HomeMy WebLinkAbout23045_Acme Spinning Mill NBP for PC 20210803
Acme Spinning Mill/23045-19-036/20210728
1
Property Owner: Belmont Industrial, LLC Recorded in Book ____, Page ____ Associated plat recorded in Plat Book ____, Page ____ NOTICE OF BROWNFIELDS PROPERTY
Brownfields Property Name: Acme Spinning Mill
Brownfields Project Number: 23045-19-036 This documentary component of a Notice of Brownfields Property (“Notice”), as well as the plat component, have been filed this _____ day of __________________, 202__ by Belmont Industrial, LLC (“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 consists of three parcels (Parcel Nos. 203018, 226572, 203503) on approximately 60.6844 acres of land located at 192 Woodlawn Street and 646 Cason Street,
Acme Spinning Mill/23045-19-036/20210728
2
Belmont, North Carolina. Historically, the western and central portions of the property (west of railroad tracks) were occupied by single family residences and the Acme Spinning Mill prior to 1938 to 1986. Parkdale Mills operated a textile yarn spinning operation in the former Acme Spinning Mill buildings from 1986 until 2002 (Parcel Nos. 203018 and 226572). All structures were removed from the western and central portions of the Brownfields Property in 2006. The
eastern portion of the property (east of railroad tracks) has historically not been developed with structures. Parcel No. 203503 was comprised primarily of undeveloped land with scattered barns and storage sheds from at least the late 1930s until the late 1990s. The area near the southern property boundary was historically developed with seven residences located along Cason Street. The residences were razed in the early 2000s.The Prospective Developer intends to redevelop the
Brownfields Property for no uses other than office, industrial, warehousing, parking, and with prior written DEQ approval, other commercial uses. Soil, groundwater, soil gas, and surface water/sediment are contaminated at the Brownfields Property due to potential historical activities conducted thereon and on adjacent properties.
The Brownfields Agreement between Prospective Developer and DEQ is attached hereto as Exhibit A. It is required by NCGS § 130A-310.32 and 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. 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 8.5 inches x 11 inches, 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
Acme Spinning Mill/23045-19-036/20210728
3
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 13 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 office, industrial, warehousing, parking, and with prior written DEQ approval, other commercial uses.
For purposes of this restriction, the following definitions apply: i. “Office” defined as the provision of business or professional services. ii. “Industrial” defined as the assembly, fabrication, processing, warehousing or distribution of goods or materials.
iii. “Warehousing” defined as the use of a commercial building for storage of goods by manufacturers, importers, exporters, wholesalers, transport businesses among others, and also refers to the storage of goods and materials for a specific commercial establishment of a group of establishments in a particular type of industry or commercial activity.
iv. “Parking” defined as the temporary accommodation of motor vehicles in an area designed for same. v. “Commercial” defined as an enterprise carried on for profit or nonprofit by the owner, lessee or licensee.
b. No use of the Brownfields Property’s northern parcel (Parcel No. 203503) other than for a small portion of the southeastern warehouse building, a storm water retention pond, or surface parking, as depicted in the approved Environmental Management Plan outlined in subparagraph 13.e., shall occur until the then owner of the Brownfields Property conducts
representative vapor intrusion assessment of the parcel to DEQ’s written satisfaction, pursuant to
a plan(s) approved in writing in advance by DEQ. If DEQ believes the results of said assessment indicates site contaminants are present such that the resulting environmental risk of such contamination is unacceptable, the then owner of the Brownfields Property shall then mitigate such risk pursuant to a plan approved in writing by DEQ and to DEQ’s satisfaction.
c. The Brownfields Property may not be used for childcare centers, adult care centers, or schools without the prior written approval of DEQ. d. The Brownfields Property may not be used for residential use without the prior
written approval of DEQ.
e. Physical redevelopment of the Brownfields Property may not occur other than in accord, as determined by DEQ, with an Environmental Management Plan (“EMP”) approved
Acme Spinning Mill/23045-19-036/20210728
4
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. demolition of existing buildings, if applicable; ii. issues related to known or potential sources of contamination, including without limitation those resulting from contamination identified in paragraph 4 above;
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 and DEQ approval of both fill soil
before import to the Brownfields Property and the disposition of all soil excavated from the Brownfields Property during redevelopment; f. Within 90 days 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 on environment-related activities since the last report, with a summary and drawings, that describes:
i. actions taken on the Brownfields Property in accordance with Section VI: 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). g. Groundwater and surface water at the Brownfields Property may not be used for any purpose without the prior written approval of DEQ along with any measures DEQ deems
necessary to ensure that the Brownfields Property will be suitable for the uses specified in
subparagraph 13.a. above while fully protecting public health and the environment. Should groundwater be encountered or exposed during any activity on the Brownfields Property, it shall be managed in accordance with the DEQ-approved EMP outlined in subparagraph 13.e., or a
Acme Spinning Mill/23045-19-036/20210728
5
plan approved in writing in advance by DEQ. h. 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 13.a above while fully protecting public health and the environment, except: i. in connection with landscape planting to depths not exceeding 24 inches; 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; and iv. in connection to work conducted in accordance with a DEQ-approved
Environmental Management Plan (EMP) as outlined in subparagraph 13.e. i. No use of the Brownfields Property may occur until the then owner of the Brownfields Property conducts representative final grade soil sampling, pursuant to a plan approved in writing by DEQ, of any area that is not covered by building foundations, sidewalks,
or asphaltic or concrete parking areas and driveways of the Brownfields Property as delineated on the plat component of the Notice of Brownfields Property referenced in paragraph 17 of this Agreement. j. 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 in paragraph 13.e. k. No enclosed building may be constructed on the Brownfields Property and no
existing building, defined as those depicted on the plat component of the Notice of Brownfields
Property referenced in paragraph 17 below, may be occupied until DEQ determines in writing that: i. the building is or would be protective of the building’s users and public
health from the risk of vapor intrusion based on site assessment data, or a site-specific risk
assessment approved in writing by DEQ; or ii. a vapor intrusion mitigation system (VIMS) has been: 1. designed to mitigate vapors for subgrade building features in
accordance with the most recent and applicable DWM Vapor Intrusion Guidance, Interstate
Technology & Regulatory Council (ITRC) guidance, and American National Standards Institute (ANSI)/American Association of Radon Scientists and Technologists (AARST) standards, and that said design shall fully protect public health to the satisfaction of a professional engineer
Acme Spinning Mill/23045-19-036/20210728
6
licensed in North Carolina, as evidenced by said engineer’s professional seal, and shall include a performance monitoring plan detailing methodologies and schedule, both of which are subject to prior written DEQ approval; and 2. installed and an installation report is submitted for written DEQ approval that includes details on any deviations from the system design, as-built diagrams,
photographs, and a description of the installation with said engineer’s professional seal confirming that the system was installed per the DEQ-approved design and will be protective of public health. l. 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.
