DECLARATION OF ENVffiONMENTAL COVENANT This DECLARATION OF ENVJ:R2NMENTAL COVENANT ("Environmental Covenant") is hereby declared and granted as of this t!}_r:Itlay of <ftuvE , 2017, by THE ST ATE OF MAINE, THROUGH AND BY THE MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION, an Agency organized and existing under the laws of the State of Maine and having its principal place of business at 28 Tyson Drive, Augusta, Kennebec County, State of Maine ("Grantor"), to the MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION ("DEP" or "Holder") on prope1ty located in Meddybemps, Washington County, Maine, as more fully described below. WHEREAS, Grantor is the owner in fee simple of a certain property of approximately 3 .19 acres in size located in Meddybemps, Washington County, Maine, and described in a deed recorded in the Washington County Registry of Deeds in Book 2462, Page 212 ("Prope1ty"), and being generally depicted in Exhibit A attached hereto and incorporated herein by reference. The Property consists of so- called contiguous Parcels A, B, and B-1 that are located principally to the north of State Route 191 and shown on survey plan entitled "Standard Boundary Survey - Eastern Sutplus Superfund Site, Route 191, Meddybemps, Washington County, Maine, version dated October 22, 1999, by OEST Associates, Inc. of South Portland, Maine," attached hereto as Exhibit Band incmporated herein by reference. WHEREAS, the Property is part of the Eastern Smplus Company Superfund Site ("Site"), which the United States Environmental Protection Agency ("EPA") placed on the National Priorities List pursuant to Section 105 of the Comprehensive Environmental Response, Compensation and Liability Act, as amended ("CERCLA"), 42 U.S.C. § 9605, and set forth at 40 C.F.R. Part 300, Appendix B, and by publication in the Federal Register on June 17, 1996 (61 Fed. Reg. 30510). WHEREAS, the Property is also identified as a pottion of the Eastern Surplus Company Site designated as an Uncontrolled Hazardous Substance Site by DEP on December 16, 1985 pursuant to 38 M.R.S. §§ 1364 and 1365. WHEREAS, between 1985 and 1990, DEP and EPA directed the removal of thousands of containers of chemicals, thousands of compressed gas cylinders, and 10 cubic yards of asbestos. Between 1998 and 1999, EPA also removed additional containers, munitions, and contaminated soil and groundwater that was the soUl'ce of spreading groundwater contamination and/or that presented a risk to persons contacting the soil. Together, these actions constitute the "Removal Action." WHEREAS, between 1996 and 1999, EPA investigated the extent of contamination at and from the Site and assessed potential site clean-up remedies. WHEREAS, in a Record of Decision dated September 28, 2000 (the "ROD"), the EPA, with the concurrence of the DEP, selected a remedial action for the Site ("Remedial Action," which as modified and together with the Removal Action shall be hereinafter referred to as the "Environmental Response Project"), which provides, in part, for the following actions to address remaining site contamination: Eastern Surplus Company Site, 887 Main Street (Route 191), Meddybemps Declaration of Environmental Covenant Page 1 of 11
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DECLARATION OF ENVffiONMENTAL COVENANT
This DECLARATION OF ENVJ:R2NMENTAL COVENANT ("Environmental Covenant") is hereby declared and granted as of this t!}_r:Itlay of <ftuvE , 2017, by THE ST A TE OF MAINE, THROUGH AND BY THE MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION, an Agency organized and existing under the laws of the State of Maine and having its principal place of business at 28 Tyson Drive, Augusta, Kennebec County, State of Maine ("Grantor"), to the MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION ("DEP" or "Holder") on prope1ty located in Meddybemps, Washington County, Maine, as more fully described below.
