BIPARTISAN BROWNFIELDS LEGISLATION IN U.S. SENATE

In early June, the bipartisan leadership of the U.S. Senate Environment and Public Works Committee introduced S. 2700, the "Brownfields Revitalization and Environmental Restoration Act." If enacted, the legislation will authorize $150 million per year in general fund appropriations, strengthen and enhance U.S. EPA's brownfields program, clarify liability issues that some people believe discourage brownfields revitalization, and set standards for state oversight of brownfields cleanup.

The bill is a carefully crafted compromise by its authors, Senators Lincoln Chafee (R-RI), Bob Smith (R-NH), Max Baucus (D-Montana), and Frank Lautenberg (D-NJ). There appears to be widespread backing among brownfields constituencies and in the Senate, where at least a 54 Senators have signed on as sponsors.
However, S. 2700 has a major hurdle to surmount, even to make it through the Senate. According to the Washington Post (July 5, 2000), Senator Majority Leader Trent Lott (R-MS) made a secret written promise earlier this year to Senator Michael Crapo (R-ID), to block any piecemeal revisions of the Superfund law, including brownfields legislation. It's not that either Lott or Crapo necessarily oppose provisions of the bipartisan bill; rather, Crapo is reportedly concerned that passage of S. 2700, with its liability reforms, would undercut efforts for a comprehensive overhaul of Superfund. Crapo, says the Post, favors Superfund reforms to reduce the cleanup expenses faced by mining com-panies in his state.

Still, proponents believe they can leverage support from developers, state and local governments, environmental groups, and the Clinton administration to bring the bill to a vote. Once through the Senate, they hope that its sheer momentum will open a pathway through the logjammed House of Representatives.

S. 2700 would authorize $150 million per year, from fiscal years 2001 through 2005, to be appropriated by Congress. "Authorization" does not guarantee "appropriation," but if Congress does vote the money, EPA will have more flexibility than with funds from the Superfund account itself.

The legislation would continue grants to local governments and other entities for site characterization and assessment. More significantly, it would authorize grants as well as loans to help pay for actual remediation at brownfields properties. Those funds would not only be available to the entities that are eligible for assessment grants, but to non-profit organizations that own contaminated property.

The bipartisan bill also directs EPA to establish criteria for awarding grants, and it imposes some criteria of its own, to ensure that the program serves the broader public interest. The June 8, 2000 version (the bill is undergoing repeated minor modifications) states that grants should, at least in part, be based upon "the extent to which a grant will facilitate the creation of, preservation of, or addition to a park, a greenway, undeveloped property, recreational property, or other property used for nonprofit purposes … the extent to which a grant will meet the needs of a community that has an inability to draw on other sources of funding for environmental remediation and subsequent redevelopment of the area in which a brownfield site is located because of the small population or low income of the community … [and] the extent to which the grant provides for involvement of the local community in the process of making decisions relating to cleanup and future uses of a brownfield site."

In addition, the legislation would resolve a dispute, raised in the House of Representatives in 1998, over EPA's authority to use Brownfields money for training and technical assistance. If the bill passes, that authority will be crystal clear.

The Liability Clarification section of the bill is designed to codify and strengthen administrative reforms that EPA has introduced over the past few years. It would provide Superfund liability relief for innocent owners of contiguous property, inno cent future buyers, and innocent landowners-those who had no reason to know of contamination when they purchased the property, despite having made all appropriate inquiry.

The legislation also authorizes $50 million per year for five years to support state and tribal cleanup programs if those programs meet federal criteria. Those criteria would include timely inventories and surveys, contingency procedures for completing unfinished cleanup, and public access to documents with an opportunity to comment.
It would restrict EPA's never-used, but always in the background, authority to take enforcement action at sites address through state programs. To be eligible for this "bar on federal enforcement," state programs would be required to maintain a "public record of sites, by name and location, at which response actions have been completed in the previous year and are planned to be addressed under the State program ... The public record shall identify whether or not the site, on completion of the response action, will be suited for unrestricted use and, if not, shall identify the institutional controls relied on in the remedy."