m. The owner of any portion of the Brownfields Property where any existing, or subsequently installed, DEQ-approved monitoring well is damaged by the owner, its contractors, or its tenants shall be responsible for repair of any such wells to DEQ’s written satisfaction and within a time period acceptable to DEQ, unless compliance with this Land Use Restriction is waived in writing by DEQ in advance.
n. 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 Gaston County land records, Book ____, Page ____.” A copy of any such instrument shall be sent to the persons
listed in Section XVII (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 may use the following mechanisms to comply with the obligations of this paragraph: (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 paragraph, in lieu of sending copies of actual, executed leases, to the persons listed in Section XVII (Notices 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 XVII.
o. 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;
Acme Spinning Mill/23045-19-036/20210728
7
ii. as fuel or other fluids customarily used in vehicles, landscaping equipment and emergency generators; iii. as constituents of products and materials customarily used and stored in environments, provided such products and materials are stored in original retail packaging and used and disposed of in accordance with applicable laws;
p. During January of each year after the year in which the Notice referenced below in paragraph 17 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 Gaston County, certifying
that, as of said January 1st, 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. If the property is transferred, the grantor shall submit a LURU (as outlined above) which covers the period of time they owned the property. The submitted LURU shall state the following:
i. the Brownfields Property address, and the name, mailing address, telephone number, and contact person’s e-mail address of the owner, or board, association or approved entity, submitting the LURU if said owner, or each of the owners on whose behalf a joint LURU is submitted, acquired any part of the Brownfields Property during the previous
calendar year; ii. the transferee’s name, mailing address, telephone number, and contact person’s e-mail address, if said owner, or each of the owners on whose behalf a joint LURU is submitted, transferred any part of the Brownfields Property during the previous calendar year.
For purposes of the land use restrictions set forth above, the DEQ point of contact shall be the DEQ Brownfields Property Management Unit referenced in subparagraph 32.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.
Acme Spinning Mill/23045-19-036/20210728
8
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 _______________, 202__. Belmont Industrial, LLC
By: __________________________________________ Scott Bortz
NORTH CAROLINA _______________ 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: _____________________
Acme Spinning Mill/23045-19-036/20210728
9
************************************ 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: _________________________________________ ________________________ Michael E. Scott Date
Director, Division of Waste Management
1 Acme Spinning Mill/23045-19-036/20210802
EXHIBIT A
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY IN THE MATTER OF: Belmont Industrial, LLC
UNDER THE AUTHORITY OF THE ) BROWNFIELDS AGREEMENT re: BROWNFIELDS PROPERTY REUSE ACT ) Acme Spinning Mill OF 1997, NCGS § 130A-310.30, et seq. ) 192 Woodlawn Street and 646 Cason Street Brownfields Project No. 23045-19-036 ) Belmont, Gaston County
I. INTRODUCTION
This Brownfields Agreement (“Agreement”) is entered into by the North Carolina
Department of Environmental Quality (“DEQ”) and Belmont Industrial, LLC (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 192 Woodlawn Street and 646 Cason Street (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.
The Prospective Developer is Belmont Industrial, LLC, a limited liability corporation,
headquartered at 101 South Kings Drive, Suite 200, Charlotte, NC 28204. Its manager is Scott
Bortz, of the same address.
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 X (Certification), Section XI (DEQ’s Covenant Not to Sue and
Reservation of Rights) and Section XII (Prospective Developer’s Covenant Not to Sue), the
potential liability of Belmont Industrial, LLC for contaminants at the Brownfields Property.
The Parties agree that Belmont Industrial, LLC’s entry into this Agreement, and the
2 Acme Spinning Mill/23045-19-036/20210802
actions undertaken by Belmont Industrial, LLC in accordance with the Agreement, do not
constitute an admission of any liability by Belmont Industrial, LLC for contaminants at the
Brownfields Property. The resolution of this potential liability, in exchange for the benefit
Belmont Industrial, LLC 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 Belmont Industrial, LLC.
III. BROWNFIELDS PROPERTY INFORMATION SUMMARY
3. Relevant information about the history, ownership, and uses of the Brownfields
Property is provided in the following summary table. Refer to the Exhibit 2 to this Agreement
that presents data table(s) of the contaminants present at the Brownfields Property at
concentrations above their applicable standards or screening levels for each media sampled.
