The U.S. EPA Region IV is comprised of eight states [Kentucky, Tennessee, Mississippi, Alabama, Georgia, South Carolina, North Carolina, and Florida] in the southeastern United States and it is the largest U.S. EPA region (by number of states covered) in the country. As a result, there are a fair number of Superfund sites within Region IV. Consistent with goals of the BFPP provisions, U.S. EPA Region IV offers assistance in evaluating potential redevelopment of a Super-fund site. Upon request, Region IV will arrange a Prospective Purchaser Inquiry (PPI) call with all of the appropriate parties to discuss the specific conditions, limitations and other relevant factors relating to the site. The purpose is to allow a prospective purchaser a chance to obtain sufficient information to make a knowledgeable decision about proceeding with a proposed Superfund site redevelopment. Such calls are successful even if the specific result is only to highlight that the site is not appropriate either physically or economically for the proposed redevelopment project.

In the Southeast, brownfield redevelopment picked up steam after 2002 when the U.S. Environmental Protection Agency (U.S. EPA) began an initiative to accelerate cleanups at brownfield sites. This coincided with the passage of brownfield legislation in various states such as Georgia where the current brownfield program was created by amendments to the Hazardous Site Reuse and Redevelopment Act in 2002. Now, approximately 40 states have also implemented their own brownfield programs expanding the scope of qualifying properties and often simplifying the overall process.

The process of seeking brownfields protection and the specific criteria to qualify vary from state to state, however, the benefits and protections afforded a property owner or prospective purchaser who utilize the brownfields process are consistent across the board. For example, some states may allow a current owner to apply for brownfields protection while many like Georgia allow only unrelated prospective purchasers to apply to the program.

Brownfield redevelopment is only as good as the real estate deal it supports. Like most states, Georgia’s approach to brownfield redevelopment recognizes that it is the considerations of the real estate deal and not contamination that drive redevelopment, though the cost of addressing the contamination is a factor in the overall evaluation. In Georgia, eligible brownfield property purchasers include those with no contribution to the release and with no substantial business relationship with the responsible party. This means that a historical owner cannot “sell” a property to a new, related single-purpose entity just to obtain the protections of the brownfields designation.

What are the Benefits of a Prospective Purchaser (PP) receiving a Georgia Brownfields Limitation of Liability (LoL)?¹
In Georgia, the LoL benefits vary. The state of Georgia provides three primary benefits with their issuance of a LoL to a Prospective Purchaser (PP).

The LoL provides protections from:

• Groundwater impacts
• Third-party liability
• Regulatory changes

An added benefit of a Georgia LoL through the Brownfield Program (BFP) is the tax incentives, as outlined in House Bill 531 (HB 531). Generally, this Bill permits the PP to freeze the tax value of the property at the lesser of the acquisition cost or the fair market value at the time of the Brownfields Application and deduct the costs associated with receiving the LoL (excluding legal fees, and other items) from the tax bill at the current fair market value of the property for an approximate period of 10 years or until the expended costs are reached. This bill can help re-coupe the costs for the remedial actions required to receive the LoL.

In Georgia, detailed environmental assessments are required to fully characterize the conditions present on a Georgia brownfields site. First the PP and the property itself must qualify for LoL protections. Historic information must be presented. A full definition of the soil and groundwater conditions at the brownfields site must be made. If soil impacts are present above the appropriate

Risk Reduction Standards (RRS), either residential or commercial, or source materials are present, remedial actions are needed. However, since the LoL provides protections for groundwater impacts, the PP does not need to remediate groundwater, just characterize the conditions for protection.

Georgia’s Brownfield Process¹
The Georgia brownfields process is a multi-step process. The number of steps required is generally dependant on the result of each subsequent step. Typically a prospective purchaser corrective action plan (PPCAP) is initially submitted to the Environmental Protection Division (EPD) along with a non-refundable application review fee of $3,000—as the Brownfields Application. The PPCAP clarifies the conditions that qualify the property and the purchaser for the program and its protections. It also provides specific plans to define the soil and groundwater conditions across the entire property, groundwater flow, remediation for soils with concentrations greater than the appropriate RRSs, possible gas venting, and management of impacted materials during site construction. The EPD must respond to the PPCAP with a conditional LoL letter, contingent on completing the items in the PPCAP, before the property transaction is completed by the PP (prior to closing).

The PPCAP is then implemented and the conditions resulting from the actions outlined in the PPCAP are documented in a prospective purchaser compliance status report (PPCSR). The PPCSR is a very detailed report that defines the final conditions at the brownfields property, documents the soil remedial actions conducted, restates the property and purchasers’ qualifications, and certifies that the soils at the project site meet the appropriate RRSs. With the EPDs review and concurrence that the PPCSR is complete, the final LoL will be issued by the state and the PP receives the LoL benefits outlined above. In the event that remediation is not required at a property, or full remediation and site characterization has already been completed, a PPCAP would not be needed and a PPCSR could be submitted with the fee as the Application.

Conclusion
Finally, certain sites are excluded from taking advantage of the Georgia’s brownfield program. Federal government facilities, sites listed on the federal National Priorities List, or those sites on the Superfund list must be addressed through US EPA’s similarly set-up Brownfield Prospective Purchaser Program. Additionally, sites which have active hazardous waste facility permits [which may be possible to transfer such a hazardous waste facility into Brownfield jurisdiction depending on the site’s specific condition] have also been excluded. Excluded or not, there still remain many brownfield sites in Georgia that are ripe for redevelopment.

¹ Excerpt from Georgia Brownfields by Russell C. Griebel, P.G., United Consulting

Martin A. Shelton, Esq. is a partner with Atlanta-based Schulten Ward & Turner, LLP.