DSHW-2018-003269 - 0901a068807ea4cb

LITP007 93 8 75,4 Div of Waste Management
and Radiation Control
DURHAM JONES & PINEGAR, P.C. DURHAM
111 South Main Street, Suite 2400
JONES & Salt Lake City, Utah 84111
801.415.3000
801.415.3500 Fax PINEGAR www.djplaw.com
ATTORNEYS AT LAW
APR - 6 2018
Bradley R. Cahoon
Attorney at Law
[e-mail]
Direct: [phone]
D54W 0032631
April 6, 2018
Hand Delivered
Mr. Scott T. Anderson, Director
Division of Waste Management and Radiation Control
195 North 1950 West, 2nd Floor
Salt Lake City, Utah 84116
Re: Farmers Grain Cooperative of Idaho
2727 Pennsylvania Avenue, Ogden, Utah
Dear Director Anderson,
I write on behalf of Famers Grain Cooperative of Idaho in response to your letter of March
2, 2018. As you directed, enclosed is a date-stamped recorded copy of the Amended
Environmental Covenant ("EC").
Your letter stated that once the Division receives the recorded EC you would be in a position
to address the 1997 Stipulation and Consent Agreement. We respectfully reiterate our request
that you send us a draft of a letter addressed to Farmers Grain and The Scoular Company
stating the following:
1. All requirements of the Stipulation and Consent Agreement No. 9408047, dated
March 13, 1997 ("Consent Agreement"), have been fulfilled;
2. Except for compliance with the Amended Environmental Covenant and Amended
Site Management Plan, no further action is required with respect to the TCE
contamination; and
3. The Consent Agreement is hereby terminated.
Once we have an opportunity to comment on your draft letter, we respectfully request that
you issue the final letter.
SALT LAKE CITY I LEHI I OGDEN I ST. GEORGE I LAS VEGAS
SLC_3648274
Mr. Scott Anderson, Director
April 6, 2018
Page 2
We thank you again for your continued attention to this matter and your approvals and look
forward to your forthcoming draft letter. Should you need more information or have any
questions, please contact me any time.
Very truly yours,
DURHAM JONES & PINEGAR, P.C.
Bradley R. Cahoon
Attorneys for Farmers Grain Cooperative of Idaho
cc via email only:
Farmers Grain Cooperative of Idaho
Kathy Harris
The Scoular Company
H. Michael Keller, Esq.
Raymond Wixom, Esq.
SLC_3648274
I J!11,!1111! J111!11111111111110 111111111111111111
E# 2 913 7 31 PG 1 OF 9
Leann H. Kilts, WEBER COUNTY RECORDER
05-Apr-18 0304 PM FEE $28.00 DEP TN
REC FOR: FABIAN VANCOTT
ELECTRONICALLY RECORDED
To be recorded with County
Recorder — Utah Code Ann § 57-25-108
When Recorded Return To:
Jann Eichlersmith, Esq.
The Scoular Company
250 Marquette Avenue, Suite 1050
Minneapolis, MN 55401
With Copy To:
Director
Utah Division of Waste Management and Radiation
Control
P.O. Box 144880
Salt Lake City, Utah 84114-4880
AMENDED ENVIRONMENTAL COVENANT
This Amended Environmental Covenant is entered into by THE SCOULAR COMPANY, a
Nebraska corporation ("Scoular" or "Owner") and the DIRECTOR ("Director") OF THE UTAH
DIVISION OF WASTE MANAGEMENT AND RADIATION CONTROL ("Division"),
pursuant to Utah Code Ann. §§ 57-25-101 to -114. This Amended Environmental Covenant
amends and replaces the Environmental Covenant recorded as Entry No. 2668042 on December
12, 2013 with the Weber County Recorder (hereinafter collectively, "Covenant").
