Notice of Migration Guidance (April 2016)Contact: Jeanne Schlaufman 586-753-3823Agency: Environment, Great Lakes, and Energy
Rule 1017 and Section 20114(1)(b)(ii) and (iii) of Part 201
Note: This Guidance replaces the Questions and Answers about Reporting Migrating Contamination Under Rule 1017
Owners and operators of contaminated property are required to notify the Department of Environment, Great Lakes, and Energy (EGLE) when they have reason to believe that one or more hazardous substances is emanating from, or has emanated from, and is present beyond their property boundary at a concentration in excess of the generic residential criteria developed under Section 20120a(1)(a) and (17) and Rules 44 and 46 of Part 201, Environmental Remediation, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended, and the Part 201 Administrative Rules passed on December 30, 2013.
Who has to notify whom? Liable owners and operators pursuant to Section 20114(1)(b)(ii) and (iii):
- All parties subject to Section 20114 of Part 201 for the existing contamination must provide notification to EGLE and to all impacted property owners. Persons who did not conduct a Baseline Environmental Assessment (BEA) within the required timeframes are subject to Section 20114.
- Easement holders must notify EGLE and the grantor of easement or the grantor's successor if a release from their activities results in contamination above the generic residential criteria on the property. Such notice is in addition to the notice required by Rule 1017(1) to owner(s) of adjacent impacted property.
- Oil and gas well permit holders under Part 615 must notify EGLE and the owner of the surface rights of the property if a release from their activities results in contamination above the generic residential criteria on the property. Such notice is in addition to the notice required by Rule 1017(1) to owner(s) of adjacent impacted property.
Liable and Non-liable Owners and Operators subject to Section 20107a and Rule 1017:
- Those parties subject to due care under Section 20107a because they currently own or operate a facility(property contaminated above the residential criteria), regardless of their liability, must notify EGLE and adjacent impacted property owners, unless they have an exemption listed in Section 20107a(5) or (6).
Some parties will have both Rule 1017 and Section 20114(1) obligations. A person that is required to notify under both Rule 1017 and Section 20114(1) may do so using one form. There may be multiple notifications on each property because the liable party, the owner, and the operator(s) each have their own obligation to notify. Each party must notify EGLE individually. Notification to impacted property owners can be made jointly by the owner, operator, and/or liable party.
When do I notify?
Rule 1017 requires notification within 45 days after first having reason to believe contamination is migrating, or has migrated across a property boundary above residential criteria. The notices required by Rule 1017 shall also be made if hazardous substances enter surface waters of the state on or adjacent to the property in concentrations that exceed generic Groundwater Surface Water Interface criteria.
Section 20114(1)(b)(ii) and (iii) require an owner or operator to notify the department and owners of property where the hazardous substances are present within 30 days after obtaining knowledge that the release has migrated.
How do I notify?
The EGLE form EQP4482, Notice of Migration, must be used by all parties when notifying EGLE under Rule 1017. This form may also be used for notification to EGLE pursuant to Section 20114(1) and to notify impacted property owners, although it is acceptable to use an alternative method of notification that includes the information required by Rule 1017(5).
What information must I include in the notification?
The information requested in the EGLE form EQP4482 includes all the pertinent information that must be submitted. Please note that EQP4482 requires maps, a summary, the environmental media affected, the specific hazardous substances and their concentrations, the basis for the conclusion that contamination is migrating or has migrated beyond the boundary of the source property, etc. If the form EQP4482 is not used to notify impacted property owners, the information required in Rule 1017(5) must be provided.
Where do I send the notification?
Notification to EGLE must be sent to the district office for the county in which the property is located. A map depicting which counties are covered by the district and field offices is available at michigan.gov/duecare or by calling EGLE at 517-284-5087.
Notice to impacted property owners should be sent to the property owner of record.
- If the impacted property is owned by the State of Michigan, notice should be sent to the department managing the property (i.e. a prison, state park, etc.).
- Notices to the Michigan Department of Transportation (MDOT) for state owned roadways should be sent to: Contamination Specialist, Environmental Services Section, MDOT Bureau of Development, 425 W. Ottawa Street, P.O. Box 30050, Lansing, MI 48909.
Documentation or proof of delivery should be maintained for all notices.
After I've notified - then what?
Both Rule 1017 and the obligation under Section 20114(1) are on-going requirements. If circumstances change, new information is obtained, additional properties are impacted, etc., then EGLE and impacted property owners must be re-notified.
A person also needs to evaluate other obligations under Part 201. An owner or operator subject to Section 20114 must diligently pursue response actions to address the contamination. An owner or operator subject to due care under Section 20107a must prevent exacerbation of the existing contamination, prevent unacceptable exposures to the contamination, take reasonable precautions, and provide other notices as required. In addition to these specific items, there may be obligations under Part 201 or other state and/or federal laws that must be evaluated.
Specific Questions and Answers:
1. Question: Is a former owner or operator of a facility required to file notices with EGLE about migrating contamination or discarded and abandoned containers?
Answer: Notification under Rule 1017 applies only to current owners and/or operators, therefore a person who is no longer the owner and/or operator is not required to provide notice under Rule 1017. Additionally, a person who is associated with a facility as a "generator" (i.e., person who arranged for disposal of hazardous substances there) also does not have Section 7a or Rule 1017 obligations.
