HomeMy WebLinkAboutItem 5.1 - Attachment 6 - Department of Toxic Substances Control Letter dated Nov 23 2021
November 23, 2021 SENT VIA ELECTRONIC MAIL
Mr. H. Robert Penner
HomeFed Corporation
1903 Wright Place, Suite 220
Carlsbad, California 92008
bpenner@hfc-ca.com
CONDITIONAL APPROVAL OF SITE ASSESSMENT REPORT, OTAY RANCH
VILLAGE 3, HERITAGE ROAD, CHULA VISTA (SITE CODE: 401933)
Dear Mr. Penner:
The Department of Toxic Substances Control (DTSC) reviewed the Site Assessment
Report (Report) (TRC, August 20, 2021) for the Otay Ranch Village 3, located on
Heritage Road, in Chula Vista (Site). The Report was reviewed pursuant to the
Standard Voluntary Agreement (Docket No. HSA-FY20/21-069) executed on
November 16, 2020 between DTSC and HomeFed Village III Master, LLC.
The Site is approximately 11.57 acres of currently vacant land that will be developed
for commercial and industrial use, including warehousing, e-commerce and
commerce delivery, light industrial manufacturing and assembly, distribution, and
ancillary office. The Site is located adjacent to the Otay Landfill and was partially used
for dry farming agricultural purposes from at least 1964 through at least 2012. As a
result of the Site’s former use and its proximity to a landfill, metals, organochlorine
pesticides, methane and volatile organic compounds (VOC) were identified as potential
chemical of concerns.
The Report summarized the soil and soil vapor investigation activities conducted in
February and March 2021. The soil investigations indicated that (1) all metals, except
arsenic, were detected below the residential screening levels; (2) arsenic was detected
at maximum concentration of 13 milligrams per kilogram, which is within the range of
regional ambient concentrations, and (3) organochlorine pesticides were detected below
laboratory reporting limits for all samples. The soil vapor sample results identified
residual VOCs including 1,1‐dichloroethane 1,4‐dichlorobenzene, benzene, chloroform,
methylene chloride, tetrachloroethene, and trichloroethene that corresponded to
Mr. H. Robert Penner
November 23, 2021
Page 2
estimated potential cumulative cancer risks and noncancer hazard index for a
commercial/industrial receptor of 3x10-7 and 0.1, respectively, using an attenuation
factor of 0.0005.
The Report concluded that the Site does not pose an unacceptable risk under a
commercial/industrial land use scenario and recommended a Land Use Covenant
(LUC) be implemented to restrict future Site use to commercial/industrial land use. In
addition, the Report recommended installation of a passive sub-slab ventilation and
membrane system as a precautionary mitigation measure for vapor intrusion although
the low residual VOC concentrations do not represent an unacceptable risk under the
anticipated future commercial/industrial land use or warrant mitigation measures. DTSC
will not require oversight of the self-initiated proposed precautionary vapor intrusion
mitigation measures but is available for consultation.
The Report, with its findings and recommendations, was made available for public
review and comment. The public comment period began on October 15, 2021 and
ended on November 14, 2021 and a public notice was advertised on the Chula Vista
Star News, the San Diego Daily Transcript, and Hispanos Unidos on October 15, 2021.
No comments were received by DTSC.
DTSC hereby approves the Report as final provided the enclosed LUC is recorded with
the San Diego County Recorder’s Office. The Department will certify remediation has
been satisfactorily completed at the Site once the LUC, as required by California Health
and Safety Code section 25455.5 a (1)(C) and 25395.99, has been signed and
recorded. A signed and recorded LUC shall be provided to DTSC within 30 days of this
letter.
Should you have any questions regarding this letter, please contact Ms. Chia Rin Yen,
Project Manager, at (714) 484-5392 or at ChiaRin.Yen@dtsc.ca.gov, or Yolanda Garza,
Unit Chief at (714) 816-1978 or Yolanda.Garza@dtsc.ca.gov.