RECITALS
1. The real property covered by this Covenant is located at approximately 2727
Pennsylvania Avenue, Ogden, Weber County, Utah and is more particularly described at Exhibit
A to this Covenant ("Property"). There are two groundwater plumes within the shallow
unconfined aquifer of the Property approximately four to fifteen feet below ground surface
containing low levels of Trichloroethylene, Dichloroethylene, cis-1,2 Dichloroethene, trans-1,2
Dichloroethene, and 1,1 Dichloroethene. One of the plumes originates on site ("FGC Plume")
and the other plume is migrating into the Site ("Upgradient Plume") and has a source upgradient
on off-site property. The Director maintains the administrative record relating to the Property.
2. Owner's predecessor in interest to the Property, Farmers Grain Cooperative of Idaho
("FGC"), was subject to a Stipulation and Consent Agreement No. 9408047, dated March 13,
1997 ("Stipulation").
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3. Under the Stipulation, an environmental response project, as defined at Utah Code Ann. §
57-25-102(5), in the form of investigation, site characterization, corrective action, risk
assessment and groundwater monitoring has been undertaken on the Property.
4. The result of the environmental response project was to recognize existing and
implement additional activity and use limitations set forth in this Covenant, recorded against the
Property, and the Amended Site Management Plan for the Property ("SNIP"), approved and
maintained by the Director. The SMP is incorporated by this reference. Based upon the
foregoing, the Director has determined that the Covenant and SMP restrictions are protective of
human health and the environment.
COVENANTS
5. Environmental Covenant. This Covenant is an environmental covenant pursuant to Utah
Code Ann. §§ 57-25-101 et seq.
6. Holder. The Director is the holder of this Covenant ("Holder").
7 . Activity and Use Limitations. Pursuant to the SMP pertaining to the Property, Owner
hereby imposes and agrees to comply with the following activity and use limitations:
7.1 Land Use: The Property shall not be used for residential purposes but may
otherwise be used for all other uses authorized under applicable local zoning laws.
7.2 Groundwater & Soil: Groundwater within the shallow unconfined aquifer under
the Property, as defined in the SMP, shall not be extracted or used, except in accordance with the
SMP. No water from the Property shall be discharged, and no TCE-impacted soil from the
Property shall be handled, except in compliance with applicable regulations.
7.3 Notice of Breach. In the event of a breach of any of the activity and use
limitations set forth in this Section 7, the Owner shall notify the Director not more than 30 days
after becoming aware of the breach and shall implement reasonable measures to mitigate the
breach not more than 60 days after becoming aware of the breach, or such other timeframe
agreed to by Director.
8. Access. Owner grants to the Director and Director's respective authorized agents,
employees, and contractors, a right of reasonable access to the Property at any time after the
effective date of this Covenant for the purpose of accomplishing the activities and obligations of
the SMP and this Covenant and those that may be required by the Division or the Director. All
those subject to this Covenant are required to allow for compliance with the SMP. Nothing in
this Covenant shall be construed as expanding or limiting any access and inspection authorities
of the Division and the Director under Utah law.
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E# 2913731 PG 3 OF 9
9. Access Notice. Except as provided in this subsection, any party or person desiring to
access the Property under authority of this Covenant shall provide notice to the then current
owner of the portion of the Property requiring access not less than two business days in advance
of accessing the identified portion of the Property, except in the event of an emergency condition
which reasonably requires immediate access. In the event of any such emergency condition, the
party exercising this access right will provide notice to the current owner of the portion of the
Property requiring access as soon thereafter as is reasonably possible. The Division and the
Director and their authorized officers, employees, or representatives may, at any reasonable
times and upon presentation of appropriate credentials, have access to the Property.
10. Disruption. To the extent that any person conducts any activities on the Property under
the authority of this Covenant, such person will use reasonable efforts to comply with the then
owner's or tenant's security, health and safety needs and requirements and will conduct such
activities so as to cause the least amount of disruption to the use of the Property as may be
reasonably possible. Any person who conducts any activities shall repair and replace any
improvements or landscaping damaged on the Property by such activities. The Director and his
authorized representatives will use reasonable efforts to comply with the then owner's or tenant's
security needs and requirements and will attempt to minimize disruption of the use of the
Property. The Director will determine what needs, requirements, and activities are reasonable.
Should the Director's activities cause damage to Property improvements or landscaping, the
injured party may present a claim against the State of Utah in accordance with Utah law.
