~'

~tPl\q,~

\

Declaration of Environmental Land Use Restriction and Grant of Easement Beacon Heights, Inc, Superfund Site, Beacon Heights, Connecticut

Afler Recording Return to:

Environmental Land Use Restriction Coordinator State of Connecticut Department of Energy and Environmental Protection Remediation Division Bureau of Water Protection and Land Reuse 79 Elm Street Hartford, CT 06106

DECLARATION OF ENVIRONMENTAL LAND USE RESTRICTION AND GRANT OF EASEMENT

T~ Declaratioi~nvironmental land use restriction and grant of easement is made this :J-t "day of · '1o , 2015, between the Beacon Heights Coalition (the "Grantor") and the Commissioner f t e Connecticut Depaiiment of Energy and Environmental Protection (the "Grantee") and the United States Environmental Protection Agency, as Third Party Beneficiary (the "Beneficiary" or "EPA").

WITNESSETH:

WHEREAS, Grantor is the owner in fee simple of ce1tain real prope1iy (the "Property") known as known as, and depicted on, Tax Map 12, Block 2, Lot 11, located in Beacon Falls, Connecticut, in New Haven County, more particularly described on Exhibit A which is attached hereto and made a pati hereof; and

WHEREAS, the rationale for this environmental land use restriction is described jn the document attached hereto as Exhibit B, which is made a part hereof; and

WHEREAS, the Property identified in the class A-2 survey (the "Subject Parcel"), which survey is attached hereto as Exhibit C which is made a part hereof, contains pollutants; and

WHEREAS, the Subject Parcel is adjacent to the Beacon Heights Landfill Superfund Site (the "Site" or "Beacon Heights Site"), and

WHEREAS, certain private patiies ("Perfmming Parties") are implementing a cleanup (the "Remedial Action") selected by EPA to address contamination at the Site pursuant to a Record of Decision and Supplemental Record of Decision (collectively, "ROD") issued by EPA under· the Comprehensive, Environmental Response, Compensation and Liability Act ("CERCLA") and on file at the Beacon Falls Library, 10 Maple Avenue, Beacon Falls, CT, and at EP A's OSRR Records and Information Center, 5 Post Office Square, Boston, MA; and .

WHEREAS, the Remedial Action incorporates an engineered cover and leachate collection system; and

WHEREAS, the Remedial Action contemplates the imposition of institutional controls at the Beacon Heights SHe; and

Page I of8

Declaration ofEnvironmental Land Use RestricJiQJl;l)_nd GrantJ:1f:Easement6 " Beacon Heights, Inc. Superfund Site, Beacon Heights, Connecticut

WHEREAS, to implement the institutional control requirements of the Remedial Action and to prevent exposure to or migration of such pollutants and to abate hazards to human health and the environment, the Grantor desires to impose cettain restrictions upon the use, occupancy, and activities of and at the Subject Parcel, and to grant this environmental land use restriction to the Grantee and the Beneficiary on the terms and conditions set forth below; and

WHEREAS, Grantor intends that such restrictions shall tun with the land and be binding upon and enforceable against Grantor and Grantor's successors and assigns;

WHEREAS, the Grantee and the Beneficiary have detetmined that this environmental land use restriction will effectively protect public health and the environment from the hazards of pollution; and

WHEREAS, the Grantee agrees and acknowledges that the Beneficiary is lead agency with respect to the Site, and the Grantee has the authority to review and comment on lead agency decisions;

NOW, THEREFORE, Grantor agrees as follows:

1. Pmpose. In accordance with the Record of Decision for the Site and the Consent Decree entered in the United States District Coutt for the District of Connecticut in N-87-286, which Consent Decree is available for inspection, along with other site documents, at the document repository at Beacon Falls Library, 10 Maple Avenue, 'Beacon Falls, CT 06403, the putpose of this environmental land use restriction is to implement institutional controls to assure that:

a. The Subject Parcel is not used for residential activities, including but not limited to the following activities: (i) single and multi-family dwelling and rental units; (ii) day care centers, eldercare facilities and preschools; (iii) hotels and motels; (iv) schools and religious facilities; (v) restaurants and other food and beverage services; (vi) parks, playgrounds, sports fields and other entertainment and recreational facilities; (vii) hospitals, healthcare facilities and other extended care medical facilities; and (viii) transient or other residential facilities;

b. Buildings are not constrncted on the Subject Parcel;

c. Groundwater at the Subject Parcel is not used for any purpose other than hydraulic containment, treatment and/or monitoring of groundwater in acqordance with the Remedial Action;

d. Soil within the Subject Parcel and located greater than four feet below grade is not exposed as a result of excavation, demolition or other activities;

e. The engineered cover and leachate collection system at the Subject Parcel, including but not limited to the leachate collection system, the groundwater extraction system, the smrnunding fence and perimeter ditches, the access road, and any monitoring wells, if currently located on the parcel or installed in the

Page 2 of8

;._,"; f) L. :~ ~-:.? :L :L ~=~ 0 ;;; Declaration of Environmental Land Use Restriction and Grant of Easement Beacon Heights, Inc. Superfund Site, Beacon Heights, Connecticut

future, as described further in the document attached hereto as Exhibit B, and the soil underlying such engineered cover and leachate collection system, are not disturbed in any manner as a result of excavation, demolition, plant root growth, or other activities, except for activities unde1taken as part of the operation and maintenance plan, as amended, on file at the EP A's OSRR Records and Information Center, 5 Post Office Square, Boston, MA.

f. Surface waters in the Subject Parcel are not used for any pmpose.

2. Restrictions Applicable to the Subject Parcel. In fmtherance of the purposes of this environmental land use restriction, Grantor shall assure that use, occupancy, and activity of and at the Subject Parcel is restricted as follows:

a. Residential Use. The Subject Parcel shall not be used for any residential activities as described in Paragraph I.a. above, and shall be used solely for industrial or commercial activity.