Sincerely,
Javier Hinojosa, Chief
Brownfields Restoration and Schools Evaluation Branch
Site Mitigation and Restoration Program
mv/cy/jh
Enclosure: Land Use Covenant
cc: See next page
Mr. H. Robert Penner
November 23, 2021
Page 3
cc: (via e-mail)
Mr. Gary Mccue
Market Director - Environmental Engineering, Construction & Remediation
TRC Companies
gmccue@trccompanies.com
Mr. Jose Marcos
Engineering Geologist
DTSC/Geological Services Branch
Jose.Marcos@dtsc.ca.gov
Ms. Li Yang
Staff Toxicologist
DTSC/Human and Ecological Risk Office
Li.Yang@dtsc.ca.gov
Ms. Chia Rin Yen
Project Manager
DTSC/Brownfields Restoration and Schools Evaluation Branch
ChiaRin.Yen@dtsc.ca.gov
Brownfields Restoration and Schools Evaluation Branch Reading File – Cypress
Page 1
RECORDING REQUESTED BY:
Department of Toxic Substances Control
and
HomeFed Corporation
1903 Wright Place, Suite 220
Carlsbad, California 92008
WHEN RECORDED, MAIL TO:
Department of Toxic Substances Control
5796 Corporate Avenue
Cypress, California 90630
Attention: Yolanda Garza, Unit Chief
Brownfields Restoration and School
Evaluation Branch
SPACE ABOVE THIS LINE RESERVED FOR RECORDER’S USE
LAND USE COVENANT AND AGREEMENT
ENVIRONMENTAL RESTRICTIONS
County of San Diego, Assessor Parcel Number(s): 644-061-01-00, 644-061-02-00, and
644-061-03-00
Otay Ranch Village 3 (Lots 814, 815, and 816)
Site Code: 401933
_____________________________________________________________________
This Land Use Covenant and Agreement ("Covenant") is made by and between
HomeFed Corporation (the "Covenantor"), the current owner of property with
unassigned addresses and known as Lots 814, 815, and 816 located within the Otay
Ranch Village 3, at Chula Vista, in the County of San Diego, State of California (the
"Property"), and the Department of Toxic Substances Control (the "Department").
Pursuant to Civil Code section 1471, the Department has determined that this Covenant
is reasonably necessary to protect present or future human health or safety or the
environment as a result of the presence on the land of hazardous materials as defined
in Health and Safety Code section 25260. The Covenantor and the Department hereby
agree that, pursuant to Civil Code section 1471 and Health and Safety Code section
25355.5, the use of the Property be restricted as set forth in this Covenant and that the
Covenant shall conform with the requirements of California Code of Regulations, title
22, section 67391.1.
Page 2
ARTICLE I
STATEMENT OF FACTS
1.1. Property Location. The Property that is subject to this Covenant, totaling
approximately 11.57 acres, is more particularly described in the attached Exhibit A,
“Legal Description”, and depicted in Exhibit B, Plot Plan. The Property is located in the
area now generally bounded by Heritage Road to the south, the Otay Landfill to the
north, a storage facility at 3296 Heritage Road to the east, and two commercial lots at
881 and 895 Energy Way to the east. The Property is also identified as County of San
Diego County, Assessor Parcel Number(s) 644-061-01-00, 644-061-02-00, and 644-
061-03-00.
1.2. Remediation of Property. This Property has been investigated under the
Department’s oversight. The Department approved a Site Assessment Report TRC,
August 20, 2021) on November 23, 2021 in accordance with Health and Safety Code,
division 20, chapter 6.8. The investigation activities conducted at the Property indicated
hazardous substances, including volatile organic compounds, remain at the Property
above levels acceptable for unrestricted land use but below levels acceptable for
commercial land use.