BROWNFIELDS PROPERTY INFORMATION SUMMARY
Parcel Address(es) & Parcel IDs Parcel Nos. 203018 (192 Woodlawn Street), 226572 (646 Cason Street), and 203503 (No street address)
Acreage Approximately 60.6844
Current Property Owner Belmont Industrial, LLC
Current Land Use(s) vacant land
Site Vicinity Land Use(s) Commercial, industrial, and residential
Proposed Reuse(s) Office, industrial, warehousing, parking, and with prior written DEQ approval, other commercial uses
Public Benefits of Reuse Increase in Brownfields Property productivity, increase in tax revenue, creation of construction and full-time jobs, and smart
3 Acme Spinning Mill/23045-19-036/20210802
BROWNFIELDS PROPERTY INFORMATION SUMMARY
growth
Existing Land Use
Restrictions Prior to
Brownfields Agreement
None
ENVIRONMENTAL INFORMATION SUMMARY
Historical Operations &
Contaminant Sources
Historically, the western and central portions of the property (Parcel Nos. 203018 and 226572) were occupied by single family residences and the Acme Spinning Mill from the late 1910s until 1986. Parkdale Mills utilized the former Acme
Spinning Mill buildings for textile yarn spinning operations from 1986 until 2002. All structures were removed from the western and central portions of the property in 2006. The eastern portion of the property (east of railroad tracks) has historically not been developed with structures.
Parcel No. 203503 was comprised primarily of undeveloped land with scattered barns and storage sheds from at least the late 1930s until the late 1990s. The area near the southern property boundary was historically developed with seven
residences located along Cason Street. The residences were razed in the early 2000s. The Jadco-Hughes Superfund Site is located adjacent to the north and downgradient of the parcel.
Current Operations/Activities The Brownfields Property is being redeveloped with two warehouse buildings.
Contaminated Media
Soil: Semi-volatile organic compounds (SVOCs) have been detected at concentrations exceeding Commercial/Industrial Preliminary Soil Remediation Goals (PSRGs) in subsurface soil samples collected at the Brownfields Property.
On Parcel 203503 detections of polychlorinated biphenyls
(PCBs) were identified in a localized area. Groundwater: Concentrations of chlorinated volatile organic compounds (VOCs) tetrachloroethylene (PCE) and trichloroethylene (TCE) have been detected exceeding NCAC
Title 15A Subchapter 2L groundwater standards and NCDEQ Residential Vapor Intrusion Screening Levels (VISLs) on Parcel No. 203018. Soil Gas: No VOCs were detected above Non-residential
VISLs.
4 Acme Spinning Mill/23045-19-036/20210802
ENVIRONMENTAL INFORMATION SUMMARY
Surface Water/Sediment: Arsenic was detected in sediment at concentrations above PSRGs on Parcel No. 202503.
ID Numbers/Permits NCDEQ Inactive Hazardous Branch ID No. NONCD0002983
Onsite Receptors Considered Workers, construction workers, trespassers
Potential Offsite Receptors Considered
Water supply wells: No water supply wells were identified within 1,500 feet of the Brownfields Property
Potential offsite migration pathways
Groundwater: No receptors were identified adjacent and downgradient of the Brownfields Property
4. Environmental reports regarding the Brownfields Property referred to hereinafter as
the “Environmental Reports,” include, but are not limited to:
a. Those that the Prospective Developer obtained or commissioned regarding the
Brownfields Property:
Title Prepared by Date of Report
Additional Brownfields Assessment Report,
Acme Spinning Mill – Northern Parcel
Hart & Hickman January 19, 2021
Brownfields Assessment Report, Acme
Spinning Mill
Hart & Hickman March 24, 2020
Phase II Environmental Site Assessment,
Westbrook Circle, Cason Street
Hart & Hickman February 22, 2016
Phase II ESA Former Acme Mills Hart & Hickman January 19, 2015 Limited Soil and Groundwater Assessment, 182 Woodlawn Street ECS Carolinas, LLP October 20, 2014
Phase I Environmental Site Assessment Report, Belmont Site, 182 Woodlawn Street ECS Carolinas, LLP September 26, 2014
5 Acme Spinning Mill/23045-19-036/20210802
b. Other applicable off-site reports:
Title Prepared by Date of Report
2018 Annual Report, Jadco-Hughes Superfund Site, Gaston County, North Carolina GHD 2019
IV. PROSPECTIVE DEVELOPER’S INVOLVEMENT
5. For purposes of this Agreement DEQ relies on Prospective Developer’s
representations that Prospective Developer's involvement with the Brownfields Property has
been limited to obtaining or commissioning the Environmental Reports, preparing and
submitting to DEQ a Brownfields Property Application (BPA) dated July 18, 2019, and the
following:
a. A revised BPA was submitted on March 23, 2020 for the purpose of adding
Parcel No. 203503.
b. Prospective Developer purchased the Brownfields Property Parcel Nos.
203018, 226572, and 203503 on July 22, 2020.
c. The PD started site construction of the warehouse buildings on parcels 203018
and 226572 in August 2020 under a DEQ approved Environmental Management Plan, and in
accordance with subparagraph 13.e.
6. 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
6 Acme Spinning Mill/23045-19-036/20210802
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
requirements.
7. The Parties agree that a $30,000 “Redevelopment Now” fee Prospective Developer
has paid suffices 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.
V. BENEFIT TO COMMUNITY
8. The redevelopment of the Brownfields Property proposed herein would provide the
following public benefits:
7 Acme Spinning Mill/23045-19-036/20210802
a. a return to productive use of the Brownfields Property;
b. a spur to additional community investment and redevelopment, through
improved neighborhood appearance and otherwise;
c. the creation of construction and full time jobs;
d. an increase in tax revenue for affected jurisdictions;
e. “smart growth” through use of land in an already developed area, which avoids
development of land beyond the urban fringe (“greenfields”).
VI. WORK TO BE PERFORMED
9. The guidelines as embodied in their most current version, including parameters,
principles and policies within which the desired results are to be accomplished are (as to: field
procedures, laboratory testing, Brownfields Program requirements, and remedial or mitigation
measures):
a. the Guidelines of the Inactive Hazardous Sites Branch of DEQ’s Superfund
Section;
b. the Division of Waste Management Vapor Intrusion Guidance;
c. the Brownfields Program Assessment Work Plan Checklist; and
d. the Brownfields Survey Plat Checklist.