WHEREAS, Grantor is the owner in fee simple of a certain property of approximately 3 .19 acres in size located in Meddybemps, Washington County, Maine, and described in a deed recorded in the Washington County Registry of Deeds in Book 2462, Page 212 ("Prope1ty"), and being generally depicted in Exhibit A attached hereto and incorporated herein by reference. The Property consists of socalled contiguous Parcels A, B, and B-1 that are located principally to the north of State Route 191 and shown on survey plan entitled "Standard Boundary Survey - Eastern Sutplus Superfund Site, Route 191, Meddybemps, Washington County, Maine, version dated October 22, 1999, by OEST Associates, Inc. of South Portland, Maine," attached hereto as Exhibit Band incmporated herein by reference.
WHEREAS, the Property is part of the Eastern Smplus Company Superfund Site ("Site"), which the United States Environmental Protection Agency ("EPA") placed on the National Priorities List pursuant to Section 105 of the Comprehensive Environmental Response, Compensation and Liability Act, as amended ("CERCLA"), 42 U.S.C. § 9605, and set forth at 40 C.F.R. Part 300, Appendix B, and by publication in the Federal Register on June 17, 1996 (61 Fed. Reg. 30510).
WHEREAS, the Property is also identified as a pottion of the Eastern Surplus Company Site designated as an Uncontrolled Hazardous Substance Site by DEP on December 16, 1985 pursuant to 38 M.R.S. §§ 1364 and 1365.
WHEREAS, between 1985 and 1990, DEP and EPA directed the removal of thousands of containers of chemicals, thousands of compressed gas cylinders, and 10 cubic yards of asbestos. Between 1998 and 1999, EPA also removed additional containers, munitions, and contaminated soil and groundwater that was the soUl'ce of spreading groundwater contamination and/or that presented a risk to persons contacting the soil. Together, these actions constitute the "Removal Action."
WHEREAS, between 1996 and 1999, EPA investigated the extent of contamination at and from the Site and assessed potential site clean-up remedies.
WHEREAS, in a Record of Decision dated September 28, 2000 (the "ROD"), the EPA, with the concurrence of the DEP, selected a remedial action for the Site ("Remedial Action," which as modified and together with the Removal Action shall be hereinafter referred to as the "Environmental Response Project"), which provides, in part, for the following actions to address remaining site contamination:
Eastern Surplus Company Site, 887 Main Street (Route 191), Meddybemps Declaration of Environmental Covenant
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1. Extraction and treatment of contaminated water to prevent off-site migration and restore the aquifer;
2. Flushing of treated water and/or injection of chemical reagent to facilitate the removal of contamination;
3. Land-use restrictions to prevent ingestion of contaminated groundwater and excavation and any other unauthorized disturbance of archaeological resources;
4. Long-tenn monitoring of groundwater, smface water, sediments, and as necessary, biota; 5. A compensation project for adverse effects upon archaeological resources; and 6. Five-year reviews to assess protectiveness.
WHEREAS, a groundwater extraction and treatment system was installed in 2000 and 2001 to contain and treat contaminated groundwater in the overburden and bedrock aquifers. The southern plume, located to the south of State Route 191, has been treated to ROD interim groundwater cleanup levels ("IGCLs"). The northern plume, a portion of which is located within the Prope1ty, has not yet attained the IGCLs in the ROD, despite treatment of the highest contamination with in-situ chemical oxidation and limited bioremediation.
WHEREAS, the Property is of cultural significance, is part of a site named N'tolonapemk or "Our Relatives' Place" by the Passamaquoddy T1ibe, and includes the Maine Historic Preservation Commission's Archaeological Site 96.02, a pmtion of which was listed in the National Register of Historic Places on August 8, 2001 pursuant to the National Historic Preservation Act of 1966, as amended ("NHPA"), 54 U.S.C. § 300101 et seq. The archaeological materials located on the N'tolonapemk site and Archaeological Site 96.02 include various types of stone artifacts, aboriginal ceramic fragments, burned food, bone remains, samples of carbonized plants remains, and soil samples.
