If Why Then Vanish, 13th of the Dog Days, 526 M.E. (Deneb): In the last decade of the 20th Century and continuing into the first decade of the 21st Century, there was significant tension in Georgia between owners of industrial property and the state environmental bureau, the Georgia EPD. The property owners objected to the strenuous cleanup requirements imposed by the state and particularly to their associated high costs, while the State felt they were responsible not only for the environment but also for the effects on human health if the stringent cleanup standards weren't met.
As an environmental consultant caught in the middle, I understood both sides. The state had deliberately set the standards low to protect potential future sensitive receptors - a cleanup standard for lead in soil based on exposure to the current adult industrial workers wouldn't be appropriate for children if the property was sold and redeveloped as residential property. On the other hand, technologies to achieve some of the State's cleanup goals either hadn't been developed yet or were exorbitantly expensive, and many of the property owners being required to foot the bill weren't the parties that contaminated the property in the first place.
A solution of sorts were reached when Georgia started accepting the use of engineering controls to address contaminated land. If contact to lead in soil by children was detrimental, instead of removing the soil why not simply put a concrete cover or other cap over the soil to prevent contact? The state agreed with the solution in principal, but was worried what would happen in the future when a new property owner decided that the concrete didn't fit in with their development plans, or when the concrete eventually began to crack, weather, and fail.
The solution to that concern was institutional control. If a notice that a concrete cover was required to be maintained on site was put onto the property deed and, further, that the notice be a permanent fixture on the deed from one owner to the next, that would address the concern. Deed notices could also require annual inspections of the cap and yearly notifications to the Georgia EPD that the concrete still effectively prevented exposure to the underlying soil.
These engineering and institutional controls could also be made to work for contaminated groundwater. The Property deed could state that under no circumstance could water beneath the property be used as a drinking-water supply, and annual groundwater monitoring and reporting be performed to assure that the contaminated groundwater didn't migrate beyond the property boundaries.
The downside was that implementation of engineering and institutional controls meant that there would be less cleanup in Georgia, and as a result more contaminated soil and groundwater would remain in the state. The upside is that there'd be less human exposure to that remaining contamination, including to the cleanup and hazmat workers performing the remediations. Property owners were happy because it reduced their out-of-pocket cleanup costs (even as it arguably lowered future property values), and the Georgia EPD was happy because it meant less resources were needed for contentious enforcement actions, it avoided litigation, and the burden of future oversight was shifted from the State to the property owners.
This approach to addressing contaminated land was institutionalized with the Georgia Uniform Environmental Covenant Act, which went into effect on July 1, 2008. Since then, more than 300 deed notices have been recorded on properties throughout Georgia.
The EPD has gained experience with this approach over the past decade, but is now reporting instances where property owners claim to be unaware of the deed requirements or are failing to follow the requirements. As examples, they note:
- The owner of a property that contains landfill material was required to maintain a cap over portions of the property, perform annual reporting, and submit notice to EPD of any planned changes to the cap. Georgia learned that, in violation of the requirements, the owner had removed the concrete cap, graded the site, and covered it with soil and gravel.
- A property that contained lead-impacted soil had restrictions on land-disturbing activities and required erosion-control measures, worker protections, and annual reporting. However, a new owner moved the lead-impacted soil around on the property and into a stream buffer and stream, claiming to have no knowledge of the requirements.
- A property that requires groundwater monitoring and annual reporting was sold without notification to Georgia EPD, and required annual reports were not submitted. When the new owners were contacted, they claimed no knowledge of the monitoring and reporting requirements.
- Another owner reportedly did not sample all the required monitoring wells and then sold the property without notifying EPD or the buyer about the monitoring requirements.
These are all examples of where deed notices were in place but the engineering and institutional controls failed. Unfortunately, as the number of properties subject to these controls continues to grow, the number of violations like these will also increase. But rather than scrap the program and abandon the approach, Georgia EPD is proposing that, at a minimum, to ensure that these sites remain protective of human health and the environment, all future environmental deed notices notify the property owners of the requirements on their properties and alert the State to circumstances when follow up is needed.
To this end, the State has announced development of a standardized Annual Certification form and an online reporting tool, and intends to send automated annual reminders to those associated with properties subject to environmental controls.
In my years of consulting work, before my retirement, I found the use of engineering and institutional controls to be an effective approach to addressing contaminated land. It was certainly more cost effective and avoided a lot of the litigation associated with expensive remediation requirements. Like anything, there are always instances when bad actors or simple human nature can cause any approach to fail, but it is my hope that the changes proposed by EPD will allow this approach to continue in Georgia.
It rained again today. I missed my walking day today.
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