2025 Brownfields Reauthorization Legislation and Georgia EPD Update

By Michael P. Carvalho, Esq.

February 5, 2025 – The U.S. Senate Committee on Environment and Public Works unanimously referred the Brownfields Reauthorization Act of 2025 (S. 347) to the full Senate. Here are the highlights:

1. The Brownfields Reauthorization Act of 2025 would reauthorize the U.S. Environmental Protection Agency’s (EPA) Brownfields Program through fiscal year 2030.

2. Reduce financial barriers for small and underserved communities and expand access to the program by:

a. reducing the cost-share requirement from 20 percent to 10 percent
b. providing cost-share waivers for small and underserved communities
c. streamlining the application process to make it more accessible for smaller communities
d. expanding the definition of eligible entities to include organizations defined under Section 501(c)(6) of the Internal Revenue Code, in addition to 501(c)(3) organizations; 501(c)(6) entities include business leagues, chambers of commerce, real estate boards, boards of trade and professional football leagues
e. doubling maximum site cleanup grants from $500,000 to $1 million
f. increasing state program funding to $75 million annually by 2030

The Brownfields Reauthorization Act of 2025 is a welcome development for the real estate community and reaffirms the important role that Brownfields legislation plays in the redevelopment of environmentally impaired properties.

2025 Georgia Brownfields Update

I had the opportunity to attend the 2025 Georgia Brownfields Association (GBA) Kickoff Event on February 4th and wanted to share a few comments with you.

The Georgia Brownfields Program continues to be an important tool for managing the risk posed by environmental impairment liability for the real estate community. The program continues to be led by Shannon Ridley, Brownfield Coordinator, supported by Team Leaders and Hanley and Stephanie Horwitz, who report that staffing levels have increased and the Program is now fully staffed.

Program Trends include an increased use of “generic CAPs”, multiple regulatory/transitioning program properties, mid-process property transactions, incorporating consideration of formerly “untouchable” properties, increased inclusion of Type 5 Risk Reduction Standards, addressing vapor intrusion (VI) issues, and increased cost certifications. Each of these bode well for the future effectiveness of the program.

EPD is taking a closer look at vapor intrusion consideration, including “passive” v. “active systems”. EPD wants to see QA/QC associated with installation, diagnostic testing ,and verification sampling. Note that the scope of verification testing will be negotiated with EPD. The agency also expressed interest in owners meeting their ongoing due care obligation. EPD is aware of new vapor intrusion mitigation products, to include low mil barriers, radon systems, etc.

The program expressed an interest in seeing Soil Management Plans (SMPs) being include in the CAP, sequencing the SMP and site-specific sampling protocols. Program leads cautioned that owners will need to better distinguish between soils removed for corrective action and total soil removal. The former being subject to cost recovery and the latter being potentially comprised of site development (e.g., geotechnical concerns) that are not necessarily recoverable. The program leads cautioned that this was a concern raised by EPD leadership. There was also a related discussion of offsite disposal to landfills, and Beneficial reuse. EPD is aware of soil brokers acquiring impacted soils that are above the Residential Risk Reduction Standards but below Commercial/Industrial Risk Reduction Standards being sent to commercial sites. EPD cautioned that such transfers can be problematic because they are not well understood and may result in future environmental impairment liability.

Regarding Cost Certifications, EPD stressed the importance of submitting Compliance Status Reports (CSRs) prior to cost certification and asks that the CSR support the cost certification. While this seems obvious, EPD has flagged this concern. Program leads indicated that they had received push back from leadership regarding parties seeking to off-set construction costs by characterizing these as “corrective actions”. Submittals should be made early in the process and that early communications can avoid any delays. All submittals should be well organized and supported. (i.e., no “shoe boxes full of receipts”). Note that some county tax assessors do not require cost submittals prior to December 31st.

EPD did identify an issue with non-compliant brownfield properties where the prospective purchaser is not implementing the CAP within the approved schedule, not actively preventing releases or is making site conditions worse, lack of response to EPD, and/or contributing to the release on the property.

Over the past 30 years, I have been privileged to work on hundreds of projects involving the redevelopment of environmentally impaired projects throughout the U.S. These projects efficiently and effectively place otherwise distressed properties back on the tax rolls and create good paying jobs in the surrounding communities. However, state laws and efficacy vary greatly. Nevertheless, federal and state Brownfield legislation remain important tools in our toolbox for managing environmental risk and will remain so for the foreseeable future. Please do not hesitate to contact me with any questions.