But the requirements for state public participation programs, necessary for federal grants to states and tribes, are not included as requirements for restricting federal enforcement.

Assistant EPA Administrator Tim Fields endorsed S. 2700 on behalf of the Clinton Administration at a June 29, 2000 Senate hearing. He did, however, suggest changes in the language restricting the bar on federal enforcement. He proposed more careful language on the requirements for a public list.

Furthermore, Fields stated, "the bill does not require minimum criteria for an adequate State program. We continue to believe that States should be required to demonstrate that their programs satisfy minimum criteria before Federal enforcement bars apply. In particular, there is no mechanism to ensure appropriate public participation in State cleanups or provide assurance through State review or approval that site cleanups are adequate. Both public participation and accountability are important to make good cleanup decisions."

Also at the hearings, Vernice Miller-Travis, until recently Executive Director of the Partnership for Sustainable Brownfields Development," called S. 2700 a "well crafted, useful, creative approach to Brownfields redevelopment."

However, she went further than Fields in raising concerns about the proposal: "The bill does not address the question of the presence of lead and/or asbestos removal from buildings on Brownfields sites (buildings that themselves will either be refurbished or demolished). The bill does not address the remediation of abandoned gas stations as an eligible recipient activity for federal Brownfields grant moneys.

"My biggest area of concern is the blanket delegation of enforcement authority for Brownfields redevelopment to State Voluntary Cleanup Programs. The legislation assumes that all states have the resources to implement a vigorous VCP program that can assume the enforcement responsibilities that EPA has heretofore held. For a variety of reasons this assumption is not accurate. All states are not equal in terms of the resources available to them to implement and maintain strong VCP's. Some states as a matter of political philosophy are opposed to vigorous enforcement actions that they believe will diminish the interest by private developers in purchasing and redeveloping Brownfields sites within their states. In these states local communities, especially low income and communities of color, are facing an uphill battle when trying to get state and local agencies to balance economic development considerations with the need for environmental and public health considerations.

To address this particular concern I suggest that the legislation include language that states would have to demonstrate to EPA the existence, and effectiveness of a state Voluntary Cleanup Program before the state could receive delegated enforcement authority for a Brownfields program. Through this process the state would need to certify that they indeed have an established program of corrective action to clean up and redevelop Brownfields sites. The state would also need to demonstrate that its corrective action program has been and can be implemented consistently across the state in all communities regardless of race, ethnicity or economic status."

Miller-Travis concluded with a general warning on the course of brownfields revitalization: "I believe that this bill goes a long way toward advancing the cause of Brownfields clean-up and redevelopment. I want to caution the drafters of this bill to recognize that all your efforts to craft a comprehensive and inclusive bill will be for naught, if state and local government entities do not take the opportunities afforded in this bill to work with local communities in meaningful and measurable ways toward the goal of Brownfields redevelopment and community revitalization.

"The environmental justice perspective on Brownfields redevelopment is that these sites must be viewed as a component of a broader economic and community revitalization strategy: A strategy that seeks to rebuild and revive these long dormant communities into healthy, safe and economically viable areas. This is what is meant by the term 'sustainable Brownfields redevelopment.'

"Back home in our respective communities, we are witnessing Brownfields programs and projects that promote economic opportunities for entities other than the long suffering residents and small business owners in our nations most economically and environmentally deprived communities, where the bulk of the Brownfields sites are located. We are also witnessing successful Brownfields projects that have mushroomed into wholesale gentrification of our communities, for example: Jersey City, New Jersey, Downtown Detroit, the 125th Street commercial corridor in Harlem, New York, and many other examples across the country. We believe that real economic development is that which enhances the quality of life of community residents and improves economic opportunities for community businesses."

BROWNFIELDS SCHOOLS

Most debates over brownfields development projects focus on future use. Despite the likely presence of environmental contamination, public health concerns are usually left in the background. A major exception is emerging: The construction of schools, daycare centers, and other child-oriented facilities on brownfields sites. The Belmont High School fiasco in Los Angeles, in which the Los Angeles Unified School District finally decided to abandon a new campus that cost hundreds of millions of dollars to construct, brought the problem to national attention.

