Final_LUCIP_051611.pdf

B3853900.31

LAND USE CONTROL IMPLEMENTATION PLAN

GRANT HOUSING AREA AND 37-mm IMPACT AREA

FORMER FORT DEVENS ARMY INSTALLATION

DEVENS, MASSACHUSETTS

PREPARED BY:

Army Base Realignment and Closure Division U.S. Army Garrison Fort Devens

May 2011

TABLE OF CONTENTS

Section Pages

1.0 Introduction and Purpose

1.1 Site Background

1.2 Definition of Land Use Controls

1.3 Land Affected

2.0 Land Use Controls for Grant HA

3.0 Land Use Controls for the Impact Area

4.0 LUC Responsibilities

5.0 Implementation Actions

5.1 Distribution of LUCIP

5.2 Deed Notices and Educational Materials

5.3 Construction of Barriers and Signage

5.4 Reviews

5.5 Reporting

6.0 LUC Changes

7.0 Enforcement

8.0 Duration of LUCs

9.0 Approvals; Notices

9.1 Approvals

9.2 Notices

1.0 Introduction and Purpose

This Land Use Control Implementation Plan (LUCIP) is implemented pursuant to the Record of

Decision dated September 2009 (ROD) signed by the United States Department of the Army

(Army) and the United States Environmental Protection Agency (EPA). The ROD selected Land

Use Controls (LUCs) as the remedy for two portions of the Former Fort Devens Army

Installation (now Devens, Massachusetts). The two areas are known as Grant Housing Area

(Grant HA) and the 37-millimeter Impact Area (Impact Area). This LUCIP describes the plan for implementation of LUCs at the Grant HA and the Impact Area. The Grant HA and the

Impact Area are sometimes collectively referred to as the “Property”.

1.1 Site Background

Between 1917 and the 1930s, the Grant HA and the Impact Area were used by the Army as a firing range. From the early 1960s until the closure of Fort Devens in March 1996, the Grant HA was used for military housing purposes. Figure 1 depicts the Grant HA with a narrative description. Figure 2 depicts the Impact Area. Figure 3 shows the two areas in relation to

Devens as a whole. Figure 4 shows the two areas in relation to each other.

The Grant HA and Impact Area were conveyed to the predecessor of the current site owner, the

Massachusetts Development Finance Agency (MassDevelopment), pursuant to two deeds from the Army, one in 1996 and one in 2003. Both deeds indicate that, as a result of historic operations of the Grant HA and Impact Area as an active military installation, there exists a possibility that unexploded ordnance (UXO) may exist. The deeds further state that based on a comprehensive records search and statistical and physical testing, the Army does not believe that

UXO is present on the Property.

In preparation for the development of the Grant HA for new residential construction, the Army, under the oversight of EPA and with the review and comment of the Massachusetts Department of Environmental Protection (DEP) began an investigation of the Property to identify and address an array of possible contaminants, including UXO and other munitions and explosives of concern (MEC), at the Property. As a result of a voluntary effort to accelerate the redevelopment of the Property for residential use, MassDevelopment contracted with a private company to investigate and, as necessary, remediate UXO and other MEC at the Property.

MassDevelopment’s contractor performed digital geophysical mapping and UXO removal at the

Property, reviewed the reports, studies, maps, and other materials generated by the Army and/or its contractors with respect to UXO and other MEC at the Property, and conducted extensive field investigations and removal. Details and conclusions from those investigations and removal actions are contained in the reports listed in Exhibit A hereto (Reports), including a Focused

Feasibility Study (FFS) commissioned by the Army under the supervision of the EPA and the

ROD. The Reports are available for review at the New England regional office of the EPA, the

Army (BRAC Office, Devens), DEP, and the public libraries for the Town of Ayer, Massachusetts, the Town of Harvard, Massachusetts, and the Town of Shirley, Massachusetts.

Pursuant to the FFS, the Army under the supervision of the EPA and with the involvement of

DEP assessed the potential likelihood that UXO and other MEC is on the Property in light of the previous investigation and removal actions, and evaluated various additional remedial alternatives to protect the public, including residents and workers, from any potential UXO and other MEC on the Property. The various alternatives that were evaluated and the selected remedy are described in the ROD. The ROD reached the following conclusions: (a) the investigation and removal actions have occurred using the best available technology; (b) while not 100% conclusive, these efforts have removed all identified UXO from the top 18 inches of soil throughout the Grant HA and the Impact Area and to greater depths within the Impact Area;

(c) UXO in the Grant HA is unlikely at depths greater than 18 inches due to the angle of penetration of projectiles into the ground surface along the range, the effect of local soil composition (i.e., sand and gravel deposits) on limiting penetration depths, and up to 90 years for frost heaves to have brought items to the surface; (d) UXO in the Impact Area may be buried at depths deeper than the frost line, but that any potential associated with frost heaves bringing

UXO to the surface is considered minimal; (e) the probability of encountering UXO in the Grant

HA is low; (f) although there remains a risk of exposure to remnant UXO with an explosive safety hazard, the remaining hazard of encountering UXO in the Grant HA or the Impact Area would be primarily associated with construction work during future development (e.g., utility or foundation installation or other deeper excavation activities); and (g) the implementation of

LUCs is the appropriate remedy to provide additional protection to residents and workers in the event that they encounter UXO at the Property.

Although the ROD left the details of the LUCs to this LUCIP, LUCs for the Grant HA require the following affirmative measures:

Affirmative measures to include public education via ongoing periodic distribution of educational materials and development of a web-based visual and audio media.