11. Running with the Land. Pursuant to Utah Code Ann. § 57-25-105, this Covenant is a
covenant that touches and concerns and runs with the Property and shall be binding upon any
owner of the Property and each lender, mortgagee, licensee, tenant, easement holder and any
other person claiming an ownership, security or possessory interest in the Property, each of
whom shall allow for compliance with this Covenant and the SMP.
12. Compliance Enforcement. Compliance with this Covenant may be enforced pursuant to
Utah Code Ann. § 57-25-111. Failure to timely enforce compliance with this Covenant or the
activity and use limitations contained herein shall not bar subsequent enforcement and shall not
be deemed a waiver of the right to take action to enforce any non-compliance. Nothing in this
Covenant shall restrict the Division and the Director from exercising any authority under
applicable law. Any person who violates any requirement of this Covenant shall indemnify, hold
harmless and defend the Holder of this Covenant against any claims, liability, loss, damage, cost,
expense, penalties (including attorney fees and costs) arising from the violation of this Covenant.
13. Compliance Reporting. Upon request, Owner or any transferee shall submit to the
Director written documentation confirming that the activity and use limitations of this Covenant
are being complied with and remain in place.
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14. Notice upon Conveyance. Each instrument hereafter conveying any interest in, or any
portion of, the Property shall contain a notice of the activity and use limitations set forth in this
Covenant and shall set forth the recording of this Covenant at the Weber County Recorder's
office. The notice shall be substantially in the following form:
THE INTEREST CONVEYED HEREBY IS SUBJECT TO AN
ENVIRONMENTAL COVENANT, DATED AS OF DECEMBER 12, 2013,
RECORDED WITH THE WEBER COUNTY RECORDER ON DECEMBER
12, 2013, AS ENTRY NO. 2668042, AMENDED AS OF , 2018,
RECORDED WITH THE WEBER COUNTY RECORDER ON
, 2018, AS ENTRY NO. , AND
CONTAINS ACTIVITY AND USE LIMITATIONS SET FORTH IN THE
ENVIRONMENTAL COVENANT
Not more than 30 days after the date of recording with the Weber County Recorder's office, a
copy of the recorded conveyance shall be provided to the Director, each of the grantees, and any
other person or entity identified in Utah Code Ann. § 57-25-107.
15. Representations and Warranties. Scoular hereby represents and warrants that:
15.1 It owns fee simple title to the Property subject to liens and encumbrances;
15.2 It has the power and authority to enter into this Covenant, to grant the rights and
interests herein provided and to carry out all obligations hereunder; and
15.3 This Covenant will not materially violate or contravene or constitute a material
default under any other agreement, document or instrument to which it is a party or by which it
may be bound or affected.
16. Amendment or Termination. This Covenant may be amended or terminated only by a
written instrument duly executed by the Director, Owner or any of their respective designated
successors in interest or assigns, as applicable and pursuant to Utah Code Ann. § 57-25-110. An
amendment to the Covenant means changing or modifying the activity and use limitations of this
Covenant or eliminating one or more activity and use limitations. The termination of the
Covenant means the elimination of all activity and use limitations and all other obligations of
this Covenant. Not more than 30 days after the date of the last signature by each of the requisite
parties to any amendment or termination of this Covenant, the current owner of the Property or
any portion thereof shall record the fully executed instrument at the Weber County Recorder's
Office and shall provide a date-stamped copy of the recorded instrument to the Director. Any
party signing the amendment or termination of the Covenant may record the fully executed
instrument.
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5
By:
Name:
Its:
E# 2913731 PG 5 OF 9
17. Severability. If any provision of this Covenant is found to be unenforceable in any
respect, the validity, legality, and enforceability of the remaining provisions shall not in any way
be affected or impaired.
18. Governing Law. This Covenant shall be governed by and interpreted in accordance with
the laws of the State of Utah.
19. Recordation. Not more than 30 days after the date of the final signature upon this
Covenant, Owner shall record this Covenant with the Weber County Recorder's office against
the Property. A copy of the recorded Covenant shall be provided to the Director not more than
30 days after the date of recording.
