California's Brownfields Initiative: The Toxic Crisis
L A Wood, California Environmental Law Reporter, May 1996, Volume 1996 Issue 5

Federal estimates have determined that there are nearly half a million contaminated industrial properties scattered throughout the United States, They dot every major American city and contribute to urban blight and sprawl. Local governments have been virtually powerless in their attempts to break this development cycle. These toxic sites have been slow to redevelop because of their uncertain liability and the probable high cost of their cleanup. Most often, these properties are either left abandoned or are simply underutilized because of land use restrictions.

Some eastern cities, like Chicago, have reported as many as 2,000 of these contaminated industrial sites within a single metropolitan area. Nationally, it is estimated that one in eight no-residential properties has been contaminated. In an effort to combat this problem and to stimulate economic development, the Clinton administration and the Federal Environmental Protection Agency (EPA) have instituted an urban revitalization policy called the Brownfields Economic Development Initiative.

Brownfields, as these contaminated properties have come to be known, represent a broad spectrum of hazardous waste. Pollutants often include a vast array of extremely harmful chemicals and heavy metals. These sites have been reported to be among the most contaminated by both state and federal standards. In the past, the EPA has referred to these toxic industrial properties as "uncontrolled hazardous waste sites." EPA has stated that "uncontrolled hazardous waste sites may present some of the most serious environmental and public health problems the nation has ever faced." [1]

Several months ago, the EPA announced a relaxation of cleanup standards and the removal of 25,000 brownfield sites from its Superfund list, The ripples from these regulatory actions have already been felt in every state, as the active cleanups of 70 sites, nationwide, were recently halted. Since 1993 and the federal program's first pilot project in Cleveland, Ohio, an additional 17 EPA grants have been handed out to municipalities wanting to participate in this brownfields study, including California's state capitol. Within the next two years, 50 more cities will be awarded these grants, which will aid them in bringing their petitions for brownfield status to completion.

The Comprehensive Environmental Response, Compensation, and Liability Act [42 U.S.C. § 9601 et seq.], most commonly known as the Superfund Act, came about as a consequence of the recognized impacts that these hazardous sites, like the highly publicized Love Canal, were having on public health and the environment. Now, in the present regulatory climate, the public is being asked to forget these toxic lessons of the past.

The Brownfields Initiative is being proposed as a new idea. However, it is really a return to a time, not long ago, when polluters were unregulated, sites went uncleaned, and public safety was forsaken for economic development. Brownfield deregulation is now being accepted by a number of states across the country. Acknowledged as having the strongest environmental regulations in the country, even California has been quick to jump on board. With the promise of jobs, community empowerment, and enhanced "quality of life," this initiative will effectively end environmental cleanups on these sites. It's no wonder that the Brownfields Initiative is being criticized for its elements of environmental racism. Let's examine one of California's brownfield projects to better understand these concerns.

The City of Emeryville: the Pilot Study

The City of Emeryville is positioned at the edge of the San Francisco Bay and encompasses approximately 1.2 square miles. Emeryville was recently given a $200,000 EPA grant to complete its application that would award brownfield status to the entire city. The city's redevelopment agency, a co-applicant, will match that amount. This two-year investigation will focus primarily on previous site investigations performed in the past decade.

In many ways, the City of Emeryville is typical of urban cities elsewhere in its longing for economic relief and redevelopment. It is not surprising that these same cities often blame the lengthy bureaucratic process and the high costs of cleaning up brownfields for their loss of tax revenues and jobs.

Emeryville's application to the EPA states, "The economic impact of brownfields on the community is significant: over the past five years, vacant brownfields have cost approximately 13.3 million dollars in lost property sales and business tax revenues, which represents 20 percent of the City's operation budget over the same period." [2]

California cities have suffered the loss of nearly 600,000 jobs over the last six years. It is the relocation of businesses out-of-state, decreased defense spending, and a nationwide recession which has had such a severe impact on our state's growth. It is doubtful whether abandoning regulation will alter this scenario. However, failing to clean up these highly contaminated sites will greatly increase the health risks of the numerous communities affected by brownfields. The American people have been left with a legacy of environmental pollution. Like many other states, California has reached a crossroads, wanting to support urban revitalization, but at the high cost of dismissing this enormous toxic crisis.

Tragically, most cities, afraid to be left out of the rush for redevelopment dollars, overlook the very real health costs associated with brownfield development. When added to the growing industry of consulting firms that promote speedy economic development, it is not surprising that few have paused to consider the seriousness of this public health issue. In the last decade, limited brownfield development has been allowed in California under a program called Urban Enterprise Zones. Along with its adjoining neighbor, Oakland, the City of Emeryville has helped businesses generate approximately 6,000 jobs and 740 housing units on contaminated property.

