By Craig Pendergrast
The Georgia General Assembly has just adopted a significant amendment to the Georgia Hazardous Site Reuse and Redevelopment Act (the “Brownfields Act”).
The original Brownfields Act became effective July 1, 2002. It provided a mechanism for a party purchasing contaminated property to obtain a release of environmental liability if it makes proper application to the Georgia Environmental Protection Division (GAEPD) prior to the purchase of the contaminated property.

Retroactive Liability Protection
Because it took some time for GAEPD to develop its program and staffing for application of the Brownfields Act, an amendment was adopted in this year’s General Assembly to allow parties that have already purchased a contaminated property to obtain retroactive release of liability protection.
To receive retroactive protection, the owner must have acquired the property between July 1, 2002, and July 1, 2005, and must apply for the release before January 1, 2006.

Liability Protection for Petroleum Contamination
The 2005 amendment to the Brownfields Act also clarifies that its protections are available to properties contaminated with petroleum, not just properties contaminated with non-petroleum hazardous substances. Georgia and federal law contain different provisions and paths for addressing contaminated property, depending upon whether the contamination is in the form of petroleum or other hazardous substances. The original Brownfield Act clearly applied to releases of hazardous substances under the Georgia Hazardous Site Response Act (HSRA), but it was not clear whether it also applied to releases of petroleum. This amendment clarifies the Brownfields Act’s applicability to both.

Scope and Conditions of Liability Protection
In order to obtain protection under the Brownfields Act, other conditions and circumstances should also be considered. Among these are the following:

• An application fee of $3,000 is required to be paid to GAEPD.
• Appropriate investigation is required, and cleanup may be required for contaminated soil. If soil contaminant levels are acceptable or a plan is submitted and approved to address excessive soil contaminant levels, then the purchaser (but not the seller) may be relieved of liability for groundwater contamination.
• The release of liability under the Brownfields Act protects the purchaser not only from future enforcement actions by GAEPD, but also from private common-law third-party claims. However, it does not necessarily provide protection against federal claims. Under federal law, other liability protection may be obtained based on satisfaction of

The year is definitely shaping up as an important and productive year for the Brownfields Redevelopment Pro-gram. The blossoms have bloomed and only time will tell whether the trees will bear fruit. To learn more about the proposed legislation, see www.leg.state.fl.us. BFN

Craig Pendergrast is a partner in the Environmental, Safety & Toxic Tort Group of Seyfarth Shaw LLP.

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