UNITED STATES ENVIRONMENTAL PROTECTION AGENCY cl' … · Gregg J. Wilson, Esq. Kutchin & Rufo, P.C....
Transcript of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY cl' … · Gregg J. Wilson, Esq. Kutchin & Rufo, P.C....
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? £% ' \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY cl'-Ep^WJ?5*^?!?*9*Jo?rD I ^ S R ? ! REGION I SITE: M o r u j o o d P C f i , V 7 " i w ̂ JOHN F. KENNEDY FEDERAL BUILDING BREAK: H-H XpROXfc*^ BOSTON. MASSACHUSETTS 02203-0001 OTHER: 4 1 5 ^ 8 t
BY CERTIFIED MAIL
April 7, 1998
Gregg J. Wilson, Esq. Kutchin & Rufo, P.C. One Liberty Square Boston, MA 02109
Re: Norwood Superfund Site Prospective Purchaser Agreement (CERCLA-I-97-1044)
Dear Mr. Wilson:
This letter notifies the Settling Respondents ofthe effective date ofthe above-named Prospective Purchaser Agreement ("Agreement), and provides documents for recording with the Plymouth Country Registry of Deeds in accordance with the terms ofthe Agreement.
Pursuant to Paragraph 53 ofthe Agreement, the effective date ofthe Agreement will be the date upon which EPA issues written notice to the Settling Respondents that EPA has fiilly executed the Agreement and has reviewed and responded to any public comments received. Please be advised that EPA has fully executed the Agreement and that the public comment period ended on January 16,1998 (62 Fed. Reg. 66095 [December 17,1997]). EPA received no public comments conceming the Agreement. Thus, the effective date ofthe Agreement is the date of this notice: April 7,1998.
As you know, the Agreement requires you to:
1. Pursuant to Paragraph 18, pay $ 10,000 to EPA within 10 days of the effective date. The procedure for submitting your payment is included in Paragraph 18. /
2. Pursuant to Paragraph 7, donate to the Town of Norwood an'electricj^yehicle for the Town use.
3. Pursuant to Paragraph 16, within 15 days ofthe effective date, record with the Norfolk County Registry of Deeds a certified copy ofthe Agreement and Exhibits 1 and 7.
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4. Pursuant to Paragraph 28, within 10 days of receiving "as built drawings", file and record said drawings with the Registry of Deeds, Norfolk County, as part of Exhibit 7. The as-built drawings show the location of Class A, B, C, & D land at property described in Exhibit 7.
Please send me proof that the Certified Agreement has been recorded in accordance with the requirements of Paragraphs 16 ofthe Agreement.
Should you have any questions, please let me know.
sincerely.
^Antoinette Powell Enforcement Attomey
cc: Sharon Hayes
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U.S. ENVIRONMENTAL PROTECTION AGENCY
EPA-NEW ENGLAND
J.F.K. FEDERAL BUILDING, BOSTON MA 02203
MEMORANDUM
DATE: September 25,1995
SUBJ: Proposed Settlement and Federal Register Notice
FROM: Robert Cianciarulo
Office of Site Reme/di^tion and Restoration
William Walsh-Rogalski
Counsel for Special Projects
TO; Patricia Meaney
Assistant Regional Administrator
Attached for your signature is a Prospective Purchaser Agreement
and Federal .Register Notice relating to the potential CERCLA
liability of Joseph Laham, individually, and 921,Inc., purchasers,
of that portion of the Norwood PCB Superfund site currently owned
by Grant Gear Realty Trust and the Reardon brothers. The U.S.
Department of Justice is in the process of approving the
agreement. You signed a virtually identical package in early
June, but due to changes in the documents stemming from the
purchaser's decision to buy additional land at the site, we are
resubmitting these papers for your approval.
In accordance with EPA's Policy on Prospective Purchasers of
Contaminated Property, dated JVlay 24, 1995, a Notice is to be
published in the Federal Register which gives the public 30 days
to comment upon a settlement.
For your information, the attached agreement was made pursuant to
CERCLA § 9601 e£. seq. In this agreement, the purchasers have
agreed to conduct demolition of the on-site groundwater treatment,,
facility at the end of its useful life, to pay the United States
$10,000, to provide access for any future response actions on the
property, and to record and abide by institutional controls for
the property that are part of the remedial action at the site. As
a result, EPA is encouraging the beneficial reuse of the Norwood
site. The prospective purchaser intends to construct an auto
auction facility or car dealership on the property, a use
consistent with the locality. The purchasers have received
contribution protection from third parties, and EPA has agreed
that it will not pursue the purchasers for any injunctive relief
or response costs relating to the existing contamination at the
site.
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This agreement is noteworthy in several regards:
Under the terms of a consent decree negotiated with the PRP's in
1996, the settling defendants agreed to cooperate with and
include design modifications to the EPA remedy if any prospective
purchaser came forward in a timely manner. This novel waiver of
claims and design opportunity linked third party liability relief-
with a mechanism for coupling remediation and commercial reuse..
This opened a window of commercial opportunity that successfully
enticed a purchaser to negotiate an agreement with EPA to reuse'
the property. In addition to returning a former industrial^
property to productive commercial use, it is anticipated that
this new enterprise will generate $25,000 in annual property
taxes for Norwood, create approximately fifty short term
construction jobs, provide fifteen to twenty full time jobs and
30-40 part time jobs related to the management of the auto
auction facility and provide about $1 million in annual payroll.
Though not part of the formal consideration for the agreement,
the purchaser has agreed to donate to the Town of Norwood an
electric automobile, which will, promote public awareness of the
feasibility of alternative automobiles in an area that is in
serious non-attainment for ozone. Please sign the Agreement and
Notice. If you have any questions or need additional
information, please contact Bob Cianciarulo at 573-5778 or
Bill Walsh-Rogalski at 565-3426.
Thank you for your attention to this matter.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
U.S. ENVIRONMENTAL PROTECTION AGENCY
EPA-NEW ENGLAND
J.F.K. FEDERAL BUILDING, BOSTON MA 02203
MEMORANDUM
DATE: September 25,1995
SUBJ: Proposed Settlement and Federal Register Notice
FROM: Robert Cianciarulo
Office of Site Remediation and Restoration
William Walsh-Rogalski
Counsel for Special Projects
TO: Patricia Meaney
Assistant Regional Administrator
Attached for your signature is a Prospective Purchaser Agreement
and Federal Register Notice relating to the potential CERCLA
liability of Joseph -Laham, 'individually, and 921,Inc., purchasers
of that portion-of the Norwood PCB Superfund site currently owned
by Grant Gear Realty Trust and the Reardon brothers. The U.S.
Department of Justice is in the process of approving the-
agreement. You signed a virtually identical package in early
June, but due to changes in the documents stemming from the
purchaser's decision to buy additional land at the site, we are
resubmitting" these papers for your approval.
In accordance with EPA's Policy on' Prospective Purchasers of
Contaminated Property, dated May 24, 1995, a Notice is to be
published in the Federal Register which gives the public 30 days
to comment upon a settlement.
For your information, the attached agreement was made pursuant to
CERCLA § 9601 st seq. In this agreement, the purchasers have
agreed to conduct demolition of the on-site groundwater treatment
facility at the end of its useful life, to pay the United States
$10,000, to provide access for any future response actions on the
property, and to record and abide by institutional controls for
the property that are part of the remedial action at the site. As
a result, EPA is encouraging the beneficial reuse of the Norwood
site. The prospective purchaser intends to construct an auto
auction facility or 'car dealership on the property, a use
consistent with the locality. The purchasers have received
contribution protection from third parties, and EPA has agreed
that it will not pursue the purchasers for any injunctive relief"
or response costs relating to the existing contamination at the
site.
COMCURfiENCES
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OFFICE OF THE REGIONAL ADMINISTRATOR
Honorable Lois J. Schiffer
Assistant Attorney General
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
Re: Referral of Prospective Purchaser Agreement -- Norwood PCB
Superfund Site, Norwood, Massachusetts
Dear Ms. Schiffer:
With this letter I enclose a settlement analysis and a CERCLA
Prospective Purchaser Agreement ("PPA") which relate to the
Norwood PCB site in Norwood, Massachusetts (the "Site").
Under the proposed PPA, the prospective owner has agreed to:
conduct response action at the site in the form of the demolition
of a groundwater treatment building at the end of its useful life
(work valued at $87,188) pay the United States $10,000; provide
access to EPA, the State, and parties performing cleanup under a
consent decree; and record and abide by institutional controls.
In exchange for these commitments, the United States grants the
prospective purchaser^the standard releases under CERCLA Sections
106 and 107, but not releases from natural resource damage
claims. In addition, the agreement provides the prospective
purchaser withXilERCLA contribution protection. More specific
details of t>he entire proposed settlement are contained in the
attached/settlement analysis.
