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HELMS MULLISS WICKER
Amanda C. Kitchen
704.343.2359
Fax [phone]
[e-mail]
June 3, 2005
Ms. Anne Gometz
Gaston County Public Library
Reference Services
1555 E. Garrison Blvd.
Charlotte, NC 28054
RE: Documents for Review and Public Comment
City of Gastonia (Highland Plaza Property)
Dear Anne:
.elms Mull iss & Wicker, PLLC Attorneys at Law
Charlotte Raleigh Wilmington www.hmw.com
201 North Tryon Street
Charlotte, NC 28202
P.O. Box31247 (28231)
704.343.2000
/704.343.2300
Enclosed are documents that the State requires us to make available at the Gaston County
Public Library for review by the public. I spoke with you this morning and you explained that you
would put a notice on the bulletin board that these documents were available for viewing. They need
to be available for 60 days beginning June 16,2005. If you have any questions, please give me a call,
Thank you for your assistance in this matter.
Enclosures
cc w/o encl: Melissa A. Magee
Rob Gelblum
Carolyn F. Minnich
C636057.1
Sincerely,
HELMS MULLISS & WICKER, PLLC
Amanda K. Short
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HELMS MULLISS WICKER
Amanda K. Short
704-343-2359
Fax [phone]
[e-mail]
June 3, 2005
VIA CERTIFIED MAIL
EdMunn
City Manager
City of Gastonia
P. 0. Box 1748
Gastonia, NC 28053
Jan Winters
County Manager
Gaston County
P. 0. Box 1578
Gastonia, North Carolina
.elms Mull iss & Wicker, PLLC Attorneys at Law
Charlotte Raleigh Wilmington www.hmw.com
201 North Tryon Street
Charlotte, NC 28202
P.O. Box 31247 (28231)
704.343.2000
/704.343.2300
Re: Notice oflntent and Notice of Brownfields Property
City of Gastonia (Highland Plaza Property)
Dear Mr. Munn and Ms. Winters:
We represent the City of Gastonia with regard to obtaining a Brownfields Agreement for the
property located at the northeast comer of U.S. Highway 321 (North Chester Street) and Rankin
A venue. This property is located in the City of Gastonia, Gaston County. The City of Gastonia and
the North Carolina Department of Environment and Natural Resources have recently reached an
agreement on the terms for this Brownfields Agreement. Pursuant to N.C.G.S. §130A-310.34(a), we
are providing to you a copy of the Notice of Intent for this project. This statute requires that the
Notice of Intent, including the proposed Notice of Brownfields Property be provided to all local
governments having jurisdiction over the properties that are to be subject to the Brownfields
Agreement.
C720658.1
EdMunn
Jan Winters
June 3, 2005
Page 2
• •
If you have any questions or need further information with regard to these matters, please
contact me.
Enclosures
cc: Carolyn F. Minnich (w/ encls.)
Rob Gelblum (w/o encls.)
Melissa A. Magee (w/o encls.)
C720658.1
Sincerely,
HELMS MULLISS & WICKER, PLLC
Amanda K. Short
• •
NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY
North Carolina's Brownfields Property Reuse Act (the "Act"), North Carolina
General Statutes ("N.C.G.S.") Sections 130A-310.30 through 130A-310.40, provides for the
safe redevelopment of properties that may have been or were contaminated by past
industrial and commercial activities. One of the Act's requirements is this Notice of Intent
to Redevelop a Brownfields Property ("Notice of Intent") approved by the North Carolina
Department of Environment and Natural Resources ("DENR"). See N.C.G.S. 130A-
310.34(a). The Noticeoflntent must provide, to the extent known, a legal description of the
location of the brownfields property, a map showing the location of the brownfields
property, a description of the contaminants involved and their concentrations in the media
of the brownfields property, a description of the intended future use of the brownfields
property, any proposed investigation and remediation, and a proposed Notice of
Brownfields Property prepared in accordance with N.C.G.S. Section BOA-310.35. A
prospective developer who desires to enter into a Brownfields Agreement with DENR must
provide a copy of the Notice of Intent to all local governments having jurisdiction over the
brownfields property. The proposed Notice of Brownfields Property for a particular
brownfields project is attached hereto; the proposed Brownfields Agreement, which is
attached to the proposed Notice of Brownfields Property as Exhibit A, contains the other
required elements of the Notice of Intent. The references to ownership of the Property in
the Brownfields Agreement and the Notice of Brownfields Property are as of the date those
documents are expected to become final. Written public comments may be submitted to
DENR within 60 days of the date of this Notice of Intent. Written requests for a public
meeting may be submitted to DENR within 30 days of the date of this Notice of Intent. All
such comments and requests should be addressed as follows:
Mr. Bruce Nicholson
Head, Brownfields Program
Division of Waste Management
NC Department of Environment and Natural Resources
401 Oberlin Road, Suite 150
Raleigh, North Carolina 27605
The date of this Notice of Intent is June 15, 2005.
i • •
SUMMARY OF NOTICE OF
INTENT TO REDEVELOP A BROWNFIELDS PROPERTY
The City of Gastonia
Pursuant to N.C.G.S. § BOA-310.34, the City of Gastonia has filed with the North
Carolina Department of Environment and Natural Resources ("DENR") a Notice of Intent to
Redevelop a Brownfields Property ("Property") in Gastonia, Gaston County, North Carolina.
The Property consists of 0.64 acres at the northeast comer of U.S. Highway 321 (Chester Street)
and Rankin Avenue. Environmental contamination exists on the Property in groundwater. The
Property is part of an 8-acre tract that Prospective Developer has committed itself to redevelop
for no uses other than commercial and retail ones, including a shopping center and associated
parking lot. The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed
Brown:fields Agreement between DENR and the City of Gastonia, which in turn includes (a) a
map showing the location of the Property, (b) a description of the contaminants involved and
their concentrations in the media of the Property, (c) the above-stated description of the intended
future use of the Property, and (d) proposed investigation and remediation; and (2) a proposed
Notice ofBrownfields Property prepared in accordance with G.S. BOA-310.35. The full Notice
of Intent to Redevelop a Brownfields Property may be reviewed at the offices of the City of
Charlotte's Economic Development Division, 600 East Fourth Street, Charlotte, NC 28202 by
contacting Carolyn Minnich at that address, at [phone] or at
[e-mail]; or at 401 Oberlin Rd., Raleigh, NC 27605 (where DENR will
provide auxiliary aids and services for persons with disabilities who wish to review the
documents) by contacting Shirley Liggins at that address, at [e-mail], or at
[phone]. Written public co=ents may be submitted to DENR within 60 days after the
/ • •
date this Notice is published in a newspaper of general circulation serving the area in which the
browniields property is located, or in the North Carolina Register, whichever is later. Written
requests for a public meeting may be submitted to DENR within 30 days after the period for
written public comments begins. Thus, if The City of Gastonia, as it plans, publishes this
Summary in the North Carolina Register after it publishes the Summary in a newspaper of
'
general circulation serving the area in which the brownfields property is located, and if it effects
publication of this Summary in the North Carolina Register on the date it expects to do so, the
periods for submitting written requests for a public meeting regarding this project and for
submitting written public comments will commence on June 16, 2005. All such comments and
requests should be addressed as follows:
Mr. Bruce Nicholson
Brownfields Program Manager
Division of Waste Management
NC Department of Environment and Natural Resources
401 Oberlin Road, Suite 150
Raleigh, North Carolina 27605
• • ~-... ---~~
Exhibit A,
. ·-·--""'·l.~.
NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
IN THE MA TIER OF: The City of Gastonia
UNDER THE AUTHORITY OF THE
BROWNFIELDS PROPERTY REUSE ACT
OF 1997, N.C.G.S. § BOA-310.30, et ~·
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I. INTRODUCTION
BROWNFIELDS AGREEMENT re:
Chester Street Property
U.S. Highway 321 & Rankin Avenue
Brownfields Project No 08003-04-36
This Brownfields Agreement ("Agreement") is entered into by the Nortb Carolina
Department of Environment and Natural Resources ("DENR") and the City of Gastonia
(collectively the "Parties") pursuant to the Brownfields Property Reuse Act of 1997, N.C.G.S. §
130A-310.30, et seq. (the "Act").
