The Atlanta Public Safety Training Center Development Team is Misleading Stakeholders Regarding Environmental Assessments and Avoiding Due Diligence
by Lily Ponitz
I am an environmental engineer, formerly registered as a professional engineer in Georgia, and worked for seven years in consulting for private-sector clients. My work revolved primarily around emerging water contaminants, doing design, reporting, and permitting to respond to requests for support in voluntary due diligence and regulatory consent orders. I am also a member (and Secretary) of the Community Stakeholder Advisory Committee tasked with standing in for public input on the proposed Atlanta Public Safety Training Center, to be built in the South River Forest and former Atlanta City Prison Farm in South DeKalb County. With my background and involvement in the project, I have been able to follow and closely review the Atlanta Police Foundation’s consultants’ work with regards to environmental due diligence.
The developers from DaVinci Development Collaborative, along with the Atlanta Police Foundation, have misused language related to regulated environmental assessments to feign legitimacy of their due diligence efforts. This writing is meant to explain to the public just how empty their promises for environmental assessments have been, and why they might be able to get away with it.
The Big Problem: Mischaracterization of this Process as Meeting the Standard for Environmental Site Assessment
Phase I Environmental Site Assessments (Phase I ESA) are normally an investigation of a property’s current and historical use, completed prior to sale of a property to determine the potential for hazardous conditions to be present. These are light evaluations, for the purpose of simply identifying any suspected recognized environmental conditions (RECs). On properties where RECs and significant data gaps are identified in Phase I, typically there is a Phase II ESA that works to characterize these hazards in detail, using subsurface testing. The Phase II ESA is performed per the professional standard ASTM E1903-11, under the expertise of a trained and licensed staff of geologists and engineers. When a real estate transaction is taking place, both the buying and selling parties have an interest in exposing hidden risk in Phase II to prevent the occurrence of complex environmental liabilities and high costs of last-minute remediation at the time of construction for the new development.
In this case, because the City of Atlanta has already leased the property to the Atlanta Police Foundation, and the City of Atlanta remains the technical owner of the land, the only imperative for either a Phase I or Phase II ESA to be completed is detailed in the ground lease agreement (which ACPC recently obtained through an open records request).
From pg. 4 of the Ground Lease Agreement:
The Atlanta Police Foundation has claimed to be acting out of “good faith” in completing these reports, is accountable to only themselves, and is looking out for only their risk. Since the City of Atlanta did not constrain the acreage of Atlanta Police Foundation’s lease to any specific portion of the property, DaVinci Development Collaborative can simply take the results of the Phase I ESA and attempt to avoid the riskiest areas of the site, building where they feel safe and leaving the most contaminated areas for someone else to clean up in the future, after these areas are surrounded by an active police training facility. This is technically allowed by item 6.2 of the ground lease agreement, which says, basically, if they do not find anything that breaks current law, and they do not disturb a contaminated area, they are not accountable for cleaning anything up.
An accurate and helpful Phase II ESA would account for all of the chemicals of concern and areas of concern identified in the Phase I ESA. Terracon, the consultant doing this field work and reporting, clearly understands the report they produced in December 2021 was not a Phase II ESA, because they would not even title it as such – they titled it a “Limited Site Investigation” (LSI) and threw in caveats throughout the report that it was based on the agreed-upon scope of services and not the ASTM standards. It is also apparent that the development team would have preferred not to call this report a Phase II ESA, as doing so would invoke item 6.3 of the ground lease agreement which requires them to come to separate agreement with the City of Atlanta with respect to the extensive Phase II ESA reporting and remediation of environmental conditions it would bring to light. However, throughout the time this report was being prepared, and even after it was reviewed by the Atlanta Police Foundation and distributed to the stakeholder committee and the public, Atlanta Police Foundation and DaVinci Development Collaborative continued to refer to it as a Phase II ESA – implying it serves functions it does not. The use of technical terminology to refer to a report that does not meet the legally-defined standards for such a report constitutes a manipulation of the public and my fellow stakeholders on the community committee.
From title page of the LSI:
From pg. 2 of the LSI:
The next section will shed light on the gaps between the Phase I ESA and the LSI, which led to the LSI not qualifying as a Phase II ESA. These are significant problems that, as mentioned before, DaVinci Development Collective will attempt to skirt as they design the development so as to leave unknown risk on others while they profit from developing the more pristine areas of the property.