· b. Constrnction. Construction of buildings within the Subject Parcel shall not be permitted.

c. Groundwater. Groundwater at the Subject Parcel shall not be used for any purpose other than hydraulic containment, treatment and/or monitoring of groundwater in accordance with the Remedial Action.

d. Disturbances of Uncapped Soil. All soil within the Subject Parcel and located greater than four feet below grade shall not be exposed as a result of excavation, demolition or other activities.

e. Disturbances of Engineered Cover and Leachate Collection System. The engineered cover and leachate collection system at the Subject Parcel, including but not limited to the leachate collection system, the surrounding fence and perimeter ditches, the access road, and any monitoring wells, if currently located on the parcel or installed in the future, as described fmther in the document attached hereto as Exhibit B, and the soil underlying such engineered cover and leachate collection system, shall not be disturbed in any manner as a result of excavation, demolition, plant root growth, or other activities, except for activities undertaken as pait of the operation and maintenance plan, as amended, on file at the 'EP A's OSRR Records and Info1mation Center, 5 Post Office Square, Boston, MA.

f. Contact with Surface Water. The surface waters in the Subject Parcel shall not be used for any purpose, including but not limited to drinking, swimming or wading.

3. Except as provided in Para1vaph 4 below, no action shall be taken, allowed, suffered, or omitted if such action or omission is reasonably likely to:

Create a risk of migration of pollutants or a potential hazard to human health or the environment;

Page 3 of8

\.!(_:}i __ ~ ~? j_ :t ;='(:i -;:: Declaration of Environmental Land Use Restriction and Grant of Easement Beacon Heights, Inc. Superfund Site, Beacon Heights, Connecticut

Result in a disturbance of the structural integrity of the engineered cover and/or the leachate collection system designed or utilized to contain pollutants or limit human exposure to pollutants; or

Interfere with the performance of the Remedial Action or other response activities.

4. Emergencies. In the event of an emergency which presents a significant risk to human health or the environment, the application of Paragraph 3 above may be suspended, provided such risk cannot be abated without suspending such Paragraph and the Grantor:

a. Notifies the Grantee and the Beneficiary of the emergency as soon as possible, but no later than 24 hours, upon first recognition of the emergency condition;

b. Limits both the extent and duration of the suspension to the minimum reasonably necessary to adequately respond to the emergency;

c. · Implements all measures necessary to limit actual and potential present and future risk to human health and the environment resulting from such suspension; and

d. Implements a plan approved in writing by the Grantee and the Beneficiary, on a schedule approved by the Grantee and the Beneficiary, to ensure that the Subject Parcel is remediated in accordance with the ROD and CERCLA, or restored to its condition prior to such emergency.

5. Release of Restriction; Alterations of Subject Parcel. Grantor shall not make, or allow or suffer to be made, any alteration of any kind in, to, or about any portion of the Subject Parcel inconsistent with this environmental land use restriction unless the Grantor has first recorded the Grantee's and the Beneficiary's written approval of such alteration upon the land records of Beacon Falls: The Grantee and the Beneficiary shall not approve any such alteration and shall not release the' Property from the provisions of this environmental land use restriction unless the Grantor demonstrates to the Grantee's and the Beneficiary's satisfaction that Grantor has remediated the Subject Parcel in accordance with the ROD.

6. Grant of Easement to the Grantee and the Beneficiary. Grantor hereby grants and conveys to the Grantee and the Beneficiary, and their respective agents, contractors, and employees, and to any other person perfo1ming pollution remediation activities under the direction thereof, a non-exclusive easement (the "Easement") over the Subject Parcel for canying out any actions to abate a threat to human health or the environment associated with the Subject Parcel. Pursuant to this Easement, the Grantee, the Beneficiary, and their respective agents, contractors, and employees, and any other person perfo1ming pollution remediation activities under the direction thereof, may enter upon and inspect the Property and perform such investigations and actions as the Grantee or the Beneficiary deems necessary for any one or more of the following purposes:

Ensuring that use, occupancy, and activities of and at the Prope1ty are consistent with this environmental land use restriction;

Page 4 of8

Declaration of Environmental Land Use Restriction and Grant of Easement Beacon Heights, Inc. Superfund Site, Beacon Heights, Collllecticut

Ensuring that any remediation implemented complies with the ROD and CERCLA;

Performing any additional investigations or remediation necessary to protect human health and the environment, including but not limited to taking samples;

Ensuring the structural integrity of any component of the Remedial Action described in the ROD and its continuing effectiveness in containing pollutants and limiting human exposure to pollutants.

Ensuring the structural integrity of the engineered cover and leachate collection system described in this environmental land use restriction and grant of easement and its continuing effectiveness in containing pollutants and limiting human exposure to pollutants.

Perfonning and monitoring the activities required by the ROD, including but not limited to the installation, operation and maintenance of groundwater wells.

7. Notice and Time of Entty onto Property. Entry onto the Prope1ty by any person pursuant to this Easement shall be upon reasonable rtotice and at reasonable times, provided that entry shall not be subject to these limitations if the Grantee or the Beneficiary determines that immediate entry is necessary to protect human health or the environment.

8. Notice to Lessees and Other Holders of Interests in the Property. Grantor, or any future holder of any interest in the Prope1ty, shall cause any lease, grant, or other transfer of any interest in the Prope1ty to include a provision expressly requiring the lessee, grantee, or transferee to comply with this environmental land use restriction and grant of easement. The failure to include such provision shall not affect the validity or applicability to the Property of this environmental land use restriction and grant of easement.

9. Persons Entitled to Enforce Restrictions. The restrictions in this environmental land use restriction on use, occupancy, and activity of and at the Prope1ty shall be enforceable in accordance with section 22a-133p of the General Statutes. These restrictions shall also be enforceable by the Beneficiary in accordan.ce with section 22a-133o(b) of the General Statutes.

