HomeMy WebLinkAbout19033_Love'sGrading_Notice of Brownfields Property (NBP)_11.10.2020
19033-15-060/Love’s Grading Company (November 10, 2020)
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Property Owner: Circle K Stores, Inc. Recorded in Book ____, Page ____ Associated plat recorded in Plat Book ____, Page ____
NOTICE OF BROWNFIELDS PROPERTY Site Name: Love’s Grading Company Brownfields Project Number: 19033-15-060
This documentary component of a Notice of Brownfields Property (“Notice”), as well as the plat component, have been filed this _____ day of __________________, 2020 by Circle K Stores, Inc. (“Prospective Developer”). This Notice concerns contaminated property.
A copy of this Notice certified by the North Carolina Department of Environmental Quality (“DEQ”) 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 (“NCGS”), § 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 (“Brownfields Property”) being addressed under the Brownfields Property Reuse Act of 1997, NCGS § 130A, Article 9, Part 5 (“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 of DEQ’s approval of the Notice or Prospective Developer’s entry into the Brownfields Agreement required by the Act, whichever is later. The copy of the Notice certified by DEQ 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 the Prospective Developer’s name. The Brownfields Property is located at 6519 Brookshire Boulevard, Charlotte, Mecklenburg County, North Carolina and consists of once parcel (PIN 03521113) totaling approximately 4.707
acres. Historically, the Brownfields Property has been used for agricultural and residential
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purposes until approximately 1969 when a warehouse was constructed on the Brownfields Property. Love’s Grading Company utilized the Brownfields Property for a construction and grading operation from 1975 until the Brownfields Property was purchased by the Prospective
Developer (Circle K Stores, Inc.) on May 11, 2015. Since the purchase of the Brownfields Property, Circle K Stores, Inc. has redeveloped and operates the Brownfields Property as a gasoline service station and convenient store. Groundwater and soil at the Brownfields Property are known to have been impacted with volatile organic compounds (VOCs). The Brownfields Agreement between Prospective Developer and DEQ 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. The Brownfields Agreement’s Exhibit 2 consists of one or more data tables reflecting the concentrations of and other information regarding the Brownfields Property’s regulated substances and contaminants. Attached as Exhibit B to this Notice is a reduction, to 8 1/2" x 11", of the survey plat component of this Notice. This plat shows areas designated by DEQ, has been prepared and
certified by a professional land surveyor, meets the requirements of NCGS § 47-30, and complies
with NCGS § 130A-310.35(a)’s requirement that the Notice identify: (1) 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. Attached hereto as Exhibit C is 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-310.35(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 of DEQ (or its successor in function), or his/her designee, after the hazards have been eliminated, pursuant to NCGS § 130A-310.35(e). All references to DEQ shall be understood to include any successor in function. The land use restrictions below have been excerpted verbatim from paragraph 15 of the Brownfields Agreement, and all subparagraph letters/numbers are the same as those used in the Brownfields Agreement. The following land use restrictions are hereby imposed on the Brownfields Property:
a. No use may be made of the Brownfields Property other than for a gas station, retail, parking, and with prior written DEQ approval, other commercial uses. For purposes of this
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restriction, the following definitions apply: i. “Gas Station” defined as a retail facility at which motor vehicles are commercially refueled;
ii. “Retail” defined as the sale of goods or services, products, or merchandise directly to the consumer or businesses and includes showrooms, personal service, and the sales of food and beverage products; iii. “Parking” defined as the temporary accommodation of motor vehicles in an area designed for same;
iv. “Commercial” defined as an enterprise carried on for profit or nonprofit by the owner, lessee or licensee; and b. The Brownfields Property may not be used for child care centers, adult care centers or schools without the prior written approval of DEQ.
c. Unless compliance with this Land Use Restriction is waived in writing by DEQ in advance in regard to particular activity or unless in connection with work conducted in accordance with a DEQ-approved Environmental Management Plan (EMP) as outlined in subparagraph 15.i., no activities that encounter, expose, remove or use groundwater (for example, installation of water
supply wells, ponds, lakes or swimming pools, or construction or excavation activities that encounter or expose groundwater) may occur on the Brownfields Property 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 subparagraph 15.a above while fully protecting public health and
the environment. Prior sampling and analysis of groundwater to the written satisfaction of DEQ in any areas proposed for such activities, and submittal of the analytical results to DEQ is required. If such results reflect contaminant concentrations that exceed the standards and screening levels applicable to the uses authorized for the Brownfields Property, the groundwater -related activities proposed may only occur in compliance with any written conditions DEQ
imposes. Activities 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 subparagraph 15.a. above while fully protecting public health and the environment. d. 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 subparagraph 15.a above while fully protecting public health and the environment, except: i. in connection with landscape planting to depths not exceeding 24”;
ii. mowing and pruning of above-ground vegetation; iii. 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; or
iv. in connection to work conducted in accordance with a DEQ-approved EMP as outlined below in subparagraph 15.i.
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e. 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 subparagraph 15.i.
f. No enclosed building may be constructed on the Brownfields Property nor be occupied until DEQ determines in writing that: i. 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 ii. 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
iii. 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. g. No disturbance or alteration of the slab within the existing building footprint, as depicted on the plat component of the Notice of Brownfields Property referenced in paragraph 20 below,
may occur unless in accordance with a DEQ-approved EMP, unless otherwise approved in advance in writing by DEQ, or unless in the case of emergency circumstances for repair of underground infrastructure, in which case DEQ shall be provided written notice no later than the next business day and any related assessment and remedial measures required by DEQ shall be taken.
h. 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: i. soil and water management issues, including without limitation those resulting from contamination identified in the Environmental Reports; ii. issues related to potential sources of contamination referenced in Exhibit 2;
iii. 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 iv. plans for the proper characterization of, and, as necessary, disposal of contaminated soils excavated during redevelopment.
