IH2327_C_20240318_Academy Steel Drum Response to IHSB SMP Comments and Request for RI NCD024462327

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Alexander Ricks PLLC 1420 E. Seventh Street, Suite 100 Charlotte, North Carolina 28204
Main Tel [phone]
Main Fax [phone] www.alexanderricks.com
Chris S. Walker Direct 980.335.0712
[e-mail]
E-MAIL
– Hydrogeologist

– Division of Waste Management [e-mail]
Re: Academy Steel Drum Site – NCD024462327
Soil Management Plan Comments and Request for Remedial Investigation
Dear Mr. Alvalle:
This firm represents Academy Steel Drum Co. (“ASD”), Alegria Properties, LLC (“Alegria”), and Esperanza Properties, Inc. (“Esperanza”; and together with ASD and Alegria, the “Respondent”)
regarding the Academy Steel Drum site located at 3240 and 3250 Campus Ridge Road, Matthews, NC (the “Regulated Site”), along with the vacant property located at 3212 Campus Ridge Road (the “Vacant Parcel”) that is not subject to Inactive Hazardous Sites Branch (“IHSB”) regulation or oversight. This letter responds to IHSB’s January 24, 2024, Soil Management Plan Comments and Request for Remedial Investigation (the “IHSB Request”). The IHSB Request requests a
response by March 18, 2024, and thus this response is timely filed.
As described in more detail below, Respondent respectfully disagrees with several assertions made in the IHSB Request, but Respondent is willing to conduct certain additional, voluntary assessment at the Regulated Site to facilitate IHSB’s review of the Soil Management Plan dated August 30, 2023 (“SMP”) that was the genesis of the IHSB Request. Additionally, Respondent plans to update
the SMP to address IHSB’s comments set forth in the IHSB Request.
At the outset, Respondent does not believe IHSB’s basis for reopening the No Further Action letter dated March 22, 2013 (the “NFA”) was lawful. The IHSB Request indicates that the NFA was reopened due to concerns with “potential risks posed to public health and the environment if surface and subsurface media is disturbed and/or use is changed.” The IHSB Request also indicated
that IHSB is not a redevelopment program and that “IHSB must make the classification change under its statutes.” IHSB appears to be seeking a modification of the land use restrictions (“LURs”) in the Declaration of Perpetual Land Use Restrictions recorded for the Regulated Site in 2013 (“DPLUR”) so “the units can be closed again under the new modified LURs.”
Both the NFA and the Inactive Hazardous Sites Response Act of 1987 (“IHSRA”) provide the
lawful bases upon which IHSB can reopen or rescind the agency decision to issue a no further

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action determination. In particular, N.C.G.S. §130A-310.7(c) states as follows:
The notification shall state that no further remediation will be required at the site
unless the Department later determines, based on new information or information
not previously provided to the Department, that the site has not been remediated to
unrestricted use standards or that the Department was provided with false or incomplete information. Under any of those circumstances, the Department may withdraw the notification and require responsible parties to remediate the site to
unrestricted use standards (emphasis added).
Additionally, the NFA states: “No further remedial action will be required unless the Department later determines, based on new information or information not previously provided to the Department, that the site has not be [sic] remediated to current standards or that the Department was provided with false or incomplete information.”
The circumstances authorizing IHSB to reopen the NFA have not been met here. There is no “new
information . . . that the site has not been remediated to current standards.” The only apparent “new information” is that Respondent plans to sell the Regulated Site and the Vacant Parcel for redevelopment. Without “new information” meeting the requirements of the IHSRA, IHSB’s attempt to reopen the NFA is not authorized by the IHSRA and would likely be considered an
unlawful agency decision if challenged in court.
Respondent also respectfully disagrees with the IHSB Request’s statement that the proposed redevelopment of the Regulated Site is “not relative to LURs” in the DPLUR. The proposed redevelopment is squarely contemplated and addressed by the LURs in the DPLUR. Those LURs authorize commercial and industrial use as proposed in the SMP, and the LURs expressly allow
for IHSB approval of actions necessary to implement that redevelopment. Submitting an SMP that
complies with the DPLUR and that will result in a remedy that is more protective than current conditions does not provide IHSB with a second chance to re-evaluate its decision making from when the NFA and DPLUR were issued. Respondent requests that IHSB reconsider its position that the NFA is “Open” and agree to maintain the NFA status pending resolution of the issues
raised in the IHSB Request.
Further, the IHSB Request ignores the fact that there are multiple other parties that conducted operations at the Regulated Site and are potentially responsible for some or all of the Regulated Site conditions. Those parties include East Coast Container Corporation, Industrial Container Services – Charlotte, LLC, American Container Net, Inc., and Bio-Medical Waste of North
Carolina. Respondent requests that IHSB acknowledge the potential responsibility of other parties
for certain contaminants at the Regulated Site and pursue those parties for the impacts for which they are responsible if IHSB believes further assessment and remediation are necessary.
With those issues as background, Respondent provides the following responses to the IHSB Request, along with Respondent’s proposed course of action.
1. Options under DPLUR: The IHSB Request indicates that IHSB sees two general options
for redevelopment of the Regulated Site. As proposed in the SMP, Respondent proposes to proceed under “Option B,” where redevelopment is proposed relative to the existing LURs in the DPLUR. The SMP will be revised to address the points raised by IHSB (as discussed in more detail below) and resubmitted for approval. Respondent sees no need to reopen the
NFA and modify the LURs in the DPLUR under this option.