10. Issuance of Beneficiary and Grantee Approvals. The issuance of approvals by Beneficiary to Grantor pursuant to any paragraph of this Declaration shall be in written form, and shall be issued by the Geographic Section Chief assigned by Beneficiary to the Beacon Heights She. The issuance of approval by Grantee to Grantcir pursuant to any paragraph of this Declaration shall be in written form, and shall be issued by the Commissioner of the Connecticut Department of Energy and Environmental Protection or the Commissioner's duly authorized designee. The issuance of any Beneficiary or Grantee approval to the Grantor shall be in recordable fotm and shall he recorded by Grantor in the Town of Beacon Falls Land Records. No oral representations by Beneficiary or Grantee's personnel, or guidance or policy documents, shall relieve the Grantor of its responsibility to obtain any Grantee or Beneficiary approval in the fo1m required herein.

11. Notification and Reporting. Whenever, under the terms of this Declaration, written notice is required to be given or a rep01t or other document is required to be sent by one

Page 5 of8

~ '~-- 0 c' ,--, 7 ·i f:.:• ~::- =

Declaration of Environmental Land Use Restril:\iilh'and Gran(iifEasement, ·­Beacon Heights, Inc. Superfund Site, Beacon Heights, Connecticut

pmty to another, it shall he directed to the individuals at the addresses specified below, unless those individuals or their successors give notice of a change to the other pmties in writing.·

As to Grantee: Remedial Project Manager Remediation Division Bureau of Water Protection and Land Reuse Depatiment of Energy and Environmental Protection 79 Elm Street Hartford, CT 06106

As to Grantor: Heidi B. Goldstein, Esq. Thompson Hine LLP 3900 Key Center 127 Public Square Cleveland, OH 44114

As to Beneficiary: Remedial Project Manager for the Beacon Heights, Inc. Superfund Site EPA Region 1 5 Post Office Square Boston, MA 02109

12. Withdrawal of EPA and Grantee Approval. In the event the Beacon Heights Site conditions change after issuance of any EPA or Grantee approval provided pursuant to this Declaration, EPA and/or Grantee may withdraw or rescind an approval previously issued in order to protect human health and the environment. The issuance of any withdrawal of EPA or Grantee approval to the Grantor pursuant to this Declaration shall be in recordable form and shall be recorded by Grantor in the Town of Beacon Falls Land Records.

13. Severability and Termination. If any court of competent jurisdiction determines that any provision of this environmental land use restriction and grant of easement is invalid or unenforceable, such provision shall be deemed to have been modified automatically to confotm to the requirements for validity and enforceability as determined by such court. In the event that the provision invalidated is of such nature that it cannot be so modified, the provision shall be deemed deleted from this instrument as though it had never been included herein. In either case, the remaining provisions of this instrument shall remain in full force and effect. Fmther, in either case, the Grantor shall submit a copy of this restriction and of the judgment of the Court to Grantee and the Beneficiary for review, and if Grantee and Beneficiary jointly determine that such restriction would not have been approved without the invalid portion, Grantee and Beneficiary shall give notice that the environmental land use restriction is terminated, as evidenced by the Grantee's signature on an instrument setting forth such termination, and .the Grantor shall record such instrument on the land records of the Town of Beacon Falls.

Page 6 of8

Declaration ofEnviromnental Land Use Restriction and Grant of Easement Beacon Heights, Inc. Superfund Site, Beacon Heights, Connecticut

14. Binding Effect. All of the te1ms, covenants and conditions of this environmental land use restriction and grant of easement shall rnn with the land and shall be binding on the Grantor, the Grantor's successors and assigns, and each owner and any other patiy entitled to possession or use of the Property during such period of ownership or possession.

[Signature Page Follows]

Page 7 of8

Declaration ofEnviromnental Land Use Restriction and Grant of Easement Beacon Heights, Inc. Superfund Site, B~acon Heights, Connecticut

GRANTOR:

11/Y /U/Y

c 1P:.ss it:a Printed!Iyped Name

~Jr~ Signar

Printedffyped Name

)

Be con Heights Coal· 10n By: Bruce C. Amig Title: Steering Committee Ch Duly Authorized

STATE OF NC,, coUNTY oF MttK'leiti?~ ) SS._<'------------'--> <

) >

Personally appeared Bf p-<f (l,, ~~ .?ti¥ iM fuf)f o\Jt!:Chvt o 1 fu ,

signer and sealer of the foregoing instrum nt, and aca6iowledged the same to be his/h free act and deed, and the free act and deed of said corporation, before me.

Page 8 of8

Elizabeth Ann Wardley Nola!Y Public

Macklentiurg Coun · North Carollnan /'4/'1A[ Commission Ires "" J!fW

. . VOL: 211 P0• Declaratton ofEnvrronmental Land Use Restrict10n and Grant of Easement -Beacon Heights, Inc. Superfund Site, Beacon Heights, Connecticut

GRANTEE: Grantee, the Commissioner of the Connecticut Department of Energy and Environmental Protection, by the Commissioner's duly designated agent, Betsey Wingfield, Bureau Chief, Bureau of Water Protection and Land Reuse.