Education and outreach materials will be distributed to property owners, residents, as well as any construction and/or utility contractors conducting ground intrusive activities on the property. The intent is to provide education to current residents, including tenants and owners, potential residents, the public and construction/utility contractors of the potential presence of UXO, how to identify UXO, and what actions to take if suspect UXO is encountered.

Deed Notice: MassDevelopment will insert a Deed Notice into any deeds in which MassDevelopment conveys property located in the GHA. Then all subsequent deeds conveying property (no matter who conveys) will be required to convey in full the Deed Notice. The notice will provide a source of additional information on UXO investigations and removal actions conducted at the Grant HA, the conclusion of the ROD that the property with the LUCs is suitable for the proposed future use, that there is no evidence of additional UXO present at the site, but that the possibility does remain that UXO could be discovered in the future.

The intent of these measures is to educate current residents, including tenants and owners, potential residents, the public and construction contractors to the potential presence of UXO, locations where UXO are more likely to be encountered, how to identify UXO, how to minimize the potential of encountering UXO, and what actions to take if suspect UXO is encountered. The

ROD further concludes that, subject to compliance with the LUCs, the Grant HA is suitable for unrestricted future use, including use for residential purposes.

For the Impact Area, LUCs are addressed through the following institutional controls, access restrictions, affirmative measures, and prohibitive directives:

Institutional controls are to be implemented through a Grant of Environmental Restrictions and Easements (GERE).

Access controls to include the use of signage and either fencing and/or vegetative barrier to restrict public access to the area.

Affirmative measures to include public education via ongoing periodic distribution of educational materials, development of a web-based visual and audio media, and signage at the site. Education and outreach materials will be distributed to affected public and construction and/or utility contractors. The intent is to provide ongoing education to the public and construction contractors of the potential presence of UXO, how to identify UXO, and what actions to take if suspect UXO is encountered.

Prohibitive directives to include restrictions on all ground intrusive activities.

Annual site inspections of the site to evaluate access controls, monitor for the presence of surficial and near surface UXO, and evaluate the overall effectiveness of the LUCs.

1.2 Definition of Land Use Controls

Land Use Controls in regard to real property are broadly interpreted to mean:

any restriction or control, arising from the need to protect human health and the environment, that limits use of and/or exposure to any portion of that property, including water resources. This term encompasses ‘institutional controls,’ such as those involving real estate interests, governmental permitting, zoning, public advisories, deed notices, and other ‘legal’ restrictions. The term may also include restrictions on access, whether achieved by means of engineered barriers such as a fence or concrete pad, or by ‘human’ means, such as the presence of security guards. Additionally, the term may involve both affirmative measures to achieve the desired restriction (e.g., night lighting of an area) and prohibitive directives (e.g., no drilling of drinking water wells).1

The LUCs for a property will provide a blueprint for how the property should be used in order to maintain the level of protection intended by the remedial alternative.

1.3 Land Affected

A plan and narrative description of the Grant HA is included as Figure 1. A plan of the Impact

Area is included as Figure 2. A plan showing the Grant HA and Impact Area in relation to

Devens is included as Figure 3, and a plan showing the Grant HA and Impact Area in relation to one another is included as Figure 4.

2.0 Land Use Controls for Grant HA

Land Use Controls at the Grant HA are addressed through the following affirmative measures:

1 Memorandum - Land Use Control Policy, April 13, 1998, SUBJECT: Assuring Land Use Controls at Federal Facilities FROM: Jon D. Johnston, Chief, Federal Facilities Branch www.epa.gov/region4/waste/fedfac/landusec.htm.

a. Deed Notice b.

. MassDevelopment, the current owner of the Grant HA, has agreed to insert a Supplemental Deed Notice into any deeds by which MassDevelopment conveys all or part of the property located in the Grant HA. The deed notice will require that the grantors of all subsequent instruments conveying an interest in the property be required to insert the deed notice in such subsequent instruments. A copy of the draft Supplemental Deed Notice is attached to this LUCIP as Exhibit B.

Ongoing Distribution of Educational Materials

1) The Army will cause the operator of the electric utilities at Devens to include, at least annually, an educational insert in electric utility bill mailings to occupants of the Grant HA who receive an electric bill. The insert will also be included in the first bills to any new customer resident in the Grant HA. In addition, within thirty (30) days after issuance of the first building permit for a residential dwelling in the Grant HA, the Army will cause the insert to be posted in an 11” x 17” permanent laminated format on a kiosk or a community bulletin board located in a central public space at the Grant HA (or, if a central public space does not yet exist, the kiosk or bulletin board shall be located in the area where the construction activity is occurring in Grant HA, provided that the Army shall relocate such kiosk or bulletin board once a central public space has been created). The insert, and postings on any such kiosk or bulletin board, will identify the historical military use of Devens, the potential presence of UXO, locations where UXO are more likely to be encountered (Impact Area vs. Grant HA), how to identify UXO, how to minimize the potential of encountering UXO, what actions to take if suspect UXO is encountered and opportunities for further education (including websites and training). A sample narrative of the insert is attached to this LUCIP as Exhibit C.

2) The Army will cause educational information to be displayed on a community website regarding the historical military use of Devens, the likelihood of remaining UXO, locations where UXO are more likely to be encountered (Impact Area vs. Grant HA), how to identify UXO, how to minimize the potential of encountering UXO, and what actions to take if suspect UXO is encountered. A sample list of educational materials is attached to this LUCIP as Exhibit D.