Some people react by saying no schools should be built on brownfields, but in many communities those sites are the only available sites. Furthermore, sites perceived to be contaminated may actually be clean, or simple removal actions might eliminate virtually all risk.

What is needed, therefore, is a method of screening and cleaning brownfields sites which meets scientific standards for public health and which inspires the confidence of the parents of the young people who will spend much of their time at these sites.

The State of California has established a Brownfields schools program within the Department of Toxic Substances Control, and it has enacted legislation to promote effective characterization of potential school site. The following background, from a paper by California's Senate Select Committee on Environmental Justice (January 14, 2000), describes the need for such programs:

"Environmental injustice occurs where environmental degradations are overconcentrated in low-income and minority communities. Because a disproportionate share of 'brownfields'-vacant or underutilized sites that may be contaminated from prior uses-are located in low-income and minority communities, cleaning up these sites and promoting their reuse helps alleviate the historical injustices affecting these neighborhoods.

"At the same time, California's school-aged population continues to surge. School districts around the state face a dire need to construct new facilities to meet the demand for classroom space. However, in many communities, especially older urban areas comprised of low-income and minority neighborhoods, there are very few parcels of available land large enough to accommodate a school. As a result, a district must choose between demolishing existing homes and businesses or looking to brownfields.

"Cleaning up brownfields for use as schools can bring a double benefit by both removing an eyesore and potential source of exposure to the community and providing the needed classroom space.…

"According to the Coalition for Adequate School Housing, California needs 22,000 new classrooms to serve its current student population. In addition, the Department of Finance projects that K-12 enrollment will increase by roughly 369,000 between now and 2007. These facts and the ever-expanding class-size reduction program fuel the intense drive now underway to construct new schools in California. The Los Angeles Unified School District alone hopes to build 100 new schools in some of the city's densest neighborhoods by 2008.

"The push to build new schools is complicated by the difficulty in finding appropriate sites. In urban districts, the areas of greatest need are often the most densely populated neighborhoods where vacant, unused land generally does not exist. Creating room for new schools in these communities means condemning and clearing existing homes and businesses. In the San Fernando Valley, for example, LAUSD is considering relocating the flagship Robinsons-May store which employs hundreds of retail and corporate personnel. In some cases, the only alternative to destroying business and residential opportunities is to consider sites that may contain environmental contamination, known as brownfields."

CCLR CASE STUDIES

• The non-profit California Center for Land Recycling (CCLR) has issued a report, "Brownfield Redevelopment: Case Studies," documenting the value that organizations such as CCLR bring to the Brownfields revitalization process. The report summarizes five California projects in which CCLR and its Project Learning Program have provided assistance:
• At an abandoned oil well site on Venice Beach, CCLR and its partners determined that remediation would be less costly than originally estimated, enabling reuse of the site for recreation.
• At Union Point, on the Oakland Estuary, CCLR funded a site assessment that showed that cleanup would not be too expensive, making it possible for the community to move ahead with plans for a waterfront park.
• In North Fork, south of Yosemite, CCLR assembled a project team that facilitated the creation of a diverse reuse plan for a closed lumber mill site. This could serve as a model at many of the more than 100 closed lumber mills in the state.
• In the Bay Area town of Pacifica, CCLR helped the community realistically evaluate competing reuse plans for a former sewage plant. A hotel is now planned for the property.
• In LA's Crenshaw district, CCLR advised a church-based Community Development Corporation that groundwater contamination made a proposed project impractical-unless the current property owner is willing to take responsibility for the contamination.

While large private developers have the resources on their own to sort through the environmental, planning, and political issues surrounding Brownfields projects, community groups and local governments-even as large as Los Angeles-usually need a mix of technical and other assistance. CCLR appears to be providing that in a constructive way. If there's any weakness in its approach, it's an apparent over-reliance on containment or capping as a solution to soil contamination.

For more information about CCLR, its publications, or how to apply for help, call the organization at 415/820-2080 or visit www.cclr.org.