ENVIRONMENTAL RESTRICTION AND EASEMENT
42 U.S.C. § 9601, et seq., and M.G.L. c. 21E, § 6. [Note: This instrument is established as
an institutional control for a federal Superfund Removal Site, pursuant to Section 104 of
CERCLA, 42 U.S.C. § 9604.]
EPA Site Name:
DEP Site Name:
DEP Disposal Site No. [Insert No. for area that contains the Property]
This GRANT OF ENVIRONMENTAL RESTRICTION AND EASEMENT (the “Grant”)
is made as of this day of , 20 , by
(“Grantor”),
a corporation organized and existing under the laws of the State of
, duly authorized to do business in
, with a principal office in ,
or
, an individual who resides at
.
[check one]
W I T N E S S E T H :
WHEREAS, Grantor is the owner in fee simple of a certain parcel[s] of [vacant] land
located in , County,
, [with the buildings and improvements thereon];
WHEREAS, said parcel(s) of land, known and/or numbered as
, which is [are] more particularly bounded and
described in Exhibit A attached hereto and made a part hereof (the “Property”), is [are]
subject to this Grant. The Property is shown on a plan [recorded and/or registered
herewith][recorded and/or registered in the County Registry of
Deeds/Land Registration Office in Plan Book , Plan , or as Land Court Plan
No. ];
WHEREAS, the Property and certain restricted areas of the Property referred to as
[as applicable to the Property] the Soil Cover Area, the Enhanced Pavement Area, the
Engineered Barrier Area, the Building Foundation Barrier Area, the Landfill/Consolidation
Cap Area, the Other Ground Covering Feature Area, the Open Soil/Vegetated Area, the
Groundwater Response Action Component Area (if any), and the Commercial/Industrial
Restricted Area [Commercial/Industrial Restricted Area is only needed for Property that
contains a mix of Commercial/Industrial and Recreational property], all as defined below
(collectively, all of the foregoing restricted areas comprising the “Restricted Area”), are
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subject to covenants, restrictions, easements and other rights and obligations under this
Grant; the Restricted Area being shown on sheet number(s) of a plan,
[if unregistered land, add: consisting of sheets, entitled
“ ”, prepared by
, , ,
dated , and recorded with the
County Registry of Deeds on [insert date], in Plan Book ,
Plan ;][if said land is registered land, add: entitled
“Sketch Plan,” and consisting of sheets, which is attached hereto as Exhibit
and is made a part hereof;] as such plan may be revised by Grantor with the approval
of Grantee and in accordance with the Consent Decree and the Statement of Work attached
thereto (as defined below), to show the location of any Groundwater Response Action
Component Area (to the extent that any such response action to address groundwater
contamination at the Site has not been completed as of the date of this instrument); said
plan, with any such revision, being collectively referred to herein as the “Plan of Restricted
Area”;
[Note: The Grant must include a legal description (by metes and bounds) of the
Property that is subject to the Grant and a reference to a surveyed plan of the Property
(upon which the legal description is based). This plan may be referenced in the Grant if
already of record or may be recorded concurrently with the Grant.
In some cases, while certain provisions of the Grant will affect the entire Property
(such as the easements providing access and other rights), certain other provisions of the
Grant (such as the restrictions on activities and uses) may affect only a portion of the
Property. Such cases may include properties where EPA has determined (after a reasonable
opportunity for review and comment by DEP) that a distinct portion of the Property meets
the Performance Standards for residential use, as set forth in the Consent Decree and the
SOW, or otherwise does not need to be subject to restrictions on activities and uses
pursuant to the Consent Decree, and that such restrictions are necessary only for a discrete
area within the Property (e.g., river or lake banks). In such cases, a reference to a recorded
surveyed plan of the Property is insufficient, and (i) the Grant must also include a legal
description (by metes and bounds) of the portion of the Property to be subject to the
restrictions, and (ii) a separate surveyed plan must be prepared and Recorded and/or
Registered (this plan should also show a perimeter survey of the Property, for purposes of
locating the restricted portion, both within the larger parcel and relative to adjacent
properties). In addition, regardless of whether the restrictions will apply to the entire
Property or only a portion of the Property, if the Property will contain more than one type
of restricted area (as defined below) or if different portions of the Property are to be subject
to different restrictions or rights under the Grant (whether or not such areas or portions
overlap), each such type of restricted or affected area must be described by metes and
bounds and shown on the surveyed plan, as well. All restricted areas, collectively, are
referred to as the “Restricted Area.” The plan showing the Restricted Area will be based
upon ’s as-built plans for the Response Actions conducted at the
Property. The surveyed plan must also show the location of the areas restricted as a result
of the placement of any components of subsurface groundwater response actions such as
slurry walls and sheet piling. It is anticipated that such components will have been installed
for the at the time of the initial grants; but this requirement would
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otherwise include revising and recording a revised surveyed plan, if the groundwater
response action occurs after an ERE has been recorded on other affected properties. Such a
revised plan must show the location of any new Groundwater Response Action Component
Area and be accompanied by a notice, executed by and bearing the
signed approval of Grantee, referencing such revised plan and noting that it is being
recorded and/or registered in accordance with this Grant. In the event of any such revision,
for unregistered land, a marginal note to the Plan Book and Page where the revised
surveyed plan has been recorded must be made on the Grant, and a copy sent to the
Grantor and Grantee.]