The'^proposed agreement is favorable to the United States and
-Consonant with the Prospective Purchaser policy. The agreement
provides the United States with response work it would otherwise
need to fund on its own as well as direct monetary consideration
and also secures a commitment for the prospective purchaser to
provide access and abide by institutional controls. Additionally,
the prospective purchaser will be locating its operation on a
Superfund site, promoting the national and regional EPA goals of
encouraging the beneficial reuse of Superfund sites.
The Region has consulted with EPA Headquarters on this
settlement. EPA Headquarters concurrence is not required for
this settlement, so the Region is sending a copy of these
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documents to the Office of Enforcement and Compliance Assurance
under separate cover.
Finally, I would like to note that Steve Gold of your staff was
an invaluable member of the government's negotiating team and a
true advocate for moving this property to beneficial reuse. If
Steve or any other member of your office has any questions
regarding this referral, please have him or her contact Bill
Walsh-Rogalski, Counsel for Special Projects, Office of the
Regional Administrator at 565-3426.
Sincerely,
Patricia Meaney
Assistant Regional Administrator
Enclosure
CC: Helen Keplinger (OE)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Honorable Lois J; Schiffer
Assistant Attorney General
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
Re: Referral of Prospective Purchaser Agreement -- Norwood PCB
Superfund Site, Norwood, Massachusetts
Dear Ms. Schiffer:
With this letter I enclose a settlement analysis and a CERCLA
Prospective Purchaser Agreement ("PPA") which relate to the
Norwood PCB site in Norwood, Massachusetts (the "Site") .
Under the proposed PPA, the prospective owner has agreed to:
conduct response action at the site in the form of the demolition
of a groundwater treatment building at the end of its useful life
work valued at $87,188) pay the United States $10,000; provide
access to EPA, the State, and parties performing cleanup under a
consent decree; and record and abide by institutional controls.
In.exchange for these commitments, the United States grants the
prospective purchaser the standard releases under CERCLA Sections
106 and 107, but not releases from natural resource damage
claims. In addition, the agreement provides the prospective
purchaser with CERCLA contribution protection. More specific
details of the entire proposed settlement are contained in the
attached settlement analysis.
The proposed agreement is favorable to the United States and
consonant with the Prospective Purchaser policy. The agreement
provides the United States with response work it would otherwise
need to fund on its own as well as direct monetary consideration
and also secures a commitment for the prospective purchaser to
provide access and abide by institutional controls. Additionally,
the prospective purchaser will be locating its operation on a
Superfund site, promoting the national and regional EPA goals of
encouraging the beneficial reuse of Superfund sites.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION I
IN THE MATTER OF:
Joseph Laham and 921, Inc
Acquisition
of Property in Norwood, )
Massachusetts ) EPA Docket Number
)
UNDER THE AUTHORITY OF THE AGREEMENT AND COVENANT
COMPREHENSIVE ENVIRONMENTAL NOT TO SUE
RESPONSE, COMPENSATION, AND
LIABILITY ACT OF 1980, 42 U.S.C. Re: Joseph Laham and
Section 9601 et seq. as amended 921, Inc.
Norwood Superfund Site
I.. INTRODUCTION
1. This Agreement and Covenant Not to Sue ("Agreement") is
made and entered into by and between the United States
Environmental Protection Agency ("EPA") and Joseph Laham and 921,
Inc. ("Settling Respondents") (collectively EPA and Settling
Respondents are "the Parties"). This Agreement is being approved
by the Assistant Attorney General of the Environment and Natural
Resources Division pursuant to the inherent authority of the
Attorney General to settle claims of the United States, as
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION I
IN THE MATTER OF:
Joseph Laham and 921, Inc.
Acquisition
of Property in Norwood,
Massachusetts
UNDER THE AUTHORITY OF THE
COMPREHENSIVE ENVIRONMENTAL
RESPONSE, COMPENSATION, AND
LIABILITY ACT OF 1980, 42 U.S.C.
Section 9601 et seq. as amended
EPA Docket Number CERCLAI-97-1044
AGREEMENT AND COVENANT
NOT TO SUE
Re: Joseph Laham and
921, Inc.
Norwood Superfund Site
I. INTRODUCTION
1. This Agreement and Covenant Not to Sue ("Agreement") is
made and entered into by and between the United States
Environmental Protection Agency ("EPA") and Joseph Laham and 921,
Inc. ("Settling Respondents") (collectively EPA and Settling
Respondents are "the Parties"). This Agreement is being approved
by the Assistant Attorney General of the Environment and Natural
Resources Division pursuant to the inherent authority of the
ney Gene] ;tl2 claims of the United Stats';
delegated.
2. EPA and the Settling Respondents enter into this
Agreement pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended ("CERCLA"),
42 U.S.C. § 9601, et seq.
3. The Parties agree that the Settling Respondents' entry
into this Agreement, and the actions undertaken by the Settling
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Respondents in accordance with the Agreement, do not constitute
an admission of any liability by the Settling Respondents.
4. Joseph Laham is a Massachusetts resident who resides at 7
Storrow Circle, Westwood, MA. 921, Inc. is a corporation
established under the laws of Massachusetts with its principal
place of business at 700 Providence Highway, Norwood, MA. The
obligations of Joseph Laham and 921, Inc. under this Agreement
are joint and several, except to the extent provided by Paragraph
46. In the event of the insolvency or other failure of either of
the Settling Respondents to implement the requirements of this
Agreement, the remaining Settling Respondent shall complete all
such requirements unless excused under Paragraph 46.
5. The Norwood PCB Superfund Site ("the Site") is located
in Norwood, Massachusetts, bounded by and including Meadow Brook
to the north, and generally bounded by a residential neighborhood
to the west along Pellana Road, Route 1 to the east and Dean
Street to the south. The Site is generally depicted on the map
included as Exhibit 1 to this Agreement.
6. The Site was used as a manufacturing location from at
least 1947 until 1994. As a result of some of these
manufacturing operations, the Site became cojntaminated by a
variety of hazardous substances. Pursuant to Section 105 of
CERCLA, 42 U.S.C. § 9605, EPA placed the Site on the National
Priorities List, set forth at 40 C.F.R. Part 300, Appendix B, by
publication in the Federal Register June 10, 1986, 51 Fed. Reg.
21099. EPA and the Massachusetts Department of Environmental
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Protection ("DEP") are causing the Site to be remediated pursuant
to CERCLA and M.G.L. c. 21E.
7. Federal Pacific Electric Company, Inc. and Cornell-
Dubilier Electronics, Inc. ("Settling Defendants") have entered
into a consent decree with the United States and the Commonwealth
of Massachusetts in the consolidated civil actions captioned U.S.
V. Federal Pacific Electric^ Inc.^ et al. and Commonwealth of
Massachusetts v. Federal Pacific Electric, Inc.^ et al.. Docket
Numbers 92-11924-T and 92-12526-T (D. Mass.), respectively.
Under the terms of that consent decree (the "Consent Decree") ,
the Settling Defendants are conducting certain Response Actions
at the Site consistent With the ROD as Modified by the ROD
Amendment for the Site. Upon the completion of soil remediation
and the razing of the manufacturing building, Settling
Respondents intend to convert the Property to productive retail
use, such as an automobile auction facility or other use allowed
by the Town of Norwood that is consistent with the Institutional
Controls, as defined below. In recognition of the Town's
cooperation in developing the Property for beneficial reuse, the
Settling Respondents intend, subject to the Town's agreement and
approval, to donate to the Town an electric vehicle for Town use
with the goal of reducing vehicle emissions and promoting the use
of electric vehicles in the Commonwealth of Massachusetts, which
is a serious non-attainment area for ozone. The Settling
Respondents intend to coordinate Site preparation and
construction activities related to the intended reuse of the
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Property, which activities comprise the Redevelopment Activities
set forth in Exhibit 5, with certain Response Actions being
undertaken by the Settling Defendants under the Consent Decree.
The Redevelopment Activities are being coordinated between the
Settling Respondents and the Settling Defendants in the following
manner: The Settling Respondents have submitted to the Settling
Defendants proposed modifications to the remedial design plans
that allow for the Redevelopment Activities to occur
simultaneously with Response Actions, so that upon completion of
certain of the Response Actions, the Property will be prepared
for commercial reuse. Pursuant to the terms of the Consent
Decree, Settling Defendants will have incorporated these plans
and the specific work activities related to them into their Final
Remedial Design Report/Remedial Action Work Plan (the "Plan") to
be submitted to EPA for review and approval. Upon approval of
the Plan by EPA, Settling Defendants will fund and conduct the
Response Actions contained in the approved Plan, and Settling
Respondents will fund and conduct all Redevelopment Activities.