WHEREAS, in accordance with the ROD and a Memorandum of Agreement for Recove,y of Significant In.formation and Mitigation '!f Adverse Effects, entered into pursuant to CERCLA and NHP A by EPA, the Advisory Council on Historic Preservation, the Maine Historic Preservation Commission ("MHPC"), and the Passamaquoddy Tribe, last dated July 24, 2000, in mitigation for unavoidable adverse effects on archaeological resources located within Archaeological Site 96.02 as a result of environmental cleanup activities to address the contamination of hazardous substances at the Site, EPA inter alia performed archaeological field investigations (which recovered artifacts such as stone tools, pottery, animal bones, and plant remains), prepared reports addressing the scientific and cultural value of the recovered materials, and constructed a public educational exhibit (in the form of a plaza, walkway and four co111111emorative plaques) at the Site.
WHEREAS, in accordance with an Agreement last dated August 25, 2000, the Passamaquoddy Tribe, the State of Maine, Ten-ell L. Lord, Lisa J. Lord, and the Robert Abbe Museum of Stone Age Antiquities ("Abbe Museum") agreed to transfer all rights, title, and interests in archaeological materials removed from and embedded in the soil of the Site to the Abbe Museum ("State Archaeological Agreement"). The Abbe Museum is a Nonprofit Corporation organized and existing under the laws of the State of Maine and having its principal place of business at 26 Mount Desert Street, Bar Harbor. The intent of the parties was to preserve and protect registered archaeological specimens at the Site consistent with the Maine Preservation hlterest Act, 33 M.R.S. §§ 1551 -1555.
WHEREAS, the archaeological materials recovered and removed from the Site were transfen-ed to the Abbe Museum in accordance with an Agreement.for the Curation of Federally-Administrative Archaeological Collection and Recordsfi'Oln the Eastem Swplus Company Supe1.fund Site, a.k.a. N'tolonapemk, located within Maine Archaeological Survey Site 96. 02, dated April 2, 2003.
Eastern Swplus Company Site, 887 Main Street (Route 191), Meddybemps Declaration of Environmental Covenant
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WHEREAS, Granter has agreed to activity and nse resttictions on the Property.
WHEREAS, Granter intends to create and grant an Environmental Covenant pursuant to the Unifonn Environmental Covenants Act, 38 M.R.S. § 3001 et seq. ("UECA") .
. WHEREAS, UECA under 38 M.R.S. § 3005(2)(1) provides that the DEP maybe both the Granter and Holder of an Environmental Covenant.
NOW, THEREFORE, GrantorTHE STATE OF MAINE ACTING BY AND THROUGH THE MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION, for and in consideration of the facts above recited and the covenants herein contained, and intending to create and be legally bound by a perpetual covenant rnnning with the land, snbject to the terms hereof, hereby declares, covenants and agrees as follows:
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Declaration of Environmental Covenant. This instrnment is an Environmental Covenant executed pursuant to the UECA.
Property. This Environmental Covenant concerns the Prope1ty as described herein.
Activity and Use Limitations. The following covenants, conditions and restrictions shall rnn with the land, and shall be binding in perpetnity on the Prope1ty and on the Granter and its successors and assigns during their respective periods of ownership:
a. Except for environmental cleanup activities directed by DEP and EPA ( collectively "the Agencies"), excavation, site development, and any other ground disturbance shall be prohibited, without the express written permission of the DEP. The DEP will only approve excavations that will not adversely affect the cultural or historical resources at the Site in accordance with the State Archaeological Agreement. In addition, the Property shall be maintained in a manner that preserves its historical integ1ity, in particular the setting (physical environment) and feeling (a sense of tribal spiritual life).
b. Environmental Response Project wells, piping and other equipment within the Property shall not be destroyed, obstrncted, tampered with or otherwise disturbed.
c. Except for environmental cleanup activities directed by the Agencies, groundwater on the Property shall not be extracted without the express written pe1mission of the Agencies.
d. Except for environmental cleanup activities directed by the Agencies, liquids shall not be discharged or injected to the subsurface of the Property without the express written pem1ission of the Agencies.