WHEREAS, the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, a
duly constituted agency organized under the laws of the United States of America and
having a regional office at One Congress Street, Boston, Massachusetts 02114 (“EPA”),
has identified a site, comprised of the facility in Pittsfield, Massachusetts, the
, and other areas, all as more particularly described in the Consent
Decree (defined below), known as the “ ” (the “Site”), as a result of the
release of hazardous substances at or from the facility, as such terms are
defined in the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended (“CERCLA”), 42 U.S.C. 9601 et seq.;
WHEREAS, the DEPARTMENT OF ENVIRONMENTAL
PROTECTION, a duly constituted agency organized under the laws of the Commonwealth
of and having an office at (“DEP”), as a result of the
release of oil and/or hazardous materials at the Site, as those terms are defined in the
, has placed the Site and/or portions of the Site on the
List of Confirmed Disposal Sites and Locations To Be Investigated,
pursuant to Chapter 21E, and has assigned to the portion of the Site containing the
Property DEP Disposal Site Number(s) , pursuant thereto; [use No. specific to area
containing Property]
WHEREAS, EPA regulates activities at hazardous substance disposal sites pursuant to
CERCLA and the National Contingency Plan, 40 C.F.R. 300.400, et seq., as amended (the
“NCP”), and DEP regulates activities at disposal sites pursuant to Chapter 21E
respectively;
WHEREAS, the Property is situated within the Site;
WHEREAS, has entered into a Consent Decree in connection with the
Site with the United States, the State of , and the Commonwealth of
(the “Commonwealth”) in United States of America, State of
, and Commonwealth of v. , Civil
Action No. , entered by the United States District Court for the District of
on [date] (the “Consent Decree”);
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WHEREAS, the Consent Decree and an accompanying Statement of Work (“SOW”)
require the performance of certain Response Actions (as defined below) at the Site or
portions thereof;
WHEREAS, the Response Actions are ongoing at the Site and include work at the
Property;
WHEREAS, EPA has determined and the Consent Decree requires that certain easements,
rights, obligations, covenants, and restrictions, as more particularly set forth below, are
necessary at the Property and at a certain Restricted Area located within the Property, to
conduct and ensure the protectiveness and integrity of the Response Actions;
WHEREAS, DEP has provided EPA with review and comment on the Response Actions,
and agrees with the need for easements, rights, obligations, covenants, and restrictions, as
aforesaid;
WHEREAS, because the Response Actions, as they affect the Property, are a Removal
Action under CERCLA, EPA has requested that DEP accept a grant of such easements,
rights, obligations, covenants, and restrictions, as aforesaid, pursuant to its authority under
M.G.L. c. 21E, § 6;
WHEREAS, Grantor has agreed to grant the aforesaid easements, rights, obligations,
covenants and restrictions, as more particularly set forth below, to [DEP] and its assigns
pursuant to the Consent Decree;
NOW, THEREFORE, pursuant to the terms of the Consent Decree and in consideration of
EPA’s and the Commonwealth’s agreement on behalf of DEP to settle certain of their
claims against Grantor pursuant thereto, the receipt and sufficiency of which consideration
is hereby acknowledged, GRANTOR does hereby COVENANT AND DECLARE that the
Property shall be subject to the restrictions on activity and use set forth below, and does
GIVE, GRANT AND CONVEY to (“Grantee”), with
QUITCLAIM COVENANTS, (1) the perpetual right to enforce said activity and use
restrictions, and (2) an environmental protection and access easement of the nature
and character, and for the purposes hereinafter set forth, with respect to the Property
(collectively, the “Environmental Restriction and Easement”).
Said Environmental Restriction and Easement is subject to the following terms and
conditions:
1. Purpose. It is the purpose of this instrument to establish covenants, restrictions and
easements, all of which shall run with the land, to facilitate the cleanup of environmental
contamination and to protect human health and the environment by reducing the risk of
exposure to contaminants.
2. Definitions . For purposes of this instrument, the following terms shall have the
following meanings: [A given grant will only list the relevant definitions.]
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A. “Building Foundation Barrier Area” shall mean those areas of the Property designated
as such on the Plan of Restricted Area; such areas are generally areas where building
demolition debris has been placed into an existing building foundation and where a
permanent barrier has been constructed and will be maintained to isolate and contain
underlying building debris and other materials.
B. “Commercial/Industrial Restricted Area” shall mean those areas of the Property
designated as such on the Plan of Restricted Area, bounded and described in Exhibit B
[legal description (by metes and bounds)], attached hereto and made a part hereof.
[Commercial/Industrial Restricted Area is only needed for Property that contains a mix of
Commercial/Industrial and Recreational property.]
C. “Engineered Barrier Area” shall mean those areas of the Property designated as such on
the Plan of Restricted Area; generally such areas contain permanent caps designed,
constructed, and maintained to isolate and contain underlying soils and other materials.
Such caps include either a vegetated cover or an asphalt cover, a drainage layer, and an
impermeable membrane liner, as described in Attachment G of the SOW;
D. “Enhanced Pavement Area” shall mean those areas of the Property designated as such
on the Plan of Restricted Area; such areas generally are areas where the overall integrity of
the pavement has been increased in order to minimize the potential for contact with the
underlying soil, such that the pavement consists of a minimum four (4) inch thickness, and
is constructed as described in Attachment G of the SOW;
E. “ Plastics Area” shall mean the area of the Property designated as
such on the Plan of Restricted Area, bounded and described in Exhibit B’, attached hereto
and made a part hereof; generally this is the area where the GE Plastics buildings and
operations are situated. [This definition is only needed for an ERE Grant on Property that
contains the GE Plastics Area]
F. “Groundwater Response Action Component Area” shall mean those areas of the
Property designated as such on the Plan of Restricted Area; generally such areas contain
components of the response action for groundwater at the Property, if any.
G. “Health and Safety Protocol” shall mean the Health and Safety Protocol attached hereto
as Exhibit C and incorporated herein by reference.
H. “Landfill/Consolidation Area Cap Area” shall mean those areas of the Property
designated as such on the Plan of Restricted Area; generally such areas contain a capping
system that includes several enhancements to the engineered barriers, as described in
Attachment G of the SOW;
I. “Licensed Site Professional” or “LSP” each shall mean a hazardous waste site cleanup
professional, as defined in M.G.L. c. 21A, § 19, holding a valid license issued by the Board
of Registration of Hazardous Waste Site Cleanup Professionals, pursuant to M.G.L. c.
21A, §§ 19 through 19J..6
J. “Open Soil/Vegetated Area” shall mean, collectively, those areas of the Property
designated as such on the Plan of Restricted Area; such areas consist of any and all areas of
the Restricted Area [use “Property” if Restricted Area boundary is coincident with
Property boundary - see note after third “WHEREAS” Clause above] other than the
Surface Cover Area and the Other Ground Covering Feature Area.