8. 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 Sections X (Certification), XI (United
States' Covenant Not To Sue), XII (Reservation of Rights) and
XIII (Settling Respondents' Covenant Not To Sue), the potential
liability of the Settling Respondents for the Existing
Contamination at the Site which would otherwise result from
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Settling Respondents' becoming an owner or operator of the
Property.
9. The resolution of the Settling Respondents' potential
liability, in exchange for provision by the Settling Respondents
to EPA of a substantial benefit, is in the public interest.
10. Prior to receiving any financing, lending, purchase
money mortgage, or other funding. Settling Respondents shall
provide a copy of this Agreement to the financier, lender,
current owner, or other lending institution.
II. DEFINITIONS
11. Unless otherwise expressly provided herein, terms used
in this Agreement which are defined in CERCLA or in regulations
promulgated under CERCLA shall have the meaning assigned to them
in CERCLA or in such regulations.
a. "Effective Date" shall mean the effective date of
this Agreement, as defined in Section XX (Effective Date).
b. EPA shall mean the United States Environmental
Protection Agency and any successor departments or agencies of
the United States.
c. "Existing Contamination" shall mean any hazardous
substances, pollutants or contaminants, present or existing on or
under the Site as of the Effective Date of this Agreement.
d. "Grant Gear Decree" shall mean the consent decree
in United States v. The Grant Gear Works, et. al.. CA. No. 91
13381-Y (D.Mass.), between the United States and the defendants
Robert J. Hurley, and John F. Hurley, as Trustees of the Grant
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Gear Realty Trust, and Grant Gear Works, Inc. entered by the
Court on July 22, 1992, including any subsequent amendment or
modification thereto or any superseding amended consent decree
approved by the Court.
e. "Groundwater Treatment Plant" shall mean the system
constructed on the Site on behalf of EPA and DEP to remediate the
groundwater at the Site as set forth in the ROD as Modified by
the ROD Amendment.
f. "Institutional Controls" shall mean: (i) the
covenants, conditions, and restrictions and other equivalent
requirements and controls developed pursuant to the Grant Gear
Decree and recorded with the Norfolk County Registry of Deeds as
required by the Grant Gear Decree (the Existing Grant Gear
Institutional Controls, attached as Exhibit 2 hereto); (ii) the
covenants, conditions, and restrictions and other equivalent
requirements and controls developed pursuant to the ROD as
Modified by the ROD Amendment (the Modified Institutional
Controls, attached as Exhibit 7 hereto); and (iii) the covenants,
conditions and restrictions and other equivalent requirements and
controls developed pursuant to any future record of decision or
action memoranda for the Site or the Property to ensure the
integrity and effectiveness of the Response Actions at or
pertaining to the Site.
g. "Parties" shall mean EPA, and the Settling
Respondents.
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h. "Property" shall mean that portion of the Site
which is currently owned by Joseph Laham, including parcels
located at and adjacent to 921 Providence Highway and 65 Kerry
Place, Norwood, Massachusetts, as described by deeds attached as
Exhibit 3.
i. Redevelopment Activities shall mean those
activities described in Exhibit 5 that will be financed
exclusively by the Settling Respondents.
j. "ROD as Modified by the ROD Amendment" shall mean
the EPA Record of Decision relating to the Site signed on
September 29, 1989, by the Regional Administrator, EPA Region I,
as modified by the ROD Amendment relating to the Site signed on
May 17, 1996, by the Director of the Office of Site Remediation
and Restoration, EPA Region I.
k. "Response Action" shall mean "removal" or "remedial
action" as those terms are defined in Section 101 of CERCLA, 42
U.S.C. § 9601, including any Institutional Controls determined to
be necessary for the Property or Site.
1. "Section" shall mean a portion of this Agreement
identified by an upper case Roman numeral and "Paragraph" shall
mean a portion of this Agreement identified by an Arabic numeral.
m. "Settling Respondents" shall mean Joseph Laham,
individually, and 921, Inc. "Settling Respondent(s)" shall also
mean any person or entity to whom the rights, benefits and
obligations of this Agreement have been assigned or transferred
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pursuant to Section XIV (Parties Bound/Transfer of Covenant) of
this Agreement.
n. "Site" shall mean the Norwood PCB Superfund Site,
located in Norwood, Massachusetts, generally bounded by and
including Meadow Brook to the north, and bounded by a residential
neighborhood to the west along Pellana Road, Route 1 to the east
and Dean Street to the south. The Site is generally depicted on
the map included as Exhibit 1 to this Agreement. The Site shall
include the Property, and all areas to which hazardous substances
and/or pollutants or contaminants, have been released.
o. "United States" shall mean the United States of
America, its departments, agencies, and instrumentalities.
III. STATEMENT OF FACTS
12. The Site is a "facility" as that term is defined in
Section 101(9) of CERCLA, 42 U.S.C. § 9601(9). Portions of the
Site, including the Property, contain soil contaminated with
hazardous substances such as poiychiorinated biphenyls ("PCBs").
Portions of the Site, including the Property, are also underlain
with groundwater contatminated with hazardous substances such as
volatile organic compounds ("VOCs"). A former manufacturing
building on the Property was contaminated with hazardous
substances such as PCBs. It has been demolished pursuant to the
Consent Decree and the demolition debris will remain at the Site.
The soil, groundwater, and former manufacturing building at the
Property, are currently being remediated as part of the Response
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Actions for the Site, as described in the ROD as Modified by the
ROD Amendment.
13. Settling Respondents have recently purchased the
parcels comprising the Property, and intend to develop the
Property for a retail use. It is anticipated that the Settling
Respondents will cover and/or cap with asphalt the remaining
portions of the Property not requiring Response Actions under the
ROD as Modified by the ROD Amendment.
14. The United States, on behalf of EPA, is entering this
agreement with Settling Respondents as prospective "owners" or
"operators" of a facility within the meaning of Section 107(a)(1)
of CERCLA, 42 U.S.C. § 9607(a)(1).
15. Settling Respondents represent, and for the purposes of
this Agreement EPA relies on those representations, that Settling
Respondents' involvement with the Property and the Site has been
limited to potentially developing the Property for retail use.
None of these activities has caused or contributed to the release
or threatened release of hazardous substances under Section 107
of CERCLA, 42 U.S.C. § 9607.
IV. CONVEYANCE OF PROPERTY/NOTICE TO SUCCESSORS IN INTEREST
AND ASSIGNS
16. Within 15 days after the Effective Date of this
Agreement, the Settling Respondents shall record certified copies
of this Agreement and Exhibit 1 hereto with the Norfolk County
Registry of Deeds, Norfolk County, Massachusetts. Thereafter,
each deed, title, or other instrument conveying an interest in
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the Property shall contain a notice stating that the Property is
subject to this Agreement.
17. At least 30 days prior to the conveyance of any
interest in the Property, including, but not limited to, fee
interests, leasehold interests, and mortgage interests, the
Settling Respondent conveying the interest shall give written
notice of this Agreement and the Institutional Controls to the
grantee and written notice to EPA of the proposed conveyance,
including the name and address of the grantee, and the date on
which notice of this Agreement and Insti1:utional Controls was
given to the grantee. Any conveyance shall be made consistent
with Section XIV (Parties Bound/Transfer of Covenant) and in no
event shall the conveyance release or otherwise affect the
liability of the Settling Respondents to comply with the
requirements of Section VI (Redevelopment Activities and Trust
Fund), Section VII (Work to be Performed), Section VIII
(Access/Institutional Controls), Section XVI (Document
Retention), Section XVII (Payment of Costs) and Section XXIII
(Contribution Protection), except as agreed to by EPA pursuant to
Paragraph 44. If the United States approves, the grantee may
perform some or all of th-a Work under this Agreemanc.
V. PAYMENT
18. In consideration of and in exchange for the United
States' Covenant Not to Sue in Section XI herein, Settling
Respondents agree to perform the Work described in Section VII
(Work To Be Performed) below and to pay to EPA the sum of $10,000
10
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within ten days of the Effective Date. Settling Respondents
shall make all payments required by this Agreement in the form of
a certified check or checks made payable to "EPA Hazardous
Substance Superfund," referencing the EPA Region, Docket number,
and Site/Spill ID# 01-51, and DOJ case number 90-11-2-372E.
Settling Respondents shall forward the certified check(s) to EPA
Region I, Attn: Superfund Accounting, P.O. Box 360197 M,
Pittsburgh, PA 15251. Notice of payment shall be sent to those
persons listed in Section XVIII (Notices and Submissions) and to
Chief, Environmental Enforcement Section, Environment and Natural
Resources Division, U.S. Department of Justice, P.O. Box 7611,
Washington, D.C. 20044-7611.
19. Amounts due and owing pursuant to the terms of this
Agreement but not paid in accordance with the terms of this
Agreement shall accrue interest at the rate established pursuant
to Section 107(a) of CERCLA, 42 U.S.C. §9607(a), compounded on an
annual basis.