The City of Gastonia, Nortb Carolina sought this Agreement in connection with its desire
to effect redevelopment of property in Gastonia that will comprise part of a shopping center. The
subject property is located at the northeast comer of U.S. Highway 321 (Nortb Chester Street)
and Rankin Avenue in Gastonia, Gaston County, North Carolina. It consists of Gaston County
Tax Parcels 228 (approximately 0.22 acres) and 229 (approximately 0.42 acres). Parcel228 is
the former site of Carson's Dry Cleaners and Parcel229 is wooded. Chlorinated solvents and
petroleum have polluted the groundwater at the site. Parcels 228 and 229 are a small component
of an 8-acre tract on which the City of Gastonia plans for the above-referenced shopping center,
and an asphalt parking lot, to be located. A map showing the location of the property that is the
subject of this Agreement is attached hereto as Exhibit 1.
The Parties agree to undertake all actions required by the terms and conditions of this
Agreement. The purpose of this Agreement is to settle and resolve, subject to reservations and
limitations contained in Section VIII (Certification), Section IX (DENR's Covenant Not to Sue
Chester St. BFA 4-27-05
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and Reservation of Rights) and Section X (Prospective Developer's Covenant Not to Sue), the
potential liability of the City of Gastonia for contaminants at the property which is the subject of
this Agreement.
The Parties agree that the City of Gastonia's entry into this Agreement, and the actions
undertaken by the City of Gastonia in accordance with the Agreement, do not constitute an
admission of any liability by the City of Gastonia.
The resolution of this potential liability, in exchange for the benefit the City of Gastonia
shall provide to DENR, is in the public interest.
II. DEFINITIONS
Unless otherwise expressly provided herein, terms used in this Agreement which are defmed
in the Act or elsewhere in N.C.G.S. 130A, Article 9 shall have the meaning assigned to them in those
statutory provisions, including any amendments thereto.
1. "Property" shall mean the Brownfields Property which is the subject of this Agreement,
and which is described and depicted in Exhibit 1 of this Agreement.
2. "Prospective Developer" shall mean the City of Gastonia.
III. STATEMENT OF FACTS
3. The Property consists of approximately 0.64 acres at the northeast comer of U.S.
Highway 321 (Chester Street) and Rankin Avenue in Gastonia, Gaston County, North Carolina.
The Parcel 228 component of the Property has an address, which is 40 I North Chester Street.
The Property is part of an 8-acre tract that Prospective Developer has committed itself to
redevelop for no uses other than commercial and retail ones, including a shopping center/parking
lot.
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Chester St. BFA 05~20-05
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4. The Property is bordered to the north by undeveloped woodland, a creek and land used
for residences; to the south by Rankin Avenue and a City of Gastonia wastewater treatment plant;
to the east by vacant land and the Gaston County courthouse and jail; and to the west by U.S.
Highway 321 (Chester Street) and land used for commercial businesses. Southwest of the
Property is Ted's North High Shell gasoline service station.
5. Prospective Developer obtained or commissioned the following reports, referred to
hereinafter as the "Environmental Reports," regarding the Property:
Title Prepared by [)ate Of Report
Report of Phase I Preliminary The Environmental Group September 8, 1999
Environmental Site Assessment of the Carolinas, Inc
Report of Phase II Environmental Site The Environmental Group June 19,2000
Assessment of the Carolinas, Inc
Report of Phase II Environmental Site The Environmental Group August 29, 2000
Assessment of the Carolinas, Inc
Report of Phase II Environmental Site The Environmental Group September 19, 2000
Assessment of the Carolinas, Inc
Phase II Environmental Site The Environmental Group August 23, 2001
Assessment, Limited Asbestos Survey of the Carolinas, Inc
and UST Closure Proposal
TEG Slides from the Highland Project The Environmental Group August 23, 2001
Approach of the Carolinas, Inc
Limited Survey for Asbestos-The Environmental Group October 16, 2001
Containing·materials of the Carolinas, Inc
Report of Preliminary Subsurface ECS, Ltd. October 18, 2001
Exploration
Report of Phase II Environmental Site The Environmental Group December 7, 2001
Assessment of the Carolinas, Inc
Report of UST Closure The Environmental Group March 4, 2002
of the Carolinas, Inc
Report of Phase II Environmental Site The Environmental Group October 24, 2002
Assessment, former Carson's Dry of the Carolinas, Inc
Cleaner & Adjacent Parcels
Report of Phase II Environmental Site The Environmental Group June 26, 2003
Assessment, former Carson's Dry of the Carolinas, Inc
Cleaner & Adjacent Parcels
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Chester St. BFA 05·20-05
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Report of Phase· II Environmental Site The Environmental Group September 8, 2003
Assessment: Former Carson's Dry of the Carolinas, Inc
Cleaner Site and Adjacent Parcels
Additional Assessment Activities Altura Environmental, Inc. December 22, 2004
6. For purposes ofthis Agreement, DENR relies on the following representations by
Prospective Developer as to prior use of the Property.
a. Prior to 1968, the Property was undeveloped, wooded land.
b. In 1968, Shaw's Dry Cleaners was operating at the Property or in the
immediate vicinity.
c. The Property was occupied in 1979 by Carson's Dry Cleaners.
d. Dry cleaning operations ceased at the Property in June 2001.
7. From June 2000 through November 2004, several environmental assessments of the
Property and surrounding parcels have occurred. The results indicated groundwater impacts from
petroleum contamination and chlorinated solvents. Contaminated soil, which had been impacted
by the historic dry cleaner operations at the Property, was excavated. The petroleum impacts are
likely from Ted's North High Shell service station, which is upgradient of the Property.
8. In March 2002, one steel 550-gallon underground storage tank ("UST") was removed.
The tank contained heating oil that had been used on-site to fuel the dry cleaner's boiler system,
and had been out of service for several years. Analysis of soil samples collected during the
excavation indicated no contaminants in exceedance of applicable standards. No reporting was
required to DENR since the UST was non-regulated.
9. Between February and June 2003, contaminated soil at the Property was excavated and
removed on three occasions. The last area excavated measured approximately 40 feet wide, by
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Chester St. SF A 05·20·05
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55 feet long, by15 feet deep. In total, approximately 1,057 tons of soil were removed and
disposed of at the BFI-Charlotte Motor Speedway landfill. Once the activities were complete,
clean fill was brought to the Property for backfilling. Confirmation soil samples were collected
throughout the process; the results were below the standards deemed applicable by DENR's
Brownfields Program, i.e., the remediation goals of the Inactive Hazardous Sites Branch of
DENR's Superfund Section.