K. “Other Ground Covering Feature Area” shall mean, collectively, those areas of the
Property designated as such on the Plan of Restricted Area; such areas are where building
foundations (other than those described in subparagraph 2.A above), interior slabs, exterior
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slabs, paving and concrete (other than those.7 described in subparagraph 2.D above) are
located.
L. “Recorded and/or Registered” and its various conjugations shall mean, as to
unregistered land, recorded with the appropriate registry of deeds; and as to registered
land, filed with the appropriate land registration office; each conjugated as appropriate;
M. “Response Actions” shall mean the environmental response actions required to be
undertaken at the Site or portions thereof pursuant to the Consent Decree and SOW
(designated as Removal Actions under CERCLA), including (but not limited to) source
control measures, soil removal, capping of contaminated soil, groundwater monitoring and
(if necessary) response actions to address groundwater contamination, other actions to
address existing contamination, institutional controls in the nature of restrictive covenants
to prevent certain activities and uses at various properties, and certain operation and
maintenance activities necessary to maintain the effectiveness of the response actions.
N. “Soil Cover Area” shall mean those areas of the Property designated as such on the Plan
of Restricted Area; generally such areas are areas where the potential for contact with the
underlying soil and other materials has been minimized, without restricting water from
migrating into and through the soil cover, and contain a demarcation layer and at least one
foot of clean soil placed over contaminated soil, as described in Attachment G of the SOW;
O. “Soil Management Protocol” shall mean the Soil Management Protocol attached hereto
as Exhibit D and incorporated herein by reference.
P. “Statement of Work” or “SOW” shall mean the Statement of Work for Removal Actions
Outside the River, which is Appendix E of the Consent Decree;
Q. “Surface Cover Area” shall mean, collectively, the Soil Cover Area, the Enhanced
Pavement Area, the Engineered Barrier Area, the Building Foundation Barrier Area, and
the Landfill/Consolidation Area Cap Area.
R. “Utility Work” shall mean the maintenance and repair of pipes, lines and other such
conveyances for water, sewer, storm-water, steam, gas, fuel oil, electricity, and
communications, but not the installation of new pipes, lines, or other such conveyances..8
[The following version of Paragraph 3 applies to property that is entirely
Commercial/Industrial or entirely Recreational.]
3. Restricted Activities and Uses. Except as provided in Paragraph 4 (“Permitted
Activities and Uses”), Paragraph 6 (“Conditional Exceptions From Restricted Activities
and Uses”) and/or Paragraph 8 (“Emergency Excavation”), Grantor shall not perform,
suffer, allow or cause any person to perform any of the following activities or uses in, on,
upon, through, over or under the Restricted Area [use “Property” if Restricted Area
boundary is coincident with Property boundary - see note after third “WHEREAS” Clause
above] or portions thereof:
A. residential activity or use;
B. day care and educational (for children under eighteen (18) years of age) activity or
use;
C. community center (for children under eighteen (18) years of age) activity or use;
[Note: omit this restriction for Recreational property.]
D. recreational activity or use; [Note: omit this restriction for Recreational property.]
E. agricultural activity or use;
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F. extraction, consumption, or utilization of groundwater underlying the Property,
including without limitation, extraction for potable, industrial, irrigation, or agricultural
use;
G. excavation, digging, drilling, or other intrusive activity into or disturbance of the
surface of the ground and/or the underlying soil; [In appropriate cases, this restriction can
be made applicable to a smaller area than the other restrictions, provided that any revisions
to this Model ERE necessary to effect such change shall be subject to the approval process
set forth in the Consent Decree; further provided that may voluntarily
consult with EPA and DEP regarding any such revision prior to submitting the executed
ERE for approval.]
H. constructing or placing buildings or structures; and [Note: This restriction is only
for the -owned properties at . Also, this restriction
does not apply if chooses either of the first two options for designating
averaging areas as set forth in Section 2.1, first bulleted paragraph, subparagraphs a. and b.
of Attachment E (Protocols for Spatial Averaging) to the SOW. Further, in appropriate
cases (where this restriction applies), this restriction can be made applicable to a smaller
area than the other restrictions, provided that any revisions to this Model ERE necessary to
effect such change shall be subject to the approval process set forth in the Consent Decree;
further provided that may voluntarily consult with EPA and DEP
regarding any such revision prior to submitting the executed ERE for approval.]
I. any activity or use that would interfere with, or would be reasonably likely to
interfere with, the implementation, operation, or maintenance of any aspect or component
of the Response Actions already constructed or under construction, or of which Grantor
has notice, including without limitation, interference with any component of the Response
Actions situated within the Surface Cover Area, any groundwater contaminant containment
measures or barriers situated within the Groundwater Response Action Component Area
(if any), or any groundwater monitoring wells[; or exceeding the bearing load or piercing
any barrier or membrane situated within the Engineered Barrier Area, the Building
Foundation Barrier Area, or the Landfill/Consolidation Area Cap Area]. [Last clause to be
included only where such areas are present.]
[The following version of Paragraph 3 applies to any Property that contains a mix of
Commercial/Industrial and Recreational areas.]
3. Restricted Activities and Uses. Except as provided in Paragraph 4 (“Permitted
Activities and Uses”), Paragraph 6 (“Conditional Exceptions From Restricted Activities
and Uses”) and/or Paragraph 8 (“Emergency Excavation”), Grantor shall not perform,
suffer, allow or cause any person to perform any of the following activities or uses in, on,
upon, through, over or under the following parcels and portions thereof, as such parcels
and portions thereof are shown on the aforementioned Plan of Restricted Areas:
A. The Restricted Area: [Use “Property” if Restricted Area boundary is coincident
with Property boundary]
i. residential activity or use;
ii. day care and educational (for children under eighteen (18) years of age) activity or
use; and
iii. agricultural activity or use;
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iv. extraction, consumption, or utilization of groundwater underlying the Property,
including without limitation, extraction for potable, industrial, irrigation, or agricultural
use;
v. excavation, digging, drilling, or other intrusive activity into or disturbance of the
surface of the ground and/or the underlying soil; [In appropriate cases, this restriction can
be made applicable to a smaller area than the other restrictions, provided that any revisions
to this Model ERE necessary to effect such change shall be subject to the approval process
set forth in the Consent Decree; further provided that GE may voluntarily consult with
EPA and DEP regarding any such revision prior to submitting the executed ERE for
approval.].
