TURNING LANDFILLS INTO BROWNFIELD REDEVELOPMENT Martin Shelton Weissman, Nowack, Curry & Wilco [email protected]
Jan 12, 2016
TURNING LANDFILLS INTO BROWNFIELD REDEVELOPMENT
Martin SheltonWeissman, Nowack, Curry & Wilco
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
Weissman, Nowack, Curry & WilcoOne Alliance Center, 4 th Floor
3500 Lenox RoadAtlanta, GA 30326
www.wncwlaw.com