Notice of AUL 285 Derby St. 9-24-19 REW ENVIRONMENTAL
CONSULTANTS, I-NC. _
September 24, 2019 RECEIVED
Mayor nimbericy Driscoii
SEP 2 6 2019
Salem City Hall CITY OF SALEM
93 Washington Street BOARD OF HEALTH
Salem, Massachusetts 01970
Re: Notice of Activity and Use Limitation (RTN 3-35138)
285 Derby Street, Salem, Massachusetts
Dear Mayor Driscoll:
The purpose of this letter is to inform you that in August 2019, a Notice of Activity and
Use Limitation ("AUL"), a copy of which is appended to this letter, was recorded with
the Essex County Registry of Deeds (Southern District) in Book 37793, Page 534.
The AUL applies and affects the entire parcel at the subject location, assessor's
identification is 34-0440-0. The AUL identifies certain activities and uses which are
inconsistent with maintaining a condition of No Significant Risk at the property. Such
activities and uses are identified in order to prevent exposures to contaminated soil
located beneath impervious surfaces. The AUL also identifies those activities and
uses which are consistent with maintaining a condition of No Significant Risk and
those obligations and conditions necessary to ensure that a condition of No
Significant Risk continues to exist at the property for the foreseeable future.
This notification is being provided pursuant to the MCP, 310 CMR 40.1090 and 310
CMR 40.1403(7)(a). If you have any questions, please contact Mr. Timothy Clarke at
978-745-1020.
Sincerely,
Richard Warren, LSP,
cc: Salem Health Department, Building Code Enforcement Official, Zoning Official,
and Massachusetts Department of Environmental Protection Northeast Regional
Office
Aiw
VA.R.S.
REW ENVIRONMENTAL CONSULTANTS,INC.
MOLD ASSESSING AND REMEDIATION SERVICES,LLC
500 Maple Street,Danvers,Massachusetts
18402 Royal Hammock Blvd.Naples,Florida
(Primary)978-375-7086(Alternative)239-825-4424
v
Iflulonla 1111I�11Al
RECEIVED SO,ESSEX #490 Bk,37793 Pg,534
08128/2019 M 32 NOTC RUL P9 1/12
SEP`2 6 2019
CITY OF SALEM
BOARD OF HEALTH
Form 1075
Note: Pursuant to 310 CMR 40.1074(5),upon transfer of any interest in or a right to use the property
or a portion thereof that is subject to this Notice of Activity and Use Limitation,the Notice of Activity
and Use Limitation shall be incorporated either in full or by reference into all future deeds,easements,
mortgages,leases,licenses,occupancy agreements or any other instrument of transfer.Within 30 days
of so incorporating the Notice of Activity and Use Limitation in a deed that is recorded or registered,a
copy of such deed shall be submitted to the Department of Environmental Protection.
--
NOTICE OF ACTIVITY AND USE LIMITATI.O_N
M.G.L.c.21 E,§6 and 310 CMR 40.0000
Disposal Site Name:285 Derby Street
DEP Release TrackingNo.(s):3-35138
This Notice of Activity and Use Limitation("Notice")is made as of this aj!&y of August,
2019,by South Harbor Holdings,LLC,a Limited Liability Company organized under the laws
of the State of Massachusetts, having its principal office at 281 Derby Street, Salem,together
with successors and assigns(collectively"Owner").
WITNESSETH:
WHEREAS, South Harbor Holdings, LLC is the owner in fee simple of that certain parcel of
land located in Salem, Essex County, Massachusetts with the buildings and improvements
thereon, pursuant to a deed recorded with the South Essex Registry of Deeds in Book 14166,
Page 215;
WHEREAS, said parcel of land, which is more particularly bounded and described in
Exhibit A, attached hereto and made a part hereof("Property") is subject to this Notice of
Activity and Use Limitation. The Property is shown on a plan recorded in the South Essex
Registry of Deeds in Plan Book 6459,Plan 699;
WHEREAS,the Property comprises all of a disposal site as the result of a release of oil and/or
hazardous material.Exhibit B is a sketch plan showing the relationship of the Property subject
to this Notice of Activity and Use Limitation to the boundaries of said disposal site existing
within the limits of the Property and to the extent such boundaries have been established.
