19068_RadioShack_WTSIWYG_LURU21

NC BROWNFIELDS
Land Use Restrictions ("LUR") UPDATE
Year Certification Made: 2021
Project: RadioShack (Former) Address: I I I Old Bee Tree Rd.
Project Number: 19068-15-011 County: Buncombe
-Property Owner (In part or whole) /Association: WYSIWYG, LLC
Read the following LURs and mark each restriction accordingly. Additional remarks may be added for
compliance status clarification. Attach any required or supplemental documentation, sign, notarize and
submit to the following address or email:
NC Division of Waste Management
Attn: Brownfields Property Management Unit
1646 Mail Service Center
Raleigh, NC 27699-1646
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LUR 1: No use may be made of the Brownfields Property other than for warehousing,
industrial, office space, parking, and with prior Department of Environmental Quality ("DEQ")
approval, other commercial uses. For purposes of this restriction, the following definitions apply:
a. "Warehousing" defined as the use of a commercial building for storage of goods
by manufacturers, importers, exporters, wholesalers, transport businesses among
others, and also refers to the storage of goods and materials for a specific
commercial establishment of a group of establishments in a particular type of
industry or commercial activity.
b. "Industrial" defined as the assembly, fabrication, processing, warehousing or
distribution of goods or materials.
c. "Office" defined as the provision of business or professional services.
d. "Parking" defined as the temporary accommodation of motor vehicles in an area
designed for same.
e. "Commercial" defined as an enterprise carried on for profit or nonprofit by the
owner, lessee or licensee.
N In compliance q Out of compliance
Remarks:
LUR 2: Groundwater at the Brownfields Property may not be used for any purpose
without the prior written approval of DEQ.
0 In compliance q Out of compliance
Remarks:
RadioShack (Former) (#19068-15-011) LUR Update
LUR 3: No activity that disturbs soil on the Brownfields Property, may occur unless and
until DEQ states in writing, in advance of the proposed activity, that said activity may occur if
carried out along with any measures DEQ deems necessary to ensure the Brownfields Property
will be suitable for the uses specified in LUR 1 above while fully protecting public health and the
environment, except:
a. in connection with landscape planting to depths not exceeding 24";
b. mowing and pruning of above-ground vegetation;
c. for repair of underground infrastructure, provided that DEQ shall be given written
notice at least seven days in advance of a scheduled repair (if only by email) of any
such repair, or in emergency circumstances no later than the next business day, and
that any related assessment and remedial measures required by DEQ shall be taken
and;
d. in connection to work conducted in accordance with a DEQ-approved
Environmental Management Plan (EMP) as outlined below in LUR 8.
qX In compliance q Out of compliance
Remarks:
LUR 4: Soil may not be removed from, or brought onto, the Brownfields Property
without prior sampling and analysis to DEQ's satisfaction and the written approval of DEQ, unless
conducted in accordance with an approved EMP as outlined below in LUR 8.
Xq In compliance q Out of compliance
Remarks:
LUR 5: Surface water at the Brownfields Property may not be used for any purpose,
other than in connection with legally compliant storm water collection and reuse techniques,
without the prior written approval of DEQ.
0 In compliance q Out of compliance
Remarks:
LUR 6: No enclosed building may be constructed on the Brownfields Property until
DEQ determines in writing that:
RadioShack (Former) (919068-15-011) LUR Update
a. the building is or would be protective of the building's users, public health and the
environment from risk of vapor intrusion based on site assessment data or a site-
specific risk assessment approved in writing by DEQ; or
b. the building is or would be sufficiently distant from the Brownfields Property's
groundwater and/or soil contamination based on assessment data approved in
writing by DEQ that the building's users, public health and the environment will
be protected from risk from vapor intrusion related to said contamination; or
c. vapor intrusion mitigation measures are installed and/or implemented to the
satisfaction of a professional engineer licensed in North Carolina, as evidenced by
said engineer's professional seal on a report that includes photographs and a
description of the installation and performance of said measures. Any design
specification for vapor intrusion mitigation measures shall be approved in writing
by DEQ in advance of installation and/or implementation of said measures. The
design specifications shall include methodology(ies) for demonstrating
performance of said measures.