Notification under Section 20114(1)(b)(ii) and (iii) may apply to a former owner and operator if they are subject to Section 20114.
2. Question: If a person is undertaking response activity at property that he or she does not own, is that person required to file notices about migrating contamination?
Answer: Section 20107a and Rule 1017 apply to the current owner and operator. Under certain circumstances, liable parties (e.g., former owners, generators, potentially responsible party groups) or other persons undertaking response activity may be operators because of the degree of control that they have over the facility. This may depend, in part, on the terms of the arrangements that give them access to the facility. EGLE expects that it will be the exception rather than the rule for persons undertaking response activity at property they do not own to be an operator solely by virtue of that activity. However, a person conducting response activity should evaluate their level of control and, if they determine that they are an operator, take the steps necessary to comply with Section 20107a and Rule 1017.
If the person conducting the response activity is subject to Section 20114, including if the person is liable because they did not conduct a BEA, notifications to EGLE and all impacted property owners are required.
3. Question: If EGLE already knows about a facility, does the owner and/or operator still have to report migrating contamination or abandoned and discarded containers?
Answer: Yes. Rule 1017, and Rule 1015 (abandoned or discarded containers) and Section 20114(1) do not contain any exceptions from the notice requirement.
4. Question: If a facility is primarily regulated by another part of the Natural Resources and Environmental Protection Act (NREPA), such as a treatment storage and disposal (TSD) facility under Part 111.
Answer: Yes, under Rule 1017, the current owner and operator are required to notify unless one of the exceptions in Section 20107a(4) applies. Additionally, if the owner or operator is subject to Section 20114, then they are also required to provide notice. Sites of contamination regulated by other parts of NREPA are not excluded from compliance with Section 20107a and Rule 1017.
5. Question: If there was in the past contamination emanating from a property and migrating beyond the property boundary at levels that exceeded generic residential cleanup criteria, but that contamination has been cleaned up to residential criteria, should a notice of migration of contamination be filed? What about situations where natural attenuation is relied upon to reduce hazardous substance concentrations?
Answer: The purpose of the notice to the EGLE about migrating contamination is to allow EGLE to assess whether conditions exist that require response activity to assure that unacceptable exposure will not occur. If an owner or operator has cleaned up contamination to residential criteria outside his or her property, or if natural attenuation has been demonstrated through testing to have reduced concentrations to below generic residential criteria, there is no need to report to EGLE.
If a person knows that contamination migrated beyond the boundary of property, and (1) at the time the contamination left his or her property it exceeded or was likely to have exceeded residential criteria in effect now, and (2) no response activity was undertaken to address the off-property contamination or natural attenuation has not yet been documented to achieve residential criteria, and (3) no exception applies (i.e., Section 2017a(4) or Rule 1021), then notification to EGLE is required.
6. Question: If groundwater contaminant concentrations exceed groundwater-surface water interface (GSI) criteria at the property boundary, is reporting required under Rule 1017, Section 20114(1) or Section 20120e(13).
Answer: Yes. Rule 1017 and Section 20114(1) require notification when any generic residential criteria is exceeded, which includes the GSI criteria. The evaluation of whether the GSI pathway (or any other pathway) is relevant or whether the GSI is exceeded at the point the groundwater enters the surface water is not considered for notification purposes. If the contamination is or may be venting to surface waters that are on the property or immediately adjacent to the property, notice to EGLE is required. Section 20120e(13) also requires a person with 20114 obligations who is aware of an exceedance of an applicable GSI criterion based on acute toxicity at a compliance monitoring point applicable at a particular facility to notify the department of that condition within 7 days of obtaining knowledge that the exceedance is occurring.
7. Question: If the generic residential cleanup criterion that is exceeded at a property boundary is based on aesthetic impacts, but the concentration does not exceed the health-based value for that hazardous substance, is reporting under Rule 1017 required?
Answer: Yes. Section 20120a(5) requires that generic residential groundwater cleanup criteria applied to aquifers account for aesthetic impacts. Groundwater cleanup criteria that are based on aesthetic impacts are one of the generic criteria; therefore reporting under Rule 1017 is required.
8. Question: Is a person required to report to EGLE about migrating contamination that emanated from his or her property and is present in surface water sediments? What about hazardous substances that are migrating in ambient air?
Answer: Since reporting is triggered when generic residential cleanup criteria are exceeded and there are no generic criteria for surface water sediments, reporting is not required under Rule 1017 or Section 20114(1)(b)(ii) and (iii) for this situation. If the contamination that is migrating in ambient air originates in soil that exceeds the generic residential particulate soil inhalation criteria (PSIC), then that should be reported under Rule 1017 and Section 20114(1).
9. Question: In the case of contaminated groundwater where the only residential cleanup criterion that is exceeded is based on drinking water ingestion and the affected groundwater is not in an aquifer, does the migration of that contamination have to be reported under Rule 1017?
Answer: Yes. The Rules require notification when any generic residential criteria is exceeded. The evaluation of whether the drinking water pathway (or any other pathway) is relevant is not considered for notification purposes.