^xAtosr.,,^ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

'^ d ^ Z REGION 6 

X^^yj I 1445 ROSS AVENUE, SUITE 1200 

yj|/ ^ ." DALLAS, TEXAS 75202-2733 

lanuan' 24. 2008 

Robert E. Bamburg, Esq. 

.lacksonville City .Attorney 

P.O. Box 5913 ' ' . 

Jacksonville, Arkansas 72078 

Re; Rogers Road Landfill Superfund Site; 

Dear Mr. Bamburg; 

Per my recent email correspondence with Mr. Frederick Gentr>', on which you have been 

copied, 1 am forwarding lo you the enclosed revised Environmental Protection Easement and 

Declaration of Restrictive Covenants, along with three exhibits thereto, to be executed by Ms, 

Floriece Gentry in connection with certain real properly owned by her containing the Rogers 

Road Landfill Superfund Site. This revised version of the instrument is substantially identical to 

the earlier version that was furnished lo you by my letters of.luly 16 and August 24, 2007, except 

for revision of sub-paragraph 4(f) to address the Gentry's concerns about property development 

and for some minor tbrmatting changes. 

Please review these papers and have this inslrumenl executed by Ms. Gentry belbre a 

notary and by the designated officials of the City of .lacksonville, and then properly recorded. .As 

soon as this instrument has been fully executed and recorded, 1 would appreciate your forwarding 

a signed and file-stamped recorded copy to me for Environmental Protection Agency records. 

Thank you for your assistance and coordination of this matter. If you have any questions, please 

do not hesitate to call me at (214) 665-3159. 

Sincerely yours, 

z. 4.T-.^^'^i^P At^y^*^-^Z'— 

•lames L. Turner 

Senior Attorney 

Office of Reeional Counsel 

Enclosures 

9050330 

002345
^v^tos^-^.^ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

4 f ^ % REGION 6 

ri^ 7 1 1445 ROSS AVENUE, SUITE 1200 

^[/ ^ -" DALLAS, TEXAS 75202-2733 

*cJanuary 24, 2008 

Robert E. Bamburg, Esq. 

Jacksonville City Attorney 

P.O. Box 5913 

Jacksonville, Arkansas 72078 

Re: Rogers Road Landfill Superfund Site; 

Dear Mr. Bamburg: 

f 

Per my recent email correspondence with Mr. Frederick Gentry, on which you have been 

copied, 1 am forwarding to you the enclosed revised Environmental Protection Easement and 

Declaration of Restrictive Covenants, along with three exhibits thereto, to be executed by Ms. 

Floriece Gentry in connection with certain real property owned by her containing the Rogers 

Road Landfill Superfund Site. This revised version of the instrument is substantially identical to 

the earlier version that was furnished to you by my letters of July 16 and August 24, 2007, except 

for revision of sub-paragraph 4(f) to address the Gentry's concerns about property development 

and for some minor formatting changes. 

Please review these papers and have this instrument executed by Ms. Gentry before a 

notary and by the designated officials of the City of Jacksonville, and then properly recorded. As 

soon as this instrument has been fully executed and recorded, I would appreciate your forwarding 

a signed and file-stamped recorded copy to me for Environmental Protection Agency records. 

Thank you for your assistance and coordination of this matter. If you have any questions, please 

do not hesitate to call me at (214) 665-3159. 

Sincerely yours. 

James L. Turner 

Senior Attorney 

Office of Regional Counsel 

Enclosures 

cc: Shawn Ghos' 

Ay 

6RC-S:JTURNEH^x3159:012408 File: c:\RogersRd\Corres\Bamburg012408 

1 •J'^^ 

6SF-RA 

Ghose 

002346
y 

ENVIRONMENTAL PROTECTION EASEMENT 

AND 

DECLARATION OF RESTRICTIVE COVENANTS 

This Environmental Protection Easement and Declaration of Restrictive 

Covenants is made this ^ day of , 2008, by Floriece Gentry ("Grantor"), 

having an address of 1128 Casey, Jacksonville, .Arkansas 72076, and the City of Jacksonville, 

Arkansas ("Grantee") having an address of City of Jacksonville, No.l Municipal Drive, 

Jacksonville, Arkansas 72076. 

