Proposed waste site bill draws criticism from environmental attorneys

mlee@macon.comFebruary 22, 2013 

ATLANTA -- A new bill by a Houston County senator will do something about Georgia’s hazardous waste sites. Depending on who is explaining, it would either help to clean them up for safe use or reduce protections of Georgia’s groundwater and soil.

“What that bill does is it’s reforming the corrective action programs we have in this state” and getting more sites back in use, said Rudy Underwood, the senior director for state affairs of the Georgia Chemistry Council. That’s an industry group that supports Senate Bill 176 by state Sen. Ross Tolleson, R-Perry.

Not so, says an environmental attorney. If a person owns or buys land next to a site, under this bill, “you’ll be left with no remedy and potentially worthless property (caused by) long-gone polluters with little chance of ever being made whole,” said Stephanie Stuckey Benfield, a former Democratic state legislator from Atlanta and now executive director of the law firm GreenLaw.

They’re referring to the range of polluted places on the state’s Hazardous Site Inventory, a list of some 550 places where some dangerous amount of pollution has been found or is likely to be in soil or groundwater. Dry cleaners and gas stations are some of the more common entries, though landfills, factories, old industrial sites and other places show up too.

Right now, those sites, by law, need to be cleaned up. Responsible parties can fall under one of two cleanup programs.

The state Hazardous Sites Response Act pins pollution liability very broadly, and it could apply to anyone who owns a site, generates the material that pollutes a site or transports waste to the site. The state Environmental Protection Division is supposed to police the sites and enforce spic-and-span cleanup.

The Voluntary Remediation Program Act allows lower cleanup standards, but says property owners must admit that status on their property deed, which means their property will never be as valuable as a completely clean property, and not just any business could locate there. For example, a site like the former Macon Naval Ordnance Landfill might be suitable as a parking lot, but not as a playground.

Sites owned by long-dead companies default into purview under the Hazardous Sites Response Act, waiting for the state to take over cleanup. They can wait for years and years for scarce EPD dollars.

The Voluntary Remediation Program Act has a major flaw that’s made worse under the bill, according to environmental attorney Michael Carvalho of Marietta. It has to do with groundwater and carrying pollution across properties.

Say you had a dry cleaner that went out of business, Carvalho said. And it left behind pollution that has seeped into the groundwater, maybe into aquifers and drinking water.

The bill makes changes that Carvalho said reduce the chances that a responsible party will clean up all their mess..

The draft changes that act to require fewer cleanup reports and weakens the EPD director’s oversight. By Carvalho’s reading, the bill would also let a property owner carve off the polluted part of a property, perhaps even putting that portion in a dummy company with no assets.

Thus the bill would have a “chilling effect” on a person’s ability to get redress from irresponsible neighboring polluters, Carvalho said, adding that he’s seen it happen to some of his clients, sometimes to the tune of millions of dollars.

State Sen. Frank Ginn, R-Danielsville, signed the bill with Tolleson. He took the example another way.

Property that’s known to be polluted, such as a long-defunct gas station, is not appealing to any buyer because they don’t want the cleanup costs, he said. So the net effect is unused land that’s not generating any tax revenue.

“How do we still encourage the remediation of that site in such a way that we can still have future development of that property?” he asked.

The bill’s tweaks to the remediation act, he suggested, are a good way to get developers interested in those properties.

The state EPD declined to make any statement on the bill until their representatives discuss it with Tolleson, said a spokesperson. Tolleson is away from the Capitol due to a death in the family.

No hearing has yet been scheduled for the bill, but it’s been assigned to the Senate Natural Resources and the Environment Committee, which Tolleson chairs.

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