3) Land use controls related information in the insert and on the websites may be updated from time to time to reflect new developments or changes in information. Changes in substantive content will be submitted for approval by the Army (or its designee) to the EPA, DEP, Army (if submitted by its designee), MassDevelopment and the Devens Enterprise Commission (DEC) at least 30 days in advance. No notification will be required to fix typographical or grammatical errors or administrative data that do not change the meaning of the information provided.

c.

1) The Army (or its designee) will distribute to all construction and/or utility personnel at the time of application for a building permit a current copy of the Devens Soils Management Policy containing a protocol and procedures to follow if UXO is found or suspected. A copy of the current Devens Soils Management Policy is attached to this LUCIP as Exhibit E.

Construction Activities

2) In addition, all construction and utility personnel intending to conduct ground intrusive activities within the Grant HA that require a building permit shall, prior to commencing such activities, be required to attend an awareness briefing conducted by the Army (or its designee) designed to instruct personnel how to visually recognize UXO and the steps to follow should suspect UXO be encountered. The awareness briefings are currently conducted by the Devens Fire Department. This awareness briefing will also be made available to any occupant of the Grant HA who requests it.

3) Both the Devens Soils Management Policy and the awareness briefing may be updated from time to time to reflect new developments or changes in information. Changes in substantive content will be submitted for approval to the EPA, DEP, MassDevelopment, DEC (or successor municipal authority) and the Army at least 30 days in advance. No notification will be required to fix typographical or grammatical errors or administrative data that do not change the meaning of the information provided.

The intent of the LUCs for the Grant HA is to educate residents, including tenants and owners, potential residents, the public and construction contractors to the potential presence of UXO, locations where UXO are more likely to be encountered, how to identify UXO, how to minimize the potential of encountering UXO, and what actions to take if suspect UXO is encountered.

3.0 Land Use Controls for the Impact Area

For the Impact Area, LUCs are addressed through the following institutional controls, access restrictions, affirmative measures, and prohibitive directives:

a. Institutional Controls.

MassDevelopment, as the current owner of the Impact Area, has agreed to grant to the DEP a GERE in the form attached to this LUCIP as Exhibit F. The GERE includes restrictions on public access to, and ground intrusive activities within, the Impact Area. The GERE will be finalized and recorded as soon as practicable after this LUCIP is approved, and a copy of the recorded GERE will be submitted to EPA and DEP prior to any subsequent transfer of the Impact Area.

b. Ongoing Distribution of Educational Materials c.

. The Army (or its designee) will maintain educational information on a community website regarding the historical military use of Devens, the potential presence of UXO, locations where UXO are more likely to be encountered (Impact Area vs. Grant HA), how to identify UXO, how to minimize the potential of encountering UXO, and what actions to take if suspect UXO is encountered. A sample list of educational materials is attached to this LUCIP as Exhibit D.

Access controls d.

. The Army, in consultation with MassDevelopment (or successor owner of the Impact Area), will (i) install and maintain a fence around the perimeter of the Impact Area to restrict public access, and (ii) install and maintain a vegetative barrier to screen the fence and which at maturity will provide an approximate ten (10) foot clear area in front of the fence. The fence shall consist of a six (6) foot high, black-clad chain link fence without barb wire. The vegetative barrier shall consist of dense evergreen shrubs or similar plantings appropriate for location including the climate, topography, soil condition and exposure to sunlight. No changes shall be made to the fence or vegetative barrier, (1) which are not appropriate for a residential area; and (2) without first consulting MassDevelopment (or the successor owner of the Impact Area).

Signage e.

. The Army, in consultation with MassDevelopment (or successor owner of the Impact Area) will install and maintain signage on the fencing described in clause c., above. The signage shall state “No Trespassing – Impact Area”, shall have dimensions of approximately 12 inches by 18 inches, and shall be placed at eye level at 50 foot intervals on the exterior side of such fencing. No changes shall be made to the signage without first consulting MassDevelopment (or the successor owner of the Impact Area).

Ground Intrusive Activities

The intent of the LUCs for the Impact Area is to minimize the potential that the public will come into contact with UXO, to educate the public about the potential presence of UXO, and to

. The GERE prohibits ground intrusive activities in the Impact Area. There are three exceptions to this prohibition: (a) surface inspections with removal of identified UXO; (b) installation and maintenance of fence, vegetation and signage; and (c) emergency excavation, which can include excavation required to respond to an emergency, including repairing/replacing existing utility lines.

Emergency excavation must be made pursuant to a pre-approved emergency excavation plan which may be obtained from the Devens Fire Department. In addition, all personnel permitted to conduct ground intrusive activities within the Impact Area shall, prior to commencing such activities, be required to attend an awareness briefing by the Army (or its designee) designed to instruct personnel how to visually recognize UXO and the steps to follow should suspect UXO be encountered. These materials and awareness training can be identical to the training for the Grant HA.

educate personnel working in the Impact Area as to the potential presence of UXO, how to identify UXO, and what actions to take if suspect UXO is encountered.