WITNESSETH: 

WHEREAS, Grantor is the owner of a parcel of land located in the County of 

Pulaski, State of Arkansas, more particularly described on Exhibit A attached hereto and made a 

part hereof (the "Property"); and 

WHEREAS, the existing uses of the Property are more particularly described in 

the document marked E.\hibit B attached hereto and made a part hereof; and 

WHEREAS, the Property is part of the Rogers Road Landfill Superfund Site 

("Site"), which the United States Environmental Protection Agency ("EPA"), under Section 105 

of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 

42 U.S.C. § 9605, placed on the National Priorities List; 40 C.F.R. Part 300, Appendix B, by 

publication in the Federal Regi.ster. 52 Fed.Reg. 27620, 27623 (July, 22, 1987); and 

WHEREAS, in a Record of Decision dated September 27, 1990, (the "ROD"), the 

EPA Region 6 Regional Administrator selected a "remedial action" for the Site, which provided, 

in part, for the following actions: Fixcavating and incinerating at an off-site facility Site soil and 

debris contaminated with hazardous substances, backfilling excavated areas with native soils and 

revegetating, covering areas still alTected by hazardous substances below the action level for 

excavation with at least 12 inches ol top soil and revegetating, installing groundwater monitoring 

wells, groundwater monitoring for a period of thirty years, limiting public access to the Site with 

secure fencing, and implementing land use controls to limit public exposure to groundwater, as 

more particularly described in the ROD; and the remedial action has been implemented at the 

Site with long term operation and maintenance ongoing, including a secure fenced contaminated 

area more particularly described in Exhibit C attached hereto and made a part hereof; and 

WHEREAS, the Grantee agreed in a Consent Decree with the United Stales of 

America ("United States") entered June 17, 1994, in United States v. City of Jacksonville. CA. 

No. LR-C-94-J96 (E.D.Ark.) ("Consent Decree") to implement certain remedial action 

requirements of the ROD, including the obtaining of this instrument as a land use control; and in 

recognition of these obligations and the environmental remedial action that has been performed 

at the Site by the EPA and the Grantee pursuant to CERCLA, the parties hereto have agreed: 1) 

to grant a permanent right of access over the Property to the Grantee for purposes of 

iinplementing, facilitating, maintaining, and monitoring long term Site operation; and 

002347
maintenance; and 2) to impose on the Property use restrictions as covenants that will run with 

the land for the purpose of protecting human health and the environment; and 

WHEREAS, Grantor wishes to cooperate fully with the Grantee in the full 

implementation, operation, and maintenance of all response actions at the Site; and 

WHEREAS, Grantor and Grantee intend that the provisions of this Environmental 

Protection Easement and Declaration of Restrictive Covenants also be for the benefit of the EP.A 

as Third Parly Beneficiary. 

NOW, THEREFORE: 

1. Grant: Grantor, on behalf of herself, her successors and assigns, in consideration 

of the remedial action performed at the Site by the Grantee and the EPA under the Consent 

Decree does hereby covenant and declare that the Property shall be subject to the restrictions on 

use set forth below, and does give, grant and convey to the Grantee, and its assigns, with general 

warranties of title, 1) the perpetual right to enforce said use restrictions, and 2) an 

environmental protection easement of the nature and character, and for the purposes hereinafter 

set forth, with respect to the Properly. 

,2. Purpose: It is the purpose of this instrument to convey to the Grantee real 

property rights, which will run with the land, to facilitate remediation of past environmental 

contamination and to protect human health and ihe environment by reducing the risk of exposure 

lo contaminants. It is,^also the purpose of this instrument that the EPA and its successors and 

assigns as Third Party Beneficiary shall have the right to enforce the terms of this instrument. 