VI. REDEVELOPMENT ACTIVITIES M D TRUST FUND
20. The Settling Respondents acknowledge that certain
redevelopment activities as set forth in Exhibit 5 (the
"Redevelopment Activities") will be' incorporated into- the Final
Remedial Design Report/Remedial Action Work Plan so as to
accommodate the Settling Respondents' reuse of the Site.
Settling Respondents agree to finance all Redevelopment
Activities, and to assure that such Redevelopment Activities are
conducted in a timely and appropriate fashion so that they do not
11
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interfere with the remediation process and so that they do not
affect the protectiveness or integrity of the Response Actions.
21. Within ten (10) days of the Settling Respondents'
signature of this Agreement, the Settling Respondents shall
present to EPA for approval a fully executed trust agreement (the
"Trust Agreement") establishing the Laham/921 Providence Highway
Trust (the "Trust") in the form attached as Exhibit 6 and shall
notify EPA of the identity and qualifications of the Trustee.
The Trust Agreement shall confer upon the Trustee powers and
authorities required or sufficient to finance the obligations of
the Settling Respondents to pay for all Redevelopment Activities.
Within ten days of EPA's approval of the Agreement, Settling
Respondents shall pay into the Trust Fund $594,000. Money paid
into the Trust by the Settling Respondents pursuant to this
Paragraph and Paragraph 23 shall be used solely to pay proper and
necessary expenses for the Redevelopment Activities. The Trust
assets may not be used to pay penalties and shall not be used to
pay attorneys' fees or other legal costs of the Settling
Respondents.
22. Settling Respondents shall provide EPA with written
:.iOi::,._ce at least tv/enty days in advance of any proposed change in
the Trust Agreement or of the Trustee. EPA, through its
acceptance of the terms and conditions of the Trust Agreement or
otherwise, does not guarantee the monetary sufficiency of the
Trust or the legal sufficiency of the Trust Agreement.
12
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23. The Trust Agreement shall provide that the Trustee
shall, within thirty days of the Effective Date and every sixty
days thereafter, submit to EPA and the Settling Respondents
financial reports that include: (a) the estimated cost of the
remaining Redevelopment Activities (the "Estimated Cost of the
Remaining Redevelopment Activities") ; (b) a statement of the
remaining balance in the Trust; and (c) a statement whether the
remaining Trust balance exceeds the combined value of the
Estimated Cost of the Remaining Redevelopment Activities plus a
$54,000 contingency amount. Settling Respondents shall, within
ten days of issuance of the Trustee's report, deposit into the
Trust amounts sufficient to bring the level of the Trust balance
up to an amount that equals the combined value of the Estimated
Cost of the Remaining Redevelopment Activities plus the $54,000
contingency amount. Settling Respondents shall in any event make
payments to the Trust when and to the extent necessary, as
determined by EPA, to ensure the uninterrupted progress and
timely completion of the Redevelopment Activities as they relate
to the Response Actions. Within thirty days of EPA Certification
of Completion of the Settling Defendants' Remedial Action
pu.rsuant to section XIV of the Jonsant Decree, Settling
Respondents shall certify to EPA that all Redevelopment
Activities are complete. EPA shall have thirty days to identify
to Settling Respondents any remaining Redevelopment Activities
that require completion, which Settling Respondents shall
complete within thirty days of such notice or within any other
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period of time agreed to by EPA. Once all remaining
Redevelopment Activities are certified complete by Settling
Respondents and acknowledged as complete by EPA, any money
remaining in the Trust Fund may be returned to the Settling
Respondents in accordance with the terms of the Trust Agreement*
VII. WORK TO BR PERFORMED
24. Settling Respondents agree to undertake, at their
expense, the removal or dismantling of the structure housing the
Groundwater Treatment Plant ("the Work") as set forth in greater
particularity in the Statement of Work ("SOW") attached as
Exhibit 4.
VIII. ACCESS/INSTITUTIONAL CONTROLS
25. Beginning on the day that Settling Respondents sign
this agreement, and continuing each day during their term of
ownership or lease. Settling Respondents shall grant, pursuant to
the terms of this Agreement, to EPA and DEP, their authorized
officers, employees, representatives, and all other persons
performing Response Actions on behalf of or under the oversight
of EPA or DEP, an irrevocable right of access at all reasonable
times to the Property and, to the extent access to such other
property is controlled by such Settling Respondents, ro any other
property to which access is required for the implementation,
operation and maintenance of Response Actions at the Site, or for
the purposes of performing and overseeing Response Actions at the
Site under federal law.
14
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26. Notwithstanding any provision of this Agreement, EPA
retains all of its access authorities and rights, including
enforcement authorities related thereto, under CERCLA, the
Resource Conservation and Recovery Act, 42 U.S.C. § 6901, £t seq.
("RCRA"), and any other applicable statutes or regulations,
including any amendments thereto.
27. Subject to Section XIV (Parties Bound/Transfer of
Covenant), the Settling Respondents shall require that assignees
or any successors-in-interest, lessees, and sublessees of the
Property provide the same access and cooperation as is required
by this Agreement.
28. Settling Respondents acknowledge the existence of the
Existing Grant Gear Institutional Controls. Within ten days of
receiving an "as-built" drawing showing the location of Class A,
B, C, and D land at the Property as described in Exhibit 7
hereto. Settling Respondents shall file and record in the
Registry of Deeds, Norfolk County, Massachusetts, the Modified
Institutional Controls (including a grant of environmental
restrictions in the form of Exhibit 7 with the as-built drawing
appended). Prior to recordation of the Modified Institutional
Controls, 3e"ctling Respondencs shall not (i) perform, suffer, or
allow or cause any person to perform at the Property any of the
activities restricted by provisions l.A.(i), l.A.(ii), l.A.(iii),
and l.A. (iv) ("Restricted Uses") of Exhibit 7; (ii) perform,
suffer, or allow or cause any person to perform at the Property
any excavation, except as part of activities conducted pursuant
15
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to the Final Remedial Design Report/Remedial Action Work Plan or
as otherwise approved in writing in advance by EPA; or (iii)
encumber the title to the Property in any way.
29. Before recording the Modified Institutional Controls,
Settling Respondents shall provide to the United States such
certification of title as EPA deems necessary to allow for the
United States' acceptance of the Modified Institutional Controls
as grantee. Settling Respondents shall notify EPA in writing
within ten days after Settling Respondents learn of any property
interest or encumbrance on the title to the Property that may
impair the validity or effectiveness of t:he Modified
Institutional Controls. If EPA determines, based on notice from
Settling Respondents or on any other information, that any
property interest or encumbrance on the title to the Property may
impair the validity or effectiveness of the Modified
Institutional Controls, Settling Respondents shall provide for
removal of such encumbrances or subordination of such interests
within., thirty days of receiving notice from EPA that such action
is required.
30. Any proposed modification by Settling Respondents of
the Institutional Controls shall require the approval of EPA, and
without limitation, the filing and recording in the Registry of
Deeds, Norfolk County, Massachusetts, of grant(s) of
environmental restrictions or declaration(s) or modifications of
declaration(s) of covenants, conditions, and restrictions that
run with the Property, setting forth the Institutional Controls
16
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applicable thereto. The form and substance of any declaration(s)
or modifications of declaration(s) shall be those determined in
the sole and absolute discretion of EPA and shall be subject to
review and approval by EPA prior to filing. All such
declaration(s) or modifications of declaration(s) shall be
enforceable by the United States and shall provide that the
United States have the right to inspect the Property at
reasonable times and with prior notice (unless an emergency
situation exists), to assess compliance with the declaration(s)
or modification of the declaration(s).
31. Grant(s) of environmental restrictions, declaration(s)
or modifications of declaration(s) required to be filed pursuant
to this Agreement shall conform with state and local law in order
to create an enforceable property restriction that runs with the ,
land. Subject to Section XIV (Parties Bound/Transfer of
Covenant), if a question arises as to the enforceability of a
grant of environmental restrictions, declaration or modification
of a declaration under state or local law after the same has been
filed, the United States may require the Settling Respondents to
execute and record, or to use best efforts to secure, an amended
grant of environmental restrictions, declaration or amended
modification of a declaration that is enforceable under state and
local law.
IX. DUE CARE/COOPERATION
32. The Settling Respondents shall exercise due care at the
Site with respect to the Existing Contamination and with respect
17
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to all Response Actions undertaken by EPA or the Settling
Defendants and shall comply with all applicable state and federal
laws and regulations. The Settling Respondents shall also comply
with all obligations needed to maintain the Institutional
Controls as well as all obligations under this Agreement relating
to Response Actions.
33. The Settling Respondents recognize that the
implementation of Response Actions at the Site may interfere with
the Settling Respondents' use of the Property, may require
modification of the Settling Respondents' construction design
and/or modification of the Settling Respondents' construction
plans and schedules, and may require temporary closure or
cessation of Settling Respondents' operations or a part thereof.