I 0. The most recent environmental sampling at the Property reported in the
Environmental Reports occurred in November 2004. The following table sets forth, for
contaminants detected above unrestricted use standards in the Property's groundwater (the only
medium in which any contaminants are known to currently exceed standards), the maximum
concentration found at each sample location, the date of such finding and the applicable standard
from Title 15A of the North Carolina Administrative Code, Subchapter 2L, Rule .0202, both in
micrograms per liter, the equivalent of parts per billion:
Date of Max. Max. Concentration
Groundwater Concentratio Date of Standard Sample Location Concentration Most Recent at most Recent
Contaminant n above Std. Sampling (J.Lg/L) Sampling (J.Lg/L) Sampling Event (J.Lg/L)
Z-IA I 0/31/01 2.8 • •
Z-2A I 0/31/01 350 • •
Z-3A I 0/31/01 4,800 • •
Z-4A 10/31/01 120 • •
Z-5A I 0/30/01 160 • •
MW-1 07/08/03 1,140
Benzene MW-2 07/08/03 101 I
MW-3 11/17/04 38
MW-4 11117/04 9.8
MW-5 11/17/04 55
MW-7 07/08/03 1.3
MW-8 07/08/03 316 11117/04 170
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Date of Max. Max. Concentration
Groundwater Concentratio Date of Standard Sample Location Concentration at most Recent
Contaminant n above Std. Most Recent
Sampling Sampling Sampling (J.Ig/L)
(J.Ig/L) Event (J.Ig/L)
Toluene MW-1 07/08/03 3,210 1,000
Z-3A 10/31/01 140 • •
Ethyl benzene MW-1 07/08/03 736 29
Z-2A 10/31/01 27 • •
Naphthalene Z-3A I 0/31/01 92 • • 21
MW-1 07/08/03 97
MW-1 03/27/03 273 07/08/03 258
MW-2 07/08/03 232
MW-3 03/27/03 812 11117/04 16
MW-4 03/27/03 904 07/08/03 387
MW-5 03/27/03 870 11117/04 17
Lead MW-6 07/08/03 376 IS
MW-7 03/27/03 63 07/08/03 32
MW-8 03/27/03 187 07/08/03 170
MW-9 03/27/03 449 07/08/03 135
MW-10 07/08/03 198
TW-2 03/27/03 27
X-3 I 0/30/01 0.58 • •
Z-IA 10/31/01 1 • •
Z-1B 10/31/01 2.6 • •
Z-6A I 0/31/0 I 2.7 • •
Z-7A 10/31/01 14 • •
Z-8A 10/31/01 22 • • Chloroform 0.19 Z-9A 10/3110 I 1.1 • •
MW-9 07/08/03 1.8
TW-1 03/27/03 31.3
TW-2 03/27/03 28.7
SS-1 11/17/04 6.7 07/03/04 4.4
SS-3 11/17/04 3.9 07/08/03 4.8
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Chester St. BFA05-20-05
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Date of Max. Max. Concentration
Groundwater Concentratio Date of Standard Sample Location Concentration at most Recent
Con tam in ant n above Std. Most Recent
Sampling Sampling Sampling (~giL)
(~giL) Event (~giL)
Boring #1-228-A 09/08/00 5.6 • •
Boring #2-228-B 09/08/00 6.5 • •
Boring #3-228-C 09/08/00 3.1 • •
Boring #4-228-D 09/08/00 10 • •
1 ,2-Dichloro-Boring #5-228-E 09/08/00 4.1 • • 0.56 propane Z-6A I 0/31101 3.6 • •
Z-7A 10/31101 0.78 • •
MW-10 03/27/03 17.3 07/08/03 2.7
TW-3 07/08/03 3.7
Boring #5-228-E 09/08/00 850 • •
Z-4A 10/31/01 130 • •
Cis-1,2-MW-3 03/27/03 622 ll/17/04 110 70
Dichloroethene MW-4 11/17/04 220
MW-5 11117/04 97
Z-2A 10/30/0 I 220 • •
Z3-A 10/30/01 330 • •
Isopropyl Ether 70
Z-4A 10/30/0 I 75 • •
Z-5A 10/30/0 I 82 • •
Methylene Boring #5-228-E 09/08/00 9.7 • • 5
Chloride
Boring #4-228-D 09/08/00 0.91 • •
Boring #5-228-E 09/08/00 3.6 • •
X-2 I 0/30/01 1.6 • •
X-3-10 10/30/01 12 • •
X-3 I 0/30/01 1,900 • •
Tetrach1oro-X-4 I 0/30/01 860 • • 0.7
ethene Z-4A I 0/30/01 1.9 • •
MW-3 07/08/03 1,250 . 11117/04 4.6
MW-4 07/08/03 1,180 11117/04 220
MW-5 07/08/03 1.50
MW-10 07/08/03 4.50
Boring #5-228-E 09/08/00 82 • •
X-3 I 0/30/01 380 • •
Trichloroethene MW-3 07/08/03 1,070 11/17/04 4.4 2.8
MW-4 03/27/03 139 11/17/04 180
MW-5 07/08/03 11.6
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Chester St. BFA 05-20-05
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Date of Max. Max. Concentration
Groundwater Concentratio Date of Standard Sample Location Concentration at most Recent
Contaminant n above Std. Most Recent
Sampling Sampling Sampling (f!g/L)
(f!g/L) Event (f!g/L)
Hole #I P2-W-A 05/31/00 2.4 • •
Boring #4-228-D 09/08/00 4.8 • •
Boring #5-228-E . 09/08/00 450 • •
Boring #6-228-F 09/08/00 0.64 • •
X-2 I 0/30/01 3.7 • •
Z-lB I 0/30/01 2.7 • •
Z-2A I 0/30/0 I 590 • •
Vinyl Chloride Z-3A I 0/30/01 130 • • 0.015
Z-4A 10/30/01 96 • •
Z-6A 10/31101 2.4 • •
Z-7A I 0/3110 I 2.8 • •
MW-3 03/27/03 306 11/17/04 85
MW-4 07/08/03 79.8 11117/04 75
MW-5 11117/04 180
MW-8 ll/17/04 12
•-Only one sample taken from these particular wells, some of which are single sample Geoprobe points, and some
are monitoring wells that have been recently installed.
11. For purposes of this Agreement DENR relies on Prospective Developer's
representations that Prospective Developer's involvement with the Property has been limited to
obtaining or commissioning the Environmental Reports, preparing and submitting to DENR a
Brownfields Letter oflntent dated April 7, 2004, and purchasing the Property on April4, 2001
from Kenneth P. Craig.
12. Prospective Developer has provided DENR with information, or sworn certifications
regarding that information on which DENR relies for purposes ofth.is Agreement, sufficient to
demonstrate that:
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Chester .St. BFA 05-20..05
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a. Prospective Developer and any parent, subsidiary, or other affiliate has
substantially complied with federal and state Jaws, regulations and rules for protection of the
environment, and with the other agreements and requirements cited at N.C.G.S. § 130A-
310.32(a)(l);
b. as a result of the implementation of this Agreement, the Property will be
suitable for the uses specified in the Agreement while fully protecting public health and the
environment;
c. Prospective Developer's reuse of the Property will produce a public benefit
commensurate with the liability protection provided Prospective Developer hereunder;
d. Prospective Developer has or can obtain the financial, managerial and
technical means to fully implement this Agreement and assure the safe use of the Property; and .
e. Prospective Developer has complied with all applicable procedural
requirements.
13. Prospective Developer has paid the $2,000 fee to seek a brownfields agreement
required by N.C.G.S. § 130A-310.39(a)(l). Pursuant to N.C.G.S. § 130A-310.39(a)(2), the
procedure upon which Prospective Developer and DENR have agreed for payment of the full
cost to DENR and the North Carolina Department of Justice ("DOJ") of all activities related to
this Agreement is that Prospective Developer shall pay any amount by which DOJ's hours,
multiplied by $36.24, exceed the $2,000 fee referenced above in this paragraph. (DENR has
incurred no costs.)
IV. BENEFIT TO COMMUNITY
14. The redevelopment of the Property proposed herein would provide the following
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Chester St. BFA 05-20-05
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public benefits:
a a return to productive use of the Property
b. a spur to additional community redevelopment, through improved
neighborhood appearance and otherwise
c. approximately l20jobs;
d. tax revenue for affected jurisdictions;
e. additional retail space for the area; and
f. "smart growth" through use of land in an already developed area, which avoids
development of land beyond the urban fringe ("greenfields").
V. WORK TO BE PERFORMED
15. Based on the information in the Environmental Reports, and subject to imposition of
and compliance with the land use restrictions set forth below, and subject to all other provisions
of this Section and Section IX of this Agreement (DENR's Covenant Not to Sue and Reservation
of Rights), active remediation is not needed at the Property.
16. Within sixty (60) days after the effective date of this Agreement, Prospective
Developer shall notifY DENR that it is ready to effect the abandonment of groundwater
monitoring wells MW-1, MW-2, MW-5, MW-7, TW-1 and TW-2, injection wells, recovery
wells, piezometers and other man-made points of groundwater access at the Property in
accordance with Subchapter 2C of Title 15A of the North Carolina Administrative Code. Unless
DENR notifies Prospective Developer within ten (1 0) days of receiving such notification to
refrain from such abandonment, Prospective Developer shall effect said abandonnient and shall,
within sixty (60) days after concluding such abandonment, provide DENR a report setting forth
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Chester St. BFA 05-20-05
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the procedures and results. Groundwater monitoring wells MW-3, MW-4, MW-6, MW-8, MW-
9, MW-10, and TW-3 are to remain on the Property. For the location of the monitoring wells
referenced in this paragraph, see the plat component of the Notice referenced below in paragraph
22.