20. Effective Date. The effective date of this Covenant is December 12, 2013, the date that
the Covenant was first recorded with the Weber County Recorder's office against the Property.
21. Notice. Unless otherwise notified in writing by or on behalf of the then current owner of
the Property or the Director, Owner, or any Holder of this Covenant, any document or
communication required by this Covenant shall be submitted to:
Director The Scoular Company
Utah Division of Waste Management and 250 Marquette Avenue, Suite 1050
Radiation Control Minneapolis, MN 55401
P.O. Box 144880
Salt Lake City UT 84114-4880
22. Authority. The Director and the undersigned representative of Owner represent that they
are authorized to execute this Covenant.
IN WITNESS WHEREOF, the parties have executed this Covenant as of the Effective Date.
THE SCOULAR COMPANY,
a Nebr a corporation
E# 2913731 PG 6 OF 9
State of raxis
County of 3 ok,tic-is
) ss :
Beforq m ,4 notary public, in and for said county and state, personally appeared
(.7 len 'It h t 46,' a duly authorized representative of The Scoular Company, who
acknowledged to me that he/she did execute the foregoing instrument on behalf of The Scoular
Company.
IN TESTIMONY WHEREOF, I have subscribed my name and affixed my official seal
this 2,0 day of PIfa.rth 2018.
CHRISTINA CR1SPELL
Notary Public - State of Kansas
My Appt. Expires -zo 1
6
Anderson, Director
ARLENE R. LOVATO Notary Public State of Utah My Commission Expires on:
August 17, 2020
Comm. Number: 609993 1
Notary Public
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UTAH DIVISION S F
Vs41 Hatiayro•en 4 arid Ractiarl-i o n et. rriTo I
By.
Name: -•-c..xiii"-1-7 Ain 4. v-sa lit
Its: Director
Utah Department of Environmental Quality
Division of Waste Management and Radiation Control
State of Utah )
) ss:
County of Salt Lake )
1
Date
el. Air
Before me, a notary public, in and for said county and state, personally appeared Scott
Anderson, the DIRECTOR, UTAH DIVISION OF WASTE MANAGEMENT AND
RADIATION CONTROL, who acknowledged to me that he did execute the foregoing
instrument.
IN TESTIMONY WHEREOF, I have subscribed my name and affixed my official seal
this 1 ‘4. day of Hard% 2018.
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E# 2913731 PC 8 OF 9
EXHIBIT A
(to Amended Environmental Covenant by The Scoular Company, a Nebraska corporation and
the Director of the Utah Division of Waste Management and Radiation Control)
BOUNDARY DESCRIPTION OF PROPERTY
PROPERTY located in Weber County, Utah, more particularly described as follows:
PARCEL 1:
PART OF LOT 8 IN THE NORTHEAST QUARTER OF SECTION 36, TOWNSHIP 6 NORTH,
RANGE 2 WEST, SALT LAKE BASE AND MERIDIAN, U.S. SURVEY: BEGINNING AT THE
NORTHEAST CORNER OF SAID LOT 8 AND RUNNING THENCE SOUTH 0°04' WEST ALONG
THE EAST SECTION LINE 256.87 FEET TO THE LIMITS LINE OF OGDEN CITY, THENCE
NORTH 89°36' WEST 238.80 FEET TO THE EASTERLY RIGHT-OF-WAY UNE OF THE
0.S.L.R.R, CO., THENCE NORTH 43°08' EAST 349.70 FEET TO THE POINT OF BEGINNING.
LESS AND EXCEPTING THAT PORTION OF LAND LYING WITHIN 1100 WEST STREET.
TAX PARCEL I.D. NO. 15-097-0007
PARCEL 2:
ALL OF LOT 7 AND A PART OF LOT 8 IN THE NORTHEAST QUARTER OF SECTION 36,
TOWNSHIP 6 NORTH, RANGE 2 WEST, SALT LAKE BASE AND MERIDIAN, U.S. SURVEY:
AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE
SOUTHEAST CORNER OF SAID LOT 7, AND RUNNING THENCE NORTH 89°36' WEST 1155.4
FEET TO THE SOUTHWEST CORNER OF SAID LOT 7, THENCE NORTH 43°08' EAST ALONG
THE EASTERLY RIGHT-OF-WAY LINE OF THE 0.S.L.R.R. CO., 1341.20 FEET, THENCE SOUTH
89°36' EAST ALONG LIMITS LINE OF OGDEN CITY 238.80 FEET, THENCE SOUTH 0°04' WEST
ALONG THE EAST SECTION LINE 985.33 FEET TO THE POINT OF BEGINNING.