10. In redeveloping the Brownfields Property, Prospective Developer shall make
reasonable efforts to evaluate applying sustainability principles at the Brownfields Property,
using the nine (9) credit categories incorporated into the U.S. Green Building Council
Leadership in Energy and Environmental Design (LEED) certification program (Integrative
8 Acme Spinning Mill/23045-19-036/20210802
Process, Location and Transportation, Sustainable Sites, Water Efficiency, Energy &
Atmosphere, Materials & Resources, Indoor Environmental Quality, Innovation, and Regional
Priority), or a similar program.
11. Based on the information in the Environmental Reports, other available reports, and
subject to imposition of and compliance with the land use restrictions set forth below, and
subject to Section XI 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) as specified in subparagraph 13.e. below.
12. Based on the type and concentrations of impacts to groundwater and soil gas detected
during assessment activities as outlined in paragraph 4 above, indoor air exposure routes do not
appear to present a risk to site occupants as of the effective date of this Agreement. Therefore,
the condition of subparagraph 13.k below has been met only for Parcel Numbers 226572 and
203018, as depicted on the survey plat component referenced in paragraph 17 below.
VII. LAND USE RESTRICTIONS
13. By way of the Notice of Brownfields Property referenced below in paragraph 17,
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.
a. No use may be made of the Brownfields Property other than for office,
industrial, warehousing, parking, and with prior written DEQ approval, other commercial uses.
9 Acme Spinning Mill/23045-19-036/20210802
For purposes of this restriction, the following definitions apply:
i. “Office” defined as the provision of business or professional services.
ii. “Industrial” defined as the assembly, fabrication, processing,
warehousing or distribution of goods or materials.
iii. “Warehousing” defined as the use of a commercial building for storage
of goods by manufacturers, importers, exporters, wholesalers, transport businesses among
others, and also refers to the storage of goods and materials for a specific commercial
establishment of a group of establishments in a particular type of industry or commercial
activity.
iv. “Parking” defined as the temporary accommodation of motor vehicles
in an area designed for same.
v. “Commercial” defined as an enterprise carried on for profit or nonprofit
by the owner, lessee or licensee.
b. No use of the Brownfields Property’s northern parcel (Parcel No. 203503) other
than for a small portion of the southeastern warehouse building, a storm water retention pond, or
surface parking, as depicted in the approved Environmental Management Plan outlined in
subparagraph 13.e , shall occur until the then owner of the Brownfields Property conducts
representative vapor intrusion assessment of the parcel to DEQ’s written satisfaction, pursuant to
a plan(s) approved in writing in advance by DEQ. If DEQ believes the results of said assessment
indicates site contaminants are present such that the resulting environmental risk of such
contamination is unacceptable, the then owner of the Brownfields Property shall then mitigate
such risk pursuant to a plan approved in writing by DEQ and to DEQ’s satisfaction.
10 Acme Spinning Mill/23045-19-036/20210802
c. The Brownfields Property may not be used for childcare centers, adult care
centers, or schools without the prior written approval of DEQ.
d. The Brownfields Property may not be used for residential use without the prior
written approval of DEQ.
e. Physical redevelopment of the Brownfields Property may not occur other than
in accord, as determined by DEQ, with an Environmental Management Plan (“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. demolition of existing buildings, if applicable;
ii. issues related to known or potential sources of contamination, including
without limitation those resulting from contamination identified in paragraph 4 above;
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 and DEQ approval of both fill soil
before import to the Brownfields Property and the disposition of all soil excavated from the
Brownfields Property during redevelopment;
11 Acme Spinning Mill/23045-19-036/20210802
f. Within 90 days 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
on environment-related activities since the last report, with a summary and drawings, that
describes:
i. actions taken on the Brownfields Property in accordance with Section
VI: 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).
g. Groundwater and surface water at the Brownfields Property may not be used
for any purpose without the prior written approval of DEQ along with any measures DEQ deems
necessary to ensure that the Brownfields Property will be suitable for the uses specified in
subparagraph 13.a. above while fully protecting public health and the environment. Should
groundwater be encountered or exposed during any activity on the Brownfields Property, it shall
12 Acme Spinning Mill/23045-19-036/20210802
be managed in accordance with the DEQ-approved EMP outlined in subparagraph 13.e., or a
plan approved in writing in advance by DEQ.
h. 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 13.a above while fully protecting public
health and the environment, except:
i. in connection with landscape planting to depths not exceeding 24 inches;
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; and
iv. in connection to work conducted in accordance with a DEQ-approved
Environmental Management Plan (EMP) as outlined in subparagraph 13.e.
i. No use of the Brownfields Property may occur until the then owner of the
Brownfields Property conducts representative final grade soil sampling, pursuant to a plan
approved in writing by DEQ, of any area that is not covered by building foundations, sidewalks,
or asphaltic or concrete parking areas and driveways of the Brownfields Property as delineated
on the plat component of the Notice of Brownfields Property referenced in paragraph 17 of this
Agreement.
j. Soil may not be removed from, or brought onto, the Brownfields Property
13 Acme Spinning Mill/23045-19-036/20210802
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 in paragraph 13.e.
k. No enclosed building may be constructed on the Brownfields Property and no
existing building, defined as those depicted on the plat component of the Notice of Brownfields
Property referenced in paragraph 17 below, may be occupied until DEQ determines in writing
that:
i. the building is or would be protective of the building’s users and public
health from the risk of vapor intrusion based on site assessment data, or a site-specific risk
assessment approved in writing by DEQ; or
ii. a vapor intrusion mitigation system (VIMS) has been:
1. designed to mitigate vapors for subgrade building features in
accordance with the most recent and applicable DWM Vapor Intrusion Guidance, Interstate
Technology & Regulatory Council (ITRC) guidance, and American National Standards Institute
(ANSI)/American Association of Radon Scientists and Technologists (AARST) standards, and
that said design shall fully protect public health to the satisfaction of a professional engineer
licensed in North Carolina, as evidenced by said engineer’s professional seal, and shall include a
performance monitoring plan detailing methodologies and schedule, both of which are subject to
prior written DEQ approval; and
2. installed and an installation report is submitted for written DEQ
approval that includes details on any deviations from the system design, as-built diagrams,
photographs, and a description of the installation with said engineer’s professional seal
confirming that the system was installed per the DEQ-approved design and will be protective of
14 Acme Spinning Mill/23045-19-036/20210802
public health.
