001  et   seq.,   and 
the  rules promulgated under 1974 PA 154.
  (b) The exposure to hazardous substances from  environmental  contamination 
is a portion of the  exposure  to  which  workers  are   otherwise    subject 
from process-related sources of the same hazardous substance.
  (c) The risk to the non-worker  population,  if  any,  from  inhalation  of 
indoor air  at  the  property  has  been   evaluated   according    to    the 
requirements  of subrule (3) of this rule or a site-specific  evaluation  has 
been conducted for the non-worker population  according  to  risk  assessment 
methods acceptable  to the department, and the risk is  not  unacceptable  on 
the  basis  of  the  risk management objectives set forth in  section  20120a 
of the act.
  (6) If the hazardous substances present  at  the  property   may    present 
an unacceptable   exposure   to   utility   workers    or    other    persons 
conducting activities at the property in an easement,  under  the  terms   of 
a  utility franchise, or pursuant  to  severed  subsurface   mineral   rights 
or  severed subsurface formations, then the owner or operator   may   satisfy 
his  or  her obligation to mitigate unacceptable  exposures  to  the  utility 
workers or other persons by providing written notice, by  a    method    that 
provides  proof   of  delivery,  of  the  general  nature  and   extent    of 
contamination  and  potential unacceptable exposures to all of the following:
  (a) Easement holders of record.
  (b) Utility franchise holders of record.
  (c) The owner or operator of all public utilities that serve the property.
  (d)  Owners  or  lessees  of  severed  subsurface   mineral    rights    or 
subsurface formations.
If the person described in subdivisions (a) to (d) of this subrule is not  an 
individual, then the notice shall be provided to the chief executive  officer 
of the organization.  The notice required under this rule shall  be  provided 
as soon as the exigencies of the situation require,  but  not  later  than  9 
months after the effective date of this amendatory rule or the  deadline  set 
forth in R 299.51003(6), whichever is applicable.
  (7) Upon request of a person  to  whom  information  is   provided    under 
subrule (6) of this rule, the owner or  operator  of  property  who  provided 
notice under subrule (6) of this  subrule  shall  provide    all    available 
information  about conditions at the property that he or she owns or operates 
which are relevant to the activities of the person who received notice  under 
subrule (6) of this rule.  The owner or operator of a property who is subject 
to  section   20107a  of  the  act  shall  also  provide,  to  other  persons 
conducting activities at  the property  with  the  knowledge  or   permission 
of  the  owner  or  operator, information about conditions  at  the  property
 that  are  relevant  to  the person's activities at the property.

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


R 299.51015    Notice to department of discarded or abandoned containers.
  Rule 1015. (1) Except as provided in subrules (2), (3),  and  (4)  of  this 
rule and in R 299.51021, an owner or  operator  who  is  subject  to  section 
20107a  of the act shall notify the department, in writing, of  the  presence 
of discarded or abandoned containers at the property that contain a  quantity 
of  hazardous substance which is  or  may  become  injurious  to  the  public 
health,  safety,  or welfare or to the environment.  The  owner  or  operator
 shall  provide  the required notice by September 11, 1999, within 45 days of 
becoming  the  owner or operator, or within 45 days of  acquiring   knowledge 
of  the  discarded  or abandoned containers, whichever is later.  The  notice 
required by  this  rule shall include all information known  to   the   owner 
or  operator  about  the number, type, size, and contents of the discarded or 
abandoned containers.
  (2) The notification requirement of subrule (1) of  this  rule   does   not 
apply to an  owner  or  operator  who  disposes  of  discarded  or  abandoned 
containers  and  their  contents  according  to  all  applicable   laws   and 
regulations by  September 11, 1999, within 45 days of becoming the  owner  or 
operator, or within 45 days  of  acquiring  knowledge  of  the  discarded  or 
abandoned containers, whichever is later.  If the response  activity  is  not 
complete  within  45  days,  then  an owner or  operator  shall  give  notice 
that would otherwise have  been  required by subrule (1) of this rule to  the 
department within 14 days after the end of the 45-day period provided in this 
subrule to complete the response activity.
  (3) In place of the notice required by subrule  (1)  of  this    rule,    a 
person who owns or operates an underground storage tank that  is  subject  to 
notice or registration requirements, or both, under other  state  or  federal 
requirements shall comply with the notice or registration requirements.
  (4)  If  an  owner  or  operator  discloses  a    baseline    environmental 
assessment under section 20126(1)(c)(ii) of the  act,  and    the    baseline 
environmental assessment includes identification of discarded  or   abandoned 
containers  at the property on a form provided by the  department  for   that 
purpose,  then separate  notice  under  subrule  (1)  of  this  rule  is  not
  required.
Identification of an underground storage tank  in  a  baseline  environmental 
assessment does not eliminate  or  modify  the  obligation  of  an  owner  or 
operator to comply with any notice or registration requirements applicable to 
the underground storage tank under other state or federal requirements.