4.0 LUC Responsibilities

The Army is responsible for implementing, maintaining, and reporting on the LUCs. Although the Army may now or in the future delegate some or all of its duties as indicated in this LUCIP through a third party by contract or through other means, the Army shall retain ultimate responsibility for the remedy integrity. It is anticipated that MassDevelopment, the DEC, or their successors will perform some of the duties required under this LUCIP, but this effort is, and shall at all times be, voluntary. Should MassDevelopment, the DEC, or their successors cease performing these duties, the Army shall implement the LUCs or propose modifications to this

LUCIP that provide an equivalent level of protection as determined by EPA and DEP, in consultation with MassDevelopment or its successor municipal authority.

5.0 Implementation Actions

Upon concurrence in this LUCIP by EPA and DEP in accordance with their respective legal authorities, the Army will undertake implementation actions to confirm compliance with LUC objectives. The Army will notify the EPA and DEP of any changes in LUC management responsibility.

The following LUC implementation actions will be undertaken by the Army to ensure that the

LUC objectives are met and maintained.

5.1 Distribution of LUCIP

Within 30 days of receiving EPA approval and DEP concurrence of this LUCIP, in accordance with their respective legal authorities, the Army will undertake the following specific actions:

• Send a copy of this LUCIP to the Town of Ayer, Massachusetts for its records;

• Send a copy of this LUCIP to the Town of Harvard, Massachusetts for its records;

• Send a copy of this LUCIP to the Town of Shirley, Massachusetts for its records;

• Send a copy of this LUCIP to the DEC for its records;

• Send a copy of this LUCIP to MassDevelopment to be kept in its files at 33 Andrews

Parkway; and

• Place a copy of this LUCIP in the central Army repository and the public libraries for the Towns of Ayer, Harvard, and Shirley, Massachusetts.

5.2 Deed Notices and Educational Materials

The Army shall do the following:

The Army (or its designee) will verify that the Supplemental Deed Notice is included in all future deeds conveying interests in the Grant HA.

The Army will cause the Devens Fire Department to continue to provide contractor awareness briefings (and to make such briefings available to any occupant of the Grant HA who requests a briefing), until such time as the Devens Fire Department shall elect to discontinue the same, in which event, the Army shall arrange for suitable alternative briefing. The Army will verify and ensure that these briefings continue beginning when this LUCIP is finalized.

The Army (or its designee), in consultation with MassDevelopment (or the successor utility provider), will develop a draft of the electric bill insert by the date noted in Exhibit H, LUC

Implementation Schedule, which insert shall be based upon the narrative attached to this LUCIP as Exhibit C and include photographs of typical UXO.

The Army (or its designee), in consultation with MassDevelopment and the DEC, will complete development of the webpages to host the supplemental educational materials by the date indicated in Exhibit H, LUC Implementation Schedule. The materials shall include those materials listed on Exhibit D.

5.3 Construction of Barriers and Signage

Signage, fencing and barriers will be constructed on the schedule set forth in Exhibit H of this

LUCIP. Construction activities will be performed so as to not disturb residents and occupants of neighboring areas.

5.4 Reviews

The Army (or its designee) will conduct annual reviews to confirm the overall effectiveness of, and compliance with the established LUCs in the Grant HA and the Impact Area. Such annual review shall include interviews with personnel of MassDevelopment and DEC (or successor municipal authority) as to the discovery, reporting and disposal of UXO in the Grant HA and the

Impact during the prior year. In addition, the annual review with respect to the Impact Area will include a physical inspection to evaluate access controls (including integrity of fencing, condition of signage and vegetation, and visual evidence of unauthorized access) and monitor for the presence of surface and near surface UXO. Such UXO monitoring within the Impact Area will involve a meandering path survey utilizing typical instrument and field procedures of a

“mag and flag” approach. The main objective for performing this UXO monitoring is to ensure that any MEC that may still be present in the subsurface does not come to the surface via frost heave action and/or erosion. The reviews shall also include interviews with MassDevelopment

(or the then current owner of the Impact Area) to determine if any utility repair or emergency work was conducted in the Impact Area during the prior year. The annual review of the LUCs at

Grant HA shall include verification that the website, utility bill inserts, UXO awareness training, inclusion of the Supplemental Deed Notice in deeds conveying the Grant HA (or portions thereof) and other requirements set forth in this LUCIP are being properly implemented. If deemed necessary, the annual review of the LUCs at the Grant HA may also include a physical inspection. The Army shall utilize the checklist attached to this LUCIP as Exhibit G in the course of conducting its annual review. MassDevelopment will have an opportunity to review and comment on each annual review prior to submission as set forth in Section 5.5 below.

Furthermore, a review/inspection of the effectiveness of the LUCs will also be conducted by the

Army, with the cooperation of MassDevelopment and the DEC, as part of the Comprehensive

Five-Year review process conducted at Devens under Section 121 of CERCLA, as amended by

SARA of 1986. Public meetings will be held by the Army coincident with these five-year reviews to help keep the public informed of site status, including its general condition, presence of UXO, and effectiveness of the remedial action.

5.5 Reporting and Notification

An annual LUC compliance report will be provided by the Army to EPA, DEP, MassDevelopment and the DEC. If any deficiency(ies) should be found during the annual inspection, a written explanation will be prepared indicating the deficiency and what efforts or measures have or will be undertaken to correct the deficiency and a schedule to correct the same.

The correction and enforcement of such deficiencies shall follow the requirements under Section

7.0 Enforcement. If there is to be a delegation of performance of duties by the Army as permitted by Section 4.0 above, the Army will promptly notify EPA, DEP, MassDevelopment and DEC of such delegation.

