49-771. Restrictive covenants for solid waste landfills

A. The director may grant plan approval for operation of a solid waste landfill only if a restrictive covenant has been placed on the disposal area of the facility. An existing solid waste landfill for which a restrictive covenant is executed before July 1, 1998 is deemed to have satisfied this requirement. The director and all of the owners of the tract of land on which the solid waste landfill is located shall execute the restrictive covenant. A certified copy of the recorded covenant shall be submitted to the director within sixty days after execution. If the director does not receive the copy within sixty days, the director shall send written notice indicating the deficiency to the owners of the real property. If a certified copy of the recorded covenant is not received within thirty days of that written notice, the plan is deemed void.

B. The owner of the tract of land on which the solid waste landfill is or will be located shall record the instrument imposing the restrictive covenant in the county recorder's office in the county in which the solid waste landfill is located. If the director does not grant plan approval for operation of a solid waste landfill or the application for plan approval is withdrawn, and the tract of land was not used as a solid waste landfill, the owner and the director shall revoke the restrictive covenant.

C. The restrictive covenant shall state that the land described in the covenant has been or will be used as a solid waste landfill and that the property owners, their agents or employees or any of their heirs, successors, lessees or assignees shall not engage in development on or in filling, grading, excavating, drilling or mining of the solid waste landfill after closure without the approval of the director unless provided for in the approved facility closure or postclosure plan. In making this determination the director shall consider factors such as the original design, type of operation, material deposited, energy recovery from methane gas and stage of decomposition of the disposal area. The director shall not make any such determination if it will increase the potential for threat to public health and the environment.

D. The director may waive the restrictive covenant prescribed by this section if the land is federal land or if a contract that exists between the landowner and the lessee on October 9, 1993 does not allow the lessee to place an encumbrance on the disposal area.