i. No later than January 31 after each one-year anniversary of the effective date of this Agreement for as long as physical redevelopment of the Brownfields Property continues (except
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that the final deadline shall fall 90 days after the conclusion of physical redevelopment), the then owner of the Brownfields Property shall provide DEQ a report subject to written DEQ approval on environment-related activities (other than DEQ IHSB program activities) since the last report,
with a summary and drawings, that describes: i. actions taken on the Brownfields Property in accordance with Section V: Work to be Performed above; ii. soil grading and cut and fill actions; iii. methodology(ies) employed for field screening, sampling and laboratory
analysis of environmental media; iv. stockpiling, containerizing, decontaminating, treating, handling, laboratory analysis and ultimate disposition of any soil, groundwater or other materials suspected or confirmed to be contaminated with regulated substances; and v. removal of any contaminated soil, water or other contaminated materials (for
example, concrete, demolition debris) from the Brownfields Property (copies of all legally required manifests shall be included). j. 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. k. 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 Mecklenburg 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 and other confidential information 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 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. l. None of the contaminants known to be present in the environmental media at the Brownfields Property, as described in Exhibit 2 of this 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: i. in de minimis quantities for cleaning and other routine housekeeping and maintenance activities;
ii. in fluids in vehicles; iii. Substances containing contaminants known to be present in the environmental media at the Brownfields Property shall be managed in compliance with the US EPA Underground
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Storage Tank Regulation presented in 40 CFR Part 280 (July 2015) and the requirements presented in DEQ UST Section’s Operating and Maintaining Underground Storage Tanks (January 2019) such that, should a release of those substances occur at the Brownfields Property, the subject
contaminants in that release would be distinguishable with certainty from the subject contaminants in any known release at the Brownfields Property that predates this Agreement. n. During January of each year after the year in which the Notice referenced below in paragraph 20 is recorded, the owner of any part of the Brownfields Property as of January 1st of
that year shall submit a notarized Land Use Restrictions Update (“LURU”) to DEQ, and to the chief public health and environmental officials of Mecklenburg County, certifying that, as of said January 1st, the Notice of Brownfields Property containing these land use restrictions remains recorded at the Mecklenburg County Register of Deeds office and that the land use restrictions are being complied with, and stating:
i. 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; ii. 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; iii. whether any vapor barrier and/or mitigation systems installed pursuant to subparagraph 15.f. 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; and
iv. whether UST secondary containment and release detection measures installed at the Brownfields Property remain in compliance with the DEQ UST Section pursuant to subparagraphs 15.l. above. For purposes of the land use restrictions set forth above, the DEQ point of contact shall be the DEQ official referenced in subparagraph 35.a. of Exhibit A hereto, at the address stated therein. 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 enforced by any owner of the Brownfields Property. The land use restrictions may also be enforced by DEQ through the remedies provided in NCGS §
130A, Article 1, Part 2 or by means of a civil action; by any unit of local 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 Notice without the approval of the Secretary of DEQ (or its successor in function), or his/her delegate, shall be subject to enforcement
by DEQ 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.
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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 _______________, 2020.
Circle K Stores, Inc.
By: __________________________________________ Debrah Carl
Environmental Manager of Circle K Stores, Inc.
NORTH CAROLINA MECKLENBURG 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: ________________________________.
Date: ___________________ ___________________________________
Official Signature of Notary
___________________________________ (Official Seal) Notary’s printed or typed name, Notary Public My commission expires: _____________________
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APPROVAL AND CERTIFICATION OF NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
The foregoing Notice of Brownfields Property is hereby approved and certified. North Carolina Department of Environmental Quality
By: _________________________________________ ________________________
Ellen Lorscheider Date Deputy Director, Division of Waste Management
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EXHIBIT A
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY IN THE MATTER OF: Circle K Stores, Inc.
UNDER THE AUTHORITY OF THE ) BROWNFIELDS AGREEMENT re:
BROWNFIELDS PROPERTY REUSE ACT ) Love’s Grading Company OF 1997, NCGS § 130A-310.30, et seq. ) 6519 Brookshire Boulevard Brownfields Project # 19033-15-060 ) Charlotte, Mecklenburg County
I. INTRODUCTION
This Brownfields Agreement (“Agreement”) is entered into by the North Carolina
Department of Environmental Quality (“DEQ”) and Circle K Stores, Inc. (collectively the
"Parties") pursuant to the Brownfields Property Reuse Act of 1997, NCGS § 130A-310.30, et
seq. (the “Act”) for the property located at 6519 Brookshire Boulevard, Charlotte, Mecklenburg
County (the “Brownfields Property”). A map showing the location of the Brownfields Property
that is the subject of this Agreement is attached hereto as Exhibit 1.
Circle K Stores, Inc. is a North Carolina limited liability company represented by Debrah
Carl, and its mailing address is 2440 Whitehall Park Drive, Charlotte, NC 28273. This
Agreement pertains to approximately 4.707 acres of land located at 6519 Brookshire Boulevard
in the City of Charlotte (Mecklenburg County tax parcel number 03521113). Circle K Stores,
Inc. intends to redevelop the Brownfields Property for no uses other than a gas station, retail,
parking, and with prior written DEQ approval, other commercial uses. Historically, the
Brownfields Property was vacant wooded land and/or agricultural fields until 1956. A former
warehouse building totaling 3,040 square feet was constructed in 1969 which was subsequently
utilized by the Love’s Grading Company from 1975 to approximately 2015. It was purchased by
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Circle K Stores, Inc., on May 11, 2015 and has since been redeveloped and operated as a
gasoline service station and convenient store. Groundwater contamination is present at the
property in the form of elevated concentrations of volatile organic compounds (VOCs) related to
petroleum and chlorinated solvent sources.
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 (DEQ’s Covenant Not to Sue
and Reservation of Rights) and Section X (Prospective Developer’s Covenant Not to Sue), the
potential liability of Circle K Stores, Inc. for contaminants at the Brownfields Property.