Date Bureau . Water Protection & Land Reuse Connecticut Department of Energy and· Environmental Protection 79 Elm Street Hartford, CT 06106

Page 9 of8

ENVIRONMENT AL LAND USE RESTRICTION

EXHIBIT A

PARCEL DESCRIPTION

EXHIBITA

Legal Description of

REAL PROPERTY KNOWN AS MAP 12, BLOCK 2, TAX LOT 11

Tax Lot 11: ALL that certain piece or parcel of land located in the Town of Beacon Falls, County of New Haven and State of Connecticut, and shown as PARCEL 2 on a certain plan titled "PLAN SHOWING A SUBDNISION OF LAND AND LOT LINE REVISION LAND NOW OR FORMERLY OF KEVIN J. SWAN SKOKORAT ROAD AND BLACKBERRY HILL ROAD BEACON FALLS, CONNECTICUT APRIL 5, 1995 SCALE 1" = 100'" prepared by Jeffrey R. Jurzynski and further bounded and described as follows:

Commencing at a point on the easterly line of Skokorat Road at the northeasterly line of land now or formerly of Piersanti; thence north 01 degrees 40 minutes 35 seconds east 236.95 feet along the easterly line of Skokorat Road; thence continuing along the easterly line of Skokorat Road along the arc of a curve concave to the west having a radius of 922.05 feet and a central angel of 09 degrees 10 minutes 23 seconds 147.62 feet; thence north 07 degrees 29 minutes 48 seconds west 25.00 feet along the easterly line of Skokorat Road to the Southerly line of Parcel 3 and the northwesterly comer of the herein described parcel; thence south 84 degrees 49 minutes 16 seconds east 402.37 feet, n01th 72 degrees 29 minutes 28 seconds east 560.00 feet, south 61 degrees 23 minutes 16 seconds east 78.00 feet, south 37 degrees 16 minutes 14 seconds east 75.00 feet, north 73 degrees 54 minutes 10 seconds east 177.56 feet, south 59 degrees 25 minutes 39 seconds east 265.78 feet, and south 29 degrees 11 minutes 05 seconds east 429.89 feet along Parcel 3 to the northerly line of land now or formerly of Beacon Heights, Inc.; thence south 58 degrees 15 minutes 41 seconds west 150 feet, south 53 degrees 54 minutes 36 seconds west 396.70 feet, south 33 degrees 56 minutes 15 seconds west 685.00 feet, south 33 degrees 20 minutes 36 seconds west 400.00 feet and south 21 degrees 15 minutes 57 seconds west 306.50 feet along the northerly line of land now or formerly of Beacon Heights, Inc. to the southeasterly comer of land now or formerly of Betkoski and the southwesterly comer of the herein described parcel; thence north 79 degrees 02 minutes 43 seconds west 125.46 feet, north 73 degrees 45 minutes 06 seconds west 23.83 feet, and north 77 degrees 41 minutes 46 seconds west 850.07 feet along the northeasterly line of land now or formerly of Betkoski and the southwesterly line of the herein described parcel of the southwesterly comer of land now or formerly of Hennessey; thence north 58 degrees 55 minutes 30 seconds east 500.00 feet along the southerly line of land now or formerly of Hennessey to the southeasterly comer of land now or formerly of Hennessey and the southwesterly comer of Parcel 1; thence north 77 degrees 27 minutes 22 seconds east 53.65 feet, north 47 degrees 08 minutes 25 seconds east 66.83 feet, north 26 degrees 42 minutes 17 seconds east 107.21 feet, north 10 degrees 14 minutes 22 seconds east 43.30 feet, north 01 degrees 17 minutes 08 seconds west 65.11 feet, north 12 degrees 11 minutes 05 seconds east 113.29 feet, north 23 degrees 59 minutes 46 seconds east 292.76 feet, north 00 degrees 22 minutes 08 seconds west 205.00 feet, north 19 degrees 49 minutes 13 seconds west 101.95 feet and north 87 degrees 40 minutes 41 seconds west 67.72 feet along Parcell to the southwesterly corner of land now or formerly of Piersanti; thence north 02 degrees 19 minutes 19 seconds east 100.00 feet along land now or formerly of Piersanti to the southeasterly comer of land now or formerly of Piersanti; thence north 87 degrees 40 minutes 41 seconds west 143.33 feet along land now or formerly of Piers anti to the point of commencement.

VOi = 211 PG= 901

ENVIRONMENTAL LAND USE RESTRICTION

EXHIBIT B

RATIONALE FOR USE RESTRICTIONS

Declaration of Environmental Land Use Restriction and Grant of Easement Description of the Rationale for Institutional Controls (Exhibit B) Loi 11 Beacon Heights Landfill, Blackberry Hill Road, Beacon Falls, Connecticut

EXHIBIT B Site Background and Rationale for Institutional Controls

Beacon Heights Landfill Superfund Site Beacon Falls, Connecticut

Map 12, Block 2, Lot 11

This document summarizes (1) the background of the Beacon Heights Landfill Superfund Sile ("Sile") and the remedial measures implemented pursuant lo the "Record of Decision" . (Sept. 23, 1985) ("ROD") and "Supplemental Record of Decision" (Sept. 28, 1990) ("SROD")1

and the consent decree entered in United States Environmental Protection Agencv v. The B.F. Goodrich Company. et al.. Civil Action No. N-87-286 (PCD) ("Consent Decree") by certain settling parties including those comprising the Beacon Heights Coalition ("BHC"); (2) the relation of real property in Beacon Falls, Connecticut currently owned by BHC known as, and depicted on, Tax Map 12, Block 2, Lo!11 ("Lot 11" or "the Subject Parcel") lo the Site and to Site remedial measures and engineered components of the remedial action, including the soil and groundwater contaminants to be addressed by inslilutional controls on the Subject Parcel; and (3) the restrictions or limitations lo be imposed on use of the Subject Parcel by means of a recorded Environmental Land Use Restriction and Grant of Easement ("Use Restriction") and the reasons such restrictions or limitations protect human health and the environment.

The Use Restriction prohibits certain activities as more fully described below. The Subject Parcel and pertinent property features are depicted in the accompanying Exhibit C [map/A-2 Survey].