LESS AND EXCEPTING THAT PORTION OF LAND LYING WITHIN 1100 WEST STREET.
TAX PARCEL I.D. NO, 15-098-0001
PARCEL 3:
THE NORTH 10 RODS OF LOT 6 IN SECTION 36, TOWNSHIP 6 NORTH, RANGE 2 WEST, SALT
LAKE BASE AND MERIDIAN, U.S. SURVEY.
LESS AND EXCEPTING THAT PORTION OF LAND LYING WITHIN 1100 WEST STREET,
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TAX PARCEL I.D. NO. 15-098-0002
ALSO DESCRIBED BY SURVEY AS:
ALL OF LOT 7 AND A PART OF LOT 8 IN THE NORTHEAST QUARTER OF SECTION 36,
TOWNSHIP 6 NORTH, RANGE 2 WEST, SALT LAKE BASE AND MERIDIAN, U.S. SURVEY:
AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE
SOUTHEAST CORNER OF SAID LOT 7, AND RUNNING THENCE NORTH 89°36' WEST 1155.4
FEET TO THE SOUTHWEST CORNER OF SAID LOT 7, THENCE NORTH 43°08' EAST ALONG
THE EASTERLY RIGHT-OF-WAY LINE OF THE 0.S.L.R.R. CO., 1341.20 FEET, THENCE SOUTH
89°36' EAST ALONG LIMITS LINE OF OGDEN CITY 238,80 FEET, THENCE SOUTH 0°04' WEST
ALONG THE EAST SECTION LINE 985.33 FEET TO THE POINT OF BEGINNING.
PART OF LOT 8 IN THE NORTHEAST QUARTER OF SECTION 36, TOWNSHIP 6 NORTH,
RANGE 2 WEST, SALT LAKE BASE AND MERIDIAN, U,S. SURVEY:
BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 8 AND RUNNING THENCE SOUTH
0°04' WEST ALONG THE SECTION LINE 256.87 FEET TO THE LIMITS OF OGDEN CITY,
THENCE NORTH 89°36' WEST ALONG THE EASTERLY RIGHT-OF-WAY LINE OF THE
0.S.L.R.R. CO., THENCE NORTH 43°08' EAST 349.70 FEET TO THE POINT OF BEGINNING.
THE NORTH 10 RODS OF LOT 6 IN SECTION 36, TOWNSHIP 6 NORTH, RANGE 2 WEST, SALT
LAKE BASE AND MERIDIAN, U.S. SURVEY.
ALSO DESCRIBED AS FOLLOWS:
LOCATED IN THE NORTHEAST QUARTER OF SECTION 36, TOWNSHIP 6 NORTH, RANGE 2
WEST, SALT LAKE BASE & MERIDIAN. BEGINNING AT A POINT ON THE EAST SECTION
LINE OF SAID SECTION 36. SAID POINT BEING SOUTH 00°22'18" WEST 408.01 FEET ALONG
THE SECTION LINE FROM THE NORTHEAST CORNER OF SAID SECTION 36; THENCE AS
FOLLOWS: SOUTH 00°22'18" WEST 1,396.93 FEET ALONG THE EAST SECTION LINE OF
SECTION 36 (SECTION LINE ALSO BEING THE CENTERLINE OF 1100 WEST STREET) TO AN
EXTENSION OF A FENCE LINE; THENCE NORTH 89°25'47" WEST 1,301.28 FEET TO THE EAST
RIGHT OF WAY LINE OF THE 0.S.L.R.R. CO.; THENCE NORTH 43°26'02" EAST 1,905.82 FEET
ALONG SAID RIGHT OF WAY TO THE POINT OF BEGINNING.
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