vi. constructing or placing buildings or structures; and [Note: This restriction is only
for the GE-owned properties at GE Plant Area. Also, this restriction does not apply if GE
chooses either of the first two options for designating averaging areas as set forth Section
2.1, first bulleted paragraph, subparagraphs a. and b. of Attachment E (Protocols for
Spatial Averaging) to the SOW. Further, in appropriate cases (where this restriction
applies), this restriction can be made applicable to a smaller area than the other restrictions,
provided that any revisions to this Model ERE necessary to effect such change shall be
subject to the approval process set forth in the Consent Decree; further provided that GE
may voluntarily consult with EPA and DEP regarding any such revision prior to submitting
the executed ERE for approval.]
viii. any activity or use that would interfere with, or would be reasonably likely to
interfere with, the implementation, operation, or maintenance of any aspect or component
of the Response Actions already constructed or under construction, or of which Grantor
has notice, including without limitation, interference with any component of the Response
Actions situated within the Surface Cover Area, any groundwater contaminant containment
measures or barriers, or groundwater monitoring wells[; or exceeding the bearing load or
piercing any barrier or membrane situated within the Engineered Barrier Area, the
Building Foundation Barrier Area, or the Landfill/Consolidation Area Cap Area]. [Last
clause to be included only where such areas are present.]
B. The Commercial/Industrial Restricted Area:
i. recreational activity or use; and
ii. community center (for children under eighteen (18) years of age) activity or use.
4. Permitted Activities and Uses. Grantor reserves the right to perform, suffer, allow
or to cause any person to perform any activity in, on, upon, through, over or under the
Property, or make any use of the Property, that is not restricted by the provisions of this
Environmental Restriction and Easement. In addition, Grantor may perform, suffer, allow
or cause any person to perform the uses and activities set forth below in, on, upon, through,
over or under the Property and the Restricted Area, set forth below, or portions of either.
Except for the permitted activities and uses allowed pursuant to subparagraphs 4.A. and
4.B below, and except as otherwise provided in subparagraph 4.F below, all such activities
and uses shall only be conducted in accordance with the Soil Management Protocol and
the Health and Safety Protocol, as applicable, as set forth below. Grantor shall restore the
Property, or any portion thereof, affected by any activity or use permitted under
subparagraphs 4.A through 4.D and 4.F to its prior condition immediately upon completion
of such activity or use, also in accordance with the Soil Management Protocol and the
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Health and Safety Protocol (except for permitted activities and uses allowed pursuant to
subparagraph 4.A. and 4.B and except as otherwise provided in subparagraph 4.F below).
[Note the cross-references, below, are based on the first version, above, of Paragraph
3.]
A. Surface Excavation of Ten (10) Cubic Yards or Less. Notwithstanding the
restrictions set forth in subparagraph 3.G., excavation, digging, drilling, or other intrusive
activity into or disturbance of the surface of the ground and/or the underlying soil in the
Open Soil/Vegetated Area and the Soil Cover Area, solely within the top one (1) foot of
the surface of the ground, of no more than ten (10) cubic yards of such materials, in the
aggregate, on a per project basis, shall be permitted. Grantor shall not segment a project to
avoid the ten (10) cubic yard limitation established by this subparagraph 4.A. In
conducting activities and uses pursuant to this subparagraph, Grantor shall comply with the
following requirements:
i. Such surface excavation shall be conducted in a timely fashion so as to minimize
the time when excavated areas are open and/or excavated materials are stored in the Soil
Cover Area or the Open Soil/Vegetated Area to the minimum time practicable for such
activity or use; provided, however, that the duration of such excavation or storage shall not
exceed fourteen (14)days.
ii. Grantor shall take appropriate measures to secure stored soil and to control erosion,
dust, and runoff.
iii. Grantor shall (a) backfill excavations to the original surface grade with clean soil or
soil excavated from the Soil Cover Area or the Open Soil/Vegetated Area solely from the
top one (1) foot of the surface of the ground; (b) replace and repair any aspect or
component of the Response Actions situated within the Soil Cover Area; and reestablish
any disturbed vegetation.
iv. Grantor shall provide Grantee with written notice of each such surface excavation
project no later than thirty (30) days after completion, and shall use the form attached
hereto as Exhibit E for such notice, as such form may be modified in writing from time to
time by Grantee; provided, however, that any such project where the total amount of soil
that has been or will be excavated is less than five (5) cubic feet shall not be subject to the
foregoing notification requirement.
v. Grantor shall not store or dispose of any excavated material outside of the Soil
Cover Area or the Open Soil/Vegetated Area.
B. Surface Excavation of any Volume. Notwithstanding the restrictions set forth in
subparagraph 3.G., excavation, digging, drilling, or other intrusive activity into or
disturbance of the surface of the ground and/or the underlying soil in the Open
Soil/Vegetated Area and the Soil Cover Area, solely within the top one (1) foot of the
surface of the ground, of any volume of such materials shall be permitted. In conducting
work pursuant to this subparagraph, Grantor shall comply with the requirements listed
above in subparagraphs 4.A.i through 4.A.iv, and the following additional requirements:
i. Grantor shall utilize an LSP to oversee the surface excavation permitted pursuant to
this subparagraph.
ii. Disposal of excavated materials off of the Property shall be permitted provided that
an LSP oversees such disposal and that the Grantor complies with the provisions of
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Paragraph 9 of the Soil Management Protocol regarding off-Property disposal of soil and
other materials.
C. Surface and/or Subsurface Excavation of Ten (10) Cubic Yards or Less.
Notwithstanding the restrictions set forth in subparagraph 3.G., excavation, digging,
drilling, or other intrusive activity into or disturbance of the surface of the ground and/or
the underlying soil in the Open Soil/Vegetated Area, the Soil Cover Area, the Enhanced
Pavement Area and the Other Ground Covering Feature Area, of no more than ten (10)
cubic yards of such materials, in the aggregate, on a per project basis, shall be permitted.
