KRS 224.80-190: Amendment or termination of environmental covenant -- Assignment of

holder's rights.

(1) (a) Except as provided in paragraph (b) of this subsection, an environmental

covenant may be amended or terminated by consent only if the amendment or

termination is requested as a modification to the corrective action plan

approved by the cabinet, and only if the amendment or termination is signed

by:

1. The cabinet;

2. The current owner of the fee simple of the real property subject to the

covenant;

3. Each person that originally signed the environmental covenant or that

person's heirs, assigns, or transferees unless:

a. The person or the person's heirs, assigns, or transferees waived in a

signed document the right to consent; or

b. A court finds that the person no longer exists or cannot be located

or identified with the exercise of reasonable diligence; and

4. The holder, except as otherwise provided in subsection (4)(b) of this

section.

(b) The consent of a holder or of persons identified in paragraph (a )3. of this

subsection shall not be required for an amendment that has the sole effect of

removing or reducing a land use restriction in an environmental covenant, if

the cabinet determines that the restriction is no longer necessary to protect

human healt h or the environment as a result of corrective action performed

under a plan approved by the cabinet, and the requirements of subsection (6)

of this section have been satisfied.

(2) If an interest in real property is subject to an environmental covenant, the interest

shall not be affected by an amendment of the environmental covenant unless:

(a) The current owner of the interest consents to the amendment; or

(b) The current owner of t he interest has waived in a signed record the right to

consent to the amendments.

(3) Except for an assignment undertaken pursuant to a governmental reorganization,

assignment of an environmental covenant to a new holder shall be deemed an

amendment of the environmental covenant.

(4) Except as otherwise provided in an environmental covenant:

(a) A holder may not assign its interest without consent of the other parties to the

environmental covenant specified in subsection (1) of this section; and

(b) A holde r may be removed and replaced by agreement of the other parties

specified in subsection (1) of this section.

(5) A court of competent jurisdiction may fill a vacancy in the position of the holder.

(6) (a) When the cabinet determines that corrective action performed under a cabinet-

approved plan has eliminated the environmental conditions necessitating a

land use restriction in an environmental covenant, the cabinet shall issue a

proposed determination authorizing the amendment of the covenant to remove

or reduce the restriction.

(b) The cabinet shall provide written notice of the proposed determination and the

proposed amended covenant to the holder and to all persons identified in

subsection (1)(a)2. and 3. of this section. The notice shall advise recipient s

that any objection to the proposed amended covenant must be filed with the

cabinet within thirty (30) days of receipt and must state in writing with

reasonable specificity the legal or technical basis for maintaining the

restriction.

(c) If no objection is submitted within thirty (30) days, the cabinet shall issue a

final determination approving the amendment, and the amendment shall be

effective upon recordation.

(d) If a timely objection is submitted, the cabinet shall consider the objection and

issue a final written determination within forty-five (45) days of the receipt of

the objection. The cabinet's final determination shall approve, modify, or deny

the proposed amendment.

(e) Once the cabinet's final determination has been made, the objector shall have

thirty (30) days to seek judicial review of the final determination by filing an

action in the Franklin Circuit Court. In the proceeding, the burden shall be on

the objector to demonstrate that the removal or reduction of the restriction

would adverse ly affect human health or the environment. If the objector is

unsuccessful in the proceeding, the proposed amendment shall be effective

upon recordation.

(f) If no action for judicial review is filed within thirty (30) days of the cabinet's

final determination, the right to challenge the proposed amendment shall be

waived and the proposed amendment shall be effective upon recordation.