1.3. Basis for Environmental Restrictions. As a result of the presence of
hazardous substances, which are also hazardous materials as defined in Health and
Safety Code section 25260, at the Property, the Department has concluded that it is
reasonably necessary to restrict the use of the Property in order to protect present or
future human health or safety or the environment, and that this Covenant is required as
part of the Department-approved remedy for the Property. The Department has also
concluded that the Property, when used in compliance with the Environmental
Restrictions of this Covenant, does not present an unacceptable risk to present and
future human health or safety or the environment.
ARTICLE II
DEFINITIONS
2.1. Department. "Department" means the California Department of Toxic
Substances Control and includes its successor agencies, if any.
2.2. Environmental Restrictions. “Environmental Restrictions” means all
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protective provisions, covenants, restrictions, requirements, prohibitions, and terms and
conditions as set forth in this Covenant.
2.3. Improvements. “Improvements” includes, but is not limited to buildings,
structures, roads, driveways, improved parking areas, wells, pipelines, or other utilities.
2.4. Lease. “Lease” means lease, rental agreement, or any other document
that creates a right to use or occupy any portion of the Property.
2.5. Occupant. "Occupant" or “Occupants” means Owner and any person or
entity entitled by ownership, leasehold, or other legal relationship to the right to occupy
any portion of the Property.
2.6. Owner. "Owner" or “Owners” means the Covenantor, and any successor
in interest including any heir and assignee, who at any time holds title to all or any
portion of the Property.
ARTICLE III
GENERAL PROVISIONS
3.1. Runs with the Land. This Covenant sets forth Environmental Restrictions
that apply to and encumber the Property and every portion thereof no matter how it is
improved, held, used, occupied, leased, sold, hypothecated, encumbered, or conveyed.
This Covenant: (a) runs with the land pursuant to Civil Code section 1471 and Health
and Safety Code section 25355.5; (b) inures to the benefit of and passes with each and
every portion of the Property; (c) is for the benefit of, and is enforceable by the
Department; and (d) is imposed upon the entire Property unless expressly stated as
applicable only to a specific portion thereof.
3.2. Binding upon Owners/Occupants. This Covenant: (a) binds all Owners of
the Property, their heirs, successors, and assignees; and (b) the agents, employees,
and lessees of the Owners and the Owners’ heirs, successors, and assignees.
Pursuant to Civil Code section 1471, all successive Owners of the Property are
expressly bound hereby for the benefit of the Department; this Covenant, however, is
binding on all Owners and Occupants, and their respective successors and assignees,
only during their respective periods of ownership or occupancy except that such Owners
or Occupants shall continue to be liable for any violations of, or non-compliance with,
the Environmental Restrictions of this Covenant or any acts or omissions during their
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ownership or occupancy.
3.3. Incorporation into Deeds and Leases. This Covenant shall be
incorporated by reference in each and every deed and Lease for any portion of the
Property.
3.4. Conveyance of Property. The Owner and new Owner shall provide Notice
to the Department not later than 30 calendar days after any conveyance or receipt of any
ownership interest in the Property (excluding Leases, and mortgages, liens, and other
non-possessory encumbrances). The Notice shall include the name and mailing address
of the new Owner of the Property and shall reference the site name and site code as
listed on page one of this Covenant. The notice shall also include the Assessor’s Parcel
Number(s) noted on page one. If the new Owner’s property has been assigned a different
Assessor Parcel Number, each such Assessor Parcel Number that covers the Property
must be provided. The Department shall not, by reason of this Covenant, have authority
to approve, disapprove, or otherwise affect proposed conveyance, except as otherwise
provided by law or by administrative order.
3.5. Costs of Administering the Covenant to Be Paid by Owner. The
Department has already incurred and will in the future incur costs associated with this
Covenant. Therefore, the Covenantor hereby covenants for the Covenantor and for all
subsequent Owners that, pursuant to California Code of Regulations, title 22, section
67391.1(h), the Owner agrees to pay the Department’s costs in administering,
implementing and enforcing this Covenant.