The Settling Respondents agree to cooperate fully with EPA, and
all other persons performing Response Actions at the Site under
EPA oversight, in the implementation of Response Actions at the
Site, and further agree not to interfere with such Response
Actions. EPA agrees, consistent with its responsibilities under
applicable law, to use reasonable efforts to minimize any
interference with the Settling Respondents' operations by such
entry and response. The Settling Respondents further agree that
they will promptly, and with EPA oversight, repair any damage
Settling Respondents-, their assignees, lessees and sublessees
cause to the cap, cover, ground water treatment facility, or any
building, pipeline, or other structure or equipment constructed
or operated as part of such Response Action. In the event the
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Settling Respondents become aware of any action or occurrence
which causes or threatens a release of hazardous substances,
pollutants or contaminants at or from the Site that constitutes
an emergency situation or may present an immediate threat to
public health or welfare or the environment. Settling Respondents
shall immediately take all appropriate action to prevent, abate,
or minimize such release or threat of release, and shall, in
addition to complying with any applicable notification
requirements under Section 103 of CERCLA, 42 U.S.C. § 9603, or
any other law, immediately notify EPA of such release or
threatened release. EPA and Settling Respondents recognize that
pursuant to the Consent Decree (referenced in Paragraph 7,
above), the Settling Defendants have certain obligations to
undertake specified Response Actions with respect to the Site,
including emergency response pursuant to Consent Decree section
XV (Emergency Response). Nothing in this Agreement shall be
construed to relieve Settling Defendants of their emergency
response obligations pursuant to the Consent Decree. In the
event Settling Defendants fail to comply with such obligations,
EPA will take whatever enforcement actions, if any, that EPA
deems appropriate in i'cs sole discretion. In the event chat
Settling Respondents perform emergency Response Actions pursuant
to this Agreement that are within the Settling Defendants'
emergency response obligations pursuant to the Consent Decree,
Settling Respondents reserve their right to seek appropriate
relief from Settling Defendants. Nothing in this Agreement shall
19
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be construed to require Settling Respondents to undertake any
obligation of Settling Defendants embodied in Consent Decree
section VI (Performance of the Work by Settling Defendants) or
Consent Decree section VII (Remedy Review).
X. CERTIFICATION
34. By entering into this Agreement, the Settling
Respondents certify that to the best of their knowledge and
belief they have fully and accurately disclosed to EPA all
information known to Settling Respondents and all information in
the possession or control of their officers, directors,
employees, contractors and agents which relates in any way to any
Existing Contamination or any past or potential future release of
hazardous substances, pollutants or contaminants at or from the
Site and to the Settling Respondents' qualification for this
Agreement. The Settling Respondents also certify that to the
best of their knowledge and belief they have not caused or
contributed to a release or threat of release of hazardous
substances or pollutants or contaminants at the Site. If the
United States determines that information provided by Settling
Respondents is not materially accurate and complete, the United
States' Covenant Not to Sue in Section XI, within the sole
discretion of the United States, shall be null and void and the
United States reserves all rights it may have.
XI. UNITED STATES' COVENANT NOT TO SUE
35. Subject to the Reservation of Rights in Section XII of
this Agreement, upon satisfactory completion of the Work
20
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specified in Section VII (Work to Be Performed), upon recordation,
of the Modified Institutional Controls pursuant to Paragraph 28,
and upon payment of the amount specified in Section V (Payment),
the United States, on behalf of EPA, covenants not to sue or take
any other civil or administrative action against Settling
Respondents for any and all civil liability for injunctive relief
or reimbursement of response costs pursuant to Sections 106 or
107(a) of CERCLA, 42 U.S.C. § 9606 or 9607(a), with respect to
the Existing Contamination that may arise as a result of their
ownership or operation of the Property.
XII. RESERVATION OF RIGHTS
36. The covenant not to sue set forth in Section XI above
does not pertain to any matters other than those expressly
specified in Section XI (United States' Covenant Not to Sue).
The United States reserves and the Agreement is without prejudice
to all rights against Settling Respondents with respect to all
other matters, including but not limited to, the following:
a. claims based on a failure by Settling Respondents
to meet a requirement of this Agreement, including but not
limited to, Section IV (Conveyance of Property/Notice to
Successors in Interest and Assigns), Section V (Payment), Section
VI (Redevelopment Activities and Trust Fund), Section VII (Work
to Be Performed), Section VIII (Access/Institutional Controls),
Section IX (Due Care/Cooperation), and Section XVII (Payment of
Costs);
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b. any liability resulting from the future release of
hazardous substances, pollutants or contaminants, at or from the
Site caused or contributed to by an act or omission of Settling
Respondents or any corporate successors;
c. any liability resulting from past or future
releases of hazardous substances, pollutants or contaminants at
or from the Site caused or contributed to by any act or omission
of Settling Respondents' successors, assignees, lessees or
sublessees;
d. any liability resulting from exacerbation Of
Existing Contamination caused by any act or omission of Settling
Respondents, their successors, assigns, lessees or sublessees;
e. any liability resulting from the release or threat
of release of hazardous substances, pollutants or contaminants,
at the Site after the Effective Date of this Agreement, not
within the definition of Existing Contamina1;ion;
f. criminal liability;
g. liability for damages for injury to, destruction
of, or loss of natural resources, including the reasonable costs
of assessing such injury, destruction or loss;
'h. liability for violations of local, state or federal
law or regulations; and
i. claims by the United States to modify Institutional
Controls as necessary to protect human health and the environment
pursuant to any future action memoranda or records of decision
for or pertaining to the Property or Site for implementation of
22
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Response Actions (including, without limitation, design,
construction, operation, maintenance, monitoring, and use
restrictions).
37. With respect to any claim or cause of action asserted
by the United States, the Settling Respondents shall bear the
burden of proving that the claim or cause of action, or any part
thereof, is attributable solely to Existing Contamination and
based on Settling Respondents' ownership or operation of the
Property.
38. Nothing in this Agreement is intended as a release or
covenant not to sue for any claim or cause of action,
administrative or judicial, civil or criminal, past or future, in
law or in equity, which the United States may have against any
person, firm, corporation or other entity not a party to this
Agreement.
39. Nothing in this Agreement is intended to limit the
right of EPA to undertake future Response Actions at the Site or
to seek to compel parties other than the Settling Respondents to
perform or pay for Response Actions at the Site. Nothing in this
Agreement shall in any way restrict or limit the nature or scope
of Response Actions which may be caken or be required by EPA in
exercising its authority under federal law. Settling Respondents
acknowledge that they are purchasing property where Response
Actions are required.
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XIII. SETTLING RESPONDENTS' COVENANT NOT TO .qiTF.
40. In consideration of the United States' Covenant Not To
Sue in Section XI of this Agreement, the Settling Respondents
hereby covenant not to sue and not to assert any claims or causes
of action against the United States including any department,
agency or instrumentality, and its authorized officers,
employees, or representatives with respect to the Site or this
Agreement, including but not limited to:
a. any direct or indirect claims for reimbursement
from the Hazardous Substance Superfund established pursuant to
the Internal Revenue Code, 26 U.S.C. § 9507, through §§
106(b)(2), 107, 111, 112, 113 of CERCLA, 42 U.S.C. §§ 9606(b)(2),
9607, 9611-9613, or any other provision of law;
b. any claim under CERCLA §§ 107 or 113, 42 U.S.C. §§
9607, 9613, related to the Site;
c. any claims arising out of response activities at
the Site, including claims based on EPA's implementation or
selection of Response Actions, oversight of Response Actions, or
approval of plans for such Response Actions;
d. any claims for costs, attorneys' fees, other fees,
or expenses incurred in connection with 'chis Agreement, including
claims under 28 U.S.C. § 2412 (including claims under the Equal
Access to Justice Act, as amended, 28 U.S.C. § 2412(d));
e. any claims under the United States Constitution or
the Tucker Act, 28 U.S.C. § 1491, including claims based on EPA's
oversight of or implementation of Response Actions, or approval
24
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of plans for such Response Actions except where such claims arise
pursuant to the modification of Institutional Controls under
Paragraph 3 6.i; or
f. any claims or causes of action for interference
with contracts, business relations and economic advantage.
41. The Settling Respondents reserve, and this Agreement is
without prejudice to, actions against the United States based on
negligent actions taken directly by the United States (not
including oversight or approval of the Settling Respondents' or
Settling Defendants' plans or activities) or actions for breach
of this Agreement by the United States that are brought pursuant
to any statute other than CERCLA and for which the waiver of
sovereign immunity is found in a statute other than CERCLA or
RCRA, such as the Contract Disputes Act, 41 U.S.C. § 601 et seq.