Exhibit B is attached hereto and made a part hereof;and
WHEREAS, one or more response actions have been selected for the Disposal Site in
accordance with M.G.L. c.21E("Chapter 21E")and the Massachusetts Contingency Plan,310
CMR 40.0000("MCP"). Said response actions are based upon the restriction of human access
to and contact with oil and/or hazardous material in soil and/or(b) the restriction of certain
activities occurring in, on, through, over or under the Property. A description of the basis for
such restrictions, and the oil and/or hazardous material release event(s) or site history that
resulted in the contaminated media subject to the Notice of Activity and Use Limitation is
attached hereto as Exhibit C and made a part hereof;
1
Form 1075: continued
NOW,THEREFORE,notice is hereby given that the activity and use limitations set forth in this
Notice of Activity and Use Limitation are as follows:
1. Activities and Uses Consistent with Maintaining No Significant Risk Conditions. The
following Activities and Uses are consistent with maintaining a Permanent Solutior and a
condition of No Significant Risk and,as such,may occur on the Property pursuant to 310 CMR
40.0000:
(i) Any commercial,retail,business,manufacturing,and industrial or other use which is not
prohibited by or inconsistent with those allowed under this limitation;
(ii) Restricted residential uses, including condominium and apartment housing, daycare
center or children's nursery, school,playground, or playing field recreational area provided
access to soils is restricted by surface cover consisting of pavement, concrete or the
emplacement of three feet of clean fill;
(iii)The cultivation of fivits and vegetables for human consumption in aboveground
containers or raised beds without the use of soils at the Property;
(iv) Landscaping and routine maintenance of landscaped areas as long as such activities do
not involve excavation of subsurface soils;
(v) Use as an undeveloped(vacant)parcel as long as access to soils is restricted by surface
cover consisting of pavement, concrete or the emplacement of three feet of clean fill,or by
surrounding the Property with a secure fence restricting access to the Property by
surrounding receptors;
(vi) Excavation activities associated with subsurface utility repairs and/or construction work
that are likely to disturb site soil provided that these activities are conducted in accordance
with a Health and Safety Plan and Soil Management Plan;
(vii)Emergency subsurface utility repairs;
(viii) Such other activities or uses that, in the Opinion of a Licensed Site Professional, shall
present no greater risk of harm to health, safety, public welfare or the environment than the
activities and uses set forth in this Paragraph;and
(ix) Such other activities and uses not identified in Paragraph 2 as being Activities and Uses
Inconsistent with maintaining No Significant Risk Conditions.
2. Activities and Uses Inconsistent with Maintainimi No Significant Risk Conditions_. The
following Activities and Uses are inconsistent with maintaining a Permanent Solution and a
condition of No Significant Risk pursuant to 310 CMR 40.0000,and, as such,may not occur on
the Property:
(i)Use of the Property as a single-family residence;
(ii)Use of soils at the Property for agricultural purposes including the cultivation of fruits
and vegetables for human consumption;
(iii)Construction,planned utility repairs,or other invasive activities involving excavation
of subsurface soils without a Soil Management Plan and a Health and Safety Plan
approved by a Licensed Site Professional;
(iv) Excavation or removal of any loam, peat, gravel, sand, rock, or other mineral or
natural resource except as provided in Paragraph l;
2
(v)Removal of pavement, concrete or buildings specified in Exhibit B unless a Licensed
Site Professional Opinion, as required in Paragraph 3 (ii), indicates that such activity is
consistent with maintaining a condition of No Significant Risk;and
(vi)Other activities that result in direct exposure of site workers or visitors to subsurface
soil, unless such exposure is determined to constitute a condition of No Significant Risk
in the Opinion of a Licensed Site Professional.
3. Obligations and Conditions. The following obligations and/or conditions are necessary and
shall be undertaken and/or maintained at the Property to maintain a Permanent Solution and a
condition of No Significant Risk:
(i) Access to soil within the Activity and Use Limitation Area must be restricted
for all receptors other than emergency utility workers;
(ii) Excavation associated with non-emergency utility repairs or longer-term
construction work that will involve the excavation of subsurface soils,significant
modification of buildings or construction of new buildings shall be conducted in
accordance with the applicable performance standards for Permanent Solution
subject to Activity and Use Limitations at 310 CMR 40.1067. In addition, a Soil
Management Plan and a Health and Safety Plan shall be prepared and approved of
by a Licensed Site Professional before such construction activities are initiated,as
provided by Paragraph 2(iii).The Soil Management Plan shall describe appropriate
soil excavation, handling, storage, transport, treatment and/or disposal approaches
in accordance with soil management protocols as approved by the Licensed Site
Professional;
(iii)A Health and Safety Plan shall be prepared by an individual qualified
sufficiently trained in worker health and safety requirements and implemented
before any such construction activities that are likely to disturb oil and/or
hazardous material contaminated soil are initiated,as provided by Paragraph 2(iii).