l. 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.
m. The owner of any portion of the Brownfields Property where any existing, or
subsequently installed, DEQ-approved monitoring well is damaged by the owner, its contractors,
or its tenants shall be responsible for repair of any such wells to DEQ’s written satisfaction and
within a time period acceptable to DEQ, unless compliance with this Land Use Restriction is
waived in writing by DEQ in advance.
n. 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 Gaston County land
records, Book ____, Page ____.” A copy of any such instrument shall be sent to the persons
listed in Section XVII (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 may use the following mechanisms to comply with the obligations of this paragraph: (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 paragraph, in lieu of sending
copies of actual, executed leases, to the persons listed in Section XVII (Notices and
15 Acme Spinning Mill/23045-19-036/20210802
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 XVII.
o. 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. as fuel or other fluids customarily used in vehicles, landscaping
equipment and emergency generators;
iii. as constituents of products and materials customarily used and stored in
environments, provided such products and materials are stored in original retail packaging
and used and disposed of in accordance with applicable laws;
p. During January of each year after the year in which the Notice referenced
below in paragraph 17 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 Gaston County, certifying
that, as of said January 1st, 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. If the property is transferred, the grantor shall submit a
LURU (as outlined above) which covers the period of time they owned the property. The
16 Acme Spinning Mill/23045-19-036/20210802
submitted LURU shall state the following:
i. the Brownfields Property address, and the name, mailing address,
telephone number, and contact person’s e-mail address of the owner, or board, association or
approved entity, submitting the LURU if said owner, or each of the owners on whose behalf a
joint LURU is submitted, acquired any part of the Brownfields Property during the previous
calendar year;
ii. the transferee’s name, mailing address, telephone number, and contact
person’s e-mail address, if said owner, or each of the owners on whose behalf a joint LURU is
submitted, transferred any part of the Brownfields Property during the previous calendar year.
14. The desired result of the above-referenced land use restrictions is to make the
Brownfields Property suitable for the uses specified in this Agreement while fully protecting
public health and the environment.
15. 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.
VIII. ACCESS/NOTICE TO SUCCESSORS IN INTEREST
16. In addition to providing access to the Brownfields Property pursuant to subparagraph
13.l. 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
17 Acme Spinning Mill/23045-19-036/20210802
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
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.
17. DEQ has approved, pursuant to NCGS § 130A-310.35, a Notice of Brownfields
Property (“Notice”) for the Brownfields Property containing, inter alia, the land use restrictions
set forth in Section VI (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 in the Gaston 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.
18. This Agreement shall be attached as Exhibit A to the Notice. 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
18 Acme Spinning Mill/23045-19-036/20210802
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 XVII (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. 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 XVII (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 XVII.
19. 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.
IX. DUE CARE/COOPERATION
20. 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
19 Acme Spinning Mill/23045-19-036/20210802
threatens a release of contaminants at or from 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 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 32.a. below
of any such required notification.
X. CERTIFICATION
21. 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 July 18, 2019, by which it applied for this
Agreement, as modified herein. That use is that which is provided in paragraph 13.a. of this
Agreement. 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.
XI. DEQ’S COVENANT NOT TO SUE AND RESERVATION OF RIGHTS
22. 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.
20 Acme Spinning Mill/23045-19-036/20210802
b. The activities conducted on the Brownfields 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 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.
21 Acme Spinning Mill/23045-19-036/20210802
f. The level of risk to public health or the environment from contaminants is
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.
23. Except as may be provided herein, DEQ reserves its rights against Prospective
Developer as to liabilities beyond the scope of the Act.
24. 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.
25. Consistent with NCGS § 130A-310.33, the liability protections provided herein, and
any statutory limitations in paragraphs 21 through 23 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.
22 Acme Spinning Mill/23045-19-036/20210802
XII. PROSPECTIVE DEVELOPER'S COVENANT NOT TO SUE
26. In consideration of DEQ’s Covenant Not To Sue in Section XI 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.
XIII. PARTIES BOUND
27. 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.
XIV. DISCLAIMER
28. 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.
29. Except for the land use restrictions set forth in paragraph 13 above and NCGS §
130A-310.33(a)(1)-(5)'s provision of the Act's liability protection to certain persons to the same
23 Acme Spinning Mill/23045-19-036/20210802
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.
XV. DOCUMENT RETENTION
30. 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.
XVI. PAYMENT OF ENFORCEMENT COSTS
31. If the Prospective Developer fails to comply with the terms of this Agreement,
24 Acme Spinning Mill/23045-19-036/20210802
including, but not limited to, the provisions of Section VI (Work to be Performed) and Section
VII (Land Use Restrictions), it shall be liable for all litigation and other enforcement costs
incurred by DEQ to enforce this Agreement or otherwise obtain compliance.
XVII. NOTICES AND SUBMISSIONS
32. Unless otherwise required by DEQ or a Party notifies the other Party in writing of a
change in contact information or delivery method, all notices and submissions pursuant to this
Agreement shall be sent by prepaid first-class U.S. mail or courier service, 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: Scott Bortz (or successor in function) Belmont Industrial, LLC
101 South Kings Drive, Suite 200 Charlotte, NC 28204 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.
XVIII. EFFECTIVE DATE
33. This Agreement shall become effective on the date the Prospective Developer signs
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
25 Acme Spinning Mill/23045-19-036/20210802
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 NCGS § 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 to invalidate its signature on this Agreement.
XIX. TERMINATION OF CERTAIN PROVISIONS
34. If any Party believes that any or all of the obligations under Section VIII
(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).
XX. CONTRIBUTION PROTECTION
35. 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.