Nothing herein shall be deemed to constitute preauthorization of
a claim within the meaning of Section 111 of CERCLA, 42 U.S.C. §
9611, or 40 C.F.R. 300.700(d).
XIV. PARTIES BOUND/TRANSFER OF COVENANT
42. This Agreement shall apply to and be binding upon the
United states on behalf of EPA, and shall apply to and be binding
on the Settling Respondencs, their officers, directors,
employees, and agents. Each signatory of a Party to this
Agreement represents that he or she is fully authorized to enter
into the terms and conditions of this Agreement and to legally
bind such Party.
25
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43. The United States' Covenant Not to Sue (Section XI) is
non-transferrable except pursuant to this Section.
44. Except as provided in Paragraph 46, notwithstanding any
other provisions of this Agreement, all of the rights, benefits
and obligations conferred upon Settling Respondents under this
Agreement may be assigned or transferred to any other person only
with the prior written consent of EPA in EPA's sole discretion.
45. The Settling Respondents agree to pay the reasonable
costs incurred by EPA to review any requests for consent to
assign or transfer the obligations and benefits of this Agreement
relating to the Property.
46. At his option and without EPA approval, Joseph Laham may
transfer title to the Property along with the rights and benefits
conferred by this Agreement to 921, Inc. at any time without EPA
approval; however, any such transfer of title shall not limit or
reduce Joseph Laham's obligations as a Settling Respondent
pursuant to Section VI (Redevelopment Activities and Trust Fund);
Section VII (Work to Be Performed); Section XVI (Document
Retention); Section XVII (Payment of Costs); and Section XXIII
(Contribution Protection). In addition, Settling Respondents may
transfer the Property along with the rights and benefits
conferred by this Agreement to a third party assignee or
transferee without EPA approval if and only if the conditions set
forth in a. and b. below are satisfied:
a. Prior to transfer. Settling Respondents shall
either: (i) satisfy all obligations of Section VI (Redevelopment
26
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Activities and Trust Fund); Section VII (Work to Be Performed);
Section VIII (Access/Institutional Controls); Section XVI
(Document Retention); Section XVII (Payment of Costs); and
Section XXIII (Contribution Protection); on (ii) Settling
Respondents shall transfer the Property while retaining legal
responsibility under this Agreement for satisfying any
outstanding obligations of Sections VI, VII, VIII, XVI, XVII and
XXIII; and,
b. Prior to the transfer, the assignee or transferee
provides to EPA its written consent to become a Settling
Respondent to this Agreement and to be bound by the terms of this
Agreement including, but not limited to. Section VIII
(Access/Institutional Controls), Section IX (Due
Care/Cooperation), Section X (Certification) and Section XIII
(Settling Respondents' Covenant Not to Sue). If and only if the
assignee or transferee satisfies the requirements of this
Paragraph and complies with all terms of this Agreement shall the
United States' Covenant Not to Sue set forth in Section XI be
effective as to such assignee or transferee. The provisions of
this Paragraph shall also apply to any subsequent assignment or
uransfer of any interest j./i the .ProparLy by persons other than
the Settling Respondents.
47. If any future lessee of the Property provides to EPA
its written consent to become a Settling Respondent to this
Agreeement and to be bound by the terms of this Agreement,
including but not limited to Section X (Certification) and
27
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Section XIII (Settling Respondents' Covenant Not to Sue), and
such lessee complies with all terms of this Agreement, then the
United States' Covenant Not to Sue set forth in Section XI shall
be effective as to such lessee.
XV. DISCLAIMER
48. This Agreement in no way constitutes a finding by EPA
as to the risks to human health and the environment which may be
posed by contamination at the Property or the Site nor
constitutes any representation by EPA that the Property or the
Site is fit for any particular purpose.
XVI. DOCUMENT RETENTION
49. The Settling Respondents agree to retain and make
available to EPA all business and operating records, contracts.
Site studies and investigations, and documents relating to
operations at the Property, for at least five years following the
Effective Date of this Agreement, or until satisfactory
performance of the Work as set forth in Section VII (Work To Be
Performed), whichever is longer, unless otherwise agreed to in
writing by the Parties. At the end of this time period, the
Settling Respondents shall notify EPA of the location of such
documents and shall provide EPA with an opportunity ro copy any
documents at the expense of EPA.
XVII. PAYMENT OF COSTS
50. If Settling Respondents fail to comply with the terms
of this Agreement, Settling Respondents shall be liable for all
28
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litigation and other enforcement costs incurred by the United
States to enforce this Agreement or otherwise obtain compliance.
XVIII. NOTICES AND SUBMISSIONS
51. Whenever, under the terms of this Agreement, written
notice is required to be given or a document is required to be
sent by one party to another, it shall be directed to the
individuals at the addresses specified below, unless those
individuals or their successors give notice of a change to the
other parties in writing.
As to EPA;
Remedial Project Manager
Norwood PCB Superfund Site
United States Environmental Protection Agency
Region I
JFK Federal Building
Boston, MA 02203
Re: 01-51
Director, Office of Environmental Stewardship
United States Environmental Protection Agency
Region I
JFK Federal Building (RCU)
Boston, MA 02203
Re: 01-51
As to Settling Respondents:
Joseph Laham
700 Providence Highway
Norwood, MA
XIX. OPPORTUNITY FOR PUBLIC COMMENT
52. EPA shall publish notice of the Agreement in the
Federal Register for a 30 day public comment period, after which
EPA may withdraw its consent to this Agreement if the comments
received disclose facts or considerations which indicate that
this Agreement is inappropriate, improper or inadequate.
29
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XX. EFFECTIVE DATE
53. The effective date of this Agreement shall be the date
upon which EPA issues written notice to Settling Respondents that
EPA has fully executed the Agreement after review of and response
to any public comments received.
XXI. ATTORNEY GENERAL APPROVAL
54. The Assistant Attorney General of the Environment &
Natural Resources Division approves this Agreement pursuant to
the inherent authority of the Attorney General to settle claims
of the United States as delegated.
XXII. TERMINATION OF INSTITUTIONAL CONTROLS
55. If any Party believes that any or all of the
obligations under Section VIII (Access/Institutional Controls)
are no longer necessary to ensure compliance with the
requirements of the Agreement, that Party may request in writing
that the other Parties agree to terminate the provision(s)
establishing such obligations. The provision(s) in question
shall continue in force unless and until the Party requesting
such termination receives written agreement from all other
Parties to terminate such provision(s).
XXIII.. CONTRIBUTION PROTECTION
56. With regard to claims for contribution against Settling
Respondents, the Parties hereto agree that the Settling
Respondents are entitled to such protection from contribution
actions or claims as is provided by Section 113(f)(2) of CERCLA,
42 U.S.C. § 9613(f)(2), for Matters Addressed in this Agreement.
30
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The Matters Addressed in this Agreement are all Response Actions
and costs incurred or to be incurred by the United States or any
other person for the Site with respect to the Existing
Contamination.
57. The Settling Respondents agree that with respect to any
suit or claim for contribution brought by them for matters
related to this Agreement they will notify the United States in
writing no later than 60 days prior to the initiation of such
suit or claim.
58. The Settling Respondents also agree that with respect
to any suit or claim for contribution brought against them for
matters related to this Agreement they will notify in writing the
United States within 10 days of service of the complaint on
Settling Respondents.
XXIV. EXHIBITS
59. Exhibit 1 is the map depicting the Site and the
Property.
60. Exhibit 2 is the Existing Grant Gear Institutional
Controls instrument.
61. Exhibit 3 consists of the deeds describing the parcels
that constiC^^c; u-̂.a r'lopercy.
62. Exhibit 4 is the Statement of Work for Demolition of
the Groundwater Treatment Plant.
63. Exhibit 5 is the List of Redevelopment Activities.
64. Exhibit 6 is the 921 Providence Highway/Laham Trust
Agreement.
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65. Exhibit 7 is the Modified Institutional Controls
instrument.
IT IS SO AGREED:
FOR UNITED STATES ON BEHALF OF THE ENVIRONMENTAL PROTECTION
AGENCY:
Patricia Meaney / / Date Assistant Regional 'Admin;î trator U.S. Environmental Protection Agency,
Region I
J.F.K. Federal Building
Boston, Massachusetts 02203
Lois J. Schiffer Date
Assistant Attorney General
Environment and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 2053 0
32
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In the matter of Joseph Laham et al. — Agreement and Covenant
Not to Sue, Docket Number CERCLA 1-97-1044.