The Health and Safety Plan should specify the type of personal protective equipment
(PPE), engineering controls, and environmental monitoring necessary to prevent
workers from exposure to OHM-contaminated soils through dermal contact, ingestion,
and/or inhalation. Workers must be informed of the requirements of the Health and
Safety Plan and the Health and Safety Plan must be available on-site throughout the
construction project period;
(iv) If future construction activities are anticipated with building modification,
demolition, soil excavation or new building construction that will alter or disturb the
barriers identified in Paragraph 3(v) below, the provisions of Paragraph 3(ii) and
Paragraph 3(iii)of this Activity and Use Limitation will be followed and a Licensed
Site Professional is required to review the plans for such activities prior to initiation;
(v) The buildings,asphalt pavement,concrete and other impermeable barriers shall be
maintained in the area shown on Exhibit B. These barriers shall be maintained to
prevent exposure to site workers, visitors and trespassers. If impermeable barriers are
removed and not replaced with a similar impervious barrier, emplacement of a cap
consisting of three feet of clean fill is required;and
(vi)As described in Paragraph 2(ii), cultivation of produce for human consumption
shall be restricted to growth in containers or raised beds without the use of soils at the
Property.
3
Form 1075: continued
4. Proi osed Cham,:es in Activities and Uses. Any proposed changes in activities and uses
at the Property which may result in higher levels of exposure to oil and/or hazardous
material than currently exist shall be evaluated by a Licensed Site Professional who shall
render an Opinion, in accordance with 310 CMR 40.1080, as to whether the proposed
changes are inconsistent with maintaining a Permanent Solution and a condition of No
Significant Risk.Any and all requirements set forth in the Opinion to meet the objective of
this Notice shall be satisfied before any such activity or use is commenced.
5. Violation of a Permanent or Tem or--a v Solution. The activities,uses and/or exposures
upon which this Notice is based shall not change at any time to cause a significant risk of
harm to health, safety, public welfare, or the environment or to create substantial hazards
due to exposure to oil and/or hazardous material without the prior evaluation by a Licensed
Site Professional in accordance with 310 CMR 40.1090, and without additional response
actions,if necessary,to maintain a condition of No Significant Risk.
If the activities, uses,and/or exposures upon which this Notice is based change without the
prior evaluation and additional response actions determined to be necessary by a Licensed
Site Professional in accordance with 310 CMR 40.1080, the owner or operator of the
Property subject to this Notice at the time that the activities,uses and/or exposures change,
shall comply with the requirements set forth in 310 CMR 40.0020.
6. Incomoration into Deeds. Mortoages.Leases. and Instruments of Transfer. This Notice
shall be incorporated either in full or by reference into all future deeds, easements,
mortgages, leases, licenses, occupancy agreements or any other instrument of transfer,
whereby an interest in and/or a right to use the Property or a portion thereof is conveyed in
accordance with 310 CMR 40.1074(5).
4
Form 1075: continued
Owner hereby authorizes and consents to the filing and recordation and/or registration of
this Notice, said Notice to become effective when executed under seal by the undersigned
Licensed Site Professional, and recorded and/or registered with the appropriate
Registry(ies)of Deeds and/or Land Registration Office(s).
WITNESS the execution hereof under seal this 204'-eT- day of August,2019.
uth Hai Holdings,L
t V%
aura A.Murphy,Member
COMMONWEALTH OF MASSACHUSETTS
Essex,ss August W,2019
On this�day of August, 2019,before me,the undersigned notary public,personally appeared
Maura A. Murphy, proved to me through satisfactory evidence of identification, which were
llrgmad ib�g��e- to be the person whose name is signed on the preceding or attached
document,and acknov.Fredged to me that(he)(she)signed it voluntarily for its stated purpose.
.mane
(as pmVtr for South Harbor Holdings,LLC,a partnership)
(as _.... for a corporation)
(as attorney in fact for the principal)
(as _ _ (a)(the)
rcral signature and seal of notary)
1� $a GEORGE W. ATKINS, III
Notary Public
COMMONWEALTH OF MASSACHu9ETTS
My Commission Expires
UI) February 20. k026
5
The undersigned Licensed Site Professional hereby certifies that in his Opinion this Notice of
Activity and Use Limitation is consistent with a Permanent Solution and maintaining a
condition of No Significant Risk.
