250 R.I. Code R. 250-RICR-150-05-2.18
This Declaration of Environmental Land Usage Restriction ("Restriction") is made on this day of__________, [20__] by [Property Owner], a corporation qualified in Rhode Island, and its successors and/or assigns (the "Grantor").
WITNESSETH:
WHEREAS, the Grantor is the owner in fee simple of certain real property [Plat, Lot(s), address and City or Town] Rhode Island (the "Property"), more particularly described in Exhibit A [Legal Description] attached hereto and made a part hereof;
WHEREAS, the Property has accepted contaminated dredge sediments in excess of the Residential Direct Exposure Criteria pursuant to the Rules and Regulations for the Investigation and Remediation of Hazardous Material Releases ("Remediation Regulations");
WHEREAS, the Grantor has determined that the environmental land use restrictions set forth below are consistent with the regulations adopted by the Rhode Island Department of Environmental Management ("Department") pursuant to R.I. Gen. Laws § 23-19.1-14;
WHEREAS, the Department's written approval of this Restriction is contained in the document entitled: []; and,
WHEREAS, the [Property/Contaminated Site] (or portion thereof identified in the Class I survey which is attached hereto as Exhibit B and is made a part hereof) has been determined to contain contaminated dredge sediments; and,
WHEREAS, to prevent exposure to or migration of hazardous substances and to abate hazards to human health and/or the environment, and in accordance with the Remediation Regulations, the Grantor desires to impose certain restrictions upon the use, occupancy, and activities of and at the [Dredged material disposal site];
WHEREAS, the Grantor believes that this Restriction will effectively protect public health and the environment from such contamination; and,
WHEREAS, the Grantor intends that such restrictions shall run with the land and be binding upon and enforceable against the Grantor.
NOW, THEREFORE, Grantor agrees as follows:
Restrictions Applicable to the [Dredged material disposal site]: In accordance with the [permit], the Grantor shall assure that the use, occupancy and activity of and at the [Dredged material disposal site] are restricted as follows:
No residential use of the [Property] is permitted;
No groundwater at the [Property] is used as potable water;
No soil at the [Property] is disturbed in any manner without written permission of the Department;
Water does not infiltrate soils at the [Property] containing hazardous substances in concentrations exceeding the applicable Department approved leachability criteria pursuant to the Remediation Regulations;]
No action shall be taken, allowed suffered, or omitted if such action or omission is reasonably likely to:
Create a risk of migration of hazardous substances or potential hazard to human health or the environment; or,
Result in a disturbance of the structural integrity of any engineering controls designed or utilized at the [Property] to contain hazardous substances or limit human exposure to hazardous substances.
Emergencies: In the event of any emergency which presents a significant risk to human health or to the environment, including but not limited to maintenance and repair of utility lines or a response to emergencies such as fire or flood, the application of Paragraphs A (iii.-vii.) and B above may be suspended, provided such risk cannot be abated without suspending such Paragraphs and the Grantor complies with the following:
Notifies in writing the Department of the emergency as soon as possible but no more than three (3) business days after having learned of the emergency. (This does not remove Grantor's obligation to notify any other necessary state, local or federal agencies.);
Limits both the extent and duration of the suspension to the minimum period reasonable and necessary to adequately respond to the emergency;
Implements reasonable measures necessary, at that time, to prevent actual, potential, present and future risk to human health and the environment resulting from such suspension;
Communicates at the time of written notification to the Department his or her intentions to conduct the emergency response actions and provides a schedule to complete the emergency response actions;
Continues to implement the emergency response actions, on the schedule submitted to the Department, to ensure that the [Property] is restored to its condition prior to such emergency. Based upon information available to the Department at the time of execution pertaining to environmental conditions at the [Property], maintenance and repair of utility lines shall only require restoration of the [Property] to its condition prior to the maintenance and repair of the utility lines.
Submits to the Department, at the completion of the emergency response action, a status report describing the emergency activities that have been completed.
Release of Restriction; Alterations of Subject Area: The Grantor shall not make, or allow or suffer to be made, any alteration of any kind in, to, or about any portion of the [Property] inconsistent with this Restriction unless the Grantor has first received the Department's written approval of such alteration. If the Department determines that the proposed alteration is significant, it may require the amendment of this Restriction. Insignificant alterations will be approved by the Department via a letter from the Department. The Department shall not approve any such alteration and shall not release the [Property] from the provisions of this Restriction unless the Grantor demonstrates to the Department's satisfaction that Grantor has managed the [Property] in accordance with applicable regulations.
Notice of Lessees and Other Holders of Interests in the [Property]: The Grantor, or any future holder of any interest in the [Property], shall cause any lease, grant, or other transfer of any interest in the [Property] to include a provision expressly requiring the lessee, grantee, or transferee to comply with this Restriction. The failure to include such provision shall not affect the validity or applicability to the [Property] of this Restriction.
Severability and Termination: If any court of competent jurisdiction determines that any provision of this Restriction is invalid or unenforceable, the Grantor shall notify the Department in writing within fourteen (14) days of such determination.
Binding Effect: All of the terms, covenants, and conditions of this Restriction shall run with the land and shall be binding on the Grantor and each owner and any other party entitled to possession or use of the [Property] during such period of ownership or possession.
Inspection & Non-Compliance: It is the obligation of the Grantor, or any future holder of any interest in the [Property/Contaminated Site], to provide for independent inspections of the [Property] for compliance with the ELUR every five (5) years.
[An officer or director of the company with direct knowledge of past and present conditions of the [Property] (the "Company Representative"), or] A qualified environmental professional will, on behalf of the Grantor or future holder of any interest in the [Property], evaluate the compliance status of the [Property] every five (5) years. Upon completion of the evaluation, the [Company Representative or] environmental professional will prepare and simultaneously submit to the Department and to the Grantor or future holder of any interest in the [Property] an evaluation report detailing the findings of the inspection and noting any compliance violations at the [Property]. If the [Property] is determined to be out of compliance with the terms of the ELUR, the Grantor or future holder of any interest in the [Property/Contaminated Site] will submit a corrective action plan in writing to the Department within ten (10) days of receipt of the evaluation report, indicating the plans to bring the [Property/Contaminated Site] into compliance with the ELUR, including, at a minimum, a schedule for implementation of the plan.
In the event of any violation of the terms of this Restriction which remains uncured more than ninety (90) days after written notice of violation, all approvals and agreements relating to the [Property] shall be null and void at the option of the Department.
Terms Used Herein: The definitions of terms used herein shall be the same as the definitions contained in Section 3(DEFINITIONS) of the Remediation Regulations.
It is so agreed:
[Name of person(s), company, LLC or LLP] By:
Date:
Grantor
So Sworn Before Me:
Date:.
Notary Public
My Commission Expires:
Date:
250 R.I. Code R. 250-RICR-150-05-2.18