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


R 299.51017    Notice to department  and  to  affected   adjacent    property 
owners of contamination migrating beyond  boundaries  of  property  owned  or 
operated by person subject to section 20107a of act; special  provisions  for
 notice  by permittees under part 615 of act and by easement holders.
  Rule 1017.  (1)  A person who is subject to section 20107a of    the    act 
and who has reason to believe that a hazardous substance is  emanating  from,
 or has emanated from, and is present beyond his or her  property  boundaries 
at  a concentration in excess of criteria developed by the  department  under 
section 20120a(1)(a) of the act shall provide notice to the  department   and 
to  the owner of the affected adjacent property as required in  subrules  (4) 
and  (5) of this rule, except that subrules (4) and (5) shall not  apply  for 
permitted releases.  The notices required  by  this  subrule  shall  also  be
 made  if hazardous substances emanating  from  his  or  her  property  enter 
surface   waters  of  the  state  on  or  adjacent  to   the   property    in 
concentrations   that   exceed  generic  GSI  criteria  established  under  R 
299.5716.  The requirement to notify the department and the affected adjacent 
property owner  shall  be  based  on reasonable inferences  that    can    be 
made  from  available  data  about  the facility, including, but not  limited 
to, data gathered through  investigation undertaken to  comply  with  section 
20114(1)(a) of the act.
  (2) A person who holds a permit for an oil and gas well under   part    615 
of the act and is subject to section 20107a  of  the  act,    shall   provide 
the notice required by this rule to the department and to  owner    of    the 
surface rights of the property if  a  release  from   the   oil    and    gas 
exploration   or  production  activities  results  in   hazardous   substance 
concentrations in excess  of  criteria  developed  by  the  department  under 
section 20120a(1)(a) or (17) of the act on property where the well or related 
surface activity exists.    This  notice  is  required  in  addition  to  the 
migration notice  required  by  subrule (1) of this rule, if applicable.
  (3)  A person who holds an easement and is subject to section   20107a   of 
the act, shall provide notice, as called for in subrule (1) of this rule,  to 
the department and to the grantor of the easement, or the grantor's successor
 in interest, if any, if there  is  a  release  from  the  easement  holder's 
activities that results in hazardous substance  concentrations   in    excess 
of  criteria developed by the department under section 20120a(1)(a)  or  (17) 
of the act  on property where the easement exists.  Such notice shall  be  in 
addition to  the notice required by subrule (1) of this rule,  if  applicable 
to the release  in question.
  (4) A person shall provide the notice required by subrule  (1)   of    this 
rule to the department and to the affected adjacent  property    owner,    in 
writing, within the following time frames:
  (a) Except as provided in subdivision (c) of this subrule,   with    regard 
to conditions that were not known to the owner  or  operator   before   March 
11, 1999, notice shall be provided within 45 days after the owner or operator 
has reason to believe that hazardous substances have migrated, or are  likely
 to have migrated, beyond the property boundary.
  (b) Except as provided in  R  299.51021  and  subdivision  (c)   of    this 
subrule, with regard to conditions  that  were  known  to  the    owner    or 
operator  before March 11, 1999, notice shall have been provided by  June  9, 
1999.
  (c) If a person is required to provide additional  notice  as   a    result 
of these amendatory rules, then the  additional  notice  shall  be  made  and 
included in the documentation of compliance required by  R  299.51003(5)  not 
later  than 9 months after the effective date of these amendatory rules.
  (5) The department may prescribe a form to be  used  for    reports    made 
under this rule.  All of the following information shall be included   in   a 
report provided under this rule:
  (a) The location of the property.
  (b) The name, address,  and  telephone  number  of  the   property    owner 
or operator who is submitting the notice.
  (c) The name, address,  and  telephone  number  of   a    contact    person 
familiar with the content of the notice.
  (d) The   name,   chemical   abstract   service   number,    and    maximum 
measured concentration of the hazardous substance  or  substances  that  have 
migrated, or are likely to have  migrated,  up  to  or  beyond  the  property 
boundary.
  (6)  A person who has provided the notice required by section   21309a   of 
the act is not required to make the notice to affected   adjacent    property 
owners called for in subrule (1) of this rule.

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


R 299.51019    Mitigating fire  and  explosion  hazards;  action  and  notice 
required.
  Rule 1019. (1) An owner or operator who is obligated to mitigate a fire  or 
explosion  hazard  under  section  20107a(1)(b)  of  the  act  shall  provide 
immediately notify the local fire department of the  hazard  and  shall  take 
such other steps as are reasonable and prudent  under  the  circumstances  to 
mitigate or eliminate the hazard.
  (2) If initial action does not permanently abate  the  fire  and  explosion 
hazard, then, within 7 days after notice is provided  under  subrule  (1)  of 
this rule, the  owner  or  operator  shall  provide  written  notice  to  the 
department.  The notice shall include all of the following information:
  (a) A description of the conditions that resulted in a  fire  or  explosion 
hazard.
  (b) The date and time that notice was provided to the local fire department.
  (c) A description of the response provided by the local fire department.
  (d) A description of conditions which remain that  may  require  additional 
action to mitigate fire or explosion hazards due to hazardous  substances  at 
the property.

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


R 299.51021     Applicability  of  rules  to  persons   who   have   received 
affirmative determinations of compliance with section  20107a  of  act  under 
section  20129a of act.
  Rule 1021. If, before March 11, 1999, a  person  received  a  determination 
from the department under  section  20129a  of  the  act  that  the  person's 
proposed use of a facility satisfies the person's obligations  under  section 
20107a of  the act, then these rules shall not be  applied  retroactively  to 
impose additional obligations upon the person or  alter   the    department's 
determination  with regard to the compliance analysis that was  submitted.
If  the   department's  affirmative  determination  was  conditioned  on  the 
implementation  of  response activity, then this  rule  shall  apply  to  the 
owner or  operator  only  if  the response  activity  was  implemented  in  a 
timely manner.

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