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HomeMy WebLinkAbout19016_G and B Oil Company_LURU Model_20171207NC BROWNFIELDS LAND USE RESTRICTIONS (“LUR”) UPDATE Year Certification Made: 2017 Name: G & B Oil Company Project #: 19016-15-095 Address: 190, 208 Poplar Grove Road; 178 Water Street County: Watauga County Property Owner (In part or whole): ____________________________ Read the following LURs and mark each restriction accordingly. Additional remarks may be added for compliance status clarification. Attach any required or supplemental documentation, sign, notarize and submit to the following address: NC Division of Waste Management Attn: Brownfields Program Staff 1646 Mail Service Center Raleigh, NC  27699-1646 No use may be made of the Brownfields Property other than for mixed use consisting of multi-unit residential, commercial office, retail, restaurant, fitness center, open space, greenway, and associated parking. For purposes of this restriction, the following definitions apply: “Multi-unit residential” refers to multi-unit human dwellings, such as duplexes, triplexes, quadriplexes, condominia, or apartments. Single family homes or units with yards are prohibited unless waived in writing by DEQ in advance; “Commercial office” refers to a place where business or professional services are conducted or rendered including personal, artistic, business, professional, medical, and dental services; “Retail” refers to the sale of goods or services, products, or merchandise directly to the consumer including the sales of food and beverage products. “Fitness center” refers to a place that houses exercise equipment, and may offer gymnasium and aquatic space to residents or the public for the purposes of physical exercise and health benefits; “Open space” refers to land maintained in a natural or landscaped state and used for active or passive recreational purposes, natural resource protection, buffers, greenways and/or detention facilities for stormwater; “Greenway” refers to the natural or constructed corridor traversing open space, which may be used for pedestrian or bicycle passage, and that typically links areas of activity, such as parks, cultural features, or historic sites with each other and with populated areas; and “Parking” refers to the temporary accommodation of motor vehicles in an area designed for same. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Unless compliance with this Land Use Restriction is waived in writing in advance by the Department of Environmental Quality (“DEQ”) in relation to particular buildings, no use of the Brownfields Property may occur prior to demolition of all buildings on the Property depicted on the plat component of the Notice attached as Exhibit B in accordance with applicable legal requirements, including without limitation those related to lead and asbestos abatement that are administered by the Health Hazards Control Unit within the Division of Public Health of the North Carolina Department of Health and Human Services. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Physical redevelopment of the Brownfields Property may not occur other than in accord, as determined by DEQ, with an Environmental Management Plan 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: soil and water management issues, including without limitation those resulting from contamination identified in the Environmental Reports; issues related to potential sources of contamination referenced in Exhibit 2 to the Agreement attached as Exhibit A to the Notice; issues related to the protection of Boone Creek from contaminated surface water run-off from the Brownfields Property during and after redevelopment including required regulatory actions such as erosion control, and any actions taken to inhibit the migration of contaminants through the subsurface into Boone Creek; contingency plans for addressing newly discovered potential sources of environmental contamination (e.g., tanks, drums, septic drain fields); a requirement for representative final grade soil sampling to the written satisfaction of DEQ of any area where the ground surface is not to be covered by building foundations, sidewalks, asphaltic or concrete parking areas and driveways, or 12 inches of compacted, previously demonstrated clean fill material, and where ground contact by humans and animals may occur; and mitigation of any area in which final grade soil sampling conducted pursuant to LUR No. 3.e. above indicates that soil contaminants exceed unrestricted use standards in accordance with a plan approved in writing in advance by DEQ, and implemented to DEQ’s written satisfaction, including, but not limited to, the excavation of contaminated soil and replacement with demonstrably clean backfill, or capping of contaminated soil with a minimum thickness of 12 inches of compacted, demonstrably clean fill material, and vegetated or other cover. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ By or on January 31st after each one-year anniversary of the effective date of the Agreement attached as Exhibit A to the Notice 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: actions taken in accordance with the plan required by LUR No. 3 above; soil grading and cut and fill actions; methodology(ies) employed for field screening, sampling and laboratory analysis of environmental media; 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 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). ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Surface water at the Brownfields Property may not be used for any purpose without the prior written approval of DEQ. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Groundwater at the Brownfields Property may not be used for any purpose without the prior written approval of DEQ. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Soil from the former G&B Oil parcel (parcel number 2900698658000) as delineated on the plat component of the Notice of Brownfields Property attached as Exhibit B, and soil at the adjacent parcel (parcel number 2900790661000) that may be impacted from the G&B Oil parcel, may not be disturbed unless and until DEQ approves in writing a plan with a schedule, and its implementation, that requires: onsite management of impacted excavated soil, covering of native soil impacted with residual petroleum hydrocarbon compounds with a minimum of two (2) feet of compacted, demonstrated clean fill, and capping or paving (with asphalt, concrete, stone, brick, terrazzo, ceramic tile or other impervious material approved in writing in advance by DEQ); identification of the location of any relocated impacted soil onsite to be delineated on the plat component of the Notice of Brownfields Property attached as Exhibit B as “Soil Cap Area”; such plat is to be revised by the owner of the Property within 90 days after conclusion of physical redevelopment of the Property; and a written report regarding implementation of the plan, submitted no later than 30 days following implementation completion, and correction of any deficiencies DEQ identifies in the report or in implementation of the plan within 30 days after DEQ provides written notice of any deficiencies; or remediation and/or removal and offsite disposal of impacted soil at a licensed disposal facility from the G&B Oil parcel (parcel number 2900698658000) and, if impacted, its adjacent parcel (parcel number 2900790661000) sufficient to satisfy DEQ that the Brownfields Property is suitable for the uses specified in LUR No. 1 above and that public health and the environment are fully protected despite any remaining soil contamination, the concentration of which is to be determined by representative sampling and analysis of the side walls and bottom of each soil excavation and the completion of the written report described in LUR No. 7.c. above, which is to include documentation of the acceptance of any impacted soil transported offsite by the receiving licensed facility. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ After the redevelopment period referenced in LUR Nos. 2, 3, and 7 above, no activity that disturbs soil at the Brownfields Property on the former G&B Oil Parcel (parcel number 2900698658000) or in an area at which contaminated soils from the site were managed and placed under structures at the Brownfields Property, as delineated on the plat component of the Notice of Brownfields Property and attached as Exhibit B, 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 LUR No. 1 above while fully protecting public health and the environment, except: in connection with de minimis soil removals to depths not exceeding 18 inches, mowing and pruning of above-ground vegetation; and, for emergency repair of underground infrastructure, provided that DEQ shall be given written notice (if only by email) of any such emergency repair no later than the next business day, and that any related assessment and remedial measures required by DEQ shall be taken. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Within the areas designated as a “Soil Cap Area” on the plat component of the Notice of Brownfields Property attached as Exhibit B, building slabs, sidewalks, streets, parking lots and other impervious surfaces existing or later constructed shall be maintained such that they continue to function as soil caps. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ No 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 attached as Exhibit B, may be occupied until: it is demonstrated to DEQ’s written satisfaction through a site-specific risk assessment, that the building is protective of the building’s users, public health and the environment from risk of vapor intrusion; it is demonstrated, pursuant to a DEQ approved plan, and subject to DEQ’s approval, that the building would be or is sufficiently distant from the Brownfields Property’s groundwater and/or soil contamination that the building’s users, public health and the environment will be protected from risk from vapor intrusion related to said contamination; or a plan for a vapor intrusion mitigation system, approved in writing by DEQ in advance and including a proposed performance assessment for demonstration of the system’s protection of the building’s users, public health and the environment from risk from vapor intrusion, is implemented to the satisfaction of a North Carolina-licensed professional engineer as reflected by an implementation report, bearing the seal of said engineer, that includes photographs and a description of the installation and performance assessment of the mitigation system. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ None of the contaminants known to be present in the environmental media at the Brownfields Property, including those appearing in Exhibit 2 of the Agreement attached as Exhibit A to the Notice, may be used or stored at the Brownfields Property without the prior written approval of DEQ, except: in de minimis amounts for cleaning and other routine housekeeping activities; as constituents of fuels stored above ground for use in emergency generators, machinery, equipment and vehicles in on-board tanks integral to said equipment at locations in which releases from these storage areas would be distinguishable with certainty from the subject contaminants from any known release at the property that predates the Agreement attached as Exhibit A to the Notice, or in flammable liquid storage containers totaling no more than 25 gallons; as present in individual motor vehicles in onsite parking accommodations; or as present in appropriately contained propane tanks for individual gas grill use. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ The Brownfields Property may not be used for agriculture or grazing, without the prior written approval of DEQ. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ The Brownfields Property may not be used as a park, playground, or for sports of any kind including, but not limited to, golf, football, soccer and baseball, except in areas where a minimum of two feet of demonstrably clean fill, or another cover approved in writing in advance by DEQ, is installed to DEQ’s written satisfaction as “Recreation Approved” areas, and that such areas are maintained and left undisturbed other than through normal park, playground, or sports use. “Recreation Approved” areas are to be delineated on the plat component of the Notice attached as Exhibit B, by the owner of the Property within 90 days after conclusion of physical redevelopment. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ No greenway development or use may be made of any area of the Brownfields Property unless the following conditions are met: the parties responsible for the construction of the approved greenway trail on and adjacent to the G&B Oil parcel of the Brownfields Property are provided a copy of the Agreement attached as Exhibit A to the Notice; the area proposed for greenway trail construction traversing and adjacent to the G&B Oil parcel of the Brownfields Property has been assessed sufficiently to the anticipated depth of soil disturbance to evaluate whether soil contaminants are present, at what concentrations, and to allow for proper management of disturbed soil in accordance with the EMP required by LUR No. 3; an environmental professional for the owner of the Brownfields Property is consulted prior to the construction activities, and observes greenway construction activities that may impact known or suspected contaminated areas where the greenway trail alignment traverses the Property; should visual or olfactory evidence of contaminated soil be encountered on the Brownfields Property at any time during the course of the greenway trail construction, the owner of the Brownfields Property must immediately notify the Brownfields Program, conduct sampling and chemical analysis of said soil, and perform other mitigation or remedial actions in accordance with the approved EMP required LUR No. 3 to the written satisfaction of DEQ; when the construction of a greenway trail alignment at the Brownfields Property, or a portion thereof, is completed, a written report verifying said greenway installation, shall be submitted to DEQ no later than 30 days following installation. Any deficiencies DEQ identifies in the report or plan shall be corrected to DEQ’s written satisfaction within 30 days after DEQ provides written notice of such deficiencies, by the then owner(s) of the affected portions of the Brownfields Property; and within 90 days of the completion of the greenway trail alignment at the Property, said alignment will be delineated on a revised version of the plat component of the Notice referenced below in paragraph 20 of Exhibit A. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Within 60 days after the effective date of the Agreement attached as Exhibit A to the Notice or prior to land disturbance activities, the monitoring wells, injection wells, recovery wells, piezometers and other man made points of groundwater access at the Brownfields Property shall be abandoned in accordance with Subchapter 2C of Title 15A of the North Carolina Administrative Code, unless an alternate schedule is approved by DEQ. Within 30 days after doing so, a report, setting forth the procedures and results shall be provided to DEQ. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ The owner of any portion of the Brownfields Property where any existing, or subsequently installed, DEQ-approved monitoring well is damaged 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 LUR is waived in writing by DEQ in advance. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ 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. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Any deed or other instrument conveying an interest in the Brownfields Property executed by an owner of any interest in the Brownfields Property shall contain the following notice: “The property which is the subject of this instrument is subject to the Brownfields Agreement attached as Exhibit A to the Notice of Brownfields Property recorded in the Watauga County land records, Book 1945, Page 641.” A copy of any such instrument shall be sent to the persons listed in Section XV (Notices and Submissions), though (i) financial figures related to the conveyance may be redacted; and (ii) such disclosure may be made in accordance with the confidentiality and trade secret provisions of the North Carolina Public Records Law (to the extent applicable). An owner may use the following mechanisms to comply with the obligations of this paragraph: 1) The owner 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 (Notice and Submissions); and (ii) the owner may provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section XV in the Agreement attached as Exhibit A to the Notice. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ During January of each year after the year in which the Notice is recorded, the owner of any part of the 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 Watauga County, certifying that, as of said January 1st, the Notice of Brownfields Property containing these land use restrictions remains recorded at the Watauga County Register of Deeds office and that the land use restrictions are being complied with, and stating: 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; ______________________________________________________________ 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 Property during the previous calendar year; ______________________________________________________________ whether any vapor barrier and/or mitigation systems installed pursuant to LUR No. 10 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; ______________________________________________________________ a joint LURU may be submitted for multiple owners by a duly constituted board or association or another entity approved by DEQ. A joint LURU submitted for multiple owners by a duly constituted board or association shall include the name, mailing address, telephone and facsimile numbers, and contact person’s e-mail address of the entity submitting the joint LURU as well as for each of the owners on whose behalf the joint LURU is submitted; and ______________________________________________________________ a LURU submitted for rental units shall include the rent roll and enough of each lease entered into during the previous calendar year to demonstrate compliance LUR No. 17 above and with lessee notification requirements in paragraphs 21 and 22 of the Agreement attached as Exhibit A to the Notice. ______________________________________________________________ ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Notarized signing and submittal of this Land Use Restrictions Update constitutes certification that the Notice of Brownfields Property remains recorded at the Watauga County Register of Deeds office and that the Land Use Restrictions are being complied with. This Land Use Restrictions Update is certified by _____________, owner of at least part of the Brownfields Property on this ___ day of _________, 20__. Name typed or printed of party making certification: __________________ [Note: additional entities or owners may be added if appropriate (i.e. multiple managing members/entities)] By: __________________________ (signature) Name typed or printed: __________________ Title typed or printed: ___________________ 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 ____________________________________ Notary’s printed or typed name, Notary Public (Official Seal) My commission expires: _________________