Section 324.20120b - Remedial action plan.
NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION ACT (EXCERPT)
Act 451 of 1994
324.20120b Remedial action plan.
Sec. 20120b.
(1) If a remedial action plan is selected or approved by the department based on criteria for the residential category provided for in section 20120a(1)(a), land use restrictions or monitoring are not required once those standards have been achieved by the remedial action.
(2) If a remedial action plan is selected or approved by the department based on criteria in categories provided for in section 20120a(1)(b) to (e), a notice of approved environmental remediation shall be recorded with the register of deeds for the county in which the facility is located within 21 days after selection or approval by the department of the remedial action, or within 21 days after completion of construction of the remedial action as appropriate to the circumstances. A notice shall be filed pursuant to this section only by the property owner or by another person who has the express written permission of the property owner. The form and content of the notice are subject to approval by the state. Any restrictions contained in the notice shall be binding on the owner's successors, assigns, and lessees, and shall run with the land. A notice of environmental remediation recorded pursuant to this subsection shall state which of the categories of land use specified in section 20120a(1)(b) to (d) are consistent with the environmental conditions at the property to which the notice applies, and that a change from that land use or uses may necessitate further evaluation of potential risks to the public health, safety, or welfare, or the environment. The notice of approved environmental remediation shall include a survey and property description that define the areas addressed by the remedial action plan if land use or resource use restrictions apply to less than the entire parcel or if different restrictions apply to different areas of a parcel, and the scope of any land use or resource use limitations. Additional requirements for financial assurance, monitoring, or operation, and maintenance do not apply if a remedial action complies with criteria provided for in section 20120a(1)(b) to (e), unless monitoring or operation and maintenance are required to assure the compliance with criteria that apply outside the boundary of the property that is the source of the release.
(3) If a remedial action plan is selected or approved by the department based on criteria provided for in section 20120a(1)(f) to (j) or (2), provisions concerning subdivisions (a) through (e) shall be stipulated in a legally enforceable agreement with the department. If the department concurs with an analysis provided in a remedial action plan that 1 or more of the requirements specified in subdivisions (b) to (e) is not necessary to protect the public health, safety, or welfare, or the environment and to assure the effectiveness and integrity of the remedial action, that element may be omitted from the agreement. If provisions for any of the following, determined by the department to be applicable for a facility, lapse or are not complied with as provided in the agreement or remedial action plan, the department's approval of the remedial action plan is void from the time of the lapse or violation, unless the lapse or violation is corrected to the satisfaction of the department:
(a) Land use or resource use restrictions.
(b) Monitoring.
(c) Operation and maintenance.
(d) Permanent markers to describe restricted areas of the site and the nature of any restrictions.
(e) Financial assurance, in a mechanism acceptable to the department to pay for monitoring, operation and maintenance, oversight, and other costs determined by the department to be necessary to assure the effectiveness and integrity of the remedial action.
(4) If a remedial action plan relies in whole or in part on cleanup criteria approved pursuant to section 20120a(1)(f) to (j) or (2), land use or resource use restrictions to 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. The restrictive covenant shall be recorded with the register of deeds for the county in which the property is located within 21 days of the department's selection or approval of the remedial action plan, or within 21 days of the completion of construction of the containment or barrier, as appropriate to the circumstances. The restrictive covenant shall be filed 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. Such restrictions shall apply until the department determines that hazardous substances that are controlled by the barrier or contained no longer present an unacceptable risk to the public health, safety, or welfare, or the environment as defined by the cleanup criteria and exposure control requirements set forth in the remedial action plan. The restrictive covenant shall include a survey and property description that define the areas addressed by the remedial action plan and the scope of any land use or resource use limitations. The form and content of the restrictive covenant are subject to approval by the department and shall include provisions to accomplish all of the following:
(a) Restrict activities at the facility that may interfere with a remedial action, operation and maintenance, monitoring, or other measures necessary to assure the effectiveness and integrity of the remedial action.
(b) Restrict activities that may result in exposures above levels established in the remedial action plan.
(c) Require notice to the department of the owner's intent to convey any interest in the facility 14 days prior to consummating the conveyance. A conveyance of title, an easement, or other interest in the property shall not be consummated by the property owner without adequate and complete provision for compliance with the terms and conditions of the agreement described in subsection (3) and the prevention of releases and exposures described in subdivision (b).
(d) Grant to the department the right to enter the property at reasonable times for the purpose of determining and monitoring compliance with the remedial action plan, including the right to take samples, inspect the operation of the remedial action measures, and inspect records.
(e) Allow the state to enforce the restriction set forth in the covenant by legal action in a court of appropriate jurisdiction.
(f) Describe generally the uses of the property that are consistent with the categorical criteria and limitations approved as part of a remedial action plan.
(5) If the department determines that exposure to hazardous substances may be reliably restricted by an institutional control in lieu of a restrictive covenant, and that imposition of land use or resource use restrictions through restrictive covenants is impractical, the department may approve of a remedial action plan under section 20120a(1)(f) to (j) or (2) that relies on such institutional control. Mechanisms that may be considered under this subsection include, but are not limited to, an ordinance that prohibits the use of groundwater or an aquifer in a manner and to a degree that protects against unacceptable exposures as defined by the cleanup criteria approved as part of the remedial action plan. An ordinance that serves as an exposure control pursuant to this subsection shall be published and maintained in the same manner as zoning ordinances and shall include a requirement that the local unit of government notify the department at least 30 days prior to adopting a modification to the ordinance, or to the lapsing or revocation of the ordinance.
(6) Selection or approval by the department of a remedial action 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 at the facility.
(7) A remedial action shall not be considered approved by the department unless a remedial action plan is submitted to the department and the department approves the plan. Implementation by any person of response activity without department approval does not relieve that person of an obligation to undertake response activity or limit the ability of the department to take action to require response activity necessary to comply with this act by a person who is liable under section 20126.
(8) A person shall not file a notice of approved environmental remediation indicating approval or a determination of the department unless the department has approved of the filing of the notice.
(9) A person who implements a remedial action plan approved by the department pursuant to subsections (2) to (5) shall provide notice of the land use restrictions that are part of the remedial action plan to the zoning authority for the local unit of government in which the facility is located within 30 days of approval of the plan.
(10) The state, with the approval of the state administrative board, may place restrictive covenants related to land or resource use on deeds of state owned property.
History: Add. 1995, Act 71, Imd. Eff. June 5, 1995
Popular Name: Act 451
Popular Name: Environmental Remediation
Popular Name: Environmental Response Act
Popular Name: NREPA