1102_Buncombe_BASFEnka_Indus_Brownfields_Settlement_FID1694277_20170127

STATE OF NORTH CAROLINA
COUNTY OF BUNCOMBE
MOUNTAIN TRUE
Petitioner,
V.
N.C. DEPARTMENT OF ENVIRONMENTAL
QUALITY, DIVISION OF WASTE
MANAGEMENT
Respondent.
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
16 EHR 04101
SETTLEMENT
AGREEMENT
The North Carolina Department of Environmental Quality, Division of Waste Management
("the Division"), and MountainTrue enter into this Settlement Agreement in order to amicably
resolve matters in controversy between them fully and finally. The Division and MountainTrue shall
be referred to collectively herein as "the Parties."
The instant matter arose out of the Division's decision to enter into a brownfields agreement
on March 31, 2016 with Enka Partners of Asheville, LLC ("Enka Partners") for Proj ect 915011-11-
11 ("the Brownfields Agreement") pursuant to the Brownfields Property Reuse Act of 1997, N.C.
Gen. Stat. § § 130A-310.30, et seq. The Parties participated in an informal settlement conference on
June 30, 2016, engaged in subsequent settlement discussions over the course of the following
months, and participated in a formal court -ordered mediation on January, 27, 2017. Enka Partners,
while not a party to the subject litigation, nor a signatory to this Settlement Agreement, also
participated in many of the discussions. Based on information presented during the settlement
conference, subsequent discussions, and the mediation, and in order to avoid the cost and delay of

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litigation, the Division and MountainTrue have reached the following agreement:
This Settlement Agreement is a negotiated compromise between the Parties. Neither this
Settlement Agreement nor any action on the part of the Parties hereto shall be deemed an
admission with regard to the allegations raised in this matter.
2. The Division shall record or cause to be recorded an amended Notice of Brownfields
Property and an amended plat with the Buncombe County Register of Deeds which shall
correct an error that inaccurately described the amount of subject acreage in the original
Notice of Brownfields Property. The amended Notice of Brownfields Property shall
also:
® indicate that subject Brownfields Property is comprised of approximately
29.88 acres;
® indicate where and how the public can obtain a copy, in person and online,
of the Redevelopment Plan required by paragraph 17.c. of the Brownfields
Agreement; and
® include an amended plat that shall reflect the associated corrected
Brownfields Property boundaries and include any updated constituent
sampling data exceeding applicable unrestricted use standards, as defined
by N.C. Gen. Stat. § 130A-310.31(b)(5), available at the time the amended
Notice and plat are recorded, including, but not limited to, sampling
results from the June 27, 2016 Brownfields Assessment Report prepared
by Altamont Environmental, Inc., any addenda to that report, and data

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from the most recently available Semi -Annual Groundwater Monitoring
Report prepared for BASF Corporation and submitted to the Solid Waste
Section as part BASF's solid waste permitting requirements.
3. The Division consents to the inclusion of the following additional requirements which were
mutually proposed and agreed upon by MountainTrue and Enka Partners. The Division has
worked with the Prospective Developer to insure that the Redevelopment Plan required by
paragraph 17.c. of the Brownfields Agreement included, at a minimum, the following
language or substantially similar language:
"During construction of the Project, Site access will be restricted through
signage, fencing and the presence of site personnel. Due to historical land use
or the potential presence of impacted media, public access to several areas of
the Site will be restricted after the Project is completed, as provided below:
® Unless the State, in accordance with federal law and regulation for the
remediation of PCBs, approves the placement of clean fill over Basin
3 as shown on Figure 2 to the Redevelopment Plan, access will be
restricted to that area with fencing and possibly signage;
® Access will be restricted, with fencing and possibly signage, to B-
S W-5 (sometimes referred to as Tributary 2) as shown on Figure 2 to
the Redevelopment Plan;
® Access will be restricted with fencing and signage to the area around
Seep 1 as shown on Figure 2 to the Redevelopment Plan;
® Access will be restricted with fencing and possibly signage to that
portion of the drainage feature running in a northerly direction along
the west side of the Property to Hominy Creek (sometimes referred to
as "Tributary I") where a carbon disulfide fire occurred in 2006;
® Access will be restricted with fencing and possibly signage to those
portions of the drainage feature (sometimes referred to as Tributary 1)
that are on the Brownfields Property; and
® Clean fill will be placed on the `Area of Additional Fill' as shown on
Figure 2 to the Redevelopment Plan."
4. MountainTrue expressly waives its right to an administrative hearing on the Order. Within