J . fhird Partv Beneficiary: Grantor on behalf of herself and her successors. 

transferees, and assigns and the Grantee on behalf of itself and its successors, transferees, and , 

assigns hereby agree that the EPA and its successors and assigns shall be the Third Party 

Beneficiary under this instrument. 

4. Restrictions on use: The following covenants, conditions, and restrictions apply u: 

the use of the Property, run with the land for the benefit of the Grantee and are binding upon the 

Grantor,-including her successors, transferees, assigns or other persons acquiring an interest in 

the Property and their authorized agents, employees, or persons acting under their direction and 

control. 

a) Any use or development of ground water on or underlying the Property is 

prohibited, including the installation or development of a water well of any kind, exccpl 

with the express prior written approval of both the EPA and the Arkansas Department o! 

Environmental Quality ("ADEQ"). Any use or development of ground water on or 

underlying the fenced area of the Property described in Exhibit C, including the 

installation or development of a water well of any kind, is prohibited. 

002348
b) Any residential use or development of the fenced area of the Property 

described in Exhibit C hereto is prohibited. No houses, apartments, condominiums, town 

homes, or other residential dwelling or lodging facilities, either temporary or permanent, 

shall be constructed, placed, or occupied upon the fenced area of the Properly described 

in Exhibit C hereto 

c) The fenced area of the Property described in Exhibit C hereto shall not be 

used, or contain any facilities, for any agricultural purposes, including the grazing, 

watering, or other presence of livestock, or the planting, raising, growlh, or harvesting of 

agricultural crops, groves, vineyards, orchards, or the like. 

d) The fenced area of the Property described in Exhibit C hereto shall have 

restricted access and shall comply with the security requirements set forth in the ROD. 

e) The fenced area of the Property described in Exhibit C hereto shall,not be 

used, or contain any facilities, for food preparation, sale, or consumption, including any 

restaurant, kitchen, food market, or the like. 

1) Site remedial components within or immediately surrounding the fenced area 

of the Property described in Exhibit C hereto (e.g., fencing, cap, covers, berms, and 

pumps), or monitor wells within any area of the property, shall not be moved, removed, 

altered, adjusted, damaged, or tampered with. No changes or modifications to such 

components or monitor wells shall be made without the express prior written approval of 

the EPA. 

g) Development of any part of the Property may commence only after EPA has 

been notified in writing not less than ninety (90) days in advance of any development 

activity at the address in Paragraph 15 herein. In addition, development of any part of the 

fenced area of the Property described in Exhibit C hereto may commence only after EPA 

has been provided an advance copy of the plans for such development and has provided 

written advance approval verifying in writing to the Grantor and the Grantee that Site 

Remediation Goals have been met for the medium or media potentially affected by the 

proposed development and that such development or its resulting use will not interfere 

with or adversely affect the integrity, implementation, or protectiveness of the Site 

remedy and its operation and maintenance. 

5. Modificafion of restrictions: Any request for modification or rescission of this 

instrument shall be made lo the Grantee and the EPA al the address given below. This 

instrument may be modified or rescinded only with the prior written approval of the EPA. 

Grantor on behalf of her successors, transferees, assigns, or other persons acquiring an interest in 

the Properly agrees to file any EPA approved modification to, or rescission of, this 

Environmental Protection Easeinenl and Declaralionof Restrictive Covenants with the 

appropriate Registrar of Deeds and a certified copy shall be returned to the EPA and the Grantee 

at the addresses listed below. 

