September 19, 2007, Introduced by Rep. Lemmons and referred to the Committee on Great Lakes and Environment.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 20105a and 20120b (MCL 324.20105a and
324.20120b), as added by 1995 PA 71.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 20105a. (1) The department shall annually compile a list
of sites that are receiving state funds to conduct response
activities. This list shall be arranged in alphabetical order. The
department shall annually submit this list to the legislature.
(2) If the department expends more than $500,000.00 in state
funds for response activities at a facility and the facility has
not attained compliance with the cleanup criteria for the
residential category provided for in section 20120a(1)(a), the
department shall provide public notice of the status of the
response activities at the facility. The department's public notice
under this subsection shall include 1 or more advertisements in
ethnic-minority-owned media.
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) (e)
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 ensure the
effectiveness and integrity of any containment, exposure barrier,
or
other land use or resource use restrictions necessary to assure
ensure 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 before
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
before
adopting a modification to the
ordinance , or to
the lapsing
or revocation of the ordinance.
(6) A remedial action plan that relies in whole or in part on
cleanup criteria approved pursuant to section 20120a(1)(f) to (j)
or (2) is not valid or approvable unless the department determines
that the remedial action plan is in compliance with this part and
is protective of public health and the environment, and the
department holds a public hearing to articulate its determination
and take public testimony. The department's public notice of the
public hearing required under this subsection shall include 1 or
more advertisements in ethnic-minority-owned media.
(7) (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.
(8) (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.
(9) (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.
(10) (9)
A person who implements a remedial
action plan
approved
by the department pursuant to subsections (2) to (5) (6)
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.
(11) (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.