The Parties agree that Circle K Stores, Inc.’s entry into this Agreement, and the actions
undertaken by Circle K Stores, Inc. in accordance with the Agreement, do not constitute an
admission of any liability by Circle K Stores, Inc. for contaminants at the Brownfields Property.
The resolution of this potential liability, in exchange for the benefit Circle K Stores, Inc. shall
provide to DEQ, is in the public interest.
II. DEFINITIONS
Unless otherwise expressly provided herein, terms used in this Agreement which are
defined in the Act or elsewhere in NCGS § 130A, Article 9 shall have the meaning assigned to
them in those statutory provisions, including any amendments thereto.
1. “Brownfields Property” shall mean the property which is the subject of this
Agreement, and which is depicted in Exhibit 1 to the Agreement.
2. "Prospective Developer" shall mean Circle K Stores, Inc.
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III. STATEMENT OF FACTS
3. The Brownfields Property comprises one parcel totaling approximately 4.707 acres.
Prospective Developer has committed itself to redevelopment for no uses other than a gas
station, retail, parking, and with prior written DEQ approval, other commercial uses.
4. The Brownfields Property is bordered to the north by Brookshire Boulevard tracking
in a northwest-southeast direction beyond which is a vacant property currently used for truck
trailer storage, to the south by Fred D. Alexander Boulevard tracking in northeast-southwest
direction beyond which is the Crowder Construction Company (IHSB NONCD0002161), to the
west by undeveloped wooded land, and to the east by Brookshire Boulevard beyond which is a
scrap automotive parts facility called Brookshire Auto.
5. Prospective Developer obtained or commissioned the following reports, referred to
hereinafter as the “Environmental Reports,” regarding the Brownfields Property:
Title Prepared by Date of Report
Report of Soil sampling and Chemical Analysis Law Engineering and Environmental Services March 9, 1990
Preliminary Subsurface Exploration Report Environmental
Compliance Services of North Carolina, PC
January 26, 2015
Expanded Subsurface Assessment Environmental
Compliance Services of North Carolina, PC
February 4, 2015
Phase I Environmental Site Assessment Environmental
Compliance Services of North Carolina, PC
February 23,2015
Phase II Environmental Site Assessment Environmental
Compliance Services of North Carolina, PC
April 8, 2015
Brownfields Redevelopment Summary
Report
ATC Associates of North
Carolina, PC
July 21, 2017
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6. For purposes of this Agreement, DEQ relies on the following representations by
Prospective Developer and/or DEQ files as to the use and ownership of the Brownfields
Property:
a. According to a review of aerial photographs and city directories, the
Brownfields Property was comprised of vacant wooded land and/or agricultural fields from at
least as early as 1938 through 1956. By 1965, a residential home was visible on the Brownfields
Property but was absent in the 1968 aerial photograph. A former warehouse building totaling
3,040 square feet was constructed at the Brownfields Property in 1969 which was subsequently
utilized by the Love’s Grading Company after it acquired the Brownfields Property in 1975.
Love’s Grading Company operated a construction and grading operation until the Prospective
Developer purchased the Brownfields Property on May 11, 2015. Since the purchase the
Prospective Developer has redeveloped and operated the Brownfields Property as a gasoline
service station and convenient store.
7. Pertinent environmental information regarding the Brownfields Property and
surrounding area includes the following:
a. Environmental assessment began at the Brownfields Property when five
gasoline underground storage tanks (USTs) were removed during the week of December 25,
1989. The USTs removed consisted of one 10,000-gallon, one 8,000-gallon, one 4,000-gallon,
one 3,000-gallon and one 550-gallon UST. In response to a report detailing the removal of the
five USTs and subsequent soil sample collection beneath the USTs, a No Further Action (NFA)
letter from the North Carolina Department of Environment and Natural Resources (NCDENR)
UST Section was issued for the Brownfields Property on June 12, 1990.
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b. A Preliminary Subsurface Investigation Report was completed by
Environmental Compliance Services, Inc. (ECS) on January 26, 2015. The report summarized
the findings of the installation of seven soil borings to depths ranging from 9-feet below ground
surface (ft BGS) to 16 ft BGS. At each boring location, demolition materials consisting primarily
of asphalt and/or concrete were interspersed throughout the soil column. In follow-up to the
preliminary findings, seven test pits of up to 15 ft BGS were excavated to assess the extent of
buried debris. Buried demolition materials (including asphalt, masonry brick/block, concrete,
metal, wood, etc.) were observed from approximately 5 ft BGS to 15 ft BGS beneath which
native soils appear to have been encountered at multiple locations across the Brownfields
Property.
c. A Phase I Environmental Site Assessment was completed by ECS on February
23, 2015. In addition to buried construction debris, the assessment referenced the following
recognized environmental conditions (RECs): a former heating oil UST, the improper storage of
unlabeled chemical containers in the garage area, and a chlorinated solvent impacted
groundwater plume migrating onto the Brownfields Property from the Crowder Construction
Company (IHSB NONCD0002161) property to the south. Groundwater data from the September
2006 assessment, available from the DEQ Inactive Hazardous Sites Branch files located in the
Laserfiche database, indicate the detected concentration of Trichloroethylene (TCE) in the
upgradient monitoring well nearest the Brownfields Property (2-MW-13) exceeded the North
Carolina Administrative Code Title 15A Subchapter 2L groundwater standards (2L standard) and
the Non-Residential Vapor Intrusion Screening Level (VISL) at a concentration of 130 µg/L
(Quarterly Sampling; Trigon Engineering Consultants, Inc.). Groundwater flow appears to travel
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in a west-northwesterly direction indicating that chlorinated solvent contamination from the
Crowder Construction site is cross gradient and potentially upgradient from the Brownfields
Property.
