DSHW-2018-004846 - 0901a06880831434

FabianVanCott MATTHEW L. ANDERSON
Direct Dial: [phone]
Fax: [phone]
[e-mail]
Div of Waste Management
and Radiation Control

May 24, 2018
MAY 2 9 2018
Mr. Scott T. Anderson
Director, Utah Division of Waste Management and Radiation Control
P.O. Box 144880
Salt Lake City, Utah 84114-4880
Re: Well U-7, Freeport Center, Clearfield, Utah
Dear Mr. Anderson:
On behalf of Freeport Center Associates, I write to follow up with my letter, dated April
4, 2018, and the proposed draft of the Environmental Covenant that was enclosed therewith.
Yesterday, I received a call from Brad Maulding relaying that the Division generally approved of
the draft except that the Division prefers that Freeport be named as the Holder rather than the
Director. I have made that change and have enclosed a new revised draft for your execution.
Please review and let me know if you have any concerns. Otherwise, please have it executed,
notarized, and returned to me at your convenience.
Sincerely,
Matthew L. Anderson
FabianVa nCott
MLA/sb
cc: Brad Maulding
Enclosure
ATTORNEYS AT LAW
215 South State Street, Suite 1200
Salt Lake City, UT 84111-2323
Tel: [phone] Fax: [phone]
www.fabianvancott.com
When Recorded Return To:
Betty Parker
Property Manager
Freeport Center Associates
Building A-1
P.O. Box 160466
Clearfield, UT 84016-5387
With Copy To:
Director
Utah Division of Waste Management and Radiation Control
P.O. Box 144880
Salt Lake City UT 84114-4880
Parcel ID No.:
ENVIRONMENTAL COVENANT for WELL U-7
RECITALS
A. FREEPORT CENTER ASSOCIATES, a Utah Limited Liability Partnership
("Owner"), owns certain real property of approximately 0.265 acres where Well U-7 is located in
the Freeport Center, Clearfield, Davis County, Utah, more particularly described in Exhibit A
(the "Subject Area").
B. An environmental response project in the form of investigation, site
characterization, corrective action, and risk assessment was completed on the Subject Area (the
"ERP"). As a part of the ERP, a Human Health Risk Assessment ("HHRA") was conducted
using data collected from the ERP to assess exposure of human receptors likely to be associated
with commercial, industrial, construction worker, and other comparable land uses with similar
levels of human occupancy (recreation use is assumed to not exceed the commercial and
industrial level of human occupancy and was therefore not assessed separately). The Subject
Area is affected by residual concentrations of 1,1-dichloroethene and trichloroethene in
groundwater.
C. The result of the ERP was to create activity and use limitations set forth in this
Covenant and the Site Management Plan, Vicinity of Buildings H-3 through H-7, Freeport
Center, Clearfield, Utah ("SMP") maintained by the UTAH DIVISION OF WASTE
MANAGEMENT AND RADIATION CONTROL (the "Division") in the project file. The SNIP
is hereby incorporated by this reference. Based on the foregoing, the Division has determined
that the SMP and these Covenant restrictions are protective of human health and the
environment.
D. On July 10, 2015, UDEQ responded to the SMP and subsequent groundwater
sampling report with a request for statistical analysis of the groundwater data. A Potential Vapor
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Intrusion assessment was submitted to UDEQ on April 16, 2016 as an initial response, which
developed site-specific groundwater goals for 1,1-dichloroethene and trichloroethene. UDEQ
approved those site-specific groundwater goals on February 17, 2017 and again requested
statistical analysis. The requested statistical analyses were provided to UDEQ on August 31,
2017, including an analysis for 1,1-dichloroethene dated March 16, 2017 and an analysis for
trichloroethene dated August 22, 2017. UDEQ approved the statistical analyses in a letter dated
November 21, 2017, and agreed to termination of groundwater monitoring. They further
requested this Environmental Covenant in that November 21, 2017 letter.