e. Except for environmental cleanup activities directed by the Agencies, wastes, as defmed in Maine Solid Waste Management Rules, Chapter 400, without limitation, shall not be accumulated, stored, or stockpiled on the Property, and a junkyard or automotive graveyard as defined in 30 M.R.S. § 3752, without limitation, shall be prohibited at the Property.
f. Any buildings constrncted on the Property shall be equipped with a sub-slab vapor barrier and ventilation system that is pre-approved by the Agencies, or a sub-slab active
Eastern Surplus Company Site, 887 Main Street (Route 191), Meddybemps Declaration of Environmental Covenant
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depressurization system that is pre-appm,V,~<i\P,M:,f/l<!c:&1/i'!,llPles. Any such system shall be properly maintained and effectively op~l'al'etirfo)acfonl:arice with a DEP approved operations plan.
4. Agencies and Holder. DEP is an enviromnental Agency with enforcement authority pursuant to the UECA and is the only Holder of this Enviromnental Covenant. Additionally, EPA has and will continue to detennine and approve the Environmental Response Project, and accordingly is also an enviromnental Agency with enforcement authority pursuant to the UECA, 38 M.R.S. § 3002(2). In accordance to the UECA, 38 M.R.S. § 3003(2), EPA's right to enforce under the UECA is not an interest in real prope1iy. Together, DEP and EPA are the "Agencies."
5. Perpetuity of Covenant. This Environmental Covenant and each and every covenant herein shall be a covenant running with the land in perpetuity and shall be binding on Grantor and any future owner of any portion of, or interest in, the Property dming their respective periods of ownership until amended or terminated in accordance with the UECA.
6. Representation of Ownership and Encumbrances. By its execution hereof, Grantor hereby represents that it is the sole fee simple owner of the Propetiy and that there are no m01igages, easements, or other encumbrances on the Prope1iy that would materially adversely affect the effectiveness or enforceability of this Envirollll1ental Covenant.
7. Access. In addition to any rights already possessed by DEP and EPA, this Enviromnental Covenant grants to EPA and DEP, including their authorized employees, agents, representatives and independent contractors and subcontractors, a right of access to the Prope1ty, without cost and upon presentation of credentials, for the pm:poses of conducting visual inspections of the condition of the Property, monitoring and enforcing this Environmental Covenant, and implementing, facilitating and monitoring the Environmental Response Project tasks/activities. In addition, this Envirolllllental Covenant grants to the Passamaquoddy Tribe, the Abbe Museum, and the MHPC a right of access to the Prope1iy, without cost and upon presentation of credentials, for the purposes of conducting visual inspections of the condition of the Property with respect to the protection of cultural or historic resomces at the Site, described in Paragraph 3(a), above, conducting or observing any archaeological data recove1y operations carried out pmsuant to a research design approved by the Passamaquoddy Tribe, the MHPC, and the Abbe Museum, and visiting the public educational exhibit (in the fonn of a plaza, walkway and four commemorative plaques) at the Site.
8. Notice to Tenants and Others. Grantor and all subsequent owners of the Property, during the period of their respective ownership of the Property, shall provide notice of this Envit·ollll1ental Covenant to any tenants or lessees thereof and to any other person conducting any activity on the Property that is restricted by this Environmental Covenant, which notice shall be provided prior to such occupancy or activity.
9. Notice upon Conveyance. Each instrument hereafter conveying any interest in the Property or any portion thereof including but not limited to deeds, leases and mortgages, shall contain a notice that is in substantially the following form:
NOTICE: THE INTEREST CONVEYED HEREBY IS SUBJECT TO A DECLARATION OF ENVIRONMENT AL COVENANT, RECORDED IN THE WASHINGTON COUNTY REGISTRY OF DEEDS ON~----' 2017 IN
Eastern Surplus Company Site, 887 Main Street (Route 191), Meddybemps Declaration of Environmental Covenant
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BOOK-~' PAGE-~' IN FAVOR OF AND ENFORCEABLE BY THE STATE OF MAINE AND THE UNITED STATES OF AMERICA.