IT IS SO AGREED:
For: Joseph Lah
^ ^ y 9y ' ^ D a t e
For:
^ 7 - ^ ^ ' , P 7 Date
33
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VICINITY MAP
-
659 tXHIBlT l
(ICOOCO
'«3iifCi.iccoufiry RESIST rroFOCZX cu»!*-M> 1 ^ 9 6 9 7 0 »nEir1|
UnnrtT. HANHON. nBSisxa
Notice of Institutional Controls under tha Comprehensive
Snvironaental Response, Compensation, and Liability
Act (CESCUi.) , Kl U.S.C. §9601 et, aeq-,
NOTICE OF INSTITUTIONAL CONTROLS IS HEREBY GIVEN by the owner of
reai prcperty in the Commonweaitih of Massachusetts (referred to
hereinafter as tihe "Property") , purchased by John F. Hurley and
Robert J. Hurley, Trustees of Grant Gear Realty Trust (the "Owner") ,
fron Jack Friedland, Leonard Friedland, and Harold Friedland, as
recorded by deed dated October 31, 1979, in Book 5670, page 30 at
>o
the Norfolk County Registry of Deeds, and described as Lot l of the
properiiy, as shown on a plan entitled "Plan of La.nd in Norwood,
Mass.", dated September 28, 1979, prepared by Norwood Engineering
ro
Co., Inc., filed as Plan 981 of 1979 of Plan Book 278 at the Norfolk
County Registry of Deeds.
WHEREAS, this Notice of Institutional Controls (the "Notice")
defines limitations and restrictions imposed on "owners and
operators" of tha Property, as those terms are defined under the
Comprehensive Environmental Response, Compensation, and Liability
j Act of 1980 (CERCLA), as amended^ 42 U.S.C. § 9601 et sea. This
Notice further describes the conditions, requirements and procedures
that suca ovi-nars and, cpera-crs nust follow in order to remove or
modify the covenants and restrictions imposed under this Notice or
1 take restricted action consistently therewith; and
WHEREAS, the Property is part: of a federal Superfund site which
e U.S. Environmental Protection Agency ("EPA"), pursuant to
action 105 of CERCLA, 42 U.S.C. § 9605, placed on the National
Priorities List, set forth at 40 C.F.R. Part 300, Appendix B, by
-
t - J
- 2
cublicaticn ir. the Federal Register on June 10, 1986, 51 Fed. Reg.
21099; and
WHEREAS, in a Record of Decision dated Septeaber 29, 1989 (the
"ROD"), the EPA Regional Administrator selected a remedial action
for the Site, with the concurrence of the Massachuserts Department
of Environmental Protection ("DEP"), which provides for the
following remedial actions:
1. Fencing of the Site.''
2. Excavation and dredging of soils, dredge pile materials'
and Meadow Brook sediments contaminated at levels
exceeding specified Cleanup Standards; treatment of the
contaminated materials to specified cleanup standards;
disposal of the treated, excavated and dredged
materials on the Site in designated disposal areas (the
"disposal areas"); and covering the disposal areas with.
iten inches of clean soil (the "soil cover").
3. Flushing, cleaning, containment, and/or replacement of
the roof surfaces and drainage system of the building
on the Property (the "Grant Gear building") as
necessary to attain specified cleanup standards in
effluent discharging from the drainage system to Meadow
Brook.
4. Decontamination by solvent washing to specified cleanup
levels of equipment, machinery and floor surfaces
within the Grant Gear building?
5. Collection and treatment of contaminated groundwater
until specified groundwater-cleanup standards are
attained.
7. Restoration of wetland areas adversely impacted by the
•̂ remedial action and ancillary activities;
8. Long-term environmental monitoring of groundwater,
soils, sediments at the Site, of effluent from the
building drainage system, and of surfaces within the
Grant Gear building.
9. Institutional controls (hereinafter referred to as
"covenants, conditions and restrictions") on use of t.'-.e
Property.
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WHZREAS, the Cvr.er has entarad into a Consent Decree with tha
United States, in Civil Acticn Mc. 91- l̂ '̂ glV, in the United States
District Court for the District of Massachusetts, which provides for
the Owner to record this Notice cf Institutional Controls with the
Norfolk County Registry cf Deeds. A description cf the Consent
Decree is Attachment 1 to this notice; a copy of the Conse.nt Decree
may be obtained hy writing the Office of Regional Counsel, U.S. E?A,
JFK Federal Building — ?JIC, Boston, MA 022C3, referencing Superfund
Docket Nc. 51 and the Civil Acticn Number.
NOW, THEHEFCRE, the C-7ier, for itself, its lessees, and its
successors and assigns (collectively tha "Owner") , does hereby
declare and covenant that the covenants, conditions and restrictions
hereinafter set forth shall be deemed to be to considered covenants,
conditions and restrictions ranning with the Property and that said
covenants, conditions and-restrictions shall be binding upon the
Owner, its successors and assigns, and shall inure to the benefit of
the United States, of America, which may enforce these covenants,
ccr.diticr.s and rsstricticns by rssor't to legal process if such
action becomes necessary. The Owner, for itself, its lessees, and
ts successors and assigns does further declare that any
\j edification to these covenants, conditions and restrictions shall
effective only upon the written approval of EPA, and after an
.tended Notice of I.nstitutional Controls approved by EPA is recorded
vit.-. the Norfolk County Registry of Deeds specifying which of the
http:Conse.nt
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e.̂ .urzeratsd covenants, conditions cr restrictions is mcdified ar.d the
nature of the approved mcdificaticn.
Definition
As used in this Notice, the term "hazardous substances" .shall mean
any substance meeting the definition of: (i) "hazardous substance"
under Section 101(14) of CEPACIA, 42 U.S.C. § 9601(14); or (2)
"pollutant" or "contaminant" under Section 101(33) of CEPACIA, 42
U.S.C. § 9601(33).
Covenants, Ccnditicns and Restrictions
1. The following restrictions cn usa cf the Property by the
Owner are tart of tha remedial action selected for the Site in the
.ROD:
a. The Property shall never be developed for residential use.
b. Groundwater in the "zone cf contamination," as defined
.pursuant to the ROD during response actions at the Property, shall
never be withdrawn. "Groundwater wells shall not be installed,
except pursuant to a plam approved by EPA in accordance with the
procedure set forth in this Notice of Institutional Controls.
. c. Contaminated, untreated soils containing hazardous
substances which are both at or below the water table, and beneath
-.e Grant Gear building or paved areas on the property shall not be
sturbed, except pursuant to a plan approved by EPA in accordance
:h t.he procedure sat forth in this Notice of Institutional
lontrois.
d. The soils that cover the disposal areas as part of the
Xe- ial Action or ct.'ier ground ccveri.-g features of the remedy for
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the Site shall not be disturbed cr modified in . ^...^
acticn shall be taken which shall disturb in any i.
integrity or effectiveness of the cover, including th .race of ^ ^ ^
cars, except pursuant to a plan approved by EPA in accordance with
the procedure set forth in this Notice of Institutional Controls.
e. Tha floor surfaces and subsurfaces of the Grant Gear
building shall not be disturbed by digging, drilling, excavation cr
other intrusive work, except pursuant to a plan approved by EP.A in
• accordance with the procedure set forth in this Notica cf
Institutional Controls.
f. Any portion of the Grant Gear building's drainage system,
that is contained as' part" of the Remedial Action shall not be
disturbed, except pursuant to a plan approved by EPA in accordance
with the procedure set forth in this Notica of Institutional
Controls.
g. No use or activity shall be permitted on any portion of
the Property which will disturb any of the remedial measures
implemented at the Site, including without lirtltation: systems and
areas to collect, contain, treat, and discharge groundwater; systems
or containment areas to excavate, dewater, store, treat, and dispose
of soils and sediments; and systems and studies to complete remedial
design, to monitor implementation of the remedial action, to provide
ong-term environmental monitoring of on-site groundwater, soils,
sed.ments and surfaces within the Grant Gear building, and to ensure
Ihe remedial action is effective in the long-term and protective of
.IU" health and the environment.
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Proposals Tc Take Actions ?,estriotad by Thia Notice
2. Eefore taking any acticn restricted by Paragraphs l.b.
through l.f. of this Notice, the Owner shall obtain approval from:
EPA pursuant to Paragraph 4 of this Notice. In seeking such
approval, the Owner shall notify EPA in writing of the proposed
acticn as follows:
a. If the Owner intends to drill, dig or otherwise excavat.=:
any area, excluding the area within the Grant Gear building, not t;
exceed any of (i) 3 cubic yards of soil, (ii) a depth cf not gr=a—
than three feet, cr (iii) an area cf 1,000 square feet, the Owner
shall i.-clude in its written notice to EP.A the information descri^
in Paragraphs 3.a. through 3.d. of this Notice. If the Owner
intends to drill, dig or otherwise excavate any area within the
Grant Gear Building not to exceed (i) a depth of six i.nches, or (:_
a volume of 12 cubic inches, the Owner shall include in its writts
notice to EPA the information described in Paragraphs 3.a. thrcuc.t
3.d. of this Notice;
t.hrough l.f. of this Notice, hut riot subject to t.he procedures set
forth in Paragraph 2.a. above, the Owner shall include in its
written notice to EPA the information described in Paragraphs 3.a.