Annual reports will be submitted by the Army to the Base Realignment and Closure (BRAC) distribution list, which includes EPA, DEP, MassDevelopment, the DEC, and the Towns of

Ayer, Harvard, and Shirley, Massachusetts. A link to the annual report will be provided on the community website described in Sections 2.0 and 3.0 above. The annual report will include a summary of the review and any physical site inspections, identification of deviations from this

LUCIP, corrective actions necessary due to implementation issues or as a result of changes in site conditions or land use, and proposed changes to inspection and reporting frequency. The annual report will also include a summary of any UXO discovered during the reporting period

(including the location of discovered UXO, the type of UXO (if known) and information on the activity conducted that led to the find and the name and affiliation of the individual that reported the discovery), as well as safety procedures followed and the ultimate disposition of any such discovered UXO. The annual report will also address whether the use restrictions and controls referenced in this LUCIP were communicated in the deed(s) and other legal instruments, whether the owners and state and local agencies were notified of the use restrictions and controls affecting the Grant HA and Impact Area, and whether use of these areas has conformed to such restrictions and controls.

In the event that UXO is discovered (by intrusive construction activity or other encounter) within an area addressed by this LUCIP and is reported to the Army or its designee (e.g., currently

Devens Emergency Dispatch Center.) The Army will then implement the following actions:

• Provide notification of the discovery of UXO to the agencies listed in Section 9.2.

• Determine whether local emergency responders (e.g., Devens Fire Department and

Massachusetts State Police (Bomb Squad)) will address the UXO discovery by removal or destruction.

• If the local emergency responders do not address the UXO, the Army will deploy an

Explosive Ordnance Disposal (EOD) Unit be to remove or destroy the UXO.

6.0 LUC Changes

The Army shall not modify or terminate Land Use Controls, implementation actions, or modify restrictions regarding land use without approval by EPA and the MassDEP and the concurrence of MassDevelopment and the DEC (or successor municipal authority); provided that Army determines, in its sole discretion, that the requirement for such concurrence shall not place the

Army in violation of its legal obligations to the EPA. The Army shall seek prior concurrence before any anticipated action that may disrupt the effectiveness of the LUCs or any action that may alter or negate the need for LUCs. This LUCIP may be amended only in accordance with

Section VII of the Federal Facilities Agreement (FFA). No changes shall be made without the prior approval of EPA and DEP, and the concurrence of MassDevelopment and the DEC (or successor municipal authority); provided that Army determines, in its sole discretion, that the requirement for such concurrence shall not place the Army in violation of its legal obligations to the EPA. In the latter case, Army shall take reasonable steps to consult with MassDevelopment and the DEC (or successor municipal authority) to minimize the impacts of the changes to these parties.

7.0 Enforcement

Should the LUCs reflected in this LUCIP cease to provide an appropriate level of protection, the

Army shall propose modifications through an Explanation of Significant Differences (ESD) or a

ROD amendment. If the Army determines that the LUCs are not being complied with, its actions may range from informal resolutions with the owner or violator, to the institution of judicial action. Any activity that is inconsistent with the LUC objectives or use restrictions, or any other action that may interfere with the effectiveness of the LUCs will be addressed by the Army as soon as practicable, but in no case will the process be initiated later than 10 days after the Army becomes aware of the breach. The Army will notify EPA and MassDEP as soon a practicable but no longer as ten days after discovery of any activity that is inconsistent with the LUC objectives or use restrictions, or any other action that may interfere with the effectiveness of the

ICs. The Army will notify EPA and MassDEP regarding how the Army has addressed or will address the breach within 10 days of sending EPA and MassDEP notification of the breach.

Should the Army become aware that a user of the Grant HA or Impact Area has violated any

LUC requirement where a local agency may have independent jurisdiction (local regulations and permits), the Army will also notify the agencies and MassDevelopment of such violations and work cooperatively with them to re-establish owner/user compliance with the LUC. Without limiting the authority of the EPA and DEP under applicable law, DEP shall have the authority to enforce the GERE against the then current owner of the Impact Area.

8.0 Duration of LUCs

LUCs will be maintained until such time that the hazard associated with potential remnant UXO in the soil is at levels to allow for unrestricted use and exposure without the use of LUCs. If

LUCs relating to the GERE or Supplemental Deed Notice are no longer needed, as determined in an ESD or ROD amendment, DEP and MassDevelopment may provide to the owner releases for recordation with the deed (if applicable) pertaining to their property and will also advise the

DEC (or successor municipal authority) of that action. At that time, land use controls and associated responsibilities contained in the Supplemental Deed Notice and GERE will be discontinued. In addition, the then current owner of the affected property may also apply to the

Army for removal or modification of the deed restrictions contained in the quitclaim deeds referred to in Section 1.1.

9.0 Approvals; Notices

9.1 Approvals.

Changes to the LUCIP can only be approved through the process set forth in Section 6.0. Where the approval of a party (hereafter, the “approval party”) is required under this LUCIP for non-substantive changes that may be made without amendment of this LUCIP as provided herein, the

Army (or its designee) shall give the approval party notice thereof, along with any information to be included in such notice pursuant to the terms of this LUCIP. If the approval party fails to respond to the request for approval within thirty (30) days after said request is made, the Army

(or its designee) will send the approval party a second request. If the approval party fails to respond to such second request within ten (10) days after said second request is made, the approval party will be deemed to have approved such request.