10. Notice of Noncompliance. Grantor and all subsequent owners of the Property, during the period of their respective ownership of the Property, shall provide written notice to EPA and DEP within ten (10) working days of discovery of any noncompliance with this Environmental Covenant.
11. Notice Pursuant to Covenant. Any notice or other communication required pursuant to this instrument shall be in writing and shall be sent by certified mail, return receipt requested, or by any commercial carrier as provides proof of delivery, addressed as follows, or to such other address as each entity may designate from time to time by written notice to the other entities:
12.
13.
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To EPA: Remedial Project Manager Eastern Surplus Company Superfund Site U.S. Environmental Protection Agency, Region 1 - New England 5 Post Office Square Mail Code: Suite 100 (OSRR07-l) Boston, MA 02109-3912
ToDEP: Superfund Program Manager Department of Environmental Protection Bureau of Remediation and Waste Management 17 State House Station Augusta, Maine 04333
Inspection and Reporting. The Grantor and any snbseqnent owners of the Property, during the period of their respective ownership of the Property, shall conduct inspections of the Property annually for compliance with the terms of this Environmental Covenant, and shall report the results to the Agencies in writing by June 30th of each year.
Enforcement. This Enviromnental Covenant shall be enforceable as authorized by the UECA. In addition, this Environmental Covenant expressly grants to the Passamaquoddy Tribe, the Abbe Museum, and the MHPC the power to enforce the tenns pertaining to them in Paragraph 7, above. Any forbearance as to enforcement of any of the tenns hereof shall not be deemed a waiver of the right to seek and obtain enforcement at any time thereafter as to the same violation or as to any other violations.
Amendment or Te1mination. The tenns and conditions herein may not be amended or tenninated except in accordance with the UECA.
Petition to Amend. The Gran tor or c111rent owner of the Property may petition the Agencies to amend (including, without limitation, to remove) some or all of the covenants, restrictions, agreements and obligations herein. The burden is upon the party seeking the Agencies' approval of the amendment or removal of a restriction to show that the restiiction is no longer necessary to protect the public health and safety and the environn1ent or prevent adverse effects on the cultural or historical resources at the Site. The Agencies may agree to remove or amend restrictions that, in the exercise of their sole discretion, the Agencies determine to be no longer necessary to protect the public health and safety, the environment, and the cultural or historical resources at
Eastern Swplus Company Site, 887 Main Street (Route 191), Meddybemps Declaration of Environmental Covenant
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the Site. Any such amendment or termination of the Environmental Covenant must comply with the UECA and the provisions of this Enviromnental Covenant.
Administrative Record. The Enviromnental Response Project described in this Envirolll11ental Covenant is based on the Eastern Sutplus Company Superfund Site Administrative Record, which has been developed in accordance with Section l 13(k) ofCERCLA, 42 U.S.C. § 9613(k), and which is available for review at the United States Envirolll11ental Protection Agency, Region 1, OSRRRecords Center, 5 Post Office Square, Boston, Massachusetts 02109-3912. The State administrative record for the Environmental Response Project related to this Envirolll11ental Covenant is located at the main office ofDEP, whose mailing address is 17 State House Station, · Augusta, Maine 04333-0017, with a street address of Ray Building, 28 Tyson Drive, Augusta, Maine. The administrative record may be found under the name Eastern Surplus Co., Meddybemps.
Governing Law. This Environmental Covenant shall be governed and interpreted in accordance with the laws of the State of Maine.
Liberal Construction. It is intended that this Enviromnental Covenant be construed liberally to protect the health and welfare of the public and the quality of the environment from the risk of adverse effects of exposure to hazardous substances or contaminants.
Effect of Failure to Provide Notice. The validity of this Enviromnental Covenant is not affected by any failure of Grantor or subsequent owners to provide notice as required in this Envirolll11ental Covenant.
Invalidity. If any part of this Enviromnental Covenant shall be decreed to be invalid by any court of competent jurisdiction, all of the other provisions hereof shall not be affected thereby and shall remain in full force and effect.