ARTICLE IV
RESTRICTIONS AND REQUIREMENTS
4.1. Prohibited Uses. The Property shall not be used for any of the following
purposes without prior written approval by the Department:
(a) A residence, including any mobile home or factory built housing,
constructed or installed for use as residential human habitation.
(b) A hospital for humans.
(c) A public or private school for persons under 18 years of age.
(d) A day care center for children.
Page 5
42. Access for Department. The Department shall have reasonable right of
entry and access to the Property for inspection, investigation, remediation, monitoring,
and other activities as deemed necessary by the Department in order to protect human
health or safety or the environment.
4.3. Inspection and Reporting Requirements. The Owner shall conduct an
annual inspection of the Property verifying compliance with this Covenant and shall
submit an annual inspection report to the Department for its approval by January 15th of
each year. The annual inspection report must include an evaluation of potential
migration of contaminants from the adjacent landfill toward the Property, the dates,
times, and names of those who conducted the inspection and reviewed the annual
inspection report. It also shall describe how the observations that were the basis for the
statements and conclusions in the annual inspection report were performed (e.g., drive
by, fly over, walk in, etc.). If any violation is noted, the annual inspection report must
detail the steps taken to correct the violation and return to compliance. If the Owner
identifies any violations of this Covenant during the annual inspection or at any other
time, the Owner must within 10 calendar days of identifying the violation: (a) determine
the identity of the party in violation; (b) send a letter advising the party of the violation of
the Covenant; and (c) demand that the violation cease immediately. Additionally, a
copy of any correspondence related to the violation of this Covenant shall be sent to the
Department within 10 calendar days of its original transmission.
ARTICLE V
ENFORCEMENT
5.1. Enforcement. Failure of the Owner or Occupant to comply with this
Covenant shall be grounds for the Department to require modification or removal of any
Improvements constructed or placed upon any portion of the Property in violation of this
Covenant. Violation of this Covenant, such as failure to submit (including submission of
any false statement) record or report to the Department, shall be grounds for the
Department to pursue administrative, civil, or criminal actions, as provided by law.
ARTICLE VI
VARIANCE, REMOVAL AND TERM
6.1. Variance from Environmental Restrictions. Any person may apply to the
Page 6
Department for a written variance from any of the Environmental Restrictions imposed
by this Covenant. Such application shall be made in accordance with Health and Safety
Code section 25223.
6.2 Removal of Environmental Restrictions. Any person may apply to the
Department to remove any of the Environmental Restrictions imposed by this Covenant
or terminate the Covenant in its entirety. Such application shall be made in accordance
with Health and Safety Code section 25224.
6.3 Term. Unless ended in accordance with paragraph 6.2, by law, or by the
Department in the exercise of its discretion, this Covenant shall continue in effect in
perpetuity.
ARTICLE VII
MISCELLANEOUS
7.1. No Dedication Intended. Nothing set forth in this Covenant shall be
construed to be a gift or dedication, or offer of a gift or dedication, of the Property, or
any portion thereof, to the general public or anyone else for any purpose whatsoever.
7.2. Recordation. The Covenantor shall record this Covenant, with all
referenced Exhibits, in the County of San Diego within 10 calendar days of the
Covenantor's receipt of a fully executed original.
7.3. Notices. Whenever any person gives or serves any Notice ("Notice" as
used herein includes any demand or other communication with respect to this
Covenant), each such Notice shall be in writing and shall be deemed effective: (a) when
delivered, if personally delivered to the person being served or to an officer of a
corporate party being served; or (b) five calendar days after deposit in the mail, if mailed
by United States mail, postage paid, certified, return receipt requested:
To Owner:
HomeFed Corporation
1903 Wright Place, Suite 220
Carlsbad, California 92008
Attn.: Mr. H. Robert Penner, Vice President
Page 7
And
To Department:
Department of Toxic Substances Control
5796 Corporate Avenue
Cypress, California 90630
Attention: Ms. Yolanda Garza, Unit Chief
Brownfields Restoration and School Evaluation Branch
Any party may change its address or the individual to whose attention a Notice is to be
sent by giving advance written Notice in compliance with this paragraph.