9.2 Notices.

All notices, responses, requests, approvals and other communications required or permitted under this LUCIP between or among MassDevelopment, DEC, EPA, DEP and/or the Army shall be in writing and shall be sent by postage pre-paid certified or registered mail (return receipt requested) or by recognized overnight courier (such as DHL, Federal Express, UPS), with delivery charges prepaid, to the following respective addresses:

If to MassDevelopment:

Massachusetts Development Finance Agency, 160 Federal Street, Boston, MA 02110, Attn:

President & CEO with copies to:

Massachusetts Development Finance Agency, 33 Andrews Parkway, Devens, Massachusetts 01434, Attn: EVP, Devens Operations and

Massachusetts Development Finance Agency, 160 Federal Street, Boston, MA 02110, Attn: EVP Real Estate and

Massachusetts Development Finance Agency, 160 Federal Street, Boston, MA 02110, Attn:

General Counsel

If to the DEC:

Devens Enterprise Commission, 33 Andrews Parkway, Devens, Massachusetts 01434, Attn: Land Use Administrator/Director

If to the Army:

Department of the Army, Fort Devens, BRAC Division, 30 Quebec Street, Room 100, Devens, MA 01432-4479, Attn: BRAC Environmental Coordinator

If to EPA:

U.S. Environmental Protection Agency, Region I, 5 Post Office Square, Federal Facilities Superfund Section, Suite 100 (HBT), Mail Code OSRR07-3, Boston, MA 02109-3912, Attn:

Remedial Project Manager

If to DEP:

Massachusetts Department of Environmental Protection, Bureau of Waste Site Cleanup, One Winter Street, Boston, MA 02108, Attn: Superfund Federal Facilities, Section Chief

A party may change its address for notice by notice to the other parties in accordance with this

Section. Notices shall be deemed given when delivered (or, if delivery is refused, when so refused).

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Figures

Figure 1: Plan and narrative description of Grant HA

Figure 2: Plan of Impact Area

Figure 3: Grant HA and Impact Area in relation to Devens as a whole

Figure 4: Plan of Grant HA and Impact Area in relation to each another

Exhibits

Exhibit A: Reports relating to presence, assessment, and removal of UXO at the Grant HA and Impact Area

Exhibit B: Supplemental Deed Notice for Grant HA

Exhibit C: Sample Narrative for Insert for Periodic Inclusion in Utility Bills for future residents of Grant HA

Exhibit D: Sample List of Educational Materials for community website

Exhibit E: Current Devens Soils Management Policy

Exhibit F: Draft Grant of Environmental Restriction and Easement (GERE)

Exhibit G: Checklist for Annual Review

Exhibit H: Land Use Control Implementation Schedule

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Figure 1

Plan of Grant HA

Description of Grant HA

A certain parcel of land located within the Devens Enterprise Zone known as the Residential I Zone. The parcel is an irregular shaped parcel located west of Antietam Street and south of West Main Street. The parcel is more particularly described as follows:

Beginning at a point located at the northeast corner of Parcel 6. Said point is located at the centerline of Antietam Street, about 60’ more or less westerly of Balls Bluff Street. Said point being on the Harvard/Ayer town line; thence

Southwesterly and southerly along the centerline of Antietam Street, a distance of 2,201’ more or less, to a point, thence

Westerly forming an interior angle of 77°, a distance of 146’ more or less, to a point; thence

Southwesterly forming an angle of 233°, a distance of 743’ more or less, to a point. Said point is located on the centerline of Pine Street where Pine Street splits, about 295’ more or less easterly from Grant Road; thence

Southwesterly along the centerline of Pine Street, Grant Road and Hospital Road, a distance of 1,035’ more or less to a point; thence

Northwesterly forming an interior angle of 82°, a distance of 611’ more or less, to a point; thence

Northwesterly forming an interior angle of 225°, a distance of 384’ more or less, to a point;

thence

Southwesterly forming an interior angle of 215°, a distance of 479’ more or less, to a point;

thence

Northwesterly forming an interior angle of 144°, a distance of 400’ more or less, to a point;

thence

Westerly forming an interior angle of 205°, a distance of 327’ more or less, to a point. Said point is located in the centerline of an existing path.

The previous five courses being 100’ from and parallel to the northerly line of parcel 7; thence

Northeasterly forming an interior angle of approximately 44° meandering along the existing path which approximately parallels the Nashua River, a distance of 4,692’ more or less, to the town line of Harvard and Ayer; thence

Easterly along said town line, a distance of 855’ more or less, to the point of beginning.

Said parcel, as described above and shown on the accompanying graphic as “Zoning District 6” contains approximately 148.6 acres, more or less.

EXHIBIT A

Reports

Army, 1996. EPA Federal Facilities Agreement. 26 March.

Army, 2001. MassDevelopment Environmental Services Cooperative Agreement. September.

Human Factors Applications, Inc. 1996. Final Removal Action Report, Ordnance, Ammunition and Explosives Removal Action, Devens RFTA, Ft. Devens, Massachusetts. October.

MassDevelopment, 1997. Final Zone II Plan. MassDevelopment, Devens Commerce Center.

16 September.

Nobis Engineering, Inc. 2005. 2005 Five-Year Review Report, Volume I & II, Former Fort Devens, Devens Massachusetts, prepared for U.S. Army Corp of Engineers, September 2005.

URL http://www.epa.gov/region1/superfund/sites/devens/237422.pdf

Ordnance & Explosives Remediation, Inc. 2006. Site Specific Final Report Digital Geophysical Mapping (DGM) & Unexploded Ordnance (UXO) Removal, Grant Housing Area, Former Ft. Devens, Harvard, Worcester, Massachusetts. 22 March.