17. By way of the Notice of Brownfields Property referenced below in paragraph 22,
Prospective Developer shall impose the following land use restrictions under the Act, running
with the land, to make the Property safe for the uses specified in this Agreement while fully
protecting public health and the environment. All references to DENR shall be understood to
include any successor in function.
a. No use may be made of the Property other than for:
i. a shopping center, defined as a group of commercial establishments,
planned and developed as a unit, with common parking, pedestrian movement, ingress and
egress, which is used for the sale of merchandise or services to the public;
ii. other commercial use, defined as an occupation, employment, or
enterprise carried on for profit by the owner, lessee, or licensee; or
iii. retail establishments, defined as buildings, property or activities the
principal use or purpose of which is the sale of goods, products, or merchandise directly to the
consumer.
b. Surface water and underground water at the Property may not be used for any
purpose without the approval ofDENR.
c. No activities that encounter, expose, remove or use groundwater (for example,
installation of water supply wells, fountains, ponds, lakes or swimming pools, or construction or
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Chester St. BFA 05-20-05
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excavation activities that encounter or expose groundwater) may occur on the Property without
prior sampling and analysis of groundwater to the satisfaction of DENR in any areas proposed for
such activities, and submittal of the analytical results to DENR. If such results disclose to DENR
contamination in excess of North Carolina's groundwater quality standards, the proposed
activities may not occur without the approval ofDENR on such conditions as DENR imposes,
including at a minimum compliance with plans and procedures, approved pursuant to applicable
law, to protect public health and the environment during the proposed activities.
d. No mining may be conducted on or under the Property, including, without
limitation, extraction of coal, oil, gas or any other minerals or non-mineral substances.
e. No basements may be constructed on the Property unless they are, as
determined by DENR, vented in conformance with applicable building codes.
f. None of the contaminants known to be present in the environmental media at
the Property, including those listed in paragraph I 0 of this Agreement, may be used or stored at
the Property without the prior approval of DENR, except in de minimis amounts for cleaning and
other routine housekeeping activities.
g. The Property may not be used as a park or for sports of any kind, including, but
not limited to, golf, football, soccer and baseball, without the approval ofDENR.
h. The Property may not be used for agriculture, grazing, timbering or timber
production.
1. The Property may not be used as a playground, or for child care centers or
schools.
J. The Property may not be used for kennels, private animal pens or horse-riding.
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Chester St. BFA 05·20-05
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k. Beginning in the first January following the year in which the Notice of
Brownfields Property referenced below in paragraph 22 is recorded, and every January after that
for a minimum of five (5) years, the owner(s) of the portions of the Property containing the
affected wells or other party agreeable to DENR shall effect sampling, in accordance with the
most current version of the Guidelines of the Inactive Hazardous Sites Branch of DENR's
Superfund Section, of the following monitoring wells depicted on the plat component of the
Notice referenced below in paragraph 22: MW-3, MW-6, MW-8 and MW-9. As well, the
owner(s) of the portion of the Property containing MW-8 or other party agreeable to DENR shall
effect sampling, in accordance with the most current version of the Guidelines of the Inactive
Hazardous Sites Branch. of DENR's Superfund Section, of the adjacent stream within 25 feet of
MW -8. Sampling of the wells referenced in this subparagraph may cease if, at any time after five
(5) years, DENR determines that contaminant concentrations are decreasing. The well and
stream samples shall be analyzed by EPA Method 8260/8270 for Volatile Organic Compounds
(VOCs )/Semi VOCs or any comparable method approved in advance by DENR. Each party
conducting well sampling shall submit a report setting forth the sampling procedures and results
with the Land Use Restrictions Update referenced below in paragraph 17:1.
I. During January of each year after this Agreement becomes effective, the then
current owner of any part of the Property shall submit a notarized Land Use Restrictions Update
to DENR certifying that the Notice of Brownfields Property containing these land use restrictions
remains recorded at the Gaston County Register of Deeds office, and that the land use restrictions
are being complied with.
.
18. The desired result of the above-referenced land use restrictions is to make the
13
Chester St. BFA 05-20-05
• •
Property suitable for the uses specified in the Agreement while fully protecting public health and
the environment.
19. The guidelines, including parameters, principles and policies within which the
desired results are to be accomplished are the Guidelines of the Inactive Hazardous Sites Branch
ofDENR's Superfund Section, as embodied in their most current version.
20. The consequences of achieving or not achieving the desired results will be that the
Property is or is not suitable for the uses specified in the Agreement while fully protecting public
health and the environment.
VI. ACCESS/NOTICE TO SUCCESSORS IN INTEREST
21. Commencing upon the effective date of this Agreement, Prospective Developer
agrees to provide to DENR, its authorized officers, employees, representatives, and all other
persons performing response actions under DENR oversight, an irrevocable right of access at all
reasonable times to the Property and to any other property to which access is required for the
implementation of response actions at the Property, to the extent access to such other property is
controlled by the Prospective Developer, for the purposes of performing or overseeing response
actions at the Property under applicable law. DENR agrees to provide reasonable notice to the
Prospective Developer of the timing of response actions to be undertaken at the Property.
Notwithstanding any provision of this Agreement, DENR retains all of its authorities and rights,
including enforcement authorities related thereto, under the Act and any other applicable statute
or regulation, including any amendments thereto.
22. DENR has approved, pursuant to N.C.G.S. § BOA-310.35, a Notice ofBrownfields
Property for the Property containing, inter alia, the land use restrictions set forth in Section V
14
Chester St. BFA 05-20-05
• •
(Work to Be Performed) of this Agreement and a survey plat of the Property. Pursuant to
N.C.G.S. § 130A-310.35(b), within 15 days of the effective date of this Agreement Prospective
Developer shall file the Notice of Brownfields Property in the Gaston_ County, North Carolina
register of deeds' office. Within three days thereafter, Prospective Developer shall furnish
DENR a copy of the documentary component of the Notice containing a certification by the
register of deeds as to the Book and Page numbers where both the documentary and plat
components of the Notice are recorded, and a copy of the plat with notations indicating its
recordation.
23. This Agreement shall be attached as Exhibit A to the Notice ofBrownfields Property.
Subsequent to recordation of said Notice, any deed or other instrument conveying an interest in
the Property shall contain the following notice: "The property which is the subject of this
instrument is subject to the Brownfields Agreement attached as Exhibit A to the Notice of
Brownfields Property recorded in the Gaston County land records, Book __ , Page __ ." 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.
24. The Prospective Developer shall ensure that assignees, successors in interest, lessees
and sublessees of the Property shall provide the same access and cooperation. The Prospective
Developer shall ensure that a copy of this Agreement is provided to any current lessee or
sublessee on the Property as of the effective date of this Agreement and shall ensure that any
subsequent leases, subleases, assignments or transfers of the Property or an interest in the
Property are consistent with this Section, Section V (Work to be Performed) and Section XI
(Parties Bound & Transfer Assignment Notice) of this Agreement.
15
Chester St. BFA 05-20-05
• •
VII. DUE CARE/COOPERATION
25. The Prospective Developer shall exercise due care at the Property with respect to
regulated substances and shall comply with all applicable local, State, and federal laws and
regulations. The Prospective Developer agrees to cooperate fully with any remediation of the
Property by DENR and further agrees not to interfere with any such remediation. DENR agrees,
consistent with its responsibilities under applicable law, to use reasonable efforts to minimize
any interference with the Prospective Developer's operations by any such remediation. In the
event the Prospective Developer becomes aware of any action or occurrence which causes or
threatens a release of contaminants at or from the Property, the Prospective Developer shall
immediately take all appropriate action to prevent, abate, or minimize such release or threat of
release, and shall, in addition to complying with any applicable notification requirements under
N.C.G.S. 130A-310.1 and 143-215.84, and Section 103 ofCERCLA, 42 U.S.C. § 9603, or any
other law, immediately notify DENR of such release or threatened release.
VIII. CERTIFICATION
26. By entering into this Agreement, the Prospective Developer certifies that, without
DENR approval, it will make no use of the Property other than that committed to in the
Brownfields Letter of Intent dated April 7, 2004 by which it applied for this Agreement. That
use is as a shopping center. Other commercial and retail use is also approved. Prospective
Developer also certifies that to the best of its knowledge and belief it has fully and accurately
disclosed to DENR all information known to Prosp-ective Developer and all information in the
possession or control of its officers, directors, employees, contractors and agents which relates in
any way to any regulated substances at the Property and to its qualification for this Agreement,
16
Chester St. BFA 05-20-05
• •
including the requirement that it not have caused or contributed to the contamination at the
Property.