7.4. Partial Invalidity. If this Covenant or any of its terms are determined by a
court of competent jurisdiction to be invalid for any reason, the surviving portions of this
Covenant shall remain in full force and effect as if such portion found invalid had not
been included herein.
7.5. Statutory References. All statutory or regulatory references include
successor provisions.
7.6. Incorporation of Exhibits. All exhibits and attachments to this Covenant
are incorporated herein by reference.
Page 8
IN WITNESS WHEREOF, the Covenantor and the Department hereby executes this
Covenant.
Covenantor: HomeFed Corporation
By: ___________________________________
Erin N. Ruhe
Vice President
HomeFed Corporation
Date: _________________________________
Department of Toxic Substances Control:
By: ___________________________________
Javier Hinojosa, Chief
Brownfields Restoration and Schools Evaluation Branch
Site Mitigation and Restoration Program
Department of Toxic Substances Control
Date: _________________________________
Page 9
State of California
County of _________
On ________________________ before me,
(space above this line is for name and title of the officer/notary),
personally appeared ________________________________________________, who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal,
_______________________________ (seal)
Signature of Notary Public
A notary public or other officer completing this certificate verifies only
the identity of the individual who signed the document to which this
certificate is attached, and not the truthfulness, accuracy, or validity of
that document.
Page 10
State of California
County of _________
On ________________________ before me,
(space above this line is for name and title of the officer/notary),
personally appeared ________________________________________________, who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal,
_______________________________ (seal)
Signature of Notary Public
A notary public or other officer completing this certificate verifies only
the identity of the individual who signed the document to which this
certificate is attached, and not the truthfulness, accuracy, or validity of
that document.
PAGE 1 OF 1
M:\2395\028\Legal Description\A05 Rockefeller Lots 814-816.docx
EXHIBIT “A”
Legal Description
Residential Restricted Area
Lots 814, 815, and 816 of Chula Vista Tract No. 16-02, Otay Ranch Village 3 North, in the City
of Chula Vista, County of San Diego, State of California, according to Map thereof No. 16160,
filed in the office of the County Recorder of San Diego County on December 21, 2016.
Containing 11.574 acres, more or less.
Portions of APNs 644-061-01-00, 644-061-02-00, and 644-061-03-00
Basis of Bearings is the northeasterly line of said Lot 816 of said Map No. 16160.
Prepared by,
_________________________________________
Douglas B. Stroup, PLS 8553
Hunsaker & Associates San Diego, Inc.
My license expires: 12/31/2022
October 21, 2021
0
SCALE 1" =
200 400 600
200'
Residential Restricted Area
(Area is shaded gray)
N
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e
a
st
e
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li
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L
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8
1
6
APN 644-061-01-00
APN 644-061-02-00
APN 644-061-03-00
6 4 4 -0 6 1 -1 5 -0 0
644-061-14-00SKETCH TO ACCOMPANY EXHIBIT "A"
HUNSAKER& ASSOCIATES
S A N D I E G O, I N C.
9707 Waples Street (858)558-4500
San Diego, CA 92121
THIS EXHIBIT IS FOR GRAPHIC PURPOSES ONLY. ANY ERRORS OR OMISSIONS
ON THIS EXHIBIT SHALL NOT AFFECT THE DEED DESCRIPTION.
CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA
See Exhibit "A" for Legal Description
Assessor Parcel Numbers Shown Hereon
L.S. 8553DOUGLASB.S
T
ROUPLICENSE D L AND SU
R
V
E
YORST
A
TE OF CA L I F O RNIADouglas B. Stroup, PLS 8553
My license expires 12/31/2022
10/21/2021