TURNING LANDFILLS INTO BROWNFIELD REDEVELOPMENT Martin Shelton Weissman, Nowack, Curry & Wilco martins@wncwlaw.com.

TURNING LANDFILLS INTO BROWNFIELD REDEVELOPMENT

Martin SheltonWeissman, Nowack, Curry & Wilco

martins@wncwlaw.com

Permitted Landfi ll in Operation Post-closure in Theory

LANDFILLS

Resource Conservation Recovery Act (RCRA) Regulatory scheme

Cradle to grave Permitting component Post closure regulations Prospective remedial action to address ongoing contamination

issues

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Historical Hazardous Waste sites Remediation and Treatment to Protect the Environmental

from Hazardous Substances Egalitarian – Liability for All! Contribution Litigation

WHAT LAWS APPLY TO LANDFILLS?

Georgia Comprehensive Solid Waste Management Act Basically implements RCRA Subtitle D Solid Waste

Georgia Hazardous Site Response Act State superfund Release notification Hazardous site inventory Clean up standards Deed Restrictions Potentially Diffi cult to Market or Develop

WHAT LAWS APPLY TO LANDFILLS?

Mt. Trashmore Park in Virginia Beach Mt. Trashmore Playground

THE SUCCESSFUL CLOSURE

Some Use Not Much Use

THE SUCCESSFUL CLOSURE

Not Where You Want Them No Control Over Waste

UNPERMITTED LANDFILLS

Organized Illegal Dumping Random Dumping in Forest

UNPERMITTED LANDFILL

Past SinsWhen Waste Management

Was Not the Same

DEALING WITH PAST WASTE ISSUES

It May Be Obvious…. Or, It May Not.

DEALING WITH PAST WASTE ISSUES

RCRA Post-Closure The Never-ending Story

Methane Monitoring Groundwater Surface water

Depresses Surrounding Development

CERCLA Who wants to buy a Superfund site? Sites do move of the list, but still require a lot of work to

reuse

LEGAL EFFECT OF PAST WASTE ISSUES

HSRA Remediation = Years Study & Delineation Determine a Possible Remedy

Soils Groundwater Surface water

Implement Water - Monitor Success Until All Wells < RRS for 2

Consecutive Years

How clean is clean?

LEGAL EFFECT OF PAST WASTE ISSUES

Defined as: “Real property, the expansion, development or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant”

Putting Formerly Unusable Land to a New Use

Georgia Brownfield Act Eligibility Clean up Liability Protection

BROWNFIELDS

Allows redevelopment without assumption of liability

Provides a manageable process to achieve remediation and redevelopment

Provides liability protection

Provides protection from third-party lawsuits

WHAT DOES A BROWNFIELD DO?

WHAT WE’RE REALLY TALKING ABOUT IS RISK

MANAGEMENT…

RISK REDUCTION NOT ELIMINATION

BROWNFIELDS WORK

Had to buy the property A lot of work upfront before purchase

Not available to RCRA sites of any kind

Not available to CERCLA sites

Not available to sites under any environmental lien

But, HSRA sites and UST site were allowed

HISTORICAL BROWNFIELD LIMITATIONS

Expanded to allow anyone with a property interest such as leases, easements – all property interests which previous gave one operator liability

Clarified a prior amendment allowing thirty days after purchase to submit application

Revised the exclusions language No sites listed on the National Priorities List or Superfund

list No sites undergoing remediation under Federal CERCLA

order No active, permitted hazardous waste facilities (RCRA)

2014 BROWNFIELD AMENDMENTS

WHAT DOES THIS MEAN? Former or unpermitted RCRA sites can enter the Brownfield

Program Unpermitted Landfills Former landfills that have completed closure requirements HSRA sites, VRP sites, CERCLIS sites

Clarified a prior amendment allowing thirty days after purchase to submit application

Revised the exclusions language No sites listed on the National Priorities List or Superfund

list No sites undergoing remediation under Federal CERCLA

order No active, permitted hazardous waste facilities (RCRA)

2014 BROWNFIELD AMENDMENTS

Site must still qualify for the program by having a release. Needs to be a constituent included in the governing

statutes of the Georgia Brownfield Act Have to address the source of hazardous constituent

Be prepared for anything initially Closure requirements Methane issues Groundwater Surface water Soils

To Remove or Not Remove?

SO YOU WANT TO REDEVELOP A LANDFILL

BROWNFIELDCASE STUDY 1

BROWNFIELDCASE STUDY 1

BROWNFIELDCASE STUDY 1

BROWNFIELD CASE STUDY2

BROWNFIELD CASE STUDY2

BROWNFIELDCASE STUDY2

BROWNFIELDCASE STUDY2

BROWNFIELDCASE STUDY2

Martin SheltonP: 404-926-4564 | F: 404-926-4764

martins@wncwlaw.com

Weissman, Nowack, Curry & WilcoOne Alliance Center, 4 th Floor

3500 Lenox RoadAtlanta, GA 30326

www.wncwlaw.com