d. A Phase II Environmental Site Assessment was completed by ECS on April 8,
2015 detailing additional soil and groundwater assessment. Soil samples were collected from
three locations near the former garage area and from four monitoring well locations near the
former UST and building debris areas. Total Petroleum Hydrocarbons Diesel Range Organics
(TPH-DRO) exceeded the DEQ UST Section Action Level (100 mg/kg) at 510 mg/kg in SB-1
near the former garage building along the southern border of the Brownfields Property. No
VOCs, semi -volatile organic compounds (SVOCs), or RCRA Metals exceeded
Industrial/Commercial PSRGs in any of the soil samples collected. Groundwater samples were
collected from the four on-site monitoring wells and two monitoring wells located on the western
adjacent parcel. Chlorinated VOCs including benzene (TMW-2R), 1,2-dichloroethane (TMW-
3), tetrachloroethylene (TMW-1) and, TCE (TMW-4) were detected at concentrations exceeding
the 2L standards within the four on-site monitoring wells. The concentration of TCE (94.6 µg/L)
detected in monitoring well TMW-4, located in the southwestern portion of the Brownfields
Property, exceeds the NCDEQ Non-Residential VISL. Additionally, TCE concentrations within
the western off-site monitoring wells exceeded the Non-Residential VISLs. However, TCE was
not detected in any of the other three on-site monitoring wells which are located within and
immediately upgradient of the current convenient store building footprint. These observations
suggest that the extent of the chlorinated solvent groundwater plume emanating from the
neighboring Crowder Construction Company (IHSB NONCD0002161) property is cross
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gradient of and does not extend to the developed portion of the Brownfield Property.
e. In accordance with a DEQ approved Environmental Management Plan dated
July 29, 2015, ATC Associates of North Carolina, PC completed a Brownfields Redevelopment
Report dated July 28, 2017. The report details the excavation and removal of a total of 4,142.48
tons of buried debris within the central portion of the Brownfields Property within the
construction areas for the current convenience store building and gas station canopy. Excavation
was halted at 15 ft BGS within the footprint of the convenient store due to the poor stability of
sidewalls from debris and the generation of excess waste. On September 10, 2015, NCDEQ
Brownfields issued approval for the remaining debris to remain in place. All material removed
was treated as non-hazardous waste and transported to the Republic Services Landfill in
Concord, NC. Approximately 4,000 cubic yards of soils from off-site quarries were imported for
fill after being sampled and analyzed in accordance with the EMP. Following completion of the
building pad for the convenience store in November 2015, a Geo-Seal® vapor barrier and
passive vapor intrusion mitigation system (VIMS) was installed in accordance with a design
approved by DEQ on July 28, 2015. An inspection including barrier thickness testing and smoke
testing was completed by a certified Geo-Seal® inspector on November 15, 2015.
8. The most recent environmental sampling at the Brownfields Property reported in the
Environmental Reports occurred on March 4, 2015. The tables set forth in Exhibit 2 to this
Agreement present contaminants present at the Brownfields Property above applicable standards
or screening levels for each media sampled.
9. For purposes of this Agreement DEQ relies on Prospective Developer’s
representations that Prospective Developer's involvement with the Brownfields Property has
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been limited to obtaining or commissioning the Environmental Reports, preparing and
submitting to DEQ a Brownfields Property Application (BPA) dated April 13, 2015, acquiring
the Brownfields Property on May 11, 2015, and redeveloping the Brownfields Property as
summarized in the Brownfields Redevelopment Summary Report submitted by ATC Associates
of North Carolina, PC dated July 28, 2017.
10. Prospective Developer has provided DEQ with information, or sworn certifications
regarding that information on which DEQ relies for purposes of this Agreement, sufficient to
demonstrate that:
a. Prospective Developer and any parent, subsidiary, or other affiliate has
substantially complied with federal and state laws, regulations and rules for protection of the
environment, and with the other agreements and requirements cited at NCGS § 130A-
310.32(a)(1);
b. As a result of the implementation of this Agreement, the Brownfields 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 Brownfields 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 Brownfields Property;
and
e. Prospective Developer has complied with all applicable procedural
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requirements.
11. Prospective Developer has paid to DEQ the $2,000 fee to seek a brownfields
agreement required by NCGS § 130A-310.39(a) (1), and shall make a payment to DEQ of
$6,000 at the time Prospective Developer and DEQ enter into this Agreement, defined for this
purpose as occurring no later than the last day of the public comment period related to this
Agreement. The Parties agree that such fees will suffice as the $2,000 fee to seek a brownfields
agreement required by NCGS § 130A-310.39(a)(1), and, within the meaning of NCGS § 130A-
310.39(a)(2), the full cost to DEQ and the North Carolina Department of Justice of all activities
related to this Agreement, unless a change is sought to a Brownfields document after it is in
effect, in which case there shall be an additional fee of at least $1,000.
IV. BENEFIT TO COMMUNITY
12. The redevelopment of the Brownfields Property proposed herein would provide the
following public benefits:
a. an increase in the Brownfields Property’s productivity;
b. the creation of construction jobs for local contractors during redevelopment
activities and the creation of permanent commercial and/or retail jobs upon completion of
redevelopment;
c. an increase in tax revenue for affected jurisdictions including both property
taxes and taxes from additional employees;
d. “smart growth” through use of land in an already developed area, which avoids
development of land beyond the urban fringe (“greenfields”).
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V. WORK TO BE PERFORMED
13. In redeveloping the Brownfields Property, Prospective Developer shall make
reasonable efforts to evaluate applying sustainability principles at the Brownfields Property,
using the nine (9) areas incorporated into the U.S. Green Building Council Leadership in Energy
and Environmental Design certification program (Sustainable Sites, Water Efficiency, Energy &
Atmosphere, Materials & Resources, Indoor Environmental Quality, Locations & Linkages,
Awareness & Education, Innovation in Design and Regional Priority), or a similar program.