USACE, St. Louis District, 1995a. U.S. Department of Defense BRAC, Ordnance, Ammunition and Explosives-Archives Search Report Findings, Fort Devens. May.

USACE, St. Louis District, 1995b. U.S. Department of Defense BRAC, Ordnance, Ammunition and Explosives-Archives Search Report Conclusions and Recommendations, Fort Devens. May.

USACE, St. Louis District, 1995c. U.S. Department of Defense BRAC, Ordnance, Ammunitions and Explosives-Archives Search Report Maps, Fort Devens. May.

USACE, 2006. New England District, Final Expanded Conceptual Site Model Report. June.

USACE, New England District, 2007. Performance Work Statement for Completion of CERCLA Documents Related to Munitions and Explosives of Concern at Oak and Maple Housing Areas, Devens, MA. Revised 11 May.

WESTON, 2004. Draft Final Explosives, Lead, and Perchlorate - Conceptual Site Model Investigation Areas - Grant, Locust, and Cavite Housing Areas, Former Fort Devens, Devens, Massachusetts. December.

WESTON, 2008a. Final Focused Feasibility Study, Grant Housing Area and 37MM Impact Area Former Fort Devens Army Installation, Devens, Massachusetts. April.

WESTON, 2008b. Proposed Plan, Grant Housing Area and 37MM Impact Area Former Fort Devens Army Installation, Devens, Massachusetts. September.

WESTON, 2008c. Final Preliminary Assessment Site Inspection/Supplemental Site Investigation Comprehensive Report. October.

WESTON, 2009. Final Release Abatement Measure Completion Report/Partial Response Action outcome Statement – Grant Housing Area. June.

WESTON, 2009. Record of Decision, Grant Housing Area and 37-mm Impact Area Former Fort

EXHIBIT B

Supplemental Deed Notice

SECTION ___: SUPPLEMENTAL NOTICE OF POTENTIAL PRESENCE OF

UNEXPLODED ORDNANCE:

Grantor hereby gives notice that (i) the premises conveyed herein (or a portion thereof) are within the Grant Housing Area portion of the Property (as described below), and (ii) for a short period of time between World War I and World War II, the Property [or portion thereof, as supported by a legal description and a sketch] was used by the United States Army (the

“Army”) for training, including the use of military munitions, and from the early 1960s until the closure of Fort Devens in March 1996, the Property was used for military housing purposes.

The Property is or was held by MassDevelopment pursuant to two deeds: (a) a deed, that included “Parcel 1” inclusive of the former Grant Housing Area, in favor of MassDevelopment’s predecessor (Massachusetts Government Land Bank) dated May 9, 1996 and recorded with the

Worcester (South District) Registry of Deeds in Book 17907, Page 001 (the “1996 Army Deed”);

and (b) a deed, that included “Parcel A.21” inclusive of the former Oak Housing Area, a portion of the former Grant Housing Area and the 37mm Impact Area, in favor of MassDevelopment dated February 11, 2003 and recorded with the Worcester (South District) Registry of Deeds in

Book 29378, Page 064 (the “2003 Army Deed,” and, together with the 1996 Army Deed, the

“Army Deeds”). Prior to conveyance of the Property, the Army performed removal actions of unexploded ordnance (“UXO”) from the Property as described in the 1996 report by Human

Factors Applications, Inc. (“HFA Report”) Section XVII of the 1996 Army Deed and Section

XI of the 2003 Army Deed provide a standard UXO notice indicating that, as a result of historic operations of the Property as an active military installation, there exists a possibility that UXO may exist on the Property, but that based on a comprehensive records search and statistical and physical testing of areas of the Property, the Army does not believe that UXO is present on the

Property.

Following the conveyance of the Property to MassDevelopment, and in preparation for the development of portions of the Property (including the Grant Housing Area) for new residential construction, the removal actions described in the HFA Report were determined to be incomplete and additional removal actions were determined to be necessary. Thereafter, the

United States Environmental Protection Agency (“EPA”), with the review and comment of the

Massachusetts Department of Environmental Protection (“DEP”), oversaw an investigation of the Property to identify and address an array of possible contaminants, including UXO and other munitions and explosives of concern (MEC), at the Property. In March 2003, the Army initiated a Preliminary Assessment/Site Investigation (“PA/SI”) and a subsequent Supplemental Site

Investigation (“SSI”) on portions of the Property (including the former Grant Housing Area) to address these contaminants. However, before the final PA/SI/SSI was completed, in order to accelerate the redevelopment of the Property for residential use, MassDevelopment voluntarily contracted with a private company to investigate and, as necessary, remediate UXO and other

MEC at the Property. MassDevelopment’s contractor performed digital geophysical mapping and UXO removal at the Property, reviewed the reports, studies, maps, and other materials generated by the Army and/or its contractors with respect to UXO and other MEC at the

Property, and conducted extensive field investigations and removal actions to remove residual

UXO and MEC from the Property. Details and conclusions from those investigations and removal actions are contained in the report prepared for MassDevelopment (Ordnance &

Explosives Remediation, Inc. 2006).