Unanswered Question #1 – Soil and Groundwater Contaminated by Pesticides and Petroleum Hydrocarbons
A total of 30 soil samples and 3 groundwater samples were collected from subsurface borings on portions of the site. However, the areas selected for borings and the chemical analyses employed did not line up with potential hazardous conditions identified in the Phase I ESA. Additionally, many chemical compounds travel through soil and only stay in groundwater, so the fact that there were 30 soil samples collected and only 3 groundwater samples collected means there is limited information on the presence of chemicals that could be in the groundwater.
Most notably, the Phase I ESA highlighted that the historic use and contents of the 20,000 gallon above-ground storage tank (AST) was unknown. It could have been used to hold fuel oil, similar to the two underground storage tanks (USTs) that had already been removed and the soil remediated in 2006. More likely, in my opinion, is that the AST functioned as a day-tank for mixing concentrated pesticides, herbicides, or fertilizers with water to dilute them so they could be sprayed on fields or animals in the Prison Farm.
From pg. vii of the Phase I ESA:
Even after the Phase I ESA identified the 20,000 gallon AST as a significant data gap, there was no attempt at further investigation of this tank or the soil and groundwater in its vicinity. Moreover, there was no analysis of any of the soil or groundwater samples for presence of total petroleum hydrocarbons (TPH) or pesticides – two groups of chemical compounds that are routinely included in Phase II ESAs when the property has a known/suspected history of their use.
Of the three groundwater samples, one collected from a boring in Building 3 (B17/TMW) showed presence of 2-methylnaphthalene, an pesticide that just happens to be identified in the semivolatile organic compounds (SVOC) analytical method included in the LSI. This building is the closest to the 20,000 gallon AST and would have reasonably been associated with operation of the AST. A professional geologist or engineer would have suggested doing additional pesticide screening to follow up on the presence of 2-methylnaphthalene, and it is likely that Terracon did. However, since additional borings and chemical analysis require significant time and money, this was likely eliminated from the scope of services and the development by the Atlanta Police Foundation and DaVinci Development Collective will either avoid this area or build on top of the soil and groundwater that was potentially contaminated by the operation of the AST.
From Exhibit 3 of the LSI:
The LSI continued to mark the fueling source of the boilers as a significant data gap, however no attempt at testing for petroleum hydrocarbons in the subsurface samples was made.
From pg. 2 of the LSI:
Unanswered Question #2 – Nature of Debris Landfilled in Unmarked Areas, Resulting Soil Contamination and Potential for Disturbance of Human Remains
The Phase I ESA identified potential for buried debris around the site and did not make any attempts at guessing the type of debris landfilled onsite, but suggested that test pits be excavated to assess the nature of the buried materials.
From pg. vi of Phase I ESA:
It is likely that these landfilled areas contain artifacts of farm operations, which could include canisters and drums of pesticides, herbicides, and fertilizers, as well as oil-containing equipment, that are contributing to soil and groundwater contamination. Also likely, given the historical operation as a prison farm, and conditions including poor sanitation and ventilation, lack of healthcare, malnutrition, violence and abuse, heavy workload, accidents, and harsh punishments, it is reasonable to believe that some of these areas could contain human remains in unmarked graves.
The LSI, again, made no attempt at following up on the suggestion from the Phase I ESA with subsurface investigation. They completed a review of aerial photographs and identified the “central and northern portion of the site” as an area that appeared to be excavated in the 1990s, and point out that they were not provided any information on why this regrading took place.
From pg. 2 of the LSI:
Not fully investigating the recognized environmental conditions and the significant data gaps identified in the Phase I Environmental Site Assessment, and releasing the Limited Site Investigation after months of promising a Phase II Environmental Site Assessment, are signals of utter neglect on the part of the Atlanta Police Foundation and DaVinci Development Collaborative. As a member of the community stakeholder advisory committee, I have no faith that my comments and professional input, as well as similar comments submitted by others on the committee will be considered, because of how my input has been belittled in previous meetings, and because it is far too costly to the development team to go back and redo the site investigations to produce an actual Phase II Environmental Site Assessment. The City of Atlanta must force the development team to act responsibly by issuing a stop work order and invoking item 6.3 of the ground lease agreement to require a proper Phase II Environmental Site Assessment to be completed, or they are likely to foot the bill for the remediation that is being ignored, or for the complicated litigation that will arise when this development team disturbs human remains on this site.