® In compliance q Out of compliance
Remarks:
LUR 7: No later than 60 days following the effective date of the Agreement, a work plan
for the collection and analysis of 4 groundwater samples to be collected in July 2020 shall be
submitted to DEQ for DEQ's written approval. The purpose of the groundwater sampling event
is to evaluate whether the Brownfields Property remains suitable for the uses authorized in LUR 1
while fully protecting public health and the environment. The work plan will include, at a
minimum, details on schedule and methodology for collection and analysis of the 4 groundwater
sample results from monitoring wells MW-1113, MW-12C, MW-16A, and MW-17A as referenced
in the 2019 Brownftelds Assessment Report completed by Wood Environment and Infrastructure
Solutions, Inc. The groundwater samples shall be analyzed for VOCs by EPA Method
8260. Unless otherwise approved by DEQ in writing or unless the use of the Brownfields Property
changes, the sampling events shall occur annually until such time as two consecutive annual
groundwater sampling events indicate that the calculated cumulative carcinogenic risk (below 1 x
10-4) and hazard quotient (below 1.0) for the groundwater to indoor air pathway calculated using
the current version of the DEQ Risk Calculator are acceptable under a non-residential use
scenario. At such time as this occurs, a request to terminate future sampling may be submitted to
DEQ that includes the public health rationale for such termination. Should the data collected from
these groundwater monitoring events indicate potential exposures at the Brownfields Property that
raise the risk to public health or the environment associated with the Brownfields Property beyond
an acceptable range and in a manner or to a degree not anticipated in the Agreement, DEQ may
require that the then owner(s) re-evaluate that risk for areas potentially subject to said risk and
conduct any actions DEQ deems necessary to reduce said risk to make the Brownfields Property
suitable for the uses authorized in LUR 1 while fully protecting public health and the environment.
qX In compliance q Out of compliance
Remarks:
RadioShack (Former) (419068-15-011) LUR Update
LUR 8: Physical redevelopment of the Brownfields Property may not occur other than
in accord, as determined by DEQ, with an EMP approved in writing by DEQ in advance (and
revised to DEQ's written satisfaction prior to each subsequent redevelopment phase) that is
consistent with all the other land use restrictions and describes redevelopment activities at the
Brownfields Property, the timing of redevelopment phases, and addresses health, safety and
environmental issues that may arise from use of the Brownfields Property during construction or
redevelopment in any other form, including without limitation:
a. soil and water management issues, including without limitation those resulting
from contamination identified in the Environmental Reports;
b. issues related to potential sources of contamination referenced in Exhibit 2;
c. contingency plans for addressing, including without limitation the testing of soil
and groundwater, newly discovered potential sources of environmental
contamination (e.g., USTs, tanks, drums, septic drain fields, oil-water separators,
soil contamination); and
d. plans for the proper characterization of, and, as necessary, disposal of contaminated
soils excavated during redevelopment;
qX In compliance q Out of compliance
Remarks:
LUR 9: Neither DEQ, nor any party conducting environmental assessment or
remediation at the Brownfields Property at the direction of, or pursuant to a permit, order or
agreement issued or entered into by DEQ, may be denied access to the Brownfields Property for
purposes of conducting such assessment or remediation, which is to be conducted using reasonable
efforts to minimize interference with authorized uses of the Brownfields Property.
© In compliance q Out of compliance
Remarks:
LUR 10: Any deed or other instrument conveying an interest in the Brownfields Property
shall contain the following notice: "This property is subject to the Brownfields Agreement attached
as Exhibit A to the Notice of Brownfields Property recorded in the Buncombe County land records,
Book 5885, Page 1243." A copy of any such instrument shall be sent to the persons listed in
Section XV (Notices and Submissions), though financial figures related to the conveyance may be
redacted to the extent said redactions comply with the confidentiality and trade secret provisions
of the North Carolina Public Records Law. The owner conveying an interest may use the following
mechanisms to comply with the obligations of this subparagraph: (i) If every lease and rider is
RadioShack (Former) (#19068-15-011) LUR Update
identical in form, the owner conveying an interest may provide DEQ with copies of a form lease
or rider evidencing compliance with this subparagraph, in lieu of sending copies of actual,
executed leases, to the persons listed in Section XV (Notice and Submissions); or (ii) The owner
conveying an interest may provide abstracts of leases, rather than full copies of said leases, to the
persons listed in Section XV.