Description of Remedial Action

The Sile and abutting property under the control of BHC encompass three parcels of land totaling 131.49 acres. The Subject Parcel is an undeveloped 46.29-acre parcel known as the former Swan Property. It was purchased by BHC to create a large wetlands mitigation area in connection with remediation of the Sile. It abuts an 81.9 acre parcel, owned by the former landfill operator, that contains the capped waste disposal or landfill area of approximately 34 acres. A 3.3-acre parcel, known as the former Nobis property, is localed northwest of the capped area al the main entrance of the Sile. BHC owns the Nobis and Swan parcels.

The Site was operated as a disposal area and landfill from the 1920s until 1979, accepting municipal solid waste and industrial waste. Based on studies performed by the Connecticut

1 Unless othenvise specified, references to "the ROD" include both the record of Decision and the Supplemental Record of Decision.

Page I of5

Declaration of Environmental Land Use Restriction and Grant of Easement Description of the Rationale for Institutional Controls (Exhibit B) Lot 11 Beacon Heights Landfill, Blackberry Hill Road, Beacon Falls, Connecticut

Department of Energy and Environmental Protection (CTDEEP) during the late 1970s, the Sile was entered into the National Priorities List (NPL) in 1983. A Remedial Investigation was completed from 1984 to 1985. These studies identified soils and waste beneath the now-capped area that contained elevated levels of volatile organic compounds (VO Cs), semi-volatile organic compounds (SVOCs), and heavy metals. The remedial strategy for the Sile was defined by the ROD in September 1985; the SROD subsequently addressed treatment of leachate at an off-site Publicly Owned Treatment Works (POTW). Feasibility study and remedy design pursuant lo the ROD and Consent Decree resulted in selection and implementation of remedial measures (the "Remedial Action") consisting of the following actions and engineered components:

• Construction of an impermeable, multi-layered engineered cap, incorporating a geotexlile liner, in the former waste disposal or landfill area;

• Restricting access to the Site by the construction and maintenance of a permanent fence barrier;

• Construction of a public water supply line to provide potable water to local residences;

• Construction and operation of a Leachate Collection System;

• Conveyance of leachate to the municipal sewer system for treatment at the Beacon Falls publicly owned treatment works; and

• Long term oversight, maintenance and monitoring to maintain the remedy and evaluate performance in relation to remedial objectives.

In addition, 52 residences in the vicinity of the Site along Skokorat Road and Blackberry Hill Road were connected to public water supply and former private wells were abandoned. The Connecticut Department of Public Health currently prohibits the installation of private wells within 200 feet of a public water supply.

In September 1999, the EPA and CTDEP determined that remedial construction activities at the Site were successfully completed, and instructed the BHC to commence with Operations and Maintenance (O&M) activities at the Site. Since that time, the BHC has operated and maintained the Sile in accordance with the O&M Plan, which was approved by the agencies on January 22, 1999.

In December 2010, the EPA directed the BHC to develop an Institutional Control (IC) Plan. The IC Plan provides for imposition and recording of environmental land use restrictions and easements for the parcels comprising the Site, in a manner that is protective of human health and the environment and minimizes the potential for disturbance of or damage to engineered components of the remedial action.

Page 2 ofS

Declaration of Environmental Land Use Restriction and Grant of Easement Description of the Rationale for Institutional Controls (Exhibit B) Loi 11 Beacon Heights Landfill, Blackberry Hill Road, Beacon Falls, Connecticut

Remedial Measures and Engineered Components in Relation to Subject Parcel

The Subject Parcel abuts property containing the historical landfill area, now capped. A small portion of the impermeable engineered cap encroaches slightly on the northern boundary of the Subject Parcel and certain components of the remedial measures are present on or cross the Subject Parcel.

The following components of the remedial action are present, in whole or part, on the Subject Parcel, as depicted on Exhibit C, the [SITE MAP/A2 SURVEY]:

• The Landfill Cap (in part)

• Leachate Collection System (in part) and Manholes

• Sile Fence

• Monitoring Wells

Use Restrictions to be Imposed on the Subject Parcel

Use Restrictions are to be imposed on the Subject Parcel in the manner and for the reasons that follow.

Residential Development Restriction

In the portion of the Subject Parcel within the landfill cap area, landfill waste materials and/or soil containing VOCs, SVOCs and metals are present. If the Subject Parcel were used for residential activities, the pollutants present in the soil may pose an unacceptable risk lo human health. Provided the Subject Parcel is not used for residential activities, any pollutants that may be present in the landfill wastes and/or soil do not pose an unacceptable risk lo human health. The Use Restriction prohibits residential activities on the Subject Parcel.

The term "residential activities" shall include, but not be limited to, the following activities: (i) single and multi-family dwelling and rental units; (ii) day care centers, eldercare facilities and preschools; (iii) hotels and motels; (iv) schools and religious facilities; (v) restaurants and other food and beverage services; (vi) parks, playgrounds, sports fields and other entertainment and recreational facilities; (vii) hospitals, healthcare facilities and other extended care medical facilities; and (viii) transient or other residential facilities.

Page 3 of5

\/ fJ ;_ __ ~;; ---, _, _, , .. Declaration of Environmental Land Use Restriction ancfGrant of Easemenh:; '.'."' Description of the Rationale for Institutional Controls (Exhibit B) Lot 11 Beacon Heights Landfill, Blackberry Hill Road, Beacon Falls, Connecticut

Construction Restriction

Construction within the capped area could compromise the integrity of the engineered components of the remedial action. Accordingly, the Use Restriction provides that unless prior approval is provided by the EPA, after opportunity for review and comment by CTDEEP, construction of buildings within the capped area of the Subject Parcel shall not be permitted.

Groundwater Use Restriction

Groundwater within the Subject Parcel may contain VOCs, such as benzene, chlorobenzene and 1, 1-dichloroethene, may contain SVOCs such as bis(2-chloroethyl)ether, bis{2-ethylhexyl)phthalate, bis(2-chloroethyl)ether and bis{2-ethylhexyl)phthalate, and may contain metals, such as nickel, antimony and arsenic. Any polluted groundwater does not pose a direct risk to human health, provided the groundwater is not used for drinking, irrigation, or other domestic purposes. Accordingly, the Use Restriction prohibits the use of groundwater beneath the Subject Parcel for any purpose other than hydraulic containment, treatment, and/or monitoring of groundwater in accordance with the Remedial Action.