IX. DENR'S COVENANT NOT TO SUE AND RESERVATION OF RIGHTS
27. Unless one of the following applies, Prospective Developer shall not be liable to
DENR, and DENR covenants not to sue Prospective Developer, for remediation of the Property
except as specified in this Agreement:
a. The Prospective Developer fails to comply with this Agreement.
b. The activities conducted on the Property by or under the control or direction
of the Prospective Developer increase the risk of harm to public health or the environment, in
which case Prospective Developer shall be liable for remediation of the areas of the Property,
remediation of which is required by this Agreement, to the extent necessary to eliminate such risk
of harm to public health or the environment.
c. A land use restriction set out in the Notice ofBrownfields Property required
under N.C.G.S. 130A-310.35 is violated while the Prospective Developer owns the Property, in
which case the Prospective Developer shall be responsible for remediation of the Property to
unrestricted use standards.
d. The Prospective Developer knowingly or recklessly provided false information
that formed a basis for this Agreement or knowingly or recklessly offers false information to
demonstrate compliance with this Agreement or fails to disclose relevant information about
contamination at the Property.
e. New information indicates the existence of previously unreported contaminants
or an area of previously unreported contamination on or associated with the Property that has not
17
Chester St. BFA 05-20-05
• •
been remediated to unrestricted use standards, unless this Agreement is amended to include any
previously unreported contaminants and any additional areas of contamination. If this
Agreement sets maximum concentrations for contaminants, and new information indicates the
existence of previously unreported areas of these contaminants, further remediation shall be
required only if the areas of previously unreported contaminants raise the risk of the
contamination to public health or the environment to a level less protective of public health and
the environment than that required by this Agreement.
f. The level of risk to public health or the environment from contaminants is
unacceptable at or in the vicinity of the Property due to changes in exposure conditions, including
(i) a change in land use that increases the probability of exposure to contaminants at or in the
vicinity of the Property or (ii) the failure of remediation to mitigate risks to the extent required to
make the Property fully protective of public health and the environment as planned in this
Agreement.
g. The Department obtains new information about a contaminant associated with
the Property or exposures at or around the Property that raises the risk to public health or the
environment associated with the Property beyond an acceptable range and in a manner or to a
degree not anticipated in this Agreement.
h. The Prospective Developer fails to file a timely and proper Notice of
Brownfields Property under N.C.G.S. 130A-310.35.
28. Except as may be provided herein, DENR reserves its rights against Prospective
Developer as to liabilities beyond the scope of the Act, including those regarding petroleum
underground storage tanks pursuant to Part 2A, Article 21A of Chapter 143 of the General
18
Chester St. BFA 05-20.{)5
• •
Statutes.
29. This Agreement does not waive any applicable requirement to obtain a permit,
license or certification, or to comply with any and all other applicable law, including the North
Carolina Environmental Policy Act, N.C.G.S. § 113A-l, et seg.
X. PROSPECTIVE DEVELOPER'S COVENANT NOT TO SUE
30. In consideration ofDENR's Covenant Not To Sue in Section IX of this Agreement
and in recognition of the absolute State immunity provided in N.C.G.S. § 130A-310.37(b), the
Prospective Developer hereby covenants not to sue and not to assert any claims or causes of
action against DENR, its authorized officers, employees, or representatives with respect to any
action implementing the Act, including negotiating, entering, monitoring or enforcing this
Agreement or the above-referenced Notice ofBrownfields Property.
XI. PARTIES BOUND & TRANSFER/ASSIGNMENT NOTICE
31. This Agreement shall apply to and be binding upon DENR, and on the Prospective
Developer, its officers, directors, employees, and agents. Each Party's signatory to this
Agreement represents that she or he is fully authorized to enter into the terms and conditions of
this Agreement and to legally bind the Party for whom she or he signs.
32. No later than fourteen (14) days prior to any transfer or assignment by Prospective
Developer of any interest in the Property, Prospective Developer shall provide in writing to
DENR the transferee or assignee's name, mailing address, telephone and facsimile numbers, and
e-mail address.
XII. DISCLAIMER
3 3. Except as may be otherwise provided herein, this Agreement in no way constitutes a
19
Chester St. BFA 05-20-05
• •
finding by DENR as to the risks to public health and the environment which may be posed by
regulated substances at the Property, a representation by DENR that the Property is fit for any
particular purpose, nor a waiver of Prospective Developer's duty to seek applicable permits or of
the provisions ofN.C.G.S. § 130A-310.37.
XIII. DOCUMENT RETENTION
34. The Prospective Developer agrees to retain and make available to DENR all business
and operating records, contracts, site studies and investigations, and documents relating to
operations at the Property, for six years following the effective date of this Agreement, unless
otherwise agreed to in writing by the Parties. At the end of six years, the Prospective Developer
shall notifY DENR of the location of such documents and shall provide DENR with an
opportunity to copy any documents at the expense ofDENR.
XIV. PAYMENT OF ENFORCEMENT COSTS
3 5. If the Prospective Developer fails to comply with the terms of this Agreement,
including, but not limited to, the provisions of Section V (Work to be Performed), it shall be
liable for all litigation and other enforcement costs incurred by DENR to enforce this Agreement
or otherwise obtain compliance.
XV. NOTICES AND SUBMISSIONS
36. Unless otherwise required by DENR or a Party notifies the other Party in writing of a
change in contact information, all notices and submissions pursuant to this Agreement shall be
sent by prepaid first class U.S. mail, as follows:
a. forDENR:
Carolyn Minnich
N.C. Division of Waste Management
20
Chester St. BFA 05-20-05
•
Brownfields Program
40 I Oberlin Road, Suite !50
Raleigh, NC 27605
b. for Prospective Developer:
City of Gastonia
Melissa Magee, Assistant City Attorney
PO Box 1748
Gastonia, NC 28053
704/866-6753
•
Notices and submissions sent by prepaid first class U.S. mail shall be effective on the third day
following postmarking. Notices and submissions sent by hand or by other means affording
written evidence of date of receipt shall be effective on such date.
XVI. EFFECTIVE DATE
3 7. This Agreement shall become effective on the date the Prospective Developer signs
it, after receiving it, signed, from DENR. Prospective Developer shall sign the Agreement within
seven (7) days following such receipt.
XVII. TERMINATION OF CERTAIN PROVISIONS
38. If any Party believes that any or all of the obligations under Section VI
(Access/Notice to Successors in Interest) are no longer necessary to ensure compliance with the
requirements of the Agreement, that Party may request in writing that the other Party agree to
terminate the provision(s) establishing such obligations; provided, however, that the provision(s)
in question shall continue in force unless and until the Party requesting such termination receives
written agreement from the other Party to terminate such provision(s).
XVIII. CONTRIBUTION PROTECTION
39. With regard to claims for contribution against Prospective Developer in relation to
21
Chester St. BFA 05-20-05
• •
the subject matter of this Agreement, Prospective Developer is entitled to protection from such
claims to the extent provided byN.C.G.S. § 130A-310.37(a)(5)-(6). The subject matter of this
Agreement is all remediation taken or to be taken and response costs incurred or to be incurred
by DENR or any other person in relation to the Property.
40. The Prospective Developer agrees that, with respect to any suit or claim for
contribution brought by it in relation to the subject matter of this Agreement, it will notifY DENR
in writing no later than 60 days prior to the initiation of such suit or claim.
41. The Prospective Developer also agrees that, with respect to any suit or claim for
contribution brought against it in relation to the subject matter of this Agreement, it will notify
DENR in writing within I 0 days of service of the complaint on it.
XIX. PUBLIC COMMENT
42. This Agreement shall be subject to a public comment period of at least sixty days
starting the day after publication of the approved summary of the Notice of Intent to Redevelop a
Brownfields Property required by N.C.G.S. § !30A-310.34 in the North Carolina Register, or the
day after publication of the same in a newspaper of general circulation serving the area in which
the Property is located, whichever occurs later. After expiration of that period, or following a
public meeting ifDENR holds one pursuant to N.C.G.S. § 130A-310.34(c), DENR may modify
or withdraw its consent to this Agreement if comments received disclose facts or considerations
which indicate that this Agreement is inappropriate, improper or inadequate.