14. 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 Section IX of this
Agreement (DEQ’s Covenant Not to Sue and Reservation of Rights), DEQ is not requiring
Prospective Developer to perform any active remediation at the Brownfields Property other than
remediation that may be required pursuant to a DEQ-approved Environmental Management Plan
(EMP) required by this Section.
15. By way of the Notice of Brownfields Property referenced below in paragraph 20,
Prospective Developer shall impose the following land use restrictions under the Act, running
with the land, to make the Brownfields Property suitable for the uses specified in this Agreement
while fully protecting public health and the environment instead of remediation to unrestricted
use standards. All references to DEQ shall be understood to include any successor in function.
a. No use may be made of the Brownfields Property other than for a gas station,
retail, parking, and with prior written DEQ approval, other commercial uses. For purposes of
this restriction, the following definitions apply:
i. “Gas Station” defined as a retail facility at which motor vehicles are
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commercially refueled;
ii. “Retail” defined as the sale of goods or services, products, or
merchandise directly to the consumer or businesses and includes showrooms, personal service,
and the sales of food and beverage products;
iii. “Parking” defined as the temporary accommodation of motor vehicles
in an area designed for same;
iv. “Commercial” defined as an enterprise carried on for profit or
nonprofit by the owner, lessee or licensee; and
b. The Brownfields Property may not be used for child care centers, adult care
centers or schools without the prior written approval of DEQ.
c. Unless compliance with this Land Use Restriction is waived in writing by
DEQ in advance in regard to particular activity or unless in connection with work conducted in
accordance with a DEQ-approved Environmental Management Plan (EMP) as outlined in
subparagraph 15.i., no activities that encounter, expose, remove or use groundwater (for
example, installation of water supply wells, ponds, lakes or swimming pools, or construction or
excavation activities that encounter or expose groundwater) may occur on
the Brownfields Property 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
subparagraph 15.a above while fully protecting public health and the environment. Prior
sampling and analysis of groundwater to the written satisfaction of DEQ in any areas proposed
for such activities, and submittal of the analytical results to DEQ is required. If such results
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reflect contaminant concentrations that exceed the standards and screening levels applicable to
the uses authorized for the Brownfields Property, the groundwater-related activities proposed
may only occur in compliance with any written conditions DEQ imposes. Activities 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 subparagraph 15.a. above while fully protecting public
health and the environment.
d. 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 subparagraph 15.a above while fully protecting public
health and the environment, except:
i. in connection with landscape planting to depths not exceeding 24”;
ii. mowing and pruning of above-ground vegetation;
iii. 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; or
iv. in connection to work conducted in accordance with a DEQ-approved
EMP as outlined below in subparagraph 15.i.
e. 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 subparagraph 15.i.
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f. No enclosed building may be constructed on the Brownfields Property nor be
occupied until DEQ determines in writing that:
i. 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
ii. 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
iii. 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.
g. No disturbance or alteration of the slab within the existing building footprint,
as depicted on the plat component of the Notice of Brownfields Property referenced in paragraph
20 below, may occur unless in accordance with a DEQ-approved EMP, unless otherwise
approved in advance in writing by DEQ, or unless in the case of emergency circumstances for
repair of underground infrastructure, in which case DEQ shall be provided written notice no later
than the next business day and any related assessment and remedial measures required by DEQ
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shall be taken.
h. 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:
i. soil and water management issues, including without limitation those
resulting from contamination identified in the Environmental Reports;
ii. issues related to potential sources of contamination referenced in
Exhibit 2;
iii. 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
iv. plans for the proper characterization of, and, as necessary, disposal of
contaminated soils excavated during redevelopment.
i. No later than January 31 after each one-year anniversary of the effective date of this
Agreement for as long as physical redevelopment of the Brownfields Property continues (except
that the final deadline shall fall 90 days after the conclusion of physical redevelopment), the then
owner of the Brownfields Property shall provide DEQ a report subject to written DEQ approval
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on environment-related activities (other than DEQ IHSB program activities) since the last report,
with a summary and drawings, that describes:
i. actions taken on the Brownfields Property in accordance with Section
V: Work to be Performed above;
ii. soil grading and cut and fill actions;
iii. methodology(ies) employed for field screening, sampling and
laboratory analysis of environmental media;
iv. stockpiling, containerizing, decontaminating, treating, handling,
laboratory analysis and ultimate disposition of any soil, groundwater or other materials suspected
or confirmed to be contaminated with regulated substances; and
v. removal of any contaminated soil, water or other contaminated
materials (for example, concrete, demolition debris) from the Brownfields Property (copies of all
legally required manifests shall be included).
j. 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.
k. 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 Mecklenburg County
land records, Book ____, Page ____.” A copy of any such instrument shall be sent to the
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persons listed in Section XV (Notices and Submissions), though financial figures and other
confidential information 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 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.
l. None of the contaminants known to be present in the environmental media at
the Brownfields Property, as described in Exhibit 2 of this 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:
i. in de minimis quantities for cleaning and other routine housekeeping and
maintenance activities;
ii. in fluids in vehicles;
iii. Substances containing contaminants known to be present in the
environmental media at the Brownfields Property shall be managed in compliance with the US
EPA Underground Storage Tank Regulation presented in 40 CFR Part 280 (July 2015) and the
requirements presented in DEQ UST Section’s Operating and Maintaining Underground
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Storage Tanks (January 2019) such that, should a release of those substances occur at
the Brownfields Property, the subject contaminants in that release would be distinguishable with
certainty from the subject contaminants in any known release at the Brownfields Property that
predates this Agreement.
n. During January of each year after the year in which the Notice referenced
below in paragraph 20 is recorded, the owner of any part of the Brownfields Property as of
January 1st of that year shall submit a notarized Land Use Restrictions Update (“LURU”) to
DEQ, and to the chief public health and environmental officials of Mecklenburg County,
certifying that, as of said January 1st, the Notice of Brownfields Property containing these land
use restrictions remains recorded at the Mecklenburg County Register of Deeds office and that
the land use restrictions are being complied with, and stating:
i. 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;
ii. 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;
iii. whether any vapor barrier and/or mitigation systems installed pursuant
to subparagraph 15.f. 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; and
iv. whether UST secondary containment and release detection measures
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installed at the Brownfields Property remain in compliance with the DEQ UST Section pursuant
to subparagraphs 15.l. above.