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ten (10) days of the full execution of this Settlement Agreement, MountainTrue shall file
with the Office of Administrative Hearings a Notice of Dismissal with Prejudice,
withdrawing its Petition for a Contested Case Hearing in Mountain True. v. N. C. Department
of Environmental Quality, Division of Waste Management, 16 EHR 04101.
5. Nothing in this Settlement Agreement shall restrict the Division's authority to revise the
Brownfields Agreement in accordance with its terms or to otherwise exercise its authority
under Chapter 130A of the North Carolina General Statutes or any other applicable State or
Federal rule or law.
6. MountainTrue and the Division agree that each shall bear its own costs related to any
disputes covered by this Settlement Agreement. Neither MountainTrue nor the Division
shall apply for attorney fees or costs under any rule or law, and neither shall be liable for any
attorney fees, costs, or expenses incurred by the other.
7. MountainTrue and the Division agree that the consideration for this settlement is in the
promises contained herein, that this Settlement Agreement contains the whole agreement
between them, and that there are no understandings or agreements, verbal or otherwise,
regarding this Settlement Agreement except as expressly set forth herein.
8. This Settlement Agreement is contractual in nature and not just a recitation of terms. The
language of this Settlement Agreement shall be construed, enforced, and governed by the
laws of the State of North Carolina.
9. Each provision of this Settlement Agreement is intended to be severable, and if any provision
is held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or

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unenforceability shall not affect or impair any other provision of this Settlement Agreement,
but this Settlement Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had not been contained therein.
10. This Settlement Agreement shall be binding upon and inure to the benefit of the assigns,
predecessors, successors, officers, agents, directors, employees, board, and administrators of
MountainTrue and to the Division, its officials, managers, employees, assigns, predecessors,
and successors.
11. This Agreement shall be binding upon the Parties upon execution by the undersigned. The
Agreement becomes effective on the last date of the signatures of the undersigned.
12. The officer signing on behalf of MountainTrue hereby warrants that she is competent to enter
into this Settlement Agreement, that she has authority to enter into this Settlement
Agreement on behalf of MountainTrue, and that no court or tribunal of competent
jurisdiction has found her to be incompetent or otherwise incapable of handling her business
affairs or entering into a binding agreement or contract.
13. The undersigned representatives of the Parties hereby acknowledge that they have read this
Settlement Agreement, conferred with their attorneys or had the opportunity to confer with
an attorney, fully understand the contents of the Settlement Agreement, consent to the
settlement of claims on the terms set forth herein, and do so in reliance upon their own
judgment and, if represented by counsel, the advice of their attorneys, and not in reliance on
any other representations or promises of the other party, its representatives, or its attorneys.

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THE PARTIES ACKNOWLEDGE THAT EACH HAS CAREFULLY READ
THIS ENTIRE AGREEMENT AND FULLY UNDERSTANDS ITS
CONTENTS AND ITS LEGAL AND BINDING EFFECT. EACH PARTY
FURTHER ACKNOWLEDGES THAT EACH MAKES A KNOWING AND
VOLUNTARY WAIVER OF THEIR RIGHTS IN EXCHANGE FOR THE
CONSIDERATION SPECIFIED IN THIS AGREEMENT.
IN WITNESS WHEREOF, this Settlement Agreement is executed in duplicate originals:
FOR THE NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY,
DIVISION OF WASTE MANAGEMENT:
f
M`kWael Scott .J
Director
Division of Waste Management
North Carolina Department of Environmental Quality
d-7 l
Da e
FOR MOUNTAINTRUE:
Ju ' Mayfie
Co xecutive irector
MountainTrue
ilg- I i`I
Date