Disturbance of Uncapped Soil

In the portion of the Subject Parcel within the landfill cap area, landfill waste materials and/or soil containing volatile organic compounds and metals are present. Such materials and/or soil are located beneath the impermeable landfill cap, which is a permanent structure., The Site achieved construction completion status in September 1998, including installation of the landfill cap. Ongoing O&M activities include regular inspection and maintenance of the cap. Outside the footprint of the cap, soil more than four feet below grade_ should not be exposed as a result of excavation, demolition or other activities that might create a risk of exposure to any contaminants that may be present. The Use Restriction therefore prohibits excavation or other intrusive activities in uncapped portions of the Subject Parcel that might result in exposure to any contaminated waste materials or soil that may be present; provided, however, that excavation directly related to O&M is permitted outside the capped area of the Subject Parcel.

Disturbance of Engineered Components

Engineered components of the remedial action are located in part on the subject Parcel, and include portions of the multi-layer engineered cap, the leachate collection system, the groundwater extraction system, the surrounding fence and perimeter ditches, the access road, and any monitoring wells, if currently located on the parcel or installed in the future. The Use Restriction therefore provides that such components and the soil underlying them shall not be disturbed in any manner as a result of excavation, demolition, plant root growth, or other activities, except for disturbances approved by the EPA as part of the O&M of the Remedial Action.

Page4 of5

:..~::". 1- :{ f:~ i'.::i ~ 9 () .. s Declaration of Environmental Land Use Restriction and Grant of Easement Description of the Rationale for Institutional Controls (Exhibit B) Lot 11 Beacon Heights Landfill, Blackberry Hill Road, Beacon Falls, Connecticut

Contact with Surface Water

The remedial measures and engineered components of the remedy should limit exposure of surface water contaminated soil or waste. As with groundwater, however, the proximity of the Subject Parcel to the Site warrants the imposition of restrictions on use of any surface water. Accordingly, the Use Restriction provides that surface waters on the Subject Parcel shall not be used for any purpose, including drinking, swimming or wading.

Page 5 of5

VOL~ 211 PG= 907

ENVIRONMENTAL LAND USE RESTRICTION

EXHIBIT C

PARCEL MAPS

\ ~·;~ t.ffl.,,· '/I • '\.~~#.',' ,/

1..._;i··S

'li~ "' +,...."

~.t-t . .t,

MAP 121BLOC K 2/LOT 23 r-·;r--,..__ __ '

Mtt,,

,/

/

UGD.ID~

maim IPA~r.&o>J~C.\RV

~~CRTY~E:S

--- SITT:FtNCC

! ~~~~/~~' '\ '

--·~,~ ~ '·,, __ '1~~ ~... '"'-1;' 'r \ ~ .. I ii /. MAP 12/BLOC 2/LOT 118 / '

f i

# ,,-;~~~/~

i' ~

11.tW·:X+ <;.ROIJ'tliJWATE:R il.l~lTo:t~G \'Vt.~ M!rt.X8 MA.'lHO.r.

i~ I ...--r111 ,_ , ,-' , ' , ' ' ' ' '.

' (' ~~ .,. -·->

--- OO~OAAVOFlA'lO~C/JPAAfA

STREA\i

;; ' " 11

~z.· M~V.11 ~~t~\ " 11"1 I ~JJ{'

" ' ' ' ' ' ' '·

~

p ~~~~- ~ // ·~-._, ~ ..,..,...,.. ' -"-..: ~ ""~: "~"""' _,,., ' / ~ -= _...-/

~·~·t<i

l.1,1 ,:f/

1' I Wcn.A'.t0$ J . ~M2 111 \,, .1.,1ft"IGATX:lN I \

-.1.:' '\\ A.i:trA , ,,..' .... ~fo'J•2~!/I I' \ /~ ' .. , .... ,

~: j 1>\ ... M.'Y-EI', .. .. '~ \,\ ~....... .. ... ,.. ""'"-9 ...... ..

WOC<l<OAA<A~ -~:~ ...... -. .................... ""' ' -~tl.\''•17

":.e.. ,, ,,.. .. ..

'

-·- ~ 1.,' .. , .. .. ........ .. \~ <iP; \ ... ..

.s, '\,\ \\ ............. ... .... ~\ '\ ............ ..

'\, '\ \ \ SEONDITATI~ '','',

MAP 12/BLOCK 2/LOT 11 OWNER: BEACON HEIGHTS COALITION

46.29ACRES ~ \, \~\PCM) ii.ti'.'·»+ .. -:::_ .... ..__ G. '· 1·\\ --..... .......... .. ~ \ .._, ,, .................... ~l!.M'-1l .,, " @? '\ t• '\ !i.1W·l2

_,i._ ~ \ ' ~o '--.::::::----- ,,,.,., .____ ! •W·\4y "\ i W<:TI.A.0$ -0 --···--=::::::, ----- --..._ ) ~\: M<r,,..TK>N -----·· .... ~~.,..~··1,_.._lllt:i;r "-.. v.il:'

1

~ A.Ri"A .r.:l,•D'l 7-'1m1111;m. 14'A. ~i& -~ ~ Ii\\·~ ~ ~~ ,,.2 :.1 \i.:i -II' ,< ~

••• J I! -

i j -

i.£i\ClotATC CQ..l.!Ecncti SYSTCM

PiS.IRatcrtR tHtC11

'" <1AC

i''°6 /{ 104AC ., . ' ,. :• " ',,,, .. \ " ll' ': \ \ M\"J·22_A_ 'I ., \\ ....,,... .... ;1, \\ ----a

1.2!11AC 11··.:.

t.!17.At:. '##~

""'<i:> '""~

j 0 200· '400'

tlfli, 11 ~-- VA :.1. Ji~-- ... ~tACtlATC ~ ~ \ cSif.G.D' SAYPL.!NG :. Um11li-C

STATION ,It-

:: i 8to\CCNH(IGHTS1.Ji,'llDFU .. 1'.to\'P12..aocK2.t.OTl1 i IBEACONfAU.S,CO~ECllCUT

~ ... ~ ~ .. ~

"'

·r'~.,

" ;.~:I ' ::1:

:, ,, )4 ..