•hrough 3.h.
3- The Owner shall provide written notice of the following
.nf: mat icn to EPA as required by Paragraph 2 of this Notice:
a. The nature cf the acticn Owner proposes to undertake,
iir.g appropriate objectives, plans, specifications, schedule.
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635
ccnstr'-cticn or other activities to be undertake.n in ordar to
inplement the proposed acticn;
b. The location, areal extent, and depth below the surface of
any proposed excavation, identification of all contaminated media,
and the volume of soils, sediments, wastewater, groundwater and
building structures that will be affected by such proposed action,
including the effect that such proposed action will have on soils,
sediments, wastewater, groundwater or building structures containing
hazardous substances;
c. A description cf all proposed actions and practices to be
implemented during the proposed action to prevent the release of
hazardous substances and. possible recontamination of all media, and
to ensure the continued effectiveness of any remedial measures
implemented at the Site as well as the protection of human health
and the environment;
d. A plan demonstrating how the proposed action will be
performed in compliance with all applicable laws or • regulations; and
e. A monitoring and sampling plan, including quality
assurance/quality control procedures, which (i) describes all
monitoring and analysis methodologies, detection limits and
parameters, (ii) describes all sampling locations, including a
vscription of how the" sampling locations were chosen, which will be
-plemented during and after the proposed action, and (iii) sets
orth a schedule indicating the submittal date(s) for the full
esu ts of all sampling and analysis conducted pursuant to the
;cr :ri-ng and sampling plan;
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f. A health a.nd safety plan;
g. If the proposed action involves the transfer of any
hazardous substance off-site, identificaticn cf the anticipated.
treatment cr disposal facility; and
h. The name and qualifications of the proposed contract.crr who
will perform the proposed action.'
Review, Approval and/cr Amendment cf Proposals
to Tajca Actions Restricted by This Notice
4. Upon recaipt of the notice of proposed action submitted
pursuant to Paragraph 2.a., E?-\ may approve or disapprove any
proposed actions as follows:
a. Aftar review of any proposed action submitted for aptmroval
pursuant to Paragraph 2.a., E?-\ shall, within t.hirty days of r=::=eipt
of the notice of proposed action, either: (1) approve the prt~osed
action; (2) disapprove the proposed action, notifying the ownarr or
operator of the reasons for disapproving the proposed acticn on- of
deficiencies in the. submission; or (3) inform the Owner of a
reasonable additional period of time which EPA requires to cet^rTsine
that EPA does not take one of the actions enumerated in (1) tn'.rough
(3) above within thirty days of receipt of the notice of propcosed
action, upon request of the Owner, EPA will issue a notica cf
•disapproval of the proposed action.
b. In disapproving any proposed action, EPA expressly ras^rves
the right to disapprove any of the plans or submittals iistsd in
?̂ graphs 3.a. through 3.d. or to disapprove cf the proposed action
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zr. the grounds that additional information is needed. If EP.\
disapproves any proposed action on the grounds that, additional
information is needed, the owner or operator may sxibmit for approval
suc.t additional information, including any plans or submittals
listed in Paragraphs 3.e. through 3.h. Upon receipt of" a notice of
disapproval with a notice of deficiencies, the Owner may correct the
deficiencies and resubmit the plan, report, or other item for
approval.
5. Upon receipt of the notica. of proposed action submitted
pursuant to Paragraph 2.b., EP.A shall approve cr disapprove any
proposed actions as follows:
a. After review of any prcposed acticn s'obmitted for approval
pursuant to Paragraph 2.b., EPA shall either: (1) approve the '
proposed acticn; or (2) disapprove the proposed action, notifying
the owner or operator of the reasons for disapproving the proposed
.action or of deficiencies in the submission. In disapproving any
proposed action, EPA expressly reserves the right to disapprove any
of the plans or submittals listed in Paragraph.s ?. .a., thrtugh l.h.,
including the proposed contractor discussed in Paragraph 3.h., or to
disapprove of the proposed action on the grounds that additional
information is needed. If EPA disapproves any proposed action on
•he grounds that additional information is needed, the owner or
jperator may submit for approval such additional information.
b. Following receipt by the Owner of a notice cf EPA approval
of ie proposed action, the Owner shall provide notice to EPA tsn-—
da- trior to the data on which tha Owner intends to csrform the
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proposed acticn of its intention tc comme.nca performance cf such
acticn.
c. Upon recaipt of a notice of disapproval with a nottice of
deficiencies, the owner may correct the deficiencies and resuibmit
the plan, report, or other item for approval.
Modification or withdrawal of Covena-mts,
Conditions and Restr-ictions
6. If information is generated which demcnstrames that th,a
Cove.nants, Conditions and Restrictions contained in this Ncti^ne may
be modified or withdrawn in whole cr in part consistent with the
public interest and the public purpose of protecting human haalth
and the environment, the owner may s'ubmit to EP-\ a proposal for.
modifying or withdrawing any Covenants, Conditions and Restri^-ctions.
After approval by EPA of any modification or withdrawal of
Covenants, Conditions and Restrictions, the Owner shall reccr-m an
Amended Notice of Institutional Controls, approved by EPA, with the
Norfolk County Registry of Deeds, Norfollc County, Hassachusetrts, as
previously stated on page 3 of this Notice.
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•7. The United States of America shall be entitled to enfo;rce
this Notice, any amended Notice of Institutional Controls, anry
notice of restrictions recorded to extend the terms of this Notice,
and the covenants, conditions and restrictions imposed herein by
bringing an action at law for damages, or in equity for injummtions,
cr ^ther proceedings under federal or state law, including CZIP.CLA,
fr the ourtose of curinc or correctinc a,.-:v violation cf tha tarns
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of this Notice. All costs and expenses of the United States,
including, but not limited to, attorneys' fees, incurred to cure or
correct any violation of the terms of this Notice shall be borne by
•the Owner. All remedies available hereunder shall be cumulative to
any and all other remedies at law or in equity. The United States
expressly reser"/es the right to enforce the covenants, conditions
and restrictions imposed herein as a failure to comply with the
terms of the Consent Decree in Civil Action No. 91-1 ŷ '?fV, in the
United States District Court for the District of Massachusetts.
Sspiraticn Date
3. Tha covenants, conditions and restrictions sat forth in this
Notica are established in the public interest and for tha public
purpose of protecting human health and the enviror.ment. These
restrictions are intended to be effective and enforceable under tbe
provisions of M.G.L. c. 184, § 26, et seq. The Owner or any
successors in title shall record a notice of restriction before the \
expiration of thirty (30) years from the. date of this Notice and ^
before the expiration of each succeeding twenty (2 0) year raricd,.
pursuant to M.G.L. c. 184, § 27, which notice or extension of
restriction shall extend the covenants, conditions and restrictions
of this Notice or an Amended Notice of Institutional Controls that
was approved by EPA, and shall be duly recorded in accordance with
the laws of the Commonwealth of Massachusetts.
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121 WIT̂ rzss WHZP^OF, Robert J. Hurley and John J. Hurley, as TInustees
of the Grant Gear Realty Trust, have caused this Notice to b= signed
in their names and on behalf of the Grant Gear Realty Trust.
Executed under seal this / 7 t ̂ day of C l o y j l ^ , 19£^
GRANTJ5SAR REALTY TRUST!
Robert J. Kurisv, a^
Trustee^ / .
By: \^M^ r \yy^yu^ C^hn z . Hurley, as Trustee ./ '
CCMMONWEALTH OF MASSACHUSETTS
:ounty of h n { L c \ K , ss.
On this 11 day of AvJA.̂ / 199i/ before me appeared Robert ~ . Hurley and John F. Hurle^, to me personally known, who, bein- by me duly swom, did say that they are the trustees of Grant Gear l>ealty Trust, that said instrument was signed on behalf of Grant Ges=Realty Trjst, that said Robert J. Hurley and John F. Hurley aira authorized to sign said instrunent on behalf of Grant Gear Re==.lty Trust, and said Robert J. Hurley and John F. Hurley acknowleco^ed said instrument to be the free act and deed of Grant Gear i^s-lty Trust. Witness my hand and official seal. /~x .-""'v ".•--'*—••./5.-.
Notary F̂ -oiic\ .j ^ \ j^ij . : ' _-. -> ̂ : My commission expires^ ̂ •'- .\':'
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rue Foregoing « a tme copy of a J ^ ' ^ Q
recordad w,th Nor̂ oik Daeds. tXlham. Ma«.
(y Resfst«'
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Attachment 1
to
Notioa of Institutional Controls under tha Comprehensive
Environmental Response, Compensation, and Liability
Act (C2SCLA) , 42 D.s