Grantor shall not segment a project to avoid the ten (10) cubic yard limitation established
by this subparagraph 4.C. In conducting work pursuant to this subparagraph, Grantor shall
comply with the following requirements:
i. Grantor shall utilize an LSP to oversee the excavation permitted pursuant to this
subparagraph, including without limitation, the disposal of soil and other material. All
activities and uses permitted pursuant to this subparagraph shall be conducted in
accordance with the Soil Management Protocol and the Health and Safety Protocol.
ii. Such excavation shall be conducted in a timely fashion so as to minimize the time
when excavated areas are open and/or excavated materials are stored on the Property to the
minimum time practicable for such activity or use; provided, however, that the duration of
such excavation shall not exceed fourteen (14) days. Any materials (e.g., soils, sediments,
and personal protective equipment) excavated, collected, placed, used and/or stored on the
Property or elsewhere, in connection with such excavation, shall be properly disposed of
within ninety (90) days from the date of such initial storage or within such longer time as is
permitted under any applicable state or federal law or regulation.
iii. Grantor shall provide Grantee with written notice of each such project no later than
thirty (30) days after completion. Grantor shall use the form attached hereto as Exhibit E
for such notice, as such form may be modified in writing from time to time by Grantee.
D. Surface and/or Subsurface Excavation for Utility Work. Notwithstanding the
restrictions set forth in subparagraph 3.G., excavation, digging, drilling, or other intrusive
activity into or disturbance of surface of the ground and/or the underlying soil in the Open
Soil/Vegetated Area, the Soil Cover Area, the Enhanced Pavement Area, and the Other
Ground Covering Feature Area, for the purpose of Utility Work, shall be permitted. In
conducting Utility Work pursuant to this subparagraph, Grantor shall comply with the
following requirements:
i. All such Utility Work shall be conducted in accordance with the Soil Management
Protocol and the Health and Safety Protocol. Grantor shall utilize an LSP to oversee all
such activities and uses, including without limitation, the disposal of soil and other
materials.
ii. Such Utility Work shall be conducted in a timely fashion so as to minimize the time
when excavated areas are open and/or excavated materials are stored on the Property to the
minimum time practicable for such activity or use; provided, however, that the duration of
such excavation shall not exceed fourteen (14) days. Any materials (e.g., soils, sediments,
and personal protective equipment) excavated, collected, placed, used and/or stored on the
Property or elsewhere, in connection with such excavation, shall be properly disposed of
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within ninety (90) days from the date of such initial storage or within such longer time as is
permitted under any applicable state or federal law or regulation.
iii. Grantor shall give Grantee fifteen (15) days’ advance written notice prior to
conducting any activities and uses pursuant to this subparagraph 4.D.
E. Construction or Placement of Buildings or Structures. Notwithstanding the
restrictions set forth in subparagraph 3.H., the construction or placement of buildings or
structures in the Open Soil/Vegetated Area, the Soil Cover Area, the Enhanced Pavement
Area, and the Other Ground Covering Feature Area shall be permitted, unless (i) the
construction or placement of the building or structure creates a distinct area of exposure to
contaminants, pollutants, hazardous materials, or hazardous substances that is different
from the spatial averaging area shown on Exhibit F [Exhibit F shall be Figure E-1 of the
SOW] containing the proposed building or structure; and (ii) such different exposure area
created by the building or structure does not meet the applicable Performance Standards
for such area as set forth in the Consent Decree. As provided below in subparagraph 4.H,
all other restrictions set forth in Paragraph 3 (“Restricted Activities and Uses”) and
activities and uses permitted pursuant to Paragraph 4 (“Permitted Activities and Uses”)
shall apply the construction or placement of buildings or structures permitted under this
subparagraph 4.E. [Note: This permitted use is only for the -owned
properties at . Also, this permitted use does not apply if
chooses either of the first two options for designating averaging areas
as set forth Section 2.1., first bulleted paragraph, subparagraphs a. and b. of Attachment E
(Protocols for Spatial Averaging) to the SOW.]
F. Sampling. Notwithstanding the restrictions set forth in subparagraphs 3.F and 3.G., soil
and groundwater sampling activities shall be permitted in the Open Soil/Vegetated Area,
the Soil Cover Area, the Enhanced Pavement Area and the Other Ground Covering Feature
Area; provided that Grantor shall utilize an LSP to oversee such sampling; and further
provided that all such activities and uses shall be conducted in accordance with the Soil
Management Protocol and the Health and Safety Protocol. While
continues to own and control the Property, the foregoing requirements to utilize an
LSP and to comply with the Soil Management Protocol shall not apply to soil or
groundwater sampling activities conducted by or under the oversight of
personnel or contractors familiar with the terms of this Grant and pursuant to a plan for
sampling that takes into account contaminated media at the Property and has been
approved by EPA or DEP, with notice to Grantee. The foregoing sentence shall run to the
benefit of alone, not to any successors or assigns, and shall not run with
the land.
G. Groundwater Extraction Pursuant to Permit. Notwithstanding the restrictions set forth in
subparagraph 3.F, extraction of groundwater in accordance with the provisions of Water
Withdrawal Permit (Permit Number 9P-1-02-236.01) issued pursuant to the
Water Management Act and attached hereto as Exhibit G, at wells
number 3, 4, 5, and 6, at the locations described in said Permit, shall be permitted.
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H. All other restrictions set forth in Paragraph 3 (“Restricted Activities and Uses”) shall
apply to the activities and uses permitted to this Paragraph 4 ( “Permitted Activities and
Uses”).
5. Obligations and Conditions. Grantor affirmatively agrees to perform the following
activities at the Property and/or Restricted Area:
A. If Grantor observes or otherwise becomes aware of evidence of any failure or other
significant alteration of any Surface Cover, including without limitation (i) exposure of or
damage to any drainage layer, synthetic barrier, or liner; (ii) uneven settlement relative to
surrounding areas; or (iii) damage to Enhanced Pavement or the pavement cover of an
Engineered Barrier or other Surface Cover components such as fissures, large cracks, or
potholes; then Grantor shall notify Grantee and EPA [,and DEP, if DEP is not the Grantee]
thereof in writing within five (5) business days thereafter, with a copy to
, if is not the Grantor.