Following the completion of MassDevelopment’s investigations and removal actions, the Army completed the PA/SI/SSI. The final PA/SI/SSI recommended that land use controls be evaluated and implemented on the Property to address the potential for residual MEC. As a result of these recommendations, the Army prepared a Focused Feasibility Study (“FFS”) to evaluate the remedial alternatives to protect the public, including residents and workers, from any potential UXO and other MEC on the Property in light of the previous investigations and removal actions. Copies of the report detailing MassDevelopment’s investigations and removal actions, the PA/SI/SSI and the FFS are available for review at the New England regional office of the EPA (5 Post Office Square, Boston), the Army (BRAC Division – Devens), the DEP (One

Winter Street, Boston), the public libraries for the Town of Ayer, Massachusetts, the Town of

Harvard, Massachusetts, and the Town of Shirley, Massachusetts.

The various alternatives that were evaluated by the EPA and the Army, and the selected remedy, are described in the Record of Decision dated September 2009 (“ROD”), a copy of which is available for review at the New England regional office of the EPA (5 Post Office

Square, Boston), the Army (BRAC Division – Devens), the DEP (One Winter Street, Boston), the public libraries for the Town of Ayer, Massachusetts, the Town of Harvard, Massachusetts, and the Town of Shirley, Massachusetts. The ROD reached the following conclusions: (a) the investigation and removal actions have occurred using the best available technology; (b) while not 100% conclusive, these efforts have removed all identified UXO from the top 18 inches of soil throughout the Grant HA and the Impact Area and to greater depths within the Impact Area;

(c) UXO in the Grant HA is unlikely at depths greater than 18 inches due to the angle of penetration of projectiles into the ground surface along the range, the effect of local soil composition (i.e., sand and gravel deposits) on limiting penetration depths, and up to 90 years for frost heaves to have brought items to the surface; (d) UXO in the Impact Area may be buried at depths deeper than the frost line, but that any potential associated with frost heaves bringing

UXO to the surface is considered minimal; (e) the probability of encountering UXO in the Grant

Housing Area is low; (f) although there remains a risk of exposure to remnant UXO with an explosive safety hazard, the remaining hazard of encountering UXO in the Grant Housing Area or the Impact Area would be primarily associated with construction work during future development (e.g., utility or foundation installation or other deeper excavation activities); and (g) the implementation of Land Use Controls (“LUCs”) is the appropriate remedy to provide additional protection to residents and workers in the event that they encounter UXO at the

Property. The LUCs for Grant Housing Area portion of the Property require the insertion of this

Supplemental Deed Notice in subsequent deeds conveying ownership interests in this portion of the Property , and distribution of educational materials to inform the property owners, residents, and construction workers and utility workers conducting ground intrusive activities on the Grant

Housing Area portion of the Property of the potential presence of UXO, how to identify UXO, and what actions to take if suspect UXO is encountered. The LUCs are more fully described in the Land Use Control Implementation Plan (“LUCIP”), a copy of which is available for review at the New England regional office of the EPA (5 Post Office Square, Boston), the Army (BRAC

Division – Devens), the DEP (One Winter Street, Boston), the public libraries for the Town of

Ayer, Massachusetts, the Town of Harvard, Massachusetts, and the Town of Shirley, Massachusetts. The ROD further concludes that, subject to compliance with the LUCs, the

Grant Housing Area portion of the Property is suitable for unrestricted future use, including use for residential purposes.

However, should suspect UXO or other MEC be encountered at the Property, the Army has certain obligations to take necessary remedial action pursuant to Section 120(h) of the

Comprehensive Environmental Response, Compensation, and Liability Act, as amended

(“CERCLA”), 42 U.S.C. § 9620(h), Section VII of the 1996 Army Deed and Section I of the

2003 Army Deed. Section VII of the 1996 Army Deed and Section II of the 2003 Army Deed reserve for the Army a right of access to the Property if needed to fulfill these obligations. The

ROD confirms the Army’s commitment with respect to MEC and UXO, including the obligations to conduct actions required by CERCLA and the Army Deeds.

This section of this Deed contains important factual and legal information. It shall be referenced in any subsequent deed conveying ownership interests in all or part of the Property.

The reports listed in Exhibit A of this Supplemental Deed Notice are available for review at the New England regional office of the EPA (5 Post Office Square, Boston), the Army

(BRAC Division – Devens), the DEP (One Winter Street, Boston), the public libraries for the

Town of Ayer, Massachusetts and the Town of Harvard, Massachusetts.

EXHIBIT A to Supplemental Deed Notice

Reports

Army, 1996. EPA Federal Facilities Agreement. 26 March.

Army, 2001. MassDevelopment Environmental Services Cooperative Agreement. September.

Human Factors Applications, Inc. 1996. Final Removal Action Report, Ordnance, Ammunition and Explosives Removal Action, Devens RFTA, Ft. Devens, Massachusetts. October 1996.

MassDevelopment, 1997. Final Zone II Plan. MassDevelopment, Devens Commerce Center.

16 September.

Nobis Engineering, Inc. 2005. 2005 Five-Year Review Report, Volume I & II, Former Fort Devens, Devens Massachusetts, prepared for U.S. Army Corp of Engineers, September 2005.

URL http://www.epa.gov/region1/superfund/sites/devens/237422.pdf

Ordnance & Explosives Remediation, Inc. 2006. Site Specific Final Report Digital Geophysical Mapping (DGM) & Unexploded Ordnance (UXO) Removal, Grant Housing Area, Former Ft. Devens, Harvard, Worcester, Massachusetts. 22 March.

USACE, St. Louis District, 1995a. U.S.