002349
6. Environmental Protection Easement: Grantor hereby grants to the Grantee for its 

use an irrevocable, permanent and continuing right of access at all reasonable tiiries to the 

Property for the purposes of: 

a) Implementing, operating, and maintaining the response actions in the ROD, 

including but not limited to, those actions generally described herein; 

b) Verifying any data or information submitted to the EPA or the State of 

Arkansas; 

c) Verifying that no action is being taken on the Property in violation of the 

terms of this instrument or of any federal or state environmental laws or regulations; 

d) Monitoring response actions on the Site and conducting investigations 

relating to contamination on or near the Site, including, without limitation, sampling of 

air, water, sediments, soils, and specifically, without limitation, obtaining split or 

duplicate samples; 

e) Conducting periodic reviews of the remedial action, including but not limited 

to, reviews required by applicable statutes and/or regulations; and 

f) Implementing additional or new response actions that the EPA determines i) 

are necessary to protect public health or the environment, because either the original 

remedial action has proven to be ineffective, or new technology has been developed 

which will accomplish the purposes of the remedial action in a significantly more 

efficient or cost effective manner; and ii) will not impose any significantly greater burden 

on the Property or unduly interfere with the then existing uses of the Property. 

7. Reserved rights of Grantor: Grantor hereby reserves unto herself, her successors, 

and assigns, all rights and privileges in and to the use of the Property which are not incompatible 

with the restrictions, rights and easements granted herein.. * 

8. EPA Entry, Access, and Response Authority: Nothing in this document shall 

limit or otherwise affect EPA's rights of entry and access or EPA's authority to take response 

actions under CERCLA, the NCP, or other federal law. 

9. No Public Access and Use: No right of access or use by the general public to any 

portion of the Property is conveyed by this inslrumenl. 

10. Notice requirement: Grantor agrees to include in any future instrument conveying 

any interest in any portion of the Property, including but not limited lo deeds, leases and 

mortgages, a notice which is in substantially the following form: 

NOTICE: THE INTEREST CONVEYED HEREBY 

IS SUBJECT TO AN ENVIRONMENTAL PROTECTION 

002350
EASEMENT AND DECLARATION OF RESTRICTIVE 

COVENANTS, DATED , 20_ , RECORDED IN 

THE PUBLIC LAND RECORDS ON • 20 , 

AS INSTRUMENT NO. , OF THE PULASKI 

COUNTY CIRCUIT CLERK'S REAL ESTATE l^CORDS , 

IN FAVOR OF THE CITY OF JACKSONVILLE, 

ARKANSAS, AND ENFORCEABLE BY THE CITY OF 

JACKSONVILLE, ARKANSAS, AND THE UNITED 

STATES ENVIRONMENTAL PROTECTION AGENCY AS 

THlIiD PARTY BENEFICIARY. 

Within thirty (30) days of the dale any such instrument of conveyance is executed. Grantor must 

provide both Grantee and EPA with a certified true copy of such instrument and, ifii has been 

recorded in the public land records, its recording reference. 

11. Enforcement: The Grantee and the EPA as Third Party Beneficiary shall be 

entitled to enforce, individually or jointly, the terms of this instrument by resort to specific 

performance or legal process. All remedies available hereunder shall be in addition to any and 

all other remedies at law or in equity, including CERCLA. Enforcement of the terms of this 

instrument shall be al the discretion of the Grantee or the EPA as Third Party Beneficiary, and 

any forbearance, delay or omission lo exercise its rights under this instrument in the event of a 

breach of any term of this instrument shall noi be deemed to be a waiver by the Grantee or the 

EPA as Third Party Beneficiary of such term or of any subsequent breach of the same or any 

other term, or of any of the rights of the Grantee or the EPA as Third Party Beneficiary under 

this instrument. 

12. Waiver of certain defenses: Grantor hereby waives any defense of laches, 

estoppel, or prescription. 

13. Covenants: Grantor hereby covenants to and with the Grantee and its assigns thai 

the Grantor is lawfully seized in fee simple of the Property, that the Grantor has a good and 

lawful righl and power lo sell and convey it or any interest therein, that the Properly is free and 

clear of encumbrances, and that the Grantor will forever warrant and defend the title thereto and 

the quiet possession thereof 

14. Notices: Any notice, demand, request, consent, approval, or communication thai 

either party desires or is required to give to the other shall be iri writing and shall either be served 

personally or sent by first class mail, postage prepaid, addressed as follows: 

To Grantor: 

