NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION ACT (EXCERPT)
Act 451 of 1994
324.20114c Remedial actions satisfying or not satisfying cleanup criteria for unrestricted residential use; preparation and implementation of postclosure plan; contents; development of restrictive covenant; recording; notice of land use or resource use restrictions to department and zoning authority; placement of restrictive covenants on deeds of state-owned property; liability; obligation to undertake response activities.
(1) If remedial actions at a facility satisfy cleanup criteria for unrestricted residential use, land use or resource use restrictions or monitoring is not required.
(2) Upon completion of remedial actions at a facility for a category of cleanup that does not satisfy cleanup criteria for unrestricted residential use, the person conducting the remedial actions shall prepare and implement a postclosure plan for that facility. A postclosure plan shall include both of the following:
(a) Land use or resource use restrictions as provided in subsection (3).
(b) Permanent markers to describe restricted areas of the facility and the nature of any restrictions. A permanent marker is not required under this subdivision if the only applicable land use or resource use restrictions relate to 1 or more of the following:
(i) A facility at which remedial action satisfies the cleanup criteria for the nonresidential category under section 20120a(1)(b).
(ii) Use of groundwater.
(iii) Protection of the integrity of exposure controls that prevent contact with soil, and those controls are composed solely of asphalt, concrete, or landscaping materials. This subparagraph does not apply if the hazardous substances that are addressed by the barrier exceed a cleanup criterion based on acute toxic effects, reactivity, corrosivity, ignitability, explosivity, or flammability.
(iv) Construction requirements or limitations for structures that may be built in the future.
(3) Land use or resource use restrictions that assure the effectiveness and integrity of any containment, exposure barrier, or other land use or resource use restrictions necessary to assure the effectiveness and integrity of the remedy shall be described in a restrictive covenant. A restrictive covenant developed to comply with this part shall be in a format made available on the department's website, with modifications to reflect the facts applicable to the facility. The restrictive covenant shall be recorded with the register of deeds for the county in which the property is located within 21 days after the completion of the remedial actions or within 21 days after the completion of construction of the containment or barrier, as appropriate. The restrictive covenant shall only be recorded by the property owner or with the express written permission of the property owner. The restrictions shall run with the land and be binding on the owner's successors, assigns, and lessees. The restrictive covenant shall include a survey and property description that define the areas addressed by the remedial actions and the scope of any land use or resource use restrictions. At a minimum, the restrictive covenant shall do all of the following:
(a) Describe the general uses of the property that are consistent with the cleanup criteria.
(b) Restrict activities at the facility that may interfere with remedial actions, operation and maintenance, monitoring, or other measures necessary to assure the effectiveness and integrity of the remedial actions.
(c) Restrict activities that may result in exposures above levels attained in the remedial actions.
(d) Grant to the department the ability to enforce the restrictive covenant by legal action in a court of appropriate jurisdiction.
(4) A person shall not record a restrictive covenant indicating approval by the department unless the department has approved the recording of the restrictive covenant.
(5) A person who implements a postclosure plan shall provide notice of the land use or resource use restrictions to the department and to the zoning authority for the local unit of government in which the facility is located within 30 days after recording the land use or resource use restrictions with the register of deeds.
(6) The department, with the approval of the state administrative board, may place restrictive covenants related to land use or resource use restrictions on deeds of state-owned property.
(7) Implementation of remedial actions does not relieve a person who is liable under section 20126 of that person's responsibility to report and provide for response activity to address a subsequent release or threat of release.
(8) Implementation by any person of remedial actions without department approval does not relieve that person of an obligation to undertake response activities or limit the ability of the department to take action to require response activities necessary to comply with this part by a person who is liable under section 20126.
History: Add. 2010, Act 228, Imd. Eff. Dec. 14, 2010
Am. 2012, Act 446, Imd. Eff. Dec. 27, 2012
Popular Name: Act 451
Popular Name: Environmental Remediation
Popular Name: Environmental Response Act
Popular Name: NREPA
© 2009 Legislative Council, State of Michigan