IT IS SO AGREED:
NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
By:
Linda M. Culpepper Date
Deputy Director, Division of Waste Management
22
Chester St. BFA 05-20-05
IT IS SO AGREED:
City of Gastonia
By:
Edward C. Munn
City Manager
Chester St. BFA 05-20-05
• •
Date
23
• • Exhibit -:.1 J>
SCALE = 1 :24000
PREPARED F'RON THE GAsTONIA NORTH, NC QUADRANGLE, GASTON COUNTY -7.5 IIIINUTE TOPOGRAPHIC WAP 35' 15' .4'" N 81" 11' 14'" W
THE ENVIRONMENTAL GROUP
OF THE CAROLINAS, INC.
~~EP.l!l£D AWB
CHARLOTTE. NORTH CAROUNA
o.m: 10/15/02 CHECKED
"' RSC DATt 1 0/15/02 JOB NO.
TOPOGRAPHIC MAP
Hi GHLANO PLAZA (FORMER CARSONS DRYCLEANERS)
RANKIN AVENUE
GASTONIA, NORTH CAROUNA
ZXt-J-034 flGURE
• • Exhibit 1 '
BEGINNING at an existing iron pin located in the intersection of the eastern margin of
U.S. Highway 321 (right-of-way varies) and the northern margin of Rankin Avenue
(right-of-way varies); thence with the northern margin of Rankin Avenue, North 86-40-
58 East 84.10 feet to an existing iron pin; thence North 22-07-53 West 42.16 feet to an
exiting iron pin; thence North 22-07-47 West 71.47 feet to an existing iron pin; thence
North 01-47-42 West 166.82 feet to an existing iron pin; thence North 56-53-50 West
114.29 feet to an existing iron pin located in the eastern margin of U.S. Highway 321;
thence with eastern margin of U. S. Highway 321, the following courses and distances:
(!) North 57-34-47 West 1.57 feet to an existing iron pin; (2) South 04-29-33 East 137.85
feet to an existing iron pin; (3) South 08-20-08 East I 02.30 feet to an existing iron pin;
(4) South 07-21-45 East 32.85 feet to an existing iron pin; (5) South 20-12-29 East 60.72
feet to an existing iron pin; (6) south 45-25-41 East 21.61 feet to the point and place of
beginning.
This description is taken from that map or plat prepared by the Office of the City
Engineer for Gastonia, North Carolina, dated March 28, 2005 and entitled "Exhibit B to
the Notice of Brownfields Property-SURVEY PLAT" which is recorded in Plat Book
__ at Page __ the Office of the Register of Deeds for Gaston County.
DESC030
•
Property Owner: City of Gastonia
Recorded in Book __ , Page __
Associated plat recorded in Plat Book __ , Page __
•
NOTICE OF BROWNFIELDS PROPERTY
This documentary component of a Notice ofBrownfields Property ("Notice"), as well as the plat
component, have been filed this __ day of , 200_ by the City of Gastonia
(hereinafter "Prospective Developer").
The Notice concerns contaminated property.
A copy of this Notice certified by the North Carolina Department of Environment and Natural
Resources (hereinafter "DENR") is required to be filed in the Register of Deeds' Office in the county or
counties in which the land is located, pursuant to North Carolina General Statutes (hereinafter
"NCGS"), Section (hereinafter"§") 130A-310.35(b).
This Notice is required by NCGS § 130A-310.35(a), in order to reduce or eliminate the danger to
public health or the environment posed by environmental contamination at a property (hereinafter the
"Brownfields Property") being addressed under the Brownfields Property Reuse Act of 1997, NCGS §
130A, Article 9, Part 5 (hereinafter the "Act").
Pursuant to NCGS § 130A-310.35(b), the Prospective Developer must file a certified copy of this
Notice within 15 days of Prospective Developer's receipt ofDENR's approval of the Notice or Prospective
Developer's entry into the Brownfields Agreement required by the Act, whichever is later. Pursuant to
NCGS § 130A-310.35(c), the copy of the Notice certified by DENR must be recorded in the grantor index
under the names of the owners of the land and, if Prospective Developer is not the owner, also under
Prospective Developer's name.
The Brownfields Property is located at the northeast comer of U.S. Highway 321 (North Chester Street) and
Rankin Avenue in Gastonia, Gaston County, North Carolina. Prospective Developer sought a Brownfields
Agreement in connection with its desire to effect redevelopment of property in Gastonia that will comprise part
of a shopping center. The Brownfields Property consists of Gaston County Tax Parcels 228 (approximately
0.22 acres) and 229 (approximately 0.42 acres). Parcel 228 is the former site of Carson's Dry Cleaners and
Parcel 229 is wooded. Chlorinated solvents and petroleum have polluted the groundwater at the site. Parcels
228 and 229 are a small component of an 8-acre tract planried by Prospective Developer as the site of the above
I
• •
referenced shopping center and an associated asphalt parking lot.
The Brownfields Agreement between Prospective Developer and DENR is attached hereto as Exhibit
A. It sets forth the use that may be made of the Brownfields Property and the measures to be taken to
protect public health and the environment, and is required by NCGS § 130A-310.32.
Attached hereto as Exhibit B is a reduction, to 8 1/2" x II", of the survey plat required by NCGS § 130A-
31 0.35(a). It is a plat of areas designated by DENR that has been prepared and certified by a professional land
surveyor and that meets the requirements ofNCGS § 4 7-30. That plat contains the following information required
by NCGS § 130A-310.35(a):
(I) The location and dimensions of the areas of potential environmental concern with respect to permanently
surveyed benchmarks.
(2) The type, location and quantity of regulated substances and contaminants known to exist on the
Brownfields Property. The following table also sets forth the type and quantity of such substances, which have been
detected only in the medium of groundwater:
Date of Max. Max. Concentration
Groundwater Concentratio Date of Standard Sample Location Concentration at most Recent
Contaminant n above Std. Most Recent Sampling (J.Ig/L) Sampling (J.Ig/L) Sampling Event (J.Ig/L)
Z-IA I 0/31101 2.8 • •
Z-2A 10/31101 350 • •
Z-3A I 0/31101 4,800 • •
Zc4A 10/31/01 120 • •
Z-5A I 0/30/01 160 • •
MW-1 07/08/03 I, 140
Benzene MW-2 07/08/03 101 I
MW-3 11117/04 38
MW-4 11117/04 9.8
MW-5 11117/04 55
MW-7 07/08/03 1.3
MW-8 07/08/03 3i6 11117/04 170
Toluene MW-1 07/08/03 3,210 1,000
Z-3A 10/31101 140 • • Ethyl benzene MW-1 07/08/03 736 29
Z-2A 10/31101 27 • •
Naphthalene Z-3A 10/31101 92 • • 21
MW-1 07/08/03 97
2
• •
Date of Max. Max. Concentration
Groundwater Concentratio Date of at most Recent Standard
Contaminant Sample Location Concentration n above Std. Most Recent Sampling (f!g/L) Sampling (f!g/L) Sampling Event (f!g/L)
MW-1 03/27/03 273 07/08/03 258
MW-2 07/08/03 232
MW-3 03/27/03 812 11117/04 16
MW-4 03/27/03 904 07/08/03 387
MW-5 03/27/03 870 11/17/04 17
Lead MW-6 07/08/03 376 15
MW-7 03/27/03 63 07/08/03 32
MW-8 03/27/03 187 07/08/03 170
MW-9 03/27/03 449 07/08/03 135
MW-10 07/08/03 198
TW-2 03/27/03 27
X-3 10/30/01 0.58 • •
Z-1A 10/31/01 1 • •
Z-1B 10/31/01 2.6 • •
Z-6A 10/31/01 2.7 • •
Z-7A 10/31101 14 • •
Z-8A 10/31101 22 • •
Chloroform 0.19 Z-9A 10/31101 1.1 • •
MW-9 07108103 1.8
TW-1 03/27/03 31.3
TW-2 03/27/03 28.7
SS-1 11117/04 6.7 07/03/04 4.4
SS-3 11117/04 3.9 07/08/03 . 4.8
Boring #1-228-A 09108100 5.6 • •
Boring #2-228-B 09108100 6.5 • • ':>
Boring #3-228-C 09/08100 3.1 • •
Boring #4-228-D 09/08/00 10 • •
1 ,2-Dichloro-Boring #5-228-E 09/08/00 4.1 • • 0.56
propane Z-6A 10/31/01 3.6 • •
Z-7A 10/31101 0.78 • •
MW-10 03/27/03 17.3 07/08/03 2.7
TW-3 07/08/03 3.7
Boring #5-228-E 09108100 850 • •
Z-4A 10/31/01 130 • •
Cis-! ,2-MW-3 03/27/03 622 11117/04 110 70
Dichloroethene MW-4 11117/04 220
MW-5 11117/04 97
3
• •
Date of Max. Max. Concentration
Groundwater Concentratio Date of Standard Sample Location Concentration at most Recent
Contaminant n above Std. Most Recent
Sampling Sampling Sampling (~giL)