Mrs. Floriece Gentry 

1128 Casey 

Jacksonville, Arkansas 72076 

002351
To Grantee: 

City of Jacksonville, Arkansas 

Office of the City Attorney 

P.O. Box 126 

Jacksonville, Arkansas 72078 

To EPA: 

Director,.Superfund Division 

U.S. Environmental Protection Agency, Region 6 

1445 Ross Avenue, Ste. 1200 

Dallas, Texas 75202-2733 

15. General provisions: 

a) Controlling law: The interpretation and performance of this instrument 

shall be governed by the laws of the United States or, if there are no applicable 

federal laws, by the laws of the State of Arkansas. 

b) Liberal construction: Any general rule of construction to the contrary 

notwithstanding, this instrument shall be liberally construed in favor of the grant 

lo effect the purpose of this instrument and the policy and purpose of CERCLA. 

If any provision of this instrument is found to be ambiguous, an interpretation 

consistent with the purpose of this instrument that would render the provision 

valid shall be favored over any interpretation that would render il invalid. 

c) Severability:, If any provision of this instrument, or the application of il lo 

any person or circumstance, is found to be invafid, the remainder of the provisions 

of this instrument, or the application of such provisions to persons or 

circumstances other than those to which it is found to be invalid, as the case may 

be, shall not be affected thereby. 

d) Entire Agreement: This instrument sets forth the entire agreement of the 

parties with respect to rights and restrictions created hereby, and supersedes all 

prior discussions, negotiations, understandings, or agreements relating thereto, all 

of which are merged herein. 

e) No Forfeiture: Nothing contained herein will result in a forfeiture or 

reversion of Grantor's title in any respect. 

f) Successors:. The covenants, terms, conditions, and restrictions of this 

instrument shall be binding upon, and inure to the benefit of, the parties hereto 

and their respective personal representatives, heirs, successors, and assigns and 

shall continue as a servitude running in perpetuity with the Property. The term 

002352
"Grantor", wherever used herein, and any pronouns used in place thereof, shall 

include the person named at the beginning of this document, identified as 

"Grantor" and her personal representatives, heirs, successors, and assigns. The 

term "Grantee", wherever used herein, and any pronouns used in place thereof, 

shall include the governmental entity named at the beginning of this document, 

identified as "Grantee" and its personal representatives, heirs, successors, and 

assigns. The rights of the Grantee and Grantor under this instrument are 

assignable, subject to the notice provisions hereof However, the rights of the 

Grantee may be assigned only to a governmental entity with authority lo assume 

the rights and obligations of that Grantee under the Consent Decree. 

g) TerminaUon of Rights and Obliuations: A party's rights and obligations 

under this instrument terminate upon transfer of the party's interest in the 

Easement or Property, except that liability for acts or omissions occurring prior to 

transfer shall survive transfer. 

g) Captions: The captions in this instrument have been inserted solely for 

convenience of reference and are not a part of this instrument and shall have no 

effect upon construction or interpretation. 

h) Counterparts: The parties may execute this instrument in two or more 

counterparts, which shall, in the aggregate, be signed by both parties; each 

counterpart shall be deemed an original inslrumenl as against any party who has 

signed it. In the event of any disparity between the counterparts produced, the 

recorded counterpart shall be controlling. 

TO HAVE AND TO HOLD unto the City of Jacksonville, Arkansas, and its 

assigns forever. 

FN WITT^ESS WHEREOF, Grantor has caused this Agreement to be signed in her 

name. • 

Executed this day of , 2008. 

FLORIECE GENTRY 

By: 

Floriece Gentry 

002353
STATE OF ARKANSAS 

COUNTY OF PULASKI 

ACKNOWLEDGMENT 

) 

Be it remembered, that on this day came before me, the undersigned, a Notary Public 

within and for the State and County aforesaid, duly commissioned and acting, Floriece Gentry, 

to me well known as the GRANTOR in the foregoing document, and on oath stated that she is 

authorized lo execute said document and that she had executed the same for the consideration 

and purposes therein mentioned and set forth. 