Recording. Grantor shall cause this Enviromnental Covenant to be duly recorded in the Washington County Registry of Deeds within sixty (60) days after the date of the last required signature.
Notice ofEnvirolll11ental Covenant. Grantor shall, within sixty (60) days ofrecording, provide EPA with a copy of such recorded Enviromnental Covenant, dnly certified by the Register of Deeds. Within ninety (90) days ofrecording, the Grantor shall also provide a copy of this Envirolll11ental Covenant to each person who signed the covenant, each person holding a recorded interest in the Property, each person in possession of the Property, and each municipality or other unit oflocal government in which the Prope1ty is located.
[TIDS SPACE INTENTIONALLY LEFT BLANK]
Eastern Swplus Company Site, 887 Main Street (Route 191). Meddybemps Declaration of Environmental Covenant
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IN WITNESS WHEREOF, Grantor, the State of Maine acting by and through the Maine Department of Environmental Protection, has caused this instrnment to be executed by its duly authorized representative as of the day and year first above written.
By: Name: David E. Bums Title: Director, Bureau of Remediation and Waste Management
STATE OF MAINE KENNEBEC COUNTY, ss.
19 1( ~ The above-named David E. Bums personally appeared before me this.bl day of 'id, on u _, 2017
in his capacity as Director of the Bureau of Remediation and Waste Management, and ac owledged the foregoing to be his free act and deed in his said capacity and the free act and deed of the Maine Department of Environmental Protection. /
N~taryPublil /"' . LQUl~Q . l2C7 Printed Name
My Commission Expires:
Eastern Swplus Company Site, 887 Main Street (Route 191), Meddybemps Declaration of Environmental Covenant
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ACKNOWLEDGED AND AGREED TO BY: MAINE DEPARTMENT OF ENVIRONMENT AL PROTECTION (HOLDER)
~~~1e: ld!!11!!~ Title: Director, Bureau of Remediation and Waste Management
STATE OF MAINE KENNEBEC COUNTY, ss.
afh ,.---The above-named David E. Bums personally appeared before me this}! day of'J(/J'({' _ _,, , 2017
in his capacity as Director of the Bureau of Remediation and Waste Management, and aclcnowledged the foregoing to be his free act and deed in his said capacity and the free act and deed of the Maine Depmtment of Environmental Protection. )
) CUL~ 0:
Printed Name My Commission Expires:
Haslem Surplus Com11any Site, 887 Main Street (!?011/c 191), Meddvhemps Declaration of l(nvironrncnlal Covenant
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ACKNOWLEDGED AND AGREED TO BY: UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
By: ~ ·-Name: Bryan 01w Title: Director, Office of Site Remediation and Restoration, U.S. EPA, Region 1
COMMONWEALTII OF MASSACIIlJSETTS SUFFOLK COUNTY, ss.
On tbis zt)t? day of 'J: l '1 , 2017, before me, the undersigned notary public, personally appeared Bryan Olson, proven to me through satisfactory evidence of identification, which was,
l. fA- . 1 Q , to be the person whose name is signed on this document, and acknowledged to me that he . signed it voluntarily for its stated purpose,
_.J{ (,,u_- ~ Notary fubli9 _}r.\\ll' KCLV Printed Name My Commission Expires: 1/t /otozo
Ea.1·tm·n Su,7)/us Comprmy Site, 8R7 Main StreC't (Route 19n, Meddybemps Declaration of Enviromncn1al Covcwmt
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EXHIBIT A to DECLARATION OF ENVIRONMENT AL COVENANT Eastern Surplus Company Site, Meddybemps, Maine
0 -0~ Sketch of Lands of the Eastern Surplus Company Supfrfund Site, Meddybemps, Maine {figure from 1999 Consent Decree, Appendix B, revised by Maine Depal'tment ofEnvironmental Protection, June 14, 2017)
Eastern Surplus Cmnp,my Site, 887 M1,i11 St met (Routel91), Meddybemps Dedarlltion of Environmental Covenant
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