BUILDING SCHOOLS ON BROWNFIELDS

More than 3.5 million children in this country attend derelict schools or ones needing to be replaced. A report by the United States General Accounting Office (GAO), School Facilities: Conditions of America’s Schools claims that some 25,000 schools across the country are in need of major repair or replacement, and that overcrowding affects one-quarter of our schools. As the school age population continues to surge in many communities, school districts face a difficult challenge: how to provide students with safe and nurturing schools when the only land available for new schools are sites that might be contaminated by past industrial or commercial activities.

Why do school districts even consider building schools on brownfields? In some communities there may be no alternative to brownfield sites. In Los Angeles, for example, residential communities have been built on extensive former oil and gas production areas. Given the legacy of contamination in these areas, if brownfields sites were excluded for school construction, new schools would not be built in these communities. Another reason why school boards may consider brownfield sites relates to local property markets. In many communities land prices have increased faster than the funds available to school districts. Clean sites, or greenfields, may be priced beyond the resources of the school district. School acreage requirements also encourage school districts, particularly those in built up areas, to target brownfields. Many state education departments recommend or mandate minimum acreage requirements for school sites. The Council of Educational Facility Planners International (CEFPI), for example, recommends at least 10 acres of land plus one acre for every 100 students for an elementary school and larger sites for middle and high schools. Under this formula, a typical elementary school with five hundred children would require 15 acres for parking, playgrounds, and classroom and office space to support more diverse educational programs. In many older, built up communities the only parcels of land large enough to satisfy acreage requirements are likely to be sites that once housed factories or warehouses.

There are, of course, alternatives to brownfields sites for school construction, but they may be politically unfeasible. One alternative is to site the school on undeveloped property, but this may run counter to a locality’s comprehensive plans and may not be the location where the school is most needed. School districts can use eminent domain to acquire property and to demolish existing homes and businesses for new school construction. This policy, however, can have steep economic and political costs for school boards, and runs counter to the notion embraced by many groups that new schools should help to reinvigorate community life and strengthen local ties, not displace local residents and businesses.

SAFEGUARDS TO PROTECT CHILDREN

For these reasons, school facility planners and others involved in school siting decisions have come to recognize brownfields as a potential source of land for new school construction. Most parents and communities want to know what safeguards are in place to ensure that schools built on contaminated land are safe for children. One set of safeguards are accepted real estate practices that are part of buying and selling property; these are known, in the jargon of real estate law, as due diligence requirements and set out what sort of environmental investigation is needed to determine if a site is polluted from past uses. In order to secure approval for a new school site, school districts are obliged to investigate the environmental conditions of the proposed site. To satisfy due diligence requirements, the investigation should include a site visit, review of records related to the property and surrounding areas such as land use records, aerial photographs, chain of title documents as well as interviews with site owners. The objective of this first phase site assessment is to determine if the potential exists for exposure to contamination. If the initial site assessment assessment does not rule out the possibility of contamination, a more detailed site assessment is typically required, which includes site sampling and an initial risk assessment. If a school district elects to acquire contaminated property and proceed with construction, the school district is then required to clean up the property in accordance with state cleanup standards and to monitor and control any contamination left on site.

WHEN SAFEGUARDS FAIL

In practice, however, these safeguards have at times failed to protect school children from exposure to contamination. For example, in 1999 residents in Chicago’s Little Village discovered that the city’s Public Building Commission had built two schools on sites contaminated with heavy metals, pesticides, and other toxic industrial chemicals. Some cleanup had taken place at the sites under the state’s voluntary cleanup program and a soil cap was put in place to prevent children from being exposed to residual contamination. But the schools were built and opened without notification to the Illinois Environmental Protection Agency and without a No Further Remediation Letter, a legal assurance issued by the Illinois EPA indicating that the site had been cleaned up to the minimum standards set by the agency. Due to pressure from community groups, however, further site assessment was conducted at the schools, which were being used by over 800 school children. The tests revealed that school children could be exposed to hazardous chemical that remained on the site at levels that exceeded those considered safe for children.

A similar story unfolded in California. A state audit of the Los Angeles Unified School District (LAUSD) revealed that the school district had built thirteen school on or in close proximity to sites containing hazardous substances. At the Jefferson Middle School in South Central Los Angeles, the audit noted that the environmental conditions when the site was proposed had not been properly characterized. The school had been built on land polluted by toxic chemicals from an nearby chromium-plating plant as well as the industrial wastes from a World War II munitions plant. When the school opened in 1998, questions remained about the adequacy of the cleanup activities at the site.

Perhaps the most well known example of a school siting process gone terribly wrong is the Belmont Learning Complex in Los Angeles. The LAUSD planned to build a joint-use development including affordable housing, community service centers, retail establishments and a high school campus on a 35 acre site in downtown Los Angeles. The site recommended by the LAUSD staff and approved by the school board had been used to dispose of waste oil and contained oil pipelines, and sits on top of the extensive Los Angeles Oil field. The presence of contamination was recognized but not adequately communicated to the school board or to the local community. According to the state audit, and it is worth quoting at length, “Staff did not advise the board that if it acquired the site, the board would violate the state law prohibiting school districts from building schools on hazardous waste disposal sites or on sites that contain pipelines carrying hazardous waste”. The audit goes on to say in a particularly excoriating passage that staff from the LAUSD environmental branch “underreported environmental and safety hazards because of pressure from branch managers and others in the district” (California State Auditor: Los Angeles Unified School District: Its School Site Selection Process Fails to Provide Information Necessary for Decision Making and to Effectively Engage the Community. December 1999. p. 28).