16. The desired result of the above-referenced land use restrictions is to make the
Brownfields Property suitable for the uses specified in the Agreement while fully protecting
public health and the environment.
17. The guidelines, including parameters, principles and policies within which the
desired results are to be accomplished are, as to field procedures and laboratory testing, the
Guidelines of the Inactive Hazardous Sites Branch of DEQ’s Superfund Section and the Division
of Waste Management Vapor Intrusion Guidance, as embodied in their most current version.
18. The consequence of achieving the desired results will be that the Brownfields
Property will be suitable for the uses specified in the Agreement while fully protecting public
health and the environment. The consequence of not achieving the desired results will be that
modifications to land use restrictions and/or remediation in some form may be necessary to fully
protect public health and/or the environment.
VI. ACCESS/NOTICE TO SUCCESSORS IN INTEREST
19. In addition to providing access to the Brownfields Property pursuant to subparagraph
15.j. above, Prospective Developer shall provide DEQ, its authorized officers, employees,
representatives, and all other persons performing response actions under DEQ oversight, access
at all reasonable times to other property controlled by Prospective Developer in connection with
the performance or oversight of any response actions at the Brownfields Property under
applicable law. Such access is to occur after prior notice and using reasonable efforts to
minimize interference with authorized uses of such other property except in response to
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emergencies and/or imminent threats to public health and the environment. While Prospective
Developer owns the Brownfields Property, DEQ shall provide reasonable notice to Prospective
Developer of the timing of any response actions to be undertaken by or under the oversight of
DEQ at the Brownfields Property. Except as may be set forth in the Agreement, DEQ 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.
20. DEQ has approved, pursuant to NCGS § 130A-310.35, a Notice of Brownfields
Property for the Brownfields Property containing, inter alia, the land use restrictions set forth in
Section V (Work to Be Performed) of this Agreement and a survey plat of the Brownfields
Property. Pursuant to NCGS § 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
Mecklenburg County, North Carolina, Register of Deeds’ Office. Within three (3) days
thereafter, Prospective Developer shall furnish DEQ 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.
21. This Agreement shall be attached as Exhibit A to the Notice of Brownfields
Property. Subsequent to recordation of said Notice, 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 Mecklenburg 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
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financial figures and other confidential information 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. Prospective Developer may use the following mechanisms
to comply with the obligations of this paragraph: (i) If every lease and rider is identical in form,
Prospective Developer may provide DEQ with copies of a form lease or rider evidencing
compliance with this paragraph, in lieu of sending copies of actual, executed leases, to the
persons listed in Section XV (Notices and Submissions); or (ii) Prospective Developer may
provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section
XV.
22. The Prospective Developer shall ensure that a copy of this Agreement is provided to
any current lessee or sublessee on the Brownfields Property within seven days of the effective
date of this Agreement.
VII. DUE CARE/COOPERATION
23. The Prospective Developer shall exercise due care at the Brownfields Property with
respect to the manner in which regulated substances are handled at the Brownfields Property and
shall comply with all applicable local, State, and federal laws and regulations. The Prospective
Developer agrees to cooperate fully with any assessment or remediation of the Brownfields
Property by DEQ and further agrees not to interfere with any such assessment or 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 Brownfields Property while Prospective
Developer owns the Brownfields Property, the Prospective Developer shall immediately take all
appropriate action to prevent, abate, or minimize such release or threat of release, shall comply
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with any applicable notification requirements under NCGS § 130A-310.1 and 143-215.85,
Section 103 of CERCLA, 42 USC § 9603, and/or any other law, and shall immediately notify the
DEQ Official referenced in subparagraph 35.a. below of any such required notification.
VIII. CERTIFICATION
24. By entering into this Agreement, the Prospective Developer certifies that, without
DEQ approval, it will make no use of the Brownfields Property other than that committed to in
the Brownfields Property Application dated April 13, 2015 by which it applied for this
Agreement, as modified herein. That use is gas station, retail, parking, and with prior written
DEQ approval other commercial uses. Prospective Developer also certifies that to the best of its
knowledge and belief it has fully and accurately disclosed to DEQ all information known to
Prospective Developer and all information in the possession or control of its officers, directors,
employees, contractors and agents which relates in any way to any past use of regulated
substances or known contaminants at the Brownfields Property and to its qualification for this
Agreement, including the requirement that it not have caused or contributed to the contamination
at the Brownfields Property.
IX. DEQ’S COVENANT NOT TO SUE AND RESERVATION OF RIGHTS
25. Unless any of the following apply, Prospective Developer shall not be liable to DEQ,
and DEQ covenants not to sue Prospective Developer, for remediation of the Brownfields
Property except as specified in this Agreement:
a. The Prospective Developer fails to comply with this Agreement.
b. The activities conducted on the Brownfields Property by or under the control
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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 Brownfields 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 of Brownfields Property required
under NCGS § 130A-310.35 is violated while the Prospective Developer owns the Brownfields
Property, in which case the Prospective Developer shall be responsible for remediation of the
Brownfields 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 Brownfields Property.
e. New information indicates the existence of previously unreported
contaminants or an area of previously unreported contamination on or associated with the
Brownfields Property that has not 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
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unacceptable at or in the vicinity of the Brownfields 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 Brownfields Property or (ii) the failure of remediation to
mitigate risks to the extent required to make the Brownfields Property fully protective of public
health and the environment as planned in this Agreement.
g. DEQ obtains new information about a contaminant associated with the
Brownfields Property or exposures at or around the Brownfields Property that raises 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 this Agreement.
h. The Prospective Developer fails to file a timely and proper Notice of
Brownfields Property under NCGS § 130A-310.35.