(~giL) Event (~giL)
Z-2A 10/30/01 220 • •
Z3-A 10/30/01 330 • •
Isopropyl Ether Z-4A 70 10/30/01 75 • •
Z-5A 10/30/01 82 • •
Methylene Boring #5-228-E 09/08/00 9.7 • • 5 Chloride
Boring #4-228-D 09/08/00 0.91 • •
Boring #5-228-E 09/08/00 3.6 • •
X-2 10/30/01 1.6 • •
X-3-10 l 0/30/01 12 • •
X-3 10/30/01 1,900 • •
Tetrach1oro-X-4 10/30/01 860 • • 0.7 ethene Z-4A • 10/30/01 1.9 •
MW-3 07/08/03 1,250 11117/04 4.6
MW-4 07/08/03 1,180 11117/04 220
MW-5 07/08/03 1.50
MW-10 07/08/03 4.50
Boring #5-228-E 09/08/00 82 • •
X-3 10/30/01 380 • •
Trichloroethene MW-3 07/08/03 1,070 11117/04 4.4 2.8
MW-4 03/27/03 139 11117/04 180
MW-5 07/08/03 11.6
Hole #I P2-W-A 05/31100 2.4 • •
Boring #4-228-D 09/08/00 4.8 • •
Boring #5-228-E 09/08/00 450 • •
Boring #6-228-F 09/08/00 0.64 • •
X-2 10/30/01 3.7 • •
Z-1B 10/30/01 2.7 • •
Z-2A 10/30/01 590 • •
Vinyl Chloride Z-3A 10/30/01 130 • • 0.015
Z-4A 10/30/01 96 • •
Z-6A 10/31101 2.4 • •
Z-7A 10/31101 2.8 • •
MW-3 03/27/03 306 11/17/04 85
MW-4 07/08/03 79.8 11117/04 75
MW-5 11117/04 180
MW-8 11117/04 12
4
• •
Date of Max. Max. Concentration
Groundwater Concentratio Date of Standard Sample Location Concentration at most Recent
Contaminant n above Std. Most Recent
Sampling Sampling Sampling (J.Lg/L)
(J.Lg/L) Event (Jlg/L)
• -Only one sample taken from these particular wells, some of which are single sample Geoprobe points, and some
are monitoring wells that have been recently installed.
Attached hereto as Exhibit Cis a legal description of the Brownfields Property that would be sufficient as a
description of the property in an instrument of conveyance.
LAND USE RESTRICTIONS
NCGS 130A-31 0.35(a) also requires that the Notice identify any restrictions on the current and future use of
the Brownfields Property that are necessary or useful to maintain the level of protection appropriate for the
designated current or future use of the Brownfields Property and that are designated in the Brownfields Agreement.
The restrictions.shall remain in force in perpetuity unless canceled by the Secretary ofDENR (or its successor
in function), or his/her designee, after the hazards have been eliminated, pursuant to NCGS § 130A-310.35(e).
Those restrictions are hereby imposed on the Brownfields Property, and are as follows:
1. No use may be made of the Brownfields Propertv other than for:
a a shopping center. defined as a group of commercial establishments, planned and developed as a
unit, with common parking, pedestrian movement, ingress and egress, which is used for the sale of
merchandise or services to the public;
b. other commercial use, defined as an occupation, employment, or enterprise carried on for profit
by the owner, Jessee, or licensee; or
c. retail establishments, defined as buildings, property or activities the principal use or purpose of
which is the sale of goods, products, or merchandise directly to the consumer.
2. Surface water and underground water at the Brownfields Property may not be used for any
purpose without the approval of DENR .
3. No activities that encounter, expose, remove or use groundwater (for example, installation of water
supply wells, fountains, ponds, lakes or swimming pools, or construction or excavation activities that
encounter or expose groundwater) may occur on the Brownfields Property without prior sampling and
analysis of groundwater to the satisfaction ofDENR in any areas proposed for such activities, and submittal
of the analytical results to DENR. If such results disclose to DENR contamination in excess of North
Carolina's groundwater quality standards, the proposed activities may not occur without the approval of
DENR on such conditions as DENR imposes, including at a minimum compliance with plans and procedures,
approved pursuant to applicable law, to protect public health and the environment during the proposed
activities.
4. No mining may be conducted on or under the Brownfields Property, including, without limitation,
extraction of coal, oil, gas or any other minerals or non-mineral substances.
5
• •
5. No basements may be constructed on the Brownfields Property unless they are, as determined by
DENR, vented in conformance with applicable building codes. ·
6. None of the contaminants known to be present in the environmental media at the Brownfields
Property, including those listed in the table in paragraph (2) above, may be used or stored at the Brownfields
Property without the prior approval ofDENR, except in de minimis amounts for cleaning and other routine
housekeeping activities.
7. The Brown fields Property may not be used as a park or for sports of any kind, including, but not
limited to, golf, football, soccer and baseball, without the approval of DENR.
8. The Brownfields Property may not be used for agriculture, grazing, timbering or timber
production.
9. The Brownfields Property may not be used as a playground, or for child care centers or schools.
10. The Brownfields Property may not be used for kennels, private animal pens or horse-riding.
11. Beginning in the first Januarv following the year in which this Notice is recorded, and every
January after that for a minimum of five (5) years, the owner(s) ofthe portions of the Brownfields Property
containing the affected wells or other party agreeable to DENR shall effect sampling, in accordance with the
most current version of the Guidelines of the Inactive Hazardous Sites Branch ofDENR's Superfund Section,
of the following monitoring wells depicted on the plat component of this Notice: MW-3, MW-6, MW-8 and
MW-9. As well, the owner(s) of the portion of the Brownfields Property containing MW-8 or other partv
agreeable to DENR shall effect sampling, in accordance with the most current version of the Guidelines of the
Inactive Hazardous Sites Branch ofDENR's Superfund Section, of the stream adjacent to MW-8, within 25
feet of said stream. Sampling of the wells referenced in this subparagraph may cease if, at any time after five
(5) years, DENR determines that contaminant concentrations are decreasing. The well and stream samples
shall be analyzed by EPA Method 8260/8270 for Volatile Organic Compounds (VOCs)!Semi VOCs or any
comparable method approved in advance by DENR. Each party conducting well sampling shall submit a
report setting forth the sampling procedures and results with the Land Use Restrictions Update referenced in
the following Land Use Restriction 12.
12. During January of each year after this Agreement becomes effective, the then current owner of
any part of the Brownfields Property shall submit a notarized Land Use Restrictions Update to DENR
certifying that this Notice containing these land use restrictions remains recorded at the Gaston County
Register of Deeds office, and that these Land Use Restrictions are being complied with.
For purposes ofthe land use restrictions set forth above, "DENR" shall mean the DENR official and address
referenced in paragraph 36.a. of Exhibit A hereto.
ENFORCEMENT
The above land use restrictions shall be enforceable without regard to lack of privity of estate or contract,
lack of benefit to particular land, or lack of any property interest in particular land. The land use restrictions shall be
6
• •
enforced by any owner of the Brownfields Property. The land use restrictions may also be enforced by DENR
through the remedies provided in NCGS 130A, Article I, Part 2 or by means of a civil action; by any unit oflocal
government having jurisdiction over any part of the Brownfields Property; and by any person eligible for liability
protection under the Brownfields Property Reuse Act who will lose liability protection if the restrictions are violated.