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2. Remedial Investigation: Respondent respectfully declines to conduct a remedial investigation “of areas outside of the defined Zones I through V” as there is no basis for
such an investigation. This is supported by the history of the Vacant Parcel and prior IHSB-
approved documents, including (a) the Site Assessment Plan dated September 27, 1999 where the Vacant Parcel was excluded from the proposed assessment; (b) the Administrative Agreement dated May 4, 2005 that excluded the Vacant Parcel from the definition of the “Site”; (c) the Remedial Action Plan dated 2007 stating that the Vacant
Parcel “contains no suspected impact”; and (d) the DPLUR that does not contain any LURs
that affect the Vacant Parcel. The Vacant Parcel was not used for former drum reclamation activities, and IHSB has recognized that there are no suspected impacts on the Vacant Parcel. IHSB had numerous opportunities in the past to require assessment of the Vacant Parcel, including when it entered into the Administrative Agreement with ASD, but IHSB
declined to do so. The Vacant Parcel was included in the SMP solely because excluding it
would make IHSB’s evaluation of the SMP more difficult as IHSB would only see a portion of the full redevelopment plan.
3. Geophysical Survey: Respondent agrees that a geophysical survey would be helpful for future soil management and risk identification, but Respondent does not agree to conduct
a geophysical survey of the Vacant Parcel for similar reasons as explained in item 2 above.
Respondent agrees to conduct a geophysical survey of the portions of the Regulated Site that will be disturbed during redevelopment. That likely includes the entirety of 3240 Campus Ridge Road and portions of 3250 Campus Ridge Road. Note that Respondent is re-evaluating the redevelopment plans for 3250 Campus Ridge Road to minimize soil
disturbance on that parcel for the proposed installation of a paved surface lot for parking
and materials storage.
4. More Protective Remedy: The approach set forth in the SMP, along with continued compliance with the DPLUR, will result in a more protective remedy for the Regulated Site than exists today. As noted in the SMP, only limited areas of the Regulated Site have
soil conditions exceeding acceptable NCDEQ risk thresholds. Soils in Zone I exceeded
acceptable risk thresholds for non-residential and construction worker scenarios, and soils in Zone V exceeded risk thresholds for construction workers. The proposed redevelopment will include the construction of a slab-on-grade industrial warehouse building with associated paved parking, access, and loading areas. The placement of impervious surfaces
across the Regulated Site will improve current caps and ensure they are maintained. These
impervious surfaces will further minimize the risk of exposure to residual soil impacts, and they will also minimize the potential for lateral and vertical migration of contaminants, which will provide more protection of both groundwater and surface water to support the monitored natural attention remedies selected in the IHSB-approved Remedial Action
Plan. Further, Respondent understands that the proposed developer of the Regulated Site
intends to evaluate vapor intrusion as part of the redevelopment and address it if necessary.
5. Other SMP Comments: Respondent will submit an updated SMP that responds to the remainder of IHSB’s comments in the IHSB Request, including, without limitation, dust control and worker protection, vapor intrusion, the need for an updated notice plat, and
capping details.
While Respondent has several concerns with the positions taken in the IHSB Request, Respondent proposes to put those concerns aside so it can work cooperatively with IHSB to facilitate the safe

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redevelopment of the Regulated Site in a manner that is consistent with the DPLUR. Respondent believes it and the proposed developer can work within the confines of the existing LURs in the
DPLUR to effect the safe redevelopment of the Regulated Site, but Respondent is willing to
consider reasonable amendments to the DPLUR to help resolve remaining concerns from IHSB for the Regulated Site.
Prior to submitting a revised SMP, Respondent requests a conference call with IHSB to discuss this response and the IHSB Request in more detail and to confirm a path forward for redevelopment
of the Regulated Site. Respondent is willing to conduct additional, voluntary work at the Regulated
Site within reason, but it believes the IHSB Request is overbroad, particularly in light of the approved remedy for the Regulated Site, the NFA determination, and the identified exposure risks.
Please contact me with any questions.
Sincerely,

Chris S. Walker
cc: Mr. Phillip A. Guller (via e-mail) Mr. Steve Hart (via e-mail) Ms. Janet MacDonald (via e-mail) Mr. Ralph McGee (via e-mail) Mr. J. Michael Murphy (via e-mail)
Mr. Lawrence Shaw (via e-mail)