Construction on the school, nevertheless, began in 1998 but was halted within a year after the extent of the environmental hazards at the site became more widely known. Some $150 million dollars has been spent on the site, making it the most expensive school in America, and it remains unfinished.

WHAT WENT WRONG?

Are the school sites in Chicago and Los Angeles examples of a rare breakdown in the school siting process or do they indicate a more systemic problem? The question is difficult to answer. There is no equivalent of a National Priorities List for school sites, and the paper trail for cleanups at school sites, compared to the documentation requirements for Superfund sites, is much harder to get at. Without ready access to site cleanup data at school sites and annual reviews about the effectiveness of the remedy in place, it is difficult to make any broad evaluations about how protective clean ups have been at contaminated sites where schools have been built. However, anecdotal evidence suggests that the siting problems in Chicago and Los Angeles can happen elsewhere. Work by a national coalition of local activists, the Child proofing our Communities campaign, has documented other cases in Ohio, Texas, Massachusetts, Michigan, and Rhode Island where schools are operating on sites that pose environmental risks to children.

From this body of evidence, what can we learn to improve the site selection process in relation to brownfields in order to prevent children from being exposed to environmental hazards at their schools. We can identify three shortcomings.

1. Inadequate due diligence on the part of school districts.

Without the involvement of lending institutions in acquiring property for school construction, school boards have less incentive to perform rigorous due diligence. By requiring site investigations as a condition for loans on acquiring property, banks and other lenders have served as de facto environmental detectives. To protect their own investments and to avoid liability, lenders have played a key role in the discovery of contaminated properties, helping to ensure that proper site characterization and cleanup are carried out. But in the case of Chicago and Los Angeles, the acquisition of property for schools was funded by public money, without the involvement of lending institutions. It would appear that due diligence was not conducted with the same scrutiny as would be the case in private property transactions.

2. School district self-certification of clean ups.

A major flaw in the system is when school districts have both the responsibility and authority for cleaning up site contamination and for certifying that the cleanup has been properly completed before the school facility is constructed. School districts often do not have expertise in site assessment and cleanup, and there may well be conflicts of interest within the school district. As the California audit documented, pressures to get a school up and running to meet enrollment needs may influence how contaminated sites are characterized, leading to less stringent cleanups.

3. Withholding information about site conditions from the local community.

One of the more troubling findings in the audit of the LAUSD was that information about environmental hazards at proposed sites was not provided to local communities and the general public if it was thought to be too threatening. Public discussion about health risks at contaminated sites are inevitably contentious since what is determined to be an acceptable risk when contamination is left on site is as much a political and ethical matter as a technical one, particularly at sites proposed for schools. Community residents need accurate information to decide if a local school proposed for a contaminated site will be safe for their children.

WHAT CAN BE DONE?

As a result of the Belmont fiasco, in 1999 the California legislature passed a law requiring potential school sites to undergo an environmental review by the state's Department of Toxic Substances Control (DTSC) before new schools are built. Under the law, all proposed school sites which will receive state funding for construction must go through this environmental review. The DTSC approves and certifies all site assessments and cleanups. Proposed school sites must be remediated to a level suitable for residential use. To help school districts address contaminated sites, the state funds up to 50% of the cleanup costs. Though there was some resistance among school administrators who felt that the environmental review process would delay construction and stop schools from being built, for many school districts in the state, environmental assessment and the remediation process is now considered early in the site selection process and has become more integrated in school facilities planning. Similarly the state of Illinois passed legislation in 1999 requiring that environmental audits be conducted on any property in the Chicago area intended for use as public school. If the audit reveals evidence of contamination, the property must be cleaned up and certified by the state regulatory agency before the school can be opened. At this point, only California and Illinois have passed legislation that requires the state regulatory agency to be involved in the environmental review of properties on which a school district proposes to construct a school.

In our view, there is a need for other states and localities to follow the lead of California. To ensure effective site assessments and cleanups at proposed school sites, a regulatory framework needs to include site certification by the state regulatory agency, appropriate cleanup standards, funding to school districts for site assessments and cleanup, long term monitoring of site conditions and meaningful opportunities for community involvement.

CONGRESSIONAL HEARING ON SCHOOL SITING LEGISLATION

On October 1, 2002, Lois Gibbs, executive director of the Center for Health, Environment, and Justice (CHEJ), testified before the US Senate’s Environment and Public Works Committee on the need for school siting legislation. The main point of her testimony was that with thousands of new schools proposed for construction in the next five years there is “an immediate need to define criteria and appropriate funds to ensure that new schools are designed and built to protect children’s health”.

At the hearing, she outlined model school siting guidelines developed by CHEJ’s Child-proofing our Communities campaign. These include: 1) establishing a community-based school siting committee to recommend sites for building new schools; 2) creating a categorical exclusion to prohibit schools construction within 1,000 feet of a hazardous waste site or landfill; and 3) requiring state regulatory review of the environmental assessment of any proposed site. More detailed information on CHEJ’s siting guidelines can be found at www.chej.org