qX In compliance q Out of compliance
Remarks:
LUR 11: None of the contaminants known to be present in the environmental media at the
Brownfields Property, as described in Exhibit 2 of the Agreement and as modified by DEQ in
writing if additional contaminants in excess of applicable standards are discovered at the
Brownfields Property, may be used or stored at the Brownfields Property without the prior written
approval of DEQ, except:
a. in de minimis quantities for cleaning and other routine housekeeping and
maintenance activities;
b. in fluids in vehicles; and
c. as constituents of fuels, lubricants and oils in emergency generators, machinery,
equipment and vehicles in on-board tanks integral to said equipment or in
flammable liquid storage containers totaling no more than 25 gallons.
21 In compliance q Out of compliance
Remarks:
LUR 12: Within 60 days after the effective date of the Agreement or prior to land
disturbance activities, Prospective Developer shall abandon monitoring wells (with the exception
of monitoring wells listed in LUR 7 above and the components of the AS/SVE system), injection
wells, recovery wells, piezometers and other man-made points of groundwater access at the
Brownfields Property, in accordance with Subchapter 2C of Title 15A of the North Carolina
Administrative Code, unless an alternate schedule is approved by DEQ. Within 30 days after
doing so, the Prospective Developer shall provide DEQ a report, setting forth the procedures and
results.
© In compliance q Out of compliance
Remarks:
Radio Shack (Former) (#19068-15-011) LUR Update
LUR 13: During January of each year after the year in which the Notice is recorded, the
owner of any part of the Brownfields Property as of January 1 st of that year shall submit a notarized
Land Use Restrictions Update ("LURU") to DEQ, and to the chief public health and environmental
officials of Buncombe County, certifying that, as of said January 1 st, the Notice of Brownfields
Property containing these land use restrictions remains recorded at the Buncombe County Register
of Deeds office and that the land use restrictions are being complied with, and stating:
a. the name, mailing address, telephone and facsimile numbers, and contact person's
e-mail address of the owner submitting the LURU if said owner acquired any part
of the Brownfields Property during the previous calendar year;
b, the transferee's name, mailing address, telephone and facsimile numbers, and
contact person's e-mail address, if said owner transferred any part of the
Brownfields Property during the previous calendar year;
c. the data acquired from annual groundwater sampling referenced in LUR 7 above.
d. whether any vapor barrier and/or mitigation systems installed pursuant to LUR 6
above are performing as designed, and whether the uses of the ground floors of any
buildings containing such vapor barrier and/or mitigation systems have changed,
and, if so, how.
0 In compliance q Out of compliance
Remarks:
Notarized signing and submittal of this LUR Update constitutes certification that the Notice of
Brownfields Property remains recorded at the Buncombe County Register of Deeds offices and
that the LURs are being complied with.
This LUR Update is certified by WYSIWYG, LLC, the owner of at least part of the Brownfields
Property, or if appropriate another entity on behalf of some or all owners, on this /d='day of
~. v CAI V[,1 _, 2021.
Name typed or printed of party making certification: Jeffrey B. Slosman, Manager of WYSIWYG,
LLC
RadioShack (Former) (919068-15-011) LUR Update
[Note: additional entities or owners may be added if appropriate (i.e. multiple managing members/entities)]
WYSIWYG, LLC
By: O , (signature)
Name printed: Jeffrey B. Slosman
Title t ped Irprinted: Manager
NORTH CAROLINA
BUNCOMBE COUNTY
I certify that the following person(s) personally appeared before me this day, each
acknowledging to me that he or she voluntarily signed the foregoing document for the purpose
stated therein and in the capacity indicated: Jeffrey B. Slosman, Manager of WYSIWYG, LLC.
g
Date: .-1-~ 1-a ~ - 4(loz4~
Official Signature of Not
Sarah C. Hayden
Notary's printed or typed name, Notary Public
(Official Seal) My commission expires: 11/29/2024