WITNESS my hand and official seal as such Notary Public on this 

,2008. 

day of 

NOTARY PUBLIC 

My Commission Expires: 

This easement is accepted this 

Bv: 

day of 2008. 

CITY OF JACKSONVILLE. ARKANSAS 

Tommv Swaim, Mavor 

Susan M. Davitl, City Clerk 

Attachments: Exhibit A 

Exhibit B 

Exhibit C 

Legal Description of the Properly, Consisting of 

20.296 Acres, More or Less. 

Identification of Existing Uses of the Property. 

Legal Description of the Contaminated Fenced Area 

of the Property Containing the Former Rogers Road 

Landfill, Consisting of 1,.38 acres. More or Less. 

8 

002354
EXHIBIT A TO ENVIRONMENTAL PROTECTION EASEMENT AND 

DECLARATION OF RESTRICTIVE COVENANTS - GENTRY (ROGERS ROAD 

LANDFILL) PROPERTY 

Legal Description of the Property: 

The W Vl of the SE V4 of the NE VA of Section 28, T3N, RlOW, Pulaski County, 

Arkansas, being more particularly described as follows: 

Beginning at the Southwest corner of the SE V4 NE V4 of Section 28, T3N, RlOW; 

thence North 00 degrees 15 minutes 28 seconds East 1341.18 feet along the 

West line of the SE V4 NE V^ of said Section to a point; thence South 89 degrees 

57 minutes 53 seconds East 661.07 feet to a point; thence South 00 degrees 22 

minutes 46 seconds West 1339.29 feet to a point on the South line of the SE ¥4 

NE V4 of said Section; thence South 89 degrees 51 minutes 44 seconds West 

658.21 feet along said line to the point of beginning, containing 20.296 acres, 

more or less. 

002355
EXHIBIT B TO ENVIRONMENTAL PROTECTION EASEMENT AND 

DECLARATION OF RESTRICTIVE COVENANTS - GENTRY (ROGERS ROAD 

LANDFILL) PROPERTY 

Identification of Existing Uses of the Property: 

The Property is an approximately 20.296 acre tract of land located on Rogers Road near 

its intersection with Graham Road in Pulaski County, Arkansas, just east of the 

corporate limits of the City of Jacksonville, Arkansas. The Property is residential and 

agricultural in its use and has heavily wooded areas with thickets. The Property 

contains some silvicultural timber acreage as well. The Property is served by the 

municipal water system of the City of Jacksonville. Within the bounds of the Property 

are monitoring wells and a secure fenced area of approximately 1.38 acres, more or 

less, which includes a clay cap covering over an area of contaminated soil. These 

environmental components are part of the Rogers Road Landfill Superfund Site remedial 

action implemented by representatives and contractors of the U.S. Environmental 

Protection Agency and the City of Jacksonville from 1994 to 1995. 

002356
EXHIBIT C TO ENVIRONMENTAL PROTECTION EASEMENT AND 

DECLARATION OF RESTRICTIVE COVENANTS - GENTRY (ROGERS ROAD 

LANDFILL) PROPERTY 

Legal Description of the Contaminated Fenced Area of the Property Containing the 

Former Rogers Road Landfill: 

A tract of land located in the West One-Half (W V2) of the Southeast Quarter (SE 1/4) 

of the Northeast Quarter (NE 1/4) of Section 28, T-3-N, R-IO-W, Pulaski County, 

Arkansas, being more particularly described as follows: 

Commencing at the Northwest Corner of the Southeast Quarter (SE 1/4) of the 

Northeast (NE 1/4) of said Section 28; thence South along the north-south centerline of 

said Section 28, 170 East; thence East, 60 feet to the point of beginning; thence 

continue East, 200 feet; thence South parallel to, the north-south centerline of said 

Section 28, 300 feet; thence West, 200 feet; thence North parallel to the north-south 

centerline of said Section 28, 300 feet to the point of beginning; Containing 60000 

square feet or 1.38 acres, more or less. This property is fenced as directed by the EPA. 

002357