B. Any utility repair, maintenance or installation conducted in confined spaces shall
comply with the Health and Safety Protocol.
6. Conditional Exceptions from Restricted Activities and Uses. Grantor may
requestfrom Grantee a conditional exception from one or more of the restricted activities or
uses set forth in Paragraph 3 (“Restricted Activities and Uses”) for a particular proposed
activity or use and any related work, which would otherwise temporarily violate such
restriction(s). Such request shall be submitted to Grantee in accordance with and shall be
subject to all of the following:
A. Submittal Requirements. All requests for conditional exceptions shall, at a minimum:
i. include a written description and/or plans of the proposed activity or use and other
relevant information;
ii. identify the Restricted Area or types of restricted areas for which the conditional
exception is requested;
iii. identify the specific restriction(s) from which the conditional exception is requested,
and explain the need for the exception;
iv. state the duration of the activity or use and any related work for which the conditional
exception is requested, including a proposed termination date for the conditional exception;
and
v. if required pursuant to subparagraph 6.B, below, include (a) a determination by an
appropriately trained and licensed professional, such as an LSP, that the proposed activity
and use and any related work for which the conditional exception is requested would
satisfy the human health and environmental risk standard set forth in subparagraph 6.C.,
and (b) supporting technical analysis upon which such determination is based.
B. Requirement to Use an Appropriately Trained and Licensed Professional; Request for
Waiver. An appropriately trained and licensed professional, such as an LSP, shall make the
risk determination required in subparagraph 6.A.v., unless waived by Grantee pursuant to
this subparagraph 6.B. Grantor may request Grantee to waive such requirement, if
appropriate under the circumstances, for example, if a particular proposed activity and use
and any related work is de minimis. In the event of such a request or on its own initiative,
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Grantee, in its sole discretion, may waive such requirement taking into consideration the
nature and scope of a particular proposed conditional exception request. Any such waiver
must be in writing. A waiver for one conditional exception request shall not be deemed to
be a waiver for any future conditional exception request.
C. Human Health and Environmental Risk Standard. Grantor shall demonstrate, in
accordance with the procedures set forth in subparagraphs 6.A. and 6.B., that the activity
or use and any related work for which a particular conditional exception is requested would
not result in an unacceptable risk to human health or the environment, pursuant to the
criteria set forth at 40 C.F.R. § 300.430(e)(2)(i), as amended, or interfere with the integrity
or effectiveness of the Response Actions. Such demonstration shall include, but not be
limited to, consideration of the following factors, as applicable:
i. potential exposure to or release of hazardous substances;
ii. potential adverse impacts of the proposed activity or use on any Surface Cover or on
surface water runoff pathways;
iii. potential creation of pathways of contaminant migration;
iv. potential impact on groundwater and any non-aqueous-phase liquids (NAPL);
v. management plans for excavated contaminated materials, including handling and
disposal;
vi. appropriate worker health and safety plans; and
vii. whether the proposed activity or use and any related work would interfere with the
implementation, operation and/or maintenance of the Response Actions and if so, whether
the proposed activity or use is necessary to reduce a threat to human health or the
environment.
D. Other Relevant Considerations. In reviewing a proposed conditional exception request,
Grantee may consider Grantor’s financial and/or technical ability to perform the necessary
response work in connection with such request. Grantee may also consider any other
relevant matters related to the human health and environmental risk standard set forth in
subparagraph 6.C., above.
E. Completeness Determination, Review and Response.
i. If Grantee determines that Grantor’s conditional exception request is sufficient and
complete for purposes of review, Grantee shall review such request. If necessary, Grantee
may notify Grantor of any deficiencies in Grantor’s request, and may provide Grantor with
an opportunity to submit supplemental information.
ii. Except as provided for in subparagraph 6.G., Grantee, upon completion of
its review of any conditional exception request, based upon whether the human health and
environmental risk standard set forth in subparagraph 6.C. would be satisfied, and upon the
other relevant considerations set forth in subparagraph 6.D., shall determine whether the
requested conditional exception is appropriate and, if so, shall issue the conditional
exception. If Grantee determines that the requested conditional exception is not
appropriate, then Grantee shall issue a written explanation. Grantee may condition its
issuance of a conditional exception as appropriate, including without limitation, upon the
results of future sampling and/or testing.
iii. All conditional exceptions must be in writing and signed by Grantee.
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F. Interim and Closeout Report Requirements. During and/or upon completion of the
activity or use and any related work for which the conditional exception was obtained,
upon request by Grantee, Grantor shall submit a written report confirming that such
activity or use and related work was or is being implemented in accordance with the
conditional exception, including in accordance with the representations in Grantor’s
conditional exception request submittal regarding the requirements set forth in
subparagraphs 6.C. and 6.D. Such report shall be prepared and signed by an appropriately
trained and licensed professional, such as an LSP, unless pursuant to subparagraph 6.B.
Grantee previously waived the requirement to include a risk determination and supporting
technical analysis by such professional.
G. Applicability of Amendment Provision to Conditional Exception Requests. Any
conditional exception request for an activity or use and any related work which, in the
judgment of Grantee, would result in a permanent modification to an activity or use
restriction established in Paragraph 3 (“Restricted Activities and Uses”), including without
limitation, to the boundary of the Restricted Area or any particular type of restricted area,
shall require an amendment to this instrument in lieu of a conditional exception, in
accordance with Paragraph 15 (“Amendment and Release”).
7. Applicability. The restrictions set forth in Paragraph 3 (“Restricted Activities and
Uses”) shall not apply to any response action undertaken by EPA or DEP, or their
respective agents, representatives, contractors, subcontractors or employees, pursuant to
CERCLA or Chapter 21E, and their respective implementing regulations. In addition, the
restrictions set forth in subparagraphs 3.F through 3.I [based upon the first version of
Paragraph 3] shall not apply to any of the following activities conducted by GE, or its
employees, contractors, or subcontractors, pursuant to the Consent Decree and/or the
SOW, as approved by EPA (which approval shall be after a reasonable opportunity for
review and comment by DEP), for purposes of implementing or monitoring the Response
Actions, provided that such activities do not permanently modify the boundary of the
Restricted Area or of any particular type of restricted areas: soil or groundwater sampling;
excavation, digging, drilling, or other intrusive activity into or disturbance of the surface of
the ground and/or the underlying soil; and/or groundwater extraction.