Any attempt to cancel any or all of this Declaration without the approval of the Secretary ofDENR (or its successor
in function), or his/her delegate, shall be subject to enforcement by DENR to the full extent of the law. Failure by
any party required or authorized to enforce any of the above restrictions shall in no event be deemed a waiver of the
right to do so thereafter as to the same violation or as to one occurring prior or subsequent thereto.
FUTURE SALES, LEASES, CONVEYANCES AND TRANSFERS
When any portion of the Brownfields Property is sold, leased, conveyed or transferred, pursuant to NCGS §
130A-310.35(d) the deed or other instrument of transfer shall contain in the description section, in no smaller type
than that used in the body of the deed or instrument, a statement that the Brownfields Property has been classified
and, if appropriate, cleaned up as a brownfields property under the Brownfields Property Reuse Act.
IN WITNESS WHEREOF, Prospective Developer has caused this instrument to be duly executed this
__ day of , 200_.
NORTH CAROLINA
GASTON COUNTY
By:
The City of Gastonia
-~-------''City Manager
I,-----------' a Notary Public of the County and State aforesaid, do hereby certify
that -----,--------personally appeared before me this day and acknowledged the due execution
of the foregoing instrument.
WITNESS my hand and official stamp or seal, this __ day of ______ , 200 _.
Name:
Notary Public
My Commission expires: ---------
[Stamp/Seal]
7
• • •
. APPROVAL AND CERTIFICATION OF NORTH CAROLINA DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES
The foregoing Notice ofBrownfields Property is hereby approved and certified.
North Carolina Department of Environment and Natural Resources
By:
Linda M. Culpepper Date
Deputy Director, Division of Waste Management
********************************
CERTIFICATION OF REGISTER OF DEEDS
The foregoing documentary component of the Notice ofBrownfields Property, and the associated plat, are
certified to be duly recorded at the date and time, and in the Books and Pages, shown on the first page hereof.
Register of Deeds for Gaston County
By:
Name typed or printed: Date
Deputy/ Assistant Register of Deeds
8
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• • Exhibit c
BEGINNING at an existing iron pin located in the intersection of the eastern margin of
U.S. Highway 321 (right-of-way varies) and the northern margin of Rankin Avenue
(right-of-way varies); thence with the northern margin of Rankin Avenue, North 86-40-
58 East 84.10 feet to an existing iron pin; thence North 22-07-53 West 42.16 feet to an
exiting iron pin; thence North 22-07-47 West 71.47 feet to an existing iron pin; thence
North OJ-47-42 West 166.82 feet to an existing iron pin; thence North 56-53-50 West
114.29 fee,t to an existing iron pin located in the eastern margin of U.S. Highway 321;
thence with eastern margin of U. S. Highway 321, the following courses and distances:
(1) North 57-34-47 West 7.57 feet to an existing iron pin; (2) South 04-29-33 East 137.85
feet to an existing iron pin; (3) South 08-20-08 East 102.30 feet to an existing iron pin;
(4) South 07-21-45 East 32.85 feet to an existing iron pin; (5) South 20-12-29 East 60.72
feet to an existing iron pin; (6) south 45-25-41 East 21.61 feet to the point and place of
beginning.
This description is taken from that map or plat prepared by the Office of the City
Engineer for Gastonia, North Carolina, dated March 28, 2005 and entitled "Exhibit B to
the Notice of Brownfields Property-SURVEY PLAT" which is recorded in Plat Book
_at Page __ the Office of the Register of Deeds for Gaston County.
DESC030
·~ i
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• .lms Mull iss & Wicker, PLLC Attorneys at Law
Charlotte Raleigh Wilmington www.hmw.com
HELMS MULLISS WI.CKER
Amanda K. Short
704.343.2359
Fax [phone]
[e-mail]
VIA FEDERAL EXPRESS
Julian Mann III, Director
North Carolina Register
CF6oo=)---oy -:xe
May 1 -fc ~.V\~ -------
Office of Administrative Hearings, Rules Division
424 North Blount Street
Raleigh, NC 27601
Re: City of Gastonia I Highland Plaza Property
Summary Notice of Intent
Dear Judge Mann:
'
201 N. Tryon Street
Charlotte, NC 28202
P.O. Box31247 (28231)
704.343.2000
/704.343.2300
We represent the City of Gastonia, which has successfully concluded with the North
Carolina Department of Environment and Natural Resources negotiation of a Brownfields
Agreement under the Brownfields Property Reuse Act o[1997, N.C.G.S. §130A-310.31 et seq.
N.C.G.S. §130A-310.34(a) requires the prospective developer, in this case, the City of
Gastonia, to prepare a Summary of Notice of Intent to Redevelop a Brownfields Property. The
statute further provides that:
The prospective developer shall [provide] a copy of the
summary of the Notice oflntent with the Codifier of Rules,
who shall publish the summary of the Notice of Intent in
the North Carolina Register.
Being sent with this letter by facsimile is a copy of the Summary of Notice of Intent
which has been approved by DENR and Rob Gelblum of the Attorney General's office. This
version has been drafted based on the assumption that it will be published in the next "In
Addition" section of the North Carolina Register on June 15. We are also mailing two copies of
the Summary of Notice oflntent with this letter, along with a copy on diskette.
C720631
I .J -~ ... ,.
•
Julian Mann, III, Director
May 20,2005
Page 2
• •
If you have any questions or if I can be of further help with regard to this matter, please
do not hesitate to contact me. Thank you for your attention to this matter.
Enclosures
cc: Rob Gelblum (w/o encl.)
Carolyn F. Minnich (w/encl.)
Melissa A. Magee (w/encl.)
C720631
Sincerely,
Helms Mulliss & Wicker, PLLC
Amanda K. Short
• •
SUMMARY OF NOTICE OF
INTENT TO REDEVELOP A BROWNFIELDS PROPERTY
The City of Gastonia
Pursuant to N.C.G.S. § 130A-310.34, the City of Gastonia has filed with the North
Carolina Department of Environment and Natural Resources ("DENR") a Notice oflntent to
Redevelop a Brownfields Property ("Property") in Gastonia, Gaston County, North Carolina.
The Property consists of 0.64 acres at the northeast comer of U.S. Highway 321 (Chester Street)
and Rankin A venue. Environmental contamination exists on the Property in groundwater. The
Property is part of an 8-acre tract that Prospective Developer has committed itself to redevelop
for no uses other than commercial and retail ones, including a shopping center and associated
parking lot. The Notice oflntent to Redevelop a Brownfields Property includes: (I) a proposed
Brownfields Agreement between DENR and the City of Gastonia, which in tum includes (a) a
map showing the location of the Property, (b) a description of the contaminants involved and
their concentrations in the media of the Property, (c) the above-stated description of the intended
future use of the Property, and (d) proposed investigation and remediation; and (2) a proposed
Notice ofBrownfields Property prepared in accordance with G.S. 130A-310.35. The full Notice
of Intent to Redevelop a Brownfields Property may be reviewed at the offices of the City of
Charlotte's Economic Development Division, 600 East Fourth Street, Charlotte, NC 28202 by
contacting Carolyn Minnich at that address, at [phone] or at
[e-mail]; or at 40 I Oberlin Rd., Raleigh, NC 27605 (where DENR will
provide auxiliary aids and services for persons with disabilities who wish to review the
documents) by contacting Shirley Liggins at that address, at [e-mail], or at
[phone]. Written public comments may be submitted to DENR within 60 days after the
• •
date this Notice is published in a newspaper of general circulation serving the area in which the
brownfields property is located, or in the North Carolina Register, whichever is later. Written
requests for a public meeting may be submitted to DENR within 30 days after the period for
written public comments begins. Thus, if The City of Gastonia, as it plans, publishes this
Summary in the North Carolina Register after it publishes the Summary in a newspaper of
general circulation serving the area in which the brownfields property is located, and if it effects
publication of this Summary in the North Carolina Register on the date it expects to do so, the
periods for submitting written requests for a public meeting regarding this project and for
submitting written public comments will commence on June 16, 2005. All such comments and
requests should be addressed as follows:
Mr. Bruce Nicholson
Brownfields Program Manager
Division of Waste Management
NC Department of Environment and Natural Resources
40 I Oberlin Road, Suite ISO
Raleigh, North Carolina 27605