26. Except as may be provided herein, DEQ reserves its rights against Prospective
Developer as to liabilities beyond the scope of the Act.
27. 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, NCGS § 113A-1, et seq.
28. Consistent with NCGS § 130A-310.33, the liability protections provided herein, and
any statutory limitations in paragraphs 25 through 27 above apply to all of the persons listed in
NCGS § 130A-310.33, including future owners of the Brownfields Property, to the same extent
as Prospective Developer, so long as these persons are not otherwise potentially responsible
parties or parents, subsidiaries, or affiliates of potentially responsible parties.
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X. PROSPECTIVE DEVELOPER'S COVENANT NOT TO SUE
29. In consideration of DEQ’s Covenant Not To Sue in Section IX of this Agreement
and in recognition of the absolute State immunity provided in NCGS § 130A-310.37(b), the
Prospective Developer hereby covenants not to sue and not to assert any claims or causes of
action against DEQ, 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 of Brownfields Property.
XI. PARTIES BOUND
30. This Agreement shall apply to and be binding upon DEQ, 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.
XII. DISCLAIMER
31. Prospective Developer and DEQ agree that this Agreement meets the requirements of
the Act, including but not limited to the requirements set forth in NCGS § 130A-310.32(a)(2).
However, this Agreement in no way constitutes a finding by DEQ as to the risks to public health
and the environment which may be posed by regulated substances at the Brownfields Property, a
representation by DEQ that the Brownfields Property is fit for any particular purpose, nor a
waiver of Prospective Developer’s duty to seek applicable permits or of the provisions of NCGS
§ 130A-310.37.
32. Except for the land use restrictions set forth in paragraph 15 above and NCGS §
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130A-310.33(a)(1)-(5)'s provision of the Act's liability protection to certain persons to the same
extent as to a prospective developer, no rights, benefits or obligations conferred or imposed upon
Prospective Developer under this Agreement are conferred or imposed upon any other person.
XIII. DOCUMENT RETENTION
33. The Prospective Developer agrees to retain and make available to DEQ all business
and operating records, contracts, site studies and investigations, remediation reports, and
documents generated by and/or in the control of the Prospective Developer, its affiliates or
subsidiaries relating to storage, generation, use, disposal and management of regulated
substances at the Brownfields Property, including without limitation all Material Safety Data
Sheets or Safety Data Sheets, for six (6) years following the effective date of this Agreement,
unless otherwise agreed to in writing by the Parties. Said records may be retained electronically
such that they can be retrieved and submitted to DEQ upon request. At the end of six (6) years,
the Prospective Developer shall notify DEQ of the location of such documents and shall provide
DEQ with an opportunity to copy any documents at the expense of DEQ. By entering into this
Agreement, Prospective Developer waives no rights of confidentiality or privilege provided by
the North Carolina Public Records Act or otherwise and, at the time DEQ requests to copy or
inspect said documents, Prospective Developer shall provide DEQ with a log of documents
withheld from DEQ, including a specific description of the document(s) and the alleged legal
basis upon which they are being withheld. To the extent DEQ retains any copies of such
documents, Prospective Developer retains all rights it then may have to seek protection from
disclosure of such documents as confidential business information.
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XIV. PAYMENT OF ENFORCEMENT COSTS
34. 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 DEQ to enforce this Agreement
or otherwise obtain compliance.
XV. NOTICES AND SUBMISSIONS
35. Unless otherwise required by DEQ 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. for DEQ:
Brownfields Property Management Unit (or successor in function)
N.C. Division of Waste Management
Brownfields Program Mail Service Center 1646 Raleigh, NC 27699-1646
b. for Prospective Developer:
Debrah Carl (or successor in function) Circle K Stores, Inc. 2440 Whitehall Park Drive,
Charlotte, NC 28273
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
36. This Agreement shall become effective on the date the Prospective Developer signs
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it, after receiving the signed, conditionally approved Agreement from DEQ. DEQ’s approval of
this Agreement is conditioned upon the complete and timely execution and filing of this
Agreement in the manner set forth herein. Prospective Developer shall expeditiously sign the
Agreement in order to effect the recordation of the full Notice of Brownfields Property within
the statutory deadline set forth in N.C.G.S. § 130A-310.35(b). If the Agreement is not signed by
Prospective Developer within 45 days after such receipt, DEQ has the right to revoke its
approval and certification of this Agreement, and invalidate its signature on this Agreement.
XVII. TERMINATION OF CERTAIN PROVISIONS
37. 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
38. With regard to claims for contribution against Prospective Developer in relation to
the subject matter of this Agreement, Prospective Developer is entitled to protection from such
claims to the extent provided by NCGS § 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 DEQ or any other person in relation to the Brownfields Property.
39. The Prospective Developer agrees that, with respect to any suit or claim for
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contribution brought by it in relation to the subject matter of this Agreement, it will notify DEQ
in writing no later than 60 days prior to the initiation of such suit or claim.
40. 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
DEQ in writing within 10 days of receiving said suit or claim.
XIX. PUBLIC COMMENT
41. This Agreement shall be subject to a public comment period of at least 30 days
starting the day after the last of the following public notice tasks occurs: publication of the
approved summary of the Notice of Intent to Redevelop a Brownfields Property required by
NCGS § 130A-310.34 in a newspaper of general circulation serving the area in which the
Brownfields Property is located; conspicuous posting of a copy of said summary at the
Brownfields Property; and mailing or delivery of a copy of the summary to each owner of
property contiguous to the Brownfields Property. After expiration of that period, or following a
public meeting if DEQ holds one pursuant to NCGS § 130A-310.34(c), DEQ 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 ENVIRONMENTAL QUALITY
By:
____________________________________________________________________________ Ellen Lorscheider Date Deputy Director, Division of Waste Management
IT IS SO AGREED:
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Circle K Stores, Inc.