E. Based on the foregoing, the Owner and the Division enter into this Covenant,
pursuant to Utah Code Ann. §§ 57-25-101 et seq. for the purpose of establishing the activity and
use limitations set forth herein for the Subject Area. The Division maintains the administrative
record relating to the Subject Area.
AGREEMENT
Now therefore, Owner and the Division agree to the following:
1. Environmental Covenant. This Covenant is developed and executed pursuant to
Utah Code Ann. §§ 57-25-101 et seq.
2. Holder. The Owner is the holder of this Covenent.
3. Activity and Use Limitations. Owner hereby imposes and agrees to comply with
the following activity and use limitations for the Subject Area:
3.1 Prohibited Groundwater Use. Groundwater in the shallow unconfined
aquifer underlying the site is not currently used for beneficial uses. Water from this aquifer will
not be used because municipal water systems will provide water to future users on the Subject
Area, groundwater general chemical quality is naturally low (Class II or greater) from
unconfined shallow aquifers, yield (or production) is low and very limited, and all water rights in
the area are owned by third parties. Future owners of the Subject Area are legally prohibited
from any use of groundwater from the shallow unconfined aquifer.
3.2 Land Use Limitations. The Subject Area may be used for commercial,
industrial, construction worker, recreation, and any other comparable use with a similar level of
human occupancy or use ("Allowed Uses") subject to the controls specified herein. These uses
are consistent with current zoning of the Subject Area (Clearfield City Ordinance Title 11,
Chapter 11, Article D. Manufacturing Zone [M1]). Should Holder or subsequent users of the
Subject Area plan to develop any use without the controls specified herein, the owner of the
Subject Area, or any part thereof, and any users shall, prior to developing the use, shall
demonstrate to the Division's satisfaction that the risk levels of the proposed use will not exceed
the applicable risk exposure level. A person planning to develop some other use shall obtain
prior written approval from the Division.
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3.3 No Other Restrictions. Other than the groundwater use restriction (3.1
above) and the residential use restriction (3.2 above), this Covenant does not create any other
activity and use limitation.
4. Runs with the Land. This Covenant shall run with land, pursuant to Utah Code
Ann. § 57-25-105, subject to amendment or termination as set forth herein and is binding upon
the Owner and all assigns and successors in interest, including any future owner of any interest
in or any portion of the Subject Area including any mortgagees, easement holders, or lessees
(collectively, "Transferees").
5. Breach. If any event or action on behalf of an Owner or Transferee constitutes a
breach of the activity and use limitations, Owner shall notify the Division within thirty (30) days
of becoming aware of the breach, and shall remedy the breach within sixty (60) days of
becoming aware of the breach, or such other timeframe as may be agreed to by Owner or
Transferee and Director.
6. 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 by any party does not bar
subsequent enforcement by such party and is not a waiver of the right to take action to enforce
any non-compliance under applicable law.
7. Rights of Access. Owner hereby grants to the Division the right of access to the
Subject Area for the implementation and enforcement of this Covenant.
8. Compliance Reporting. Upon Request, Owner or Transferee shall submit to the
Division written documentation verifying that the activity and use limitations of this Covenant
remain in place and are being complied with.
9. Notice upon Conveyance. Each instrument hereafter conveying any interest in, or
any portion of, the Subject Area shall contain a notice of the activity and use limitations set forth
in this Covenant and provide the recorded location of this Covenant. The notice shall be
substantially in the following form:
THE INTEREST CONVEYED HEREBY IS SUBJECT TO AN
ENVIRONMENTAL COVENANT, DATED , 2018, RECORDED
WITH THE DAVIS COUNTY RECORDER ON , 2018, IN [DOCUMENT or BOOK , PAGE ,]. THE
ENVIRONMENTAL COVENANT CONTAINS ACTIVITY AND USE
LIMITATIONS. THE LANGUAGE OF PARAGRAPH 3 OF THE
ENVIRONMENTAL COVENANT IS INCORPORATED HEREIN BY
REFERENCE.