36. 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 DEQ
in writing no later than 60 days prior to the initiation of such suit or claim.
37. The Prospective Developer also agrees that, with respect to any suit or claim for
26 Acme Spinning Mill/23045-19-036/20210802
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.
XXI. PUBLIC COMMENT
38. 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:
____________________________________________________________________________ Michael E. Scott Date Director, Division of Waste Management
IT IS SO AGREED:
BELMONT INDUSTRIAL, LLC By: ____________________________________________________________________________ Scott Bortz Date
7,7/(
352-(&7
EXHIBIT 1
6,7(/2&$7,210$3
$&0(63,11,1*0,//
:22'/$:1675((7$1'&$621675((7
%(/02171257+&$52/,1$
'$7(
-2%12
5(9,6,2112
EXHIBIT12
%07
1
$3352;,0$7(
6&$/(,1)((7
86*648$'5$1*/(0$3
48$'5$1*/(
0,187(6(5,(67232*5$3+,&
02817+2//<1257+&$52/,1$
6,7(
Acme Spinning Mill/23045-19-036 20210802
1
Exhibit 2 The most recent environmental sampling at the Brownfields Property reported in the Environmental Reports occurred on October 27, 2020. The following tables set forth, for contaminants present at the Brownfields Property above commercial/industrial use standards or
screening levels, the concentration found at each sample location, and the applicable standard or
screening level. Screening levels and 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)
Tetrachloroethylene B4-GW 10/13/2014 250 0.7
Trichloroethylene B4-GW 10/13/2014 5.4 3
Acme Spinning Mill/23045-19-036 20210802
2
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 Non-Residential Vapor Intrusion Screening Levels of the Division of Waste Management June 2021 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)
cis-1,2-dichloroethylene B4-GW 10/13/2014 28 NE
Tetrachloroethylene B4-GW 10/13/2014 250 48.4
Trichloroethylene B4-GW 10/13/2014 5.4 4.35
Fluoranthene B3-GW 10/13/2014 5.1 J NE
Trichlorofluoromethane
B4-GW 10/13/2014 570
NE TMW-2 10/27/2020 1.4
TMW-4 10/27/2020 0.90 J
Pyrene B3-GW 10/13/2014 5.8 J NE
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-6 lifetime incremental cancer risk. NE – Regulatory screening level not established. J – Compound detected above the laboratory method detection limit, but below the laboratory reporting limit resulting in a laboratory estimated concentration.
Acme Spinning Mill/23045-19-036 20210802
3
SOIL
Soil contaminants in milligrams per kilogram (the equivalent of parts per million), the screening levels for which are derived from the Preliminary Industrial Health- Based Soil Remediation Goals of the Inactive Hazardous Sites Branch of DEQ’s Superfund Section (January 2021 version):
Soil Contaminant Sample Location Depth (ft) Date of Sampling
Concentration Exceeding Screening
Level
(mg/kg)
Industrial Screening
Level1 (mg/kg)
Arsenic
SB-1 0-2 2/8/2016 4.6
3.0
SB-2 4-5 22
HHSB-2A 2-4 2/5/2020 6.02
HHSB-3A 2-4 2/5/2020 3.59
HHSB-7A /
SB-DUP 2-4 2/5/2020 3.33/3.39
COMP-1 0-1 2/5/2020 3.88
COMP-3 0-1 2/5/2020 3.70
SB-10 0-2 10/26/2020 3.33
SB-12 0-2 10/27/2020 3.05
SED-1 0-0.5 2/8/2016 5.2
SED-2 0-0.5 2/8/2016 12
Aroclor 1248 SB-4 0-2 2/8/2016 13 0.94
Aroclor 1254 SB-4 0-2 2/8/2016 8.9 0.97
Benzo(a)anthracene HHSB-2 0-2 12/23/2014 3.89 J 2.9 HHSB-7 2-4 12/24/2014 5.53
Benzo(a)pyrene
HHSB-2 0-2 12/23/2014 3.82 J
0.29
HHSB-3 0-2 12/23/2014 1.24 J
HHSB-7 2-4 12/24/2014 4.22
B-1 8-9 10/13/2014 1.8
B-3 8-9 10/13/2014 1.4
Benzo(g,h,i)perylene
B-1 8-9 10/13/2014 1.0
NE B-3 8-9 10/13/2014 0.94
HHSB-2 0-2 12/23/2014 1.84 J
HHSB-7 2-4 12/24/2014 2.46 J
HHSB-2 0-2 12/23/2014 3.68 J 2.9
Acme Spinning Mill/23045-19-036 20210802
4
Soil Contaminant Sample Location Depth (ft) Date of Sampling
Concentration Exceeding Screening Level
(mg/kg)
Industrial Screening Level1 (mg/kg)
Benzo(b)fluoranthene HHSB-7 2-4 12/24/2014 3.81 J
Isopropyltoluene SB-2 4-5 2/8/2016 0.0067 NE
Phenanthrene
BF-SED-2 0-0.5 10/26/2020 0.232 J
NE
SED-3 0-0.5 2/8/2016 0.66
B-1 8-9 10/13/2014 4.2
B-3 8-9 10/13/2014 4.8
HHSB-2 0-2 12/23/2014 6.5
HHSB-3 0-2 12/23/2014 2.09 J
HHSB-6 0-2 12/23/2014 0.0737 J
HHSB-7 2-4 12/24/2014 12.4
1Screening levels displayed for non-carcinogens are for a hazard quotient equal to 0.2. Screening levels displayed for carcinogens are for a 1.0E-6 lifetime incremental cancer risk. NE – Regulatory screening level not established. J – Compound detected above the laboratory method detection limit, but below the laboratory reporting limit resulting in a laboratory estimated concentration.