By:
____________________________________________________________________________ Debrah Carl Date Manager
Environmental Compliance Services, Inc.
www.ecsconsult.comCK, Abandoned Garage, Brookshire Charlotte NC
6203 Brookshire Boulevard
Charlotte, NC 28216 Figure 1: SITE LOCUS
13504 South Point Boulevard, Unit F
Charlotte, NC 28273
Phone 704-583-2711 Fax 704-583-2744
Base Map: U.S. Geological Survey; Quadrangle Location: Mountain Island Lake, NC
Lat/Lon: 35 17' 26.16" NORTH, 80 54' 48.96" WEST - UTM Coordinates: 17 507856.2 EAST / 3905273.7 NORTH
Generated By: Carol Farrington
19033-15-60/Love’s Grading (November 10, 2020)
1
Exhibit 2 The most recent environmental sampling at the Property reported in the Environmental Reports occurred on March 4, 2015. The following tables set forth, for contaminants present at the Property above unrestricted use standards or screening levels, the concentration found at each
sample location, and the applicable standard or screening level. Screening levels and groundwater
standards are shown for reference only and are not set forth as cleanup levels for purposes of this Agreement. GROUNDWATER
Groundwater contaminants in micrograms per liter (the equivalent of parts per billion), the standards for which are contained in Title 15A of the North Carolina Administrative Code, Subchapter 2L (2L), Rule .0202, (April 1, 2013 version):
Groundwater Contaminant Sample Location
Date of
Sampling
Concentration Exceeding
Standard (µg/L)
Standard
(µg/L)
Benzene TMW-2R 3/4/2015 1.4 1
1,2-Dichloroethane TMW-3 3/2/2015 6.2 0.4
Tetrachloroethylene TMW-1 3/2/2015 1.3 0.7
Trichloroethylene TMW-4 3/2/2015 94.6 3
GROUNDWATER VAPOR INTRUSION RISK
Groundwater contaminants with potential for vapor intrusion (VI) in micrograms per liter
(the equivalent of parts per billion), the vapor intrusion screening levels for which are derived from the Residential Vapor Intrusion Screening Levels of the Division of Waste Management February 2018 version):
Groundwater Contaminant with
Potential for Vapor
Intrusion
Sample Location Date of Sampling
Concentration
Exceeding Screening
Level (µg/L)
Non-Residential VI
Screening
Level1
(µg/L)
Trichloroethylene TMW-4 3/2/2015 94.6 4.4
1 Screening levels displayed for non-carcinogens are for a hazard quotient equal to 0.2. Screening levels displayed for carcinogens are for a 1.0E-5 lifetime incremental cancer risk.
19033-15-60/Love’s Grading (November 10, 2020)
2
SOIL
Soil contaminants in milligrams per kilogram (the equivalent of parts per million), the screening levels for which are derived from the Guidelines for North Carolina Action Limits for Total Petroleum Hydrocarbons (TPH) from DEQ’s UST Section (July 2016 version):
Soil
Contaminant
Sample
Location
Depth
(ft)
Date of
Sampling
Concentration Exceeding Action Level (mg/kg)
NCDEQ UST Action
Limit
TPH-DRO SB-1 2 1/28/2015 510 100
1Total Petroleum Hydrocarbons – Diesel Range Organics
EXHIBIT C
Legal Description
Love’s Grading Company NCBP# 19033-15-60
Being located in the City of Charlotte, Mecklenburg County, North Carolina, and lying at the
southwesterly intersection of Brookshire Boulevard (NC Highway 16) and Fred D. Alexander Boulevard
and being lands conveyed by deed to Circle K Stores, Inc. as recorded in deed book 29961, page 98, of
the deed records of Mecklenburg County, North Carolina and being more particularly described as
follows:
Beginning at an iron rod found at an intersection of the westerly right-of-way of Fred D. Alexander Blvd.
as dedicated in map book 56, page 227 and the southerly right-of-way of Brookshire Blvd. (NC Highway
16); thence, along the westerly right-of-way of Fred D. Alexander Blvd. the following (5) courses:
1) South 04°18'09" West a distance of 91.82 feet to an iron rod found;
2) South 43°48'05" West a distance of 205.24 feet to an iron rod found
3) South 46°11'55" East a distance of 9.40 feet to an iron rod found;
4) South 43°48'05" West a distance of 620.86 feet to an iron rod found at a point of curvature;
5) Along a curve to the right having a radius of 950.00 feet, an arc length of 21.78 feet and a chord
bearing South 44°27'30" West a distance of 21.78 feet to a 5/8" rebar set (w/cap) at the eastern most
corner of the lands of Irene G. Dover recorded in deed book 2584 at page 6;
Thence departing said westerly right-of-way of Fred D. Alexander Blvd. and continuing along said lands
of Irene G. Dover, North 08°03'02" West a distance of 201.09 feet to an iron pipe found, said corner
being a common corner of the lands of Leslie Howard Mustin and Peggy Ann Mustin as recorded in
deed book 2861, page 213 and the lands of Hunter Properties Brookshire, LLC as recorded in deed
book 31400, page 592;
Thence along the lands of Hunter Properties Brookshire, LLC the following (2) courses:
1) North 67°10'58" East a distance of 246.24 feet to an iron pipe found;
2) North 03°00'01" East a distance of 756.62 feet to an iron rod found at a northeasterly corner of said
Hunter Properties, LLC and on the southerly right-of-way of Brookshire Blvd. (NC Highway 16);
Thence along the southerly right-of-way of Brookshire Blvd. (NC Highway 16) South 45°42'06” East a
distance of 489.35 feet to the point of beginning, containing 4.71 acres, more or less, subject however to
all covenants, conditions, restrictions, reservations, and easements contained in any instrument of record
pertaining to the above described tract of land.
This description was prepared from a field survey performed by Bowman Consulting Group, in
November of 2014, with bearings based upon North Carolina State Plane coordinate system
(NAD83/2011).