Section 299.51007. Compliance with section 20107a(1)(a) of act.

(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.