;,,,;, ~, .. [,

'"i:!

r7'! ~ii

•,,:; ,..,, · .... ' !"'· ...... :

\

• ,,, CRAPHIC SCA1£

, :: EXHIBITC:MAPOFPARCELSUBJECTTO """' Ji ENVIROHMElfl" AL LAND USE '"' <!;,#. • ._,, RESTRICTION AND GRAlfl" OF EASEMENT ·.,;

~ARCADIS I

1

1~! .. !

; f <

'·1 ·l l

ENVIRONMENTAL LAND USE RESTRICTION

EXHIBIT D

·THIRD-PARTY INTERESTS; SUBORDINATION WAIVER EXPLANATION

EXHIBITD

List of Holders of Third Party Interests in

Tax Parcel Map 12, Block 2, Lot 11

1. Easement to The Southern New England Telephone Company dated December 8, 1927 and recorded in Volume 8, Page 209 of the Beacon Falls Land Records.

Based on the survey of the parcel, this easement does not appear to conflict with the proposed use restrictions and therefor does not require subordination. The basis .for this conclusion is stated in a letter of June 15, 2012 to the United States Environmental Protection Agency ("EPA"). In a letter dated August 13, 2012, EPA, in concurrence with the Connecticut Department of Energy and Environmental Protection, approved of the waiver of subordination. Copies of these letters are attached as Exhibit D-1.

ENVIRONMENTAL LAND USE RESTRICTION

EXHIBIT D-1

SUBORDINATION WAIVER REQUEST AND APPROVAL

PULLMAN ATTORNEYS

June 15, 2012

Via E-Mail: Sun.Joy@epamail.epa.gov

Joy Sun, Esq. Enforcement Counsel U.S. Environmental Protection Agency, Region l Five Post Office Square - Suite l 00 Mail Code: OES04-2 Boston, MA 02109-3912

Re: Beacon Heights, Inc. Superfund Site Institutional Control Plan (September 8, 2011) Subordination Waiver Requests

Dear Joy:

Christopher P. McCormack 850 Main Street P.O. Box 7006 Bridgeport, CT 06601-7006 p 203 330 2016 f 203 576 8888 e-mail: cmccormack@pullcom.com

In connection with the above Institutional Control Plan ("IC Plan"), I am writing to detail efforts to reconcile certain third-party interests with proposed restrictions, identify the few interests for which subordination waivers are requested, and provide information to support the requests.

In the IC Plan, a number of third-paiiy interests were identified based on initial title searches as potentially needing to be subordinated to the proposed Environmental Land Use Restriction and Easement (the "BLUR"). Since the date of the IC Plan, surveys of all the parcels have been performed except for Lot 11 B which is owned by Blackberry Grove, LLC which is an entity unrelated to the Coalition or to Beacon Heights, Inc. We are still seeking the cooperation of that owner as to the preparation of the survey and the final identification of any third party interests not disclosed by the Title Report that may need to be subordinated.

The surveys that have been performed (i.e. those for Parcels 11, 23 and 23A) did not affirmatively eliminate any of the identified third party interests from consideration. However, the surveys provided additional information about those third party interests which we feel support waivers of the subordination requirement. Waivers are hereby being requested for those third party interests. Please be advised that, since the date of the IC Plan, unsuccessful efforts have been made to obtain commitments for subordinations.

The following is a summary (in the parcel order set forth in the IC Plan) of the third-party interests for which waivers of subordinations are being hereby requested.

WWW.PULLCOM.COM J BRIDGEPORT J HARTFORD J STAMFORD I WHITE PLAINS

PULLMAN l)' -~J ]__ ~?

~.rrr)1\A1~ <-;~y:,,. ""<--.> - ..,._,, ~l - - - _JL ,...._I __ \

ATTORNEYS

Page2

1. Appendix I.A.: Tax Map 12, Block 2, Lot 11. One waiver requested.

Exhibit D to IC Plan Appendix I.A. identified one third party interest that might need to be subordinated unless the survey concluded that it did not affect the parcel. Specifically, Exhibit D, Item 7 indicated that Lot 11 might be affected by an easement in favor of Southern New England Telephone Company (hereafter "SNET") dated December 8, 1927 and recorded in Volume 8, Page 209 of the Beacon Falls Land Records. A copy of this easement is provided with this letter. This was an easement granted in 1927 by Oscar Johnson in favor of SNET for the purpose of "erecting a telephone line thereon with the right to maintain one pole and anchor." We believe the original grantor of the easement owned several parcels in the area. The easement description was too vague for the surveyor to plot the easement area with any specificity or to conclude that it did not affect Lot 11. We hereby request a waiver of the subordination of this easement and provide the following facts in suppo1t of that request for waiver:

(a) We have attempted to contact SNET to clarify whether the easement affects the parcel and/or to obtain a commitment from SNET to subordinate to the proposed ELUR. To date these efforts have been unsuccessful and we have not been given any reason to believe that SNET will cooperate in these efforts.

(b) The surveyor has confirmed that there are no improvements on Lot 11 that would be served by the SNET easement. I am providing with this letter a copy of the survey that shows Lot 11 in addition to showing Lots 23 and 23A.