10. Representations and Warranties. As of the Effective Date, the Owner hereby
represents and warrants to the other signatories hereto:
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10.1 that the Owner is the sole owner of the Subject Area;
10.2 that the Owner holds fee simple title to the Subject Area, which is free,
clear and unencumbered by liens securing loans;
10.3 that the Owner 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
10.4 that this Covenant will not materially violate or contravene or constitute a
material default under any other agreement, document or instrument to which Owner is a party or
by which it may be bound or affected.
11. Amendment or Termination. The activity and use limitations set forth in this
Covenant may be amended or terminated upon written consent of the Owner or a Transferee; and
the Director, pursuant to Utah Code Ann. § 57-25-110 and other applicable law.
12. Severabili. 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.
13. Governing Law. This Covenant is governed by and interpreted in accordance
with the laws of the State of Utah.
14. Recordation. Within sixty (60) days after the date of the final signature upon this
Covenant, Owner shall file this Covenant for recording, in the same manner as a deed to the
Subject Area with the Davis County Recorder's Office.
15. Effective Date. The effective date of this Covenant is the date that the fully
executed Covenant is recorded against the Subject Area with the Davis County Recorder's
Office.
16. Distribution of Environmental Covenant. The Owner shall distribute a file and
date-stamped copy of the recorded Covenant to: the Division; any lessee; each person who
signed the Covenant; each person holding a recorded interest in the Subject Area; and any other
person designated by the Division; see Utah Code Ann. §§ 57-25-107.
17. Notice. Unless otherwise notified in writing by or on behalf of the current owner
of the Subject Area or the Director, any document or communication required by this Covenant
shall be submitted to:
Director
Utah Division of Waste Management and Radiation Control
P.O. Box 144880
Salt Lake City UT 84114-4880
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Property Manager
Freeport Center Associates
Building A-1
P.O. Box 160466
Clearfield, UT 84016-5387
18. Authority. The undersigned representative of Freeport Center Associates
represents that the representative is authorized to execute this Covenant.
IT IS SO AGREED:
UTAH DIVISION OF WASTE MANAGEMENT AND RADIATION CONTROL
By:

Scott T. Anderson, Director
ACKNOWLEDGEMENT
State of Utah
ss:
County of
Before me, a notary public, in and for said county and state, personally appeared SCOTT
T. ANDERSON, 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 day of , 2018.
Notary Public
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OWNER:
FREEPORT CENTER ASSOCIATES,
a Limited Liability Partnership
By:

Robert P. O'Block, Partner, Manager
ACKNOWLEDGEMENT
State of Massachusetts
SS:
County of Suffolk
Before me, a notary public, in and for said county and state, personally appeared Robert
P. O'Block, a duly authorized representative of FREEPORT CENTER ASSOCIATES, who
acknowledged to me that he did execute the foregoing instrument on behalf of FREEPORT
CENTER ASSOCIATES.
IN TESTIMONY WHEREOF, I have subscribed my name and affixed my official seal
this day of , 2018.
Notary Public
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EXHIBIT A
SUBJECT AREA OF WELL U-7
ENVIRONMENTAL COVENANT
BOUNDARY DESCRIPTION
SUBJECT AREA
FREEPORT CENTER, CLEARFIELD, UTAH
A PARCEL OF LAND LOCATED IN THE NORTHWEST QUARTER OF SECTION 11,
TOWNSHIP 4 NORTH, RANGE 2 WEST, SALT LAKE BASE AND MERIDIAN, U.S.
SURVEY, DAVIS COUNTY, CLEARFIELD CITY, UTAH MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT 3991.15 FEET DUE WEST AND 3443.20 FEET DUE NORTH
FROM THE SOUTHEAST CORNER OF SAID SECTION 11, AND RUNNING THENCE
NORTH 11°28'00" WEST 100.32 FEET; THENCE NORTH 49°13'17" EAST 127.06 FEET;
THENCE SOUTH 14°45'04" EAST 99.52 FEET; THENCE SOUTH 50°03'52" WEST 132.52
FEET TO THE POINT OF BEGINNING, CONTAINING 0.265 ACRES.
BASIS OF BEARING: NAD 27
+