Date:
Q ichard
OF bLq •+
g RICHARD
WARREN
L NO.630x ,
rrE P4�
Licensed Site Pro essro'a SEAL
COMMONWEALTH OF MASSACHUSETTS
Essex,ss August AP ,2019
On this6�ay of August,2019,before me,the undersigned notary public,personally appeared
Richard Warren (name of document signer), proved to me through satisfactory evidence of
identification,which were Drivers License,to be the person whose name is signed on the preceding
or attached document, and acknowledged to me that(he) (she) signed it voluntarily for its stated
purpose.
(as partner for a partnership)
(as for a corporation)
(as attorney in fact for the principal)
[ for (a)(the) ti
ficial signature and seal of notary)
GEORGE W. ATKINS, 111
Notary Public
COMMONWEALTH OF MASSACHUSETTS
Upon recording,return to: My Commission Expires
UT February 20. 2020
South Harbor Holdings,LLC
C/O Timothy Clarke
281 Derby Street,PO Box 829
Salem,Massachusetts 01970
6
EXHIBIT A
LEGAL PROPERTY DESCRIPTION
Ob�18N7 latp�6
fn�tP.8310
QUITCLAIM A88D
I, VONALD J. CLARKS of Salem, EBBOX County, Massachusetts, for
nominal consideration paid,
grant to SOUTH F_M=R HOLDINU9 LLC, a Massachusetts limited
liability company of 261 Dorby Street, P. O. Sox $77, SaleM, Essex
County, Massachusetts,described real estates With QUITCLAIMCOVSxAHTB the following
Tho land on the southerly side of Derby Street in said Salem,
containing about twenty-five thousand tour hundred and fifty-throo
(25,453) square feet of land bounded and described ae follows:
EASTERLY: by land of Almy, Bigelow i Washburn, Inc., two
hundred forty-eight and twenty-sevon hundredths
(248.27) foot,
SOUTHERLY, by the South River, ono hundred ten and Bevan
tonthe (110.7) foot,
WESTERLYr by land now or late of Baldwin, two hundred ten and
eighty-two hundredths (210,02) foot, and
NORTURLY: by said Derby Street one hundred fourteen and eight
hundredths (•114.08) foot.
Doing the same promisee conveyed to me by Harvey E. Lazarus,
individually and as Trustee of Now Derby Strout Realty Trust, by
deed dated April 6, 1988, recorded in Essex South District Registry
of Deeds, Book 9464, Pago 415.
GRANTED PREMISES: 285 Darby Strout, Salem, Massachusetts 01970
HITHESS the execution hereof under seal this 1997. day of Juno,
witnoss 4DOND)'j'. CLr E
Co=onwoalth of Mannachusett6
Essex, an. June la, 1997
Then personally appeared the above named DONALD J. CLARKE and
acknowledged his execution of the foregoing to be his free act and
deed, before me,
Notary Pub lc
My commission expire$: oZ0-.-10a0
EXHIBIT B
Sketch Plan Illustration
Boundaries of the Property Subject to Activity and Use Limitations
Boundary of AUL
(Entire Property as Described by Exhibit A)
286 Derby Street
Derby Street
00 i . , '281
I
I �
C ,
` Site ,
(Otherwise cited as the 213
Property)
285
� r
W�a.,��`.•-ate,.r-"'r=w=;
South River.
k
I
EXHIBIT C
LSP Opinion
285 Derby Street
Salem,Massachusetts 01970
Purpose
On behalf of South Harbor Holdings, LLC, owner of property situated at 285 Derby Street in
Salem,this Activity and Use Limitation(AUL)Opinion has been prepared by Richard Warren,
Licensed Site Professional (LSP 6501) of REW Environmental Consultants, Inc. This AUL
Opinion is applicable to the Property as defined and further described in the Notice of ALL
Form 1075 to which this Exhibit C is attached.
Property and Disposal Site Description
The subject site is somewhat rectangular shaped, physically situated at 285 Derby Street in the
City of Salem,consisting of approximately 0.58 acres(or 25,264 square feet)of land. Storm water
is controlled naturally and via city controlled and managed storm drains.
The site is improved with a single story, steel framed and brick fagade structure-built slab-on-
grade. The overall footprint is approximately 16,173 sf and occupies approximately 64% of site
land.The structure was built about 1915.