8. Emergency Excavation. If it becomes necessary to excavate a portion of the
Property, as part of a response to an emergency (e.g., repair of utility lines or responding to
fire or flood), any activity and use restriction provisions of Paragraph 3 (“Restricted
Activities and Uses”) above, which would otherwise restrict such excavation, shall be
suspended with respect to such excavation for the duration of such emergency response,
provided that Grantor:
A. Limits the actual disturbance involved in such excavation to the minimum
reasonably necessary to adequately respond to the emergency;
B. Implements all measures necessary to limit actual or potential risk to the public
health and environment arising from the emergency and the response thereto;
C. Undertakes precautions to minimize exposure of workers and neighbors of the
Property to the hazardous substance or material; and
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D. Utilizes an LSP (except as provided in the last sub-paragraph of this Paragraph 8)
to oversee the implementation of the terms of this Paragraph 8 (“Emergency Excavation”),
and to prepare and oversee the implementation of a written plan which, in said
professional’s opinion, will restore the Property to a condition consistent with its condition
before the emergency excavation took place, with minimal disturbance of the contaminated
soils; said plan to be subject to the Soil Management and the Health and Safety Protocols,
as applicable; said plan to be promptly prepared and implemented; a copy of said plan to
be submitted to EPA and DEP within ten (10) days of its performance, together with a
completed Post-Work Notification Form, attached hereto as Exhibit E, with a statement
from said LSP that the Property has been restored to said condition; provided, however,
that in cases where only minimal excavation has occurred such that there has been no
significant impact on the protectiveness of the Response Actions, Grantor may request
Grantee to allow the Grantor to prepare and submit the plan and statement, without
utilizing the services of the otherwise required LSP. In addition, Grantor shall notify the
EPA Emergency Response Unit and the DEP Regional Office
Emergency Response Section, or such other party as EPA or DEP may identify in writing
to Grantor, of such emergency as soon as possible but no more than two (2) hours after
having
learned of such emergency. The following provisions shall run to the benefit of GE alone,
but not to any successor or assign, and shall not run with the land:
i. While continues to own and control the Property, to the extent
that is unable practicably to utilize an LSP to oversee the
implementation of this Paragraph 8 (as required by subparagraph 8.D, above) due to the
time-critical nature of the emergency, GE may instead utilize a similarly trained and
experienced employee during the emergency to satisfy said
requirement, provided that such employee:
(a) is experienced in overseeing excavation and management of contaminated media;
(b) is familiar with health and safety considerations, including proper use of personal
protective equipment;
(c) is familiar with regulatory requirements for sampling and management of
hazardous material;
(d) is familiar with the relevant requirements of this Grant, the Consent Decree and the
SOW; and (e) has appropriate environmental science or engineering training and
experience and other appropriate educational background
ii. While continues to own and control the Property,
may, at its option, utilize a consultant, under the supervision of an LSP,
to prepare the above-described written plan (as required by subparagraph 8.D., above).
9. Grant of Easements. In establishing this Environmental Restriction and Easement,
Grantor hereby grants the following easements for the term of this Grant to Grantee, its
agents, representatives, contractors, subcontractors and employees:
A. An easement to pass and repass over the Property for the purpose of inspecting the
Property to ensure compliance with and fulfillment of the terms of this Environmental
Restriction and Easement; and
15
B. An easement in, on, upon, through, over and under the Property, except for the
, [only necessary for ERE Grant on Property where
the is located] for the following purposes:
i. constructing, implementing, monitoring, and performing the Response Actions and
operation and maintenance for the Response Actions;
ii. assessing the need for, planning, or implementing other response actions at the Site;
iii. verifying any data or information submitted to EPA or DEP;
iv. surveying and obtaining samples;
v. installing groundwater monitoring wells and extraction wells;
vi. conducting investigations relating to contamination at or near the Site; and
vii. determining whether additional activity or use restrictions are necessary.
[subparagraph C, following, is only necessary for ERE Grant on
Property where factory is located]
C. An easement in, on, upon, through, over and under all locations within the GE
Plastics Area where Work (as defined in the Consent Decree) is being performed or as
necessary to conduct any activity pursuant to the Consent Decree, at all reasonable times
and upon reasonable notice, for the following purposes:
i. constructing, implementing, monitoring, and performing the Response Actions and
operation and maintenance for the Response Actions;
ii. assessing the need for, planning, or implementing other response actions at the Site;
iii. verifying any data or information submitted to EPA or DEP;
iv. surveying and obtaining samples;
v. installing groundwater monitoring wells and extraction wells;
vi. conducting investigations relating to contamination at or near the Site; and
vii. determining whether additional activity or use restrictions are necessary.
10. Severability. Grantor agrees, in the event that a court or other tribunal determines
that any provision of this instrument is invalid or unenforceable:
A. That any such provision shall be deemed to have been modified automatically to
conform to the requirements for validity and enforceability as determined by such court or
tribunal; or
B. That any such provision that, by its nature, cannot be so modified, shall be deemed
deleted from this instrument as though it had never been included.
Such modifications and deletions shall be deemed effective as of the date of the
determination of the court or other tribunal. In either case, the remaining provisions of this
instrument shall remain in full force and effect.
11. Enforcement. Grantor expressly acknowledges that a violation of the terms of this
instrument could result in the following:
A. The assessment of penalties and other action by DEP to enforce the terms of this
Environmental Restriction and Easement, pursuant to Chapter 21E and the MCP; and/or
B. Upon a determination by a court of competent jurisdiction, the issuance of criminal
and civil penalties, and/or equitable remedies, which could include the issuance of an order
to (i) modify or remove any improvements constructed in violation of the terms of this
16
Environmental Restriction and Easement at Grantor’s sole cost and expense or (ii) to
reimburse the Commonwealth and the United States for any costs incurred in modifying or
removing any improvement constructed in violation of the terms of this Environmental
Restriction and Easement.
[This language in Paragraph 11 assumes that DEP will be the Grantee.]