( c) The surveyor found no poles on Tax Parcel 11. As shown on the survey, Lot 11 is an interior lot surrounded by parcels that have direct access to public streets. Accordingly, SNET would have no reason to cross Lot 11 to service adjacent properties. Since there are no improvements on Lot 11 requiring phone service and no need to cross Lot 11 to provide phone service to adjacent properties, there is no reason to expect that SNET would exercise easement rights.

2. Appendix J.B.: Tax Map 12, Block 2, Lot llB. No waiver requested at this time but we may need to make a request in the future.

Lot 11 B is owned by Blackberry Grove, LLC, an entity unrelated to the Beacon Heights Coalition or to Beacon Heights, Inc. We are in negotiations with the owner to seek to obtain their cooperation on the grant of ELUR but as yet that cooperation has not yet been received. A survey of Lot 11 B therefore has not yet been performed. Exhibit D to IC Plan Appendix I.B. identified four third party interests potentially affecting this Lot. The easement in favor of Beacon Heights Coalition described in detail in Exhibit D as Item No. 3 and the easement in favor of The Connecticut Light and Power Company

PULLMAN f:QM-' r::;~,, & '----" - lL_,_, x I ' (

ATTORNEYS

Page3

described in detail in Exhibit D as Item No. 4 are not in conflict with the restrictions proposed to be placed on this parcel under the IC Plan and the IC Plan indicated that the subordinations of these items would not be required. The other two third party interests identified in Exhibit D for Tax Lot JIB were a mortgage in favor of Kevin J. Swan more specifically described in Exhibit D, No. 1 and mortgage in favor of Naugatuck Savings Bank more specifically described as Item No. 2 on Exhibit D. Until we obtain the cooperation of Blackberry Grove, LLC, we cannot determine whether or not the holders of those mortgages will agree to subordinate, so we reserve the right to request a waiver of subordination request in the future.

_ 3. Appendix J.C. Tax Map 12, Block 2, Lot 23. One waiver is requested.

Exhibit D to IC Plan Appendix LC. identified one third party interest that might need to be subordinated. Specifically, Item No. I in Exhibit D identified an easement in favor of The Connecticut Light and Power Company (hereafter "CL&P") dated August 27, 1931 and recorded in Volume 8, Pages 341 through 345 of the Beacon Falls Land Records that might affect the property. A copy of the 1931 easement is provided with this letter, together with a copy of the survey. Please note that the surveyor has specifically shown the location of the CL&P easement which is at the northeast tip of the property at the street line and well outside the fence line enclosing the landfill and nowhere near monitoring wells, leachate collection system components or vent pipes. In light of the location of the easement and with due regard to our unsuccessful efforts to contact CL&P about subordinating to the proposed ELUR, we hereby request waiver of subordination of the CL&P easement. The same easement affects Lot l 1-23A described below.

4. Appendix I.D. Tax Map 12, Block 2, Lot 23A. One waiver requested.

The CL&P easement referenced in paragraph 3 above is the same third party interest that was identified as possibly affecting Lot 23A. For the reasons cited with respect to Lot 23, we hereby request a waiver of subordination of this easement as it relates to Lot 23A.

In summary, for the reasons and to the extent stated above, the Beacon Heights Coalition requests that EPA waive the requirement for subordinations of third-party interests in relation to Tax Parcel Lots 11, 23 and 23A on Tax Map 12, Block 2 with respect to all of the third party interests identified in the IC Plan. Please contact me if you have any questions. Best regards .

. 1stopher P. McCormack

CPM/md Enclosures

ACT!VE/70843. l/CMCCORMACK/2975779v I

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 1-NEW ENGLAND 5 Post Office Square, Suite 100

Boston, MA 02109-3912

August 13, 2012

VIA ELECTRONIC MAIL AND U.S. MAIL

Christopher P. McConnack 850'Maine Street P.O. Box 7006 Bridgeport, CT 06601-7006 cm~onnack@pullcom.com

Re: Beacon Heights Landfill Superfund Site - Institutional Control Plan: Subordination Waiver Request Approvals

Dear Chris,

This letter is a response to Subordination Waiver Requests submitted via your letter to me dated June 15, 2012, in connection with the Beacon Heights Landfill Superfund Site Institutional Control Plan ("IC Plan"). EPA, in concurrence with the Connecticut Department of Energy and Environmental Protection, hereby approves of the following waivers:

1. Waiver of subordination of the easement identified in Appendix I.A. of the IC Plan, in favor of Southern New England Telephone Company dated December 8, 1927, and recorded in Volume 8, Page 209 of the Beacon Falls Land Records, as it affects Tax Map 12, Block 2, Lot 11.

2. Waiver of subordination of the easement identified in Appendix l.C. of the IC Plan, in favor of the Connecticut Light and Power Company ("CL&P") dated August 27, 1931 and recorded in Volume 8, Pages 341 through 345 of the Beacon Falls Land Records, as it affects Tax Map 12, Block 2, Lot 23.

3. Waiver of subordination of the easement identified in Appendix I.C. of the IC Plan, in favor of the CL&P dated August 27, 1931 and recorded in Volume 8, Pages 341 through 345 of the Beacon Falls Land Records, as it affects Tax Map 12, Block 2, Lot 23A.

As a reminder, in accordance with the subordinate deadlines memorialized in the Beacon Heights IC Plan Approval Addendum, a letter to you dated February 15, 2012, you have agreed to submit executed BLUR fonns and supporting documents within 15 days of these approvals.

Please let me know if you have any questions or concerns. Thank you for your continued cooperation.

Sincerely,

Joy Sun EPA Enforcement Counsel

cc: John Kilborn, EPA Senior Enforcement Counsel Leslie Mc Vickar, EPA Remedial Project Manager John Looney, CT Attorney General's Office

91-8

Sheila Gleason, CT Department of Energy and Environmental Protection Peter Hill, CT Department of Energy and Environmental Protection