SOIL GAS
Soil gas contaminants in micrograms per cubic meter, the screening levels for which are derived from Non-Residential Vapor Intrusion Screening Levels of the Division of Waste Management (June 2021 version):
Soil Gas Contaminant
Sample Location Date of Sampling
Concentration Exceeding Screening
Level (µg/m3)
Non-Residential Screening Limit1
(µg/m3)
1,3-Dichlorobenzene
VMP-1/SG-DUP 2/7/2020 1.7 J/1.7 J
NE
VMP-2A 2/8/2020 12.8
VMP-3A 2/8/2020 14.5
VMP-4A 2/8/2020 28.1
TVMP-1 2/8/2020 28.5
TVMP-2 2/8/2020 46.0
TVMP-3 2/8/2020 11.4
Acme Spinning Mill/23045-19-036 20210802
5
Cis-1,2-
Dichloroethylene TVMP-1 2/8/2020 2.1 NE
4-Ethyltoluene
VMP-2A 2/8/2020 2.1 J
NE
VMP-3A 2/8/2020 5.7
VMP-4A 2/8/2020 8.3
TVMP-1 2/8/2020 14.3
TVMP-2 2/8/2020 4.1
TVMP-3 2/8/2020 2.5 J
Trichlorofluoromethaane
VMP-1/SG-DUP 2/7/2020 1.5 J/1.5 J
NE
VMP-2A 2/8/2020 1.6 J
VMP-3A 2/8/2020 2.5
VMP-4A 2/8/2020 46.8
TVMP-1 2/8/2020 8.4
TVMP-2 2/8/2020 1.8
TVMP-3 2/8/2020 1.5 J
1,1,2-
Trichlortrifluoroethane
VMP-4A 2/8/2020 1.2 J
NE TVMP-1 2/8/2020 1.8 J
TVMP-2 2/8/2020 1.6 J
TVMP-3 2/8/2020 0.86 J
1Screening levels displayed for non-carcinogens are for a hazard quotient equal to 0.2. Screening levels displayed for carcinogens are for a 1.0E-6 lifetime incremental cancer risk. NE – Regulatory screening level not established. J – Compound detected above the laboratory method detection limit, but below the laboratory reporting limit resulting in a laboratory estimated concentration.
Acme Spinning Mill/23045-19-036 20210802
6
SURFACE WATER
Surface water contaminants (in micrograms per liter, the equivalent of parts per billion), the unrestricted use standards for which are contained in Title 15A of the North Carolina Administrative Code, Subchapter 2B, Rule .0208 (June 30, 2016 version):
Surface Water
Contaminant
Sample
Location
Date of
Sampling
Concentration Exceeding Standard
(µg/L)
Standard
(µg/L)
1,1-Dichloroethene BF-SW-2 / SW-DUP 10/26/2020 1.8/1.7 NE
Trichlorofluoromethane BF-SW-2 / SW-DUP 10/26/2020 0.84 J/0.93 J NE
Barium
BF-SW-1 10/26/2020 33.1
NE BF-SW-2 /
SW-DUP 10/26/2020 37.1 / 36.9
NE – Regulatory screening level not established.
J – Compound detected above the laboratory method detection limit, but below the laboratory reporting limit resulting in a laboratory estimated concentration.
EXHIBIT C Acme Spinning Mill
NCBP#23045-19-036 Being that certain parcel of land lying and being in the City of Belmont, Gaston County, North Carolina, and being more particularly described as follows:
BEGINNING at a 1/2" existing iron rod located on the easterly margin of the right-of-way of Woodlawn Street (a variable width public right-of-way) said point also being the northwest corner of the Southern Benedictine Society property as described in Deed Book 265, Page 55 of the Gaston County Public Registry; thence with the easterly margin of said Woodlawn Street the following fourteen (14) courses and distances; (1) North 25°55'27"
West a distance of 106.01 feet to a 1/2” new iron rod; (2) North 25°45'54" West a distance of 235.16 feet to a 1/2" new iron rod; (3) North 29°07'30" West a distance of 59.21 feet to a 5/8” existing iron rod; (4) North 30°29'34" West a distance of 134.83 feet to a 5/8” existing iron rod; (5) with the arc of a circular curve to the left said curve having an arc length of 100.28 feet a radius of 1229.14 feet (chord bearing of North 36°17'42" West and chord distance of 100.25 feet)to a 5/8” existing iron rod; (6) with the arc of a circular curve to the left
said curve having an arc length of 100.14 feet a radius of 698.61 feet (chord bearing of North 42°44'18" West and chord distance of 100.05 feet) to a 5/8” existing iron rod; (7) North 46°50'40" West a distance of 99.74 feet to a 1/2" existing iron rod; (8) North 49°56'58" West a distance of 99.94 feet to a 5/8” existing iron rod; (9) with the arc of a circular curve to the left said curve having an arc length of 100.92 feet a radius of 425.13 feet (chord bearing of North 56°37'07" West and chord distance of 100.68 feet) to a 5/8” existing iron rod; (10) with the arc
of a circular curve to the left said curve having an arc length of 107.36 feet a radius of 425.13 feet (chord bearing of North 70°39'12" West and chord distance of 107.07 feet) to a 1/2” existing iron rod; (11) thence North 88°22'22" West a distance of 50.74 feet to a 1" existing iron pipe; (12) with the arc of a circular curve to the left said curve having an arc length of 111.39 feet a radius of 825.73 feet (chord bearing of South 88°21'20" West and chord distance of 111.31 feet) to a 1/2" new iron rod; (13) with the arc of a circular curve to the right
said curve having an arc length of 94.15 feet a radius of 664.12 feet (chord bearing of South 88°33'06" West and chord distance of 94.07 feet) to a 1/2" new iron rod; (14) with the arc of a circular curve to the right said curve having an arc length of 159.56 feet a radius of 350.35 feet (chord bearing of North 74°20'24" West and chord distance of 158.18 feet) to a 1/2" new iron rod located at the intersection of the rights-of-way of the
aforesaid Woodlawn Street and Acme Road (a 60’ public right-of-way) thence with the westerly margin of
Acme Road the following seven (7) courses and distances; (1) North 09°25'01" East a distance of 383.87 feet to a 1/2" new iron rod; (2) North 10°37'48" East a distance of 77.82 feet to a 1/2" new iron rod; (3) with the arc of a circular curve to the right said curve having an arc length of 94.99 feet a radius of 712.88 feet (chord bearing of North 14°26'49" East and chord distance of 94.92 feet) to a 1/2" new iron rod; (4) with the arc of a circular