The unimproved portion of land lies east of the structure and is used for parking and occupant
deliveries. The surface area consists primarily of concrete and asphalt.
Bordering east is a similar building of near similar proportions and construction. Bordering west
is vacant land owned by the City of Salem.Use is for limited parking and as a public park. Derby
Street borders the site to the north beyond which there are several commercial buildings.Bordering
south is the South River.
The site is principally located in a commercial settlement. Zoning is Business (B5). Site access is
direct from Derby Street and is relatively flat.
A Phase I Environmental Site Assessment (ESA) identified past use as an automotive sales and
service center since from 1920 to 1976. Sales of leather products and other miscellaneous uses are
reported for the 1980's, 1990's and to the present.
Historic Fill material was used to reclaim land at the Property. The Property is currently
developed with multiple tenants.
Release History
The property was previously listed with the MassDEP under two separate Release Tracking
Numbers (RTNs 3-1359 and 3-13216). Both RTNs were associated with releases of fuel oil
identified within the southeastern portion of the Site.
Remedial activities were performed to remove impacted soil and groundwater from the release
areas. Response Action Outcome Statements (RAOs) were submitted for each RTN. The RAOs
rely on an AUL, which restricts use of the southeastern portion of the Site (see MassDEP Waste
Site& Reportable Releases Information). An amendment to the AUL was filed and recorded on
September 5, 2002.
Specifically, the AUL permits commercial and industrial uses of the site provided the asphalt
pavement, concrete and tiled floor in the AUL area are maintained. Conversely,the AUL restricts
activities which may damage the asphalt pavement,concrete and tiled floor in the area and requires
upkeep of the pavement, concrete and tiled floor; no removal of soil from the area unless done
under approval from a Licensed Site Professional (LSP), or use of the property as a residence,
school,day care facility, and/or other use where children are likely to be present.
Other than the placement of an overlapping AUL under RTN 3-35138, there is no further
relationship with RTNs 3-1359 and 3-13216. Given the overall application of the new AUL, it can
be interpreted that RTNs 3-1359 and 3-13216 are somewhat subordinate
Disposal Site Boundary
Based upon the historical placement of fill material at the Property,distribution of OHM levels
in Disposal Site soils varies. Because of the this, the Disposal Site comprises the entire
property as described in Exhibit A and illustrated in Exhibit B of this Notice of AUL. This
AUL applies to the entire Disposal Site (i.e., the entire property).
Current and Proposed Future Use
The property is currently a commercial facility occupied with multiple tenants.The reasonably
anticipated future use of the property is continued use as commercial retail and storage. The
potential exists that the property can be developed in the future for other commercial and/or
restricted residential uses. Provisions of this Notice of AUL prohibit development of the
property for single family residential use and prohibit the use of soils at the Property for the
cultivation of fruits or vegetables for human consumption. However, development of the
property for restricted residential, day care or children's nursery, school, playground, or
playing field recreational area uses is permitted provided access to soils is restricted by surface
cover consisting of concrete and pavement or three feet of clean fill. Cultivation of fruits or
vegetables for human consumption is permitted if such cultivation is in raised beds or containers
containing soil not obtained from the property. Restricted residential use is differentiated from
single family residential use because restricted residential uses, for the purposes of this AUL,are
defined as those uses such as a condominium or apartment building whereby a future owner(s) is
an entity that has legal and operation control of the property, is bound by the provisions of this
AUL, and has authority and capacity to enforce this AUL such that a condition of No Significant
Risk is maintained under any future uses of the Property. If restricted residential use or
development as a day care or children's nursery, school, playground, or playing field recreational
area is proposed,an LSP will render an opinion based upon the specific development plans without
requiring an AULAmendment.
Risk Characterization
The results of a Method 3 Risk Characterization performed for the Disposal Site concluded that a
condition of No Significant Risk of harm to human health, safety, public welfare and the
environment, as defined in the MCP, has been achieved provided an AUL is recorded for the
Property to restrict use. A condition of No Significant Risk will be maintained provided the
permitted and prohibited activities and uses and obligations set forth in this Ngtice f,�AUL that
precede this LSP Opinion are complied with. �NoFs�4�
J! RIGHARD
iiyAgIREN
N0.6501
c and Warren
f' W Environmental Consultants, Inc.
Danvers,Massachusetts 01923 LSP SEAL