R 299.5534 Unremediated Release Defined; Affidavit; Additional Response Activity Required; Penalties.

Rule 534. 

          (1)  A remedial action plan (RAP)  shall address all environmental contamination at a facility unless the RAP precisely describes the contamination to be excluded and is accompanied by an affidavit from the person submitting the RAP stating that he or she is not liable for 1 or more unremediated releases at the facility identified in the RAP and that he or she can demonstrate divisibility of harm and apportionment of liability as required by section 20129 of the act for the unremediated releases.  For purposes of this rule, "unremediated release" means a release for which response activity has not been implemented that satisfies the remedial action requirements of part 201 of the act and these rules.

          (2)  The affidavit described in subrule (1)  of this rule shall contain, or provide as an attachment, information that explains and supports the basis for the conclusion that the person submitting the RAP is not liable for the contamination proposed to be omitted from the RAP.  The affidavit or attachment shall also fully document the demonstration of divisibility of harm and apportionment of liability under section 20129 of the act.  If the affidavit described in this subrule is provided, then the RAP may omit actions to address the unremediated releases.

          (3)  If the department approves a RAP that excludes unremediated releases, relying on representations about liability that are set forth in the affidavit of the person seeking approval, the ability of the department to subsequently review the liability of the person seeking approval of the RAP is not limited or affected by reliance on the affidavit or approval of the RAP.  Upon review of the affidavit, supporting materials, and other information available to the department at any time, the department may determine that there is reason to believe that the person submitting a RAP is liable for the contamination proposed to be omitted from the RAP or that he or she has not met the burden of demonstrating divisibility of harm and apportionment of liability under section 20129 of the act.

          (4)  A person who implements a RAP that does not address the entire facility after following the procedure set forth in this rule, but who is later found to be liable, or to have failed to establish divisibility of harm or apportionment of liability shall promptly undertake remedial action to address that portion of the facility not covered by the RAP.

          (5)  If a person who is liable undertakes a remedial action that he or she knows will not, when complete, comprehensively address all contamination at a facility at the time the remedial action is undertaken, except as provided in this rule for unremediated releases, then the person is subject to fines and penalties as provided for under the act for failure to diligently pursue response activity under section 20114(1)(g)  of the act. 

          (6)  Response activity undertaken by a person who is liable that does not comprehensively address all contamination at a facility, except unremediated releases addressed through the procedure set forth in this rule, is considered an interim response and not a remedial action.