curve to the right said curve having an arc length of 63.33 feet a radius of 424.11 feet (chord bearing of North
22°32'31" East and chord distance of 63.27 feet) to a 1/2" new iron rod; (5) North 31°01'55" East a distance of 51.32 feet to a 1/2" new iron rod; (6) with the arc of a circular curve to the right said curve having an arc length of 88.35 feet a radius of 340.00 feet (chord bearing of North 42°48'00" East and chord distance of 88.11 feet) to a 1/2” new iron rod; (7) North 50°14'41" East a distance of 293.34 feet to a 1/2" existing iron rod located at the
northwest corner of the Donald and Linda Ellison property as described in Deed Book 2511, Page 306; thence
with the Donald and Linda Ellison property South 34°27'29" East a distance of 129.64 feet to a 1/2" new iron rod located on the northerly margin of the right-of-way of Centerview Street (a 50’ public right-of-way); thence crossing said Centerview Street and running South 46°46'02" East a distance of 60.55 feet to a 1/2" new iron rod located on the southerly margin of Centerview Street; thence with the southerly margin of Centerview Street
the following five (5) courses and distances; (1) North 85°01'50" East a distance of 267.51 feet to a 1/2" new
iron rod; (2) with the arc of a circular curve to the right said curve having an arc length of 125.04 feet a radius of 475.03 feet (chord bearing of South 87°25'40" East and chord distance of 124.68 feet) to a 1/2" new iron rod; (3) with the arc of a circular curve to the right said curve having an arc length of 64.05 feet a radius of 907.43 feet (chord bearing of South 77°26'08" East and chord distance of 64.04 feet) to a 1/2" new iron rod; (4) with
the arc of a circular curve to the left said curve having an arc length of 48.74 feet a radius of 312.50 feet (chord
bearing of South 79°17'25" East and chord distance of 48.69 feet) to a 1/2" new iron rod; (5) with the arc of a circular curve to the left said curve having an arc length of 108.00 feet a radius of 57.00 feet (chord bearing of
North 41°24'44" East and chord distance of 92.55 feet) to a 1/2" new iron rod located at the northwest corner of the Alliance Real Estate, Inc. property as described in Deed Book 3509, Page 343; thence with the Alliance Real Estate, Inc. property South 35°22'14" East a distance of 282.37 feet to a 1/2" new iron rod located along the northerly line of the Mark Ellington and Glenn Oliver property as described in Deed Book 3856, Page 837; thence with the Mark Ellington and Glenn Oliver property the following three (3) courses and distances; (1)
South 16°51'10" West a distance of 68.88 feet to an existing nail; (2) South 72°42'33" East a distance of 35.70 feet to a 5/8” existing iron rod; (3) North 35°59'38" East a distance of 34.60 feet to a 1/2” new iron rod located within the right-of-way of Cason Street (a 60’ public right-of-way); thence running within the right-of-way of Cason Street the following three (3) courses and distances; (1) North 36°00'24" East a distance of 311.45 feet to a 1/2" new iron rod; (2) North 34°06'34" East a distance of 99.72 feet to a 1/2" new iron rod; (3) South
88°51’36” West a distance of 54.24 feet to a 1/2" existing iron rod located at the northwest corner of the Robert L. Heirs property as described in Deed 4575, Page 1602; thence with the Robert L. Heirs line the following three (3) courses and distances; (1) South 65°37’52” East a distance of 149.85 feet to a 1/2" existing iron rod; (2) North 24°24’30” East a distance of 299.57 feet to a 1/2” existing iron rod; (3) North 65°37’52” West a distance of 150.00 feet to a 1/2" new iron rod located on the aforesaid right-of-way of Cason Street; thence
crossing said Cason Street and running within the right-of-way the following two (2) courses and distances; (1) North 06°16’22” West a distance of 99.81 feet to a Railroad Spike; (2) North 19°44'50" East a distance of 360.05 feet to a 1/2" existing iron rod located along the easterly line of the Plant Biogenics, Inc property as described in Deed Book 4418, Page 2363; thence crossing the aforesaid Cason Street and running North 73°53'03" East a distance of 292.79 feet to a 1/2" new iron rod located along the westerly line of the W.E. Fite
Heirs property as described in Deed Book 150, Page 502; thence with the W.E. Fite Heirs line South 58°07'25" East a distance of 134.54 feet to a 1/2" existing iron rod located at the northwest corner of the Matt Plecnik Heirs property as described in Deed Book 1398, Page 386; thence with the Matt Plecnik Heirs line South 58°07'25" East a distance of 319.43 feet to a 1/2" existing iron rod located at the northeast corner of the Catawba Heights Baptist Church property as described in Deed Book 2168, Page 527; thence with the Catawba
Heights Baptist Church line the following two (2) courses and distances; (1) South 30°12'49" West a distance of 1634.19 feet to an existing concrete monument; (2) South 29°06'00" East a distance of 589.29 feet to a stone marker at an existing iron pipe located at the northwest corner of the William David Morgan property as described in Deed Book 4246, Page 1931; thence with the William David Morgan property South 65°29'55"
West a distance of 815.43 feet to a 2” existing iron pipe located at the northeast corner of the aforesaid Southern
Benedictine Society property; thence with the Southern Benedictine Society line South 65°32'55" West a distance of 127.27 feet to the Point and Place of BEGINNING. Having an area of 2,643,411 square feet or 60.6844 acres according to a survey by R.B. Pharr & Associates, P.A. dated January 12, 2021. Job No. 92502.