12. Provisions to Run With the Land. The land use restrictions, obligations, and access
rights provided herein establish certain rights, liabilities, agreements and obligations upon
and subject to which the Property or any portion thereof, shall be improved, held, used,
occupied, leased, sold, hypothecated, encumbered, or conveyed. The rights, liabilities,
agreements and obligations herein set forth shall run with the Property for the term of this
instrument, as applicable thereto, and any portion thereof, and shall inure to the benefit of
Grantee and its assigns and be binding upon Grantor and all parties claiming by, through or
under Grantor. Grantor hereby covenants for himself and his executors, administrators,
heirs, successors and assigns, to stand seized and hold title to the Property, or any
portion thereof, subject to these land use restrictions, access rights, and other provisions of
this Grant; provided, however, that a violation of these land use restrictions, access rights,
and other provisions shall not result in a forfeiture or reversion of Grantor’s title to the
Property.
13. Concurrence Presumed. It is agreed that:
A. Grantor and all parties claiming by, through or under Grantor shall be deemed to be
in accord with the provisions herein set forth; and
B. Grantor and all such parties agree for and among themselves and any party
claiming by, through or under them, and their respective agents, contractors, sub-
contractors and employees, that the land use restrictions and access rights herein
established shall be adhered to and not violated and that their respective interests in the
Property shall be subject to the provisions herein set forth.
14. Incorporation into Deeds, Mortgages, Leases and Instruments of Transfer.
Grantor hereby agrees to incorporate this instrument, in full or by reference, into all deeds,
easements, mortgages, leases, licenses, occupancy agreements or any other instrument of
transfer by which an interest in and/or a right to use the Property, or any portion thereof, is
conveyed; provided, however, that any failure of Grantor to do so shall not affect the
validity or applicability of the provisions of Paragraph 12.
15. Amendment and Release.
A. Amendment at Grantee’s Request.
i. Grantee may request Grantor to amend this instrument. Grantor hereby further
agrees to execute any such amendment which Grantee reasonably deems necessary for the
effective administration of this instrument; provided, however, that such amendment shall
be limited to procedural matters hereunder. Accordingly, the foregoing obligation shall not
obligate Grantor to impose additional substantive restrictions on the Property, beyond
those listed in Paragraph 3 (“Restricted Activities and Uses”); nor to impose additional
substantive limitations on the permitted activities and uses set forth in Paragraph 4
(“Permitted Activities and Uses”); nor to impose additional substantive obligations and
17
conditions upon Grantor, beyond those set forth in Paragraph 5 (“Obligations and
Conditions”). All amendments shall include Grantee’s signed approval and shall become
effective upon Recordation and/or Registration.
ii. Notwithstanding the foregoing, if Grantor is not , Grantor
expressly acknowledges and agrees that the within Grant includes the right of
, in accordance with the Consent Decree, with notice to Grantor and
written approval of Grantee, to Record and/or Register a revised Plan of Restricted Area
indicating the location of any Groundwater Response Action Component Area and
associated notice thereof. The Recordation and/or Registration of any such revised Plan of
Restricted Area and associated notice thereof shall not be deemed an amendment to this
Grant, but rather the exercise of rights established by, and effective upon the Recording
and/or Registration of, this Grant.
B. Amendment at Grantor’s Request. Grantor may amend this instrument only with
the prior, written approval of the Grantee. Grantor may propose to Grantee an amendment
of an activity or use restriction set forth in Paragraph 3 (“Restricted Activities and Uses”)
or of a permitted use set forth in Paragraph 4 (“Permitted Activities and Uses”), based
upon changed circumstances, including, without limitation, new analytic and engineering
data or a Grantor proposal to perform additional remediation at the Property. In the event
that Grantor requests such an amendment, Grantor shall provide such information as
Grantee may require for review of such a request, including without limitation, information
that addresses the considerations set forth in Paragraph 6 (“Conditional Exceptions from
Restricted Activities and Uses”), as applicable, and an explanation of the changed
circumstances. If Grantee determines that any amendment to this Grant proposed by
Grantor is not appropriate, then Grantee shall issue a written explanation.
C. Release. This instrument may be released, in whole or in part, by Grantee in
Grantee’s sole discretion, and in accordance with CERCLA, the NCP, Chapter 21E and the
, to the extent applicable. This instrument shall not be deemed released
unless and until Grantee, its successors and assigns, and/or any other party claiming under
Grantee, have released their respective interests. Said release shall become effective upon
its Recordation and/or Registration.
D. Recordation and/or Registration. Grantor hereby agrees to Record and/or
Register any amendment to and/or release of this instrument, and/or other document
created pursuant to this instrument for which Recording and/or Registration is required,
within thirty (30) days of the date of having received from Grantee any such amendment,
release, and/or other document. No more than thirty (30) days from the date of Recording
and/or Registration, Grantor shall provide to Grantee a certified Registry/Land Registration
Office copy of the amendment, release, and/or other such document. At that time, or as
soon thereafter as it becomes available, Grantor shall provide Grantee with the final
recording information for the amendment, release, and/or other such document, certified by
said Registry/Land Registration Office. Grantor shall pay any and all recording fees, land
transfer taxes and other such transaction costs associated with any such amendment,
release, and/or other document. Grantor, if not , further agrees to
cooperate with in the Recording and/or Registration of a revised Plan of
Restricted Area, as described above, and any associated notice thereof.
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E. Notice to Local Officials. Grantor further agrees to notify local officials and the
public of the amendment or release in accordance with the requirements set forth in 310
C.M.R. 40.1403(7), as amended. A copy of said regulation is attached hereto as Exhibit H.
16. No Dedication Intended. Nothing herein set forth shall be construed to be a gift or
dedication of the Property to Grantee, its assigns or to the general public for any purpose
whatsoever.
17. Term. This instrument shall run with the land in perpetuity.
18. Rights Reserved. It is expressly agreed that acceptance of this instrument by
Grantee or its assignment shall not operate to bar, diminish, or in any way affect any legal
or equitable right that Grantee or its assigns may otherwise have to issue any future order
or take response action with respect to the Property or in any way affect any other claim,
action, suit, cause o
