Introduction
On June 1, the Georgia Voluntary Remediation Program Act, O.C.G.A. § 12-8-100, et seq., went into effect. The Act establishes, for the first time in Georgia, a Voluntary Remediation Program (VRP) intended to encourage “voluntary,” “timely,” and “cost-effective” investigation and remediation of properties impacted by the release of hazardous substances. Unlike the Georgia Hazardous Site Response Act (“HSRA”), which requires cleanup of soil and groundwater contamination to established levels, VRP adopts a risk-based approach under which cleanup standards are determined on a site-specific basis, taking into account factors such as potential exposure and groundwater impacts.
In effect, the new VRP represents a substantial move away from inflexible, often arbitrary, “one size fits all” clean-up standards of HSRA and allows for the consideration of cost- and risk- factors in fashioning remedies to suit particular properties. It also substantially reduces the often costly and time-consuming oversight from EPD that goes along with HSRA, allowing Georgia’s contaminated properties to be cleaned up more quickly and efficiently.
Properties that qualify for the VRP
In order to be considered a “qualifying property” for the VRP, the property must (1) be listed on the Hazardous Site Inventory (“HSI”) pursuant to the Georgia Hazardous Site Response Act (“HSRA”), O.C.G.A. § 12-8-90, et seq., (2) qualify for a limitation of liability under the Georgia Hazardous Site Reuse and Redevelopment Act (“Brownfields Act”), O.C.G.A. § 12-8-205, or (3) otherwise have a release of regulated substances into the environment. However, sites currently listed on the federal National Priorities List, those for which response activities are required by the federal EPA, and Hazardous Waste Facilities are not eligible for enrollment in the VRP.
Enrollment in the VRP
An applicant to the VRP must be the property owner or have the property owner’s express permission to enter the property to perform corrective action. To enroll a qualifying property in the VRP, the applicant must submit a voluntary remediation plan, along with a nonrefundable $5000 application fee, to EPD. The voluntary remediation plan must be prepared by a registered professional engineer or geologist who has “experience in responsible charge of the investigation and remediation of such releases.” The voluntary remediation plan must describe the actions planned to bring the property into compliance with the applicable cleanup standards, and one or more registered professionals must be retained by the applicant, at the applicant’s sole cost, to oversee the investigation and remediation described in the plan. Upon EPD’s approval of the voluntary remediation plan, the property will be listed on the HIS and remediation can begin.
Termination of enrollment
Because the program is voluntary, a VRP participant may terminate a property’s enrollment in the program at any time. However, even if the VRP participant terminates a property’s enrollment, the property will remain listed on the HSI, meaning that the remediation activities required under HSRA must be performed at the property before it will be removed from the HSI. Further, the remediation standard would revert to the soil and groundwater standards currently required by HSRA.
Completion of remediation under the VRP
When a the participant has completed corrective action, the participant must submit to EPD a compliance status report showing that the corrective action was taken consistent with the VRP and certifying the property’s compliance with the applicable cleanup standards. Note that at any time before the submission of the compliance status report, EPD can unilaterally terminate a property’s enrollment in the VRP if EPD determines that the participant has failed to properly implement the voluntary remediation plan or that continued enrollment poses an “imminent or substantial danger to human health and the environment.” If EPD finds that the compliance status report is consistent with the “provisions, purposes, standards, and policies” of the VRP, EPD will issue a concurrence and remove the property from the HSI.
VRP concepts
It should be noted that, “[s]ite delineation or remediation beyond the point of technical impracticability shall not be required if the site does not otherwise pose an imminent or substantial danger to human health and the environment,” meaning that a property will not have to remain listed on the HSI indefinitely as long as it is cleaned up to a the highest technically feasible level and does not pose a danger. Also, the Act requires that EPD remove a property from the HSI if the participant shows that, at the time of enrollment, a release exceeding a reportable quantity did not exist at the property. Further, if the property was listed on the HSI as a result of a release exceeding a reportable quantity for soil, but not for groundwater, the participant is not required to perform corrective action or certify compliance for groundwater. Compliance with cleanup standards under the new program should be easier to reach because, under the VRP, compliance with cleanup standards is determined by “representative concentrations” in all samples, as opposed to requiring that each sample comply with the cleanup standards.
Conclusion
The Voluntary Remediation Program Act represents a significant step forward for Georgia, and will make it easier for property owners and others to remediation sites with limited government involvement. If you have any questions about the VRP, please contact Phillip Hoover or Josie Nackers of Smith, Gambrell & Russell’s Environmental Law Section.