It is unfortunate that the nation's economy has fared so poorly. This has made communities even more economically vulnerable to brownfield policies, policies which promote polluting industries and the creation of jobs that are often hazardous and low paying. "In their desperate attempt to improve the economic conditions of their constituents. many African-American civil rights and political leaders have directed their energies toward bringing jobs to their communities. In many instances, this has been achieved at great risk to the health of workers and the surrounding communities." [3]

Social Justice and Inner-City Apartheid

The offering of jobs and housing to any community can be very appealing, but what are the real health risks? Emeryville proposes to implement a new health risk management approach which rationalizes little or no cleanup of contaminated properties. The main provision of the health risk management model for brownfields is derived from a draft California regulatory policy called "Containment Zones." [4]

This concept of Containment Zones was originally developed to manage small toxic properties, most often fueling stations, that have suffered contamination from leaking underground storage tanks. A full implementation of Containment Zone policy in California will affect nearly 90 percent of the toxic fueling sites that have not been remediated. Contaminants will remain in place. While risk assessments are similar for Containment Zones and brownfields, brownfield contamination usually represents a far greater health risk.

Emeryville is a community whose residential makeup includes a large portion of minority and low income residents. Many of the neighborhoods in which these citizens live are located next to, or on, contaminated industrial sites and toxic landfills. It should be noted that approximately 45 percent of Emeryville was created by the in-fill of the San Francisco Bay from toxic soils. There is little or no written history of this random and widespread pollution. As a consequence, these contaminants and their toxic levels remain relatively unknown.

The brownfield application requires the City of Emeryville to gather information from former cleanups to help create a composite picture of the city's toxics. Emeryville will spend $400,000 to complete this citywide investigation. This is an inadequate amount of money, given the size of Emeryville's toxic problems. About 55 percent of Emeryville, or 213 acres, is known to be contaminated. A similar situation can be observed at the Ravenswoods industrial area of East Palo Alto, California. Located near a minority, low-income district, an EPA grant allows for a mere $75,000 to investigate its 130 acres of brownfield contamination.

Without adequate funding for site investigation and discovery, the real health risks from brownfields will not be known until decades of exposure have passed, if at all. Furthermore, as financial and regulatory barriers are radically reduced, our ability to determine land uses and related public health issues is reduced as well. It should be recognized that the Brownfields Initiative represents a quantum leap from our understanding of the health impacts posed by fuel contaminants from old service stations to those presented by large areas of mixed industrial pollution.

Brownfields are a constant source of environmental poisoning. These toxic parcels often put whose persons working or living nearby at high risk. "The EPA currently recognizes more than four million toxins and more are introduced every day. In 1992, the EPA undertook a study directed at measuring chemical levels of 7,000 randomly selected Americans. It was found that 71 percent of those persons tested had detectable levels of environmental (toxic) chemicals in their urine." [6 ] The simple fact is that environmental illness and cancer caused by chemical injury are on the rise.

Artifacts of Regulation: Shifting Liability

To manage future litigation arising from brownfield revitalization, the City of Emeryville is proposing the creation of a mitigation fund. This component of the "risk management" based model for brownfields will protect both industry and developers from pollution litigation. Brownfield site investigations and cleanup, the very elements so vigorously fought against by industrial polluters, will be given only limited monies. Instead, the mitigation fund made up of redirected cleanup dollars will protect those who pollute and those who own brownfields.

The expressed intent of the mitigation fund is "to improve the environment of all citizens, including the economically disadvantaged," and that the "remediation of the physical environment will promote the remediation of the social environment and benefit disadvantaged communities in all aspects of the human environment." [7] In reality, this mitigation fund will only force many minority and poor communities to shoulder a disproportionate amount of the environmental and health costs because, indeed, little or no environmental remediation will take place.

Today's state and federal regulations are moving towards protecting industry from both pollution disclosure and enforcement actions. Since 1993, 18 states have passed legislation which allows companies to avoid reporting, to the public or regulators, the details of their pollution practices. The State of California has also introduced several bills of similar legislation that are currently pending. However, a few states have rejected such legislative measures, acknowledging the need to make polluters clean up.

As more states attempt to shield industry from the liability of environmental pollution, the protections for the public are disappearing. What has been a shared state and federal responsibility for pollution control is being relinquished to industry and redevelopment, who are hardly disinterested parties. This approach in California will clearly exacerbate the environmental threats against poor and minority communities, who have been, and who will remain, the victims of brownfield pollution. "Among the fifty metropolitan areas with the greatest number of African Americans living in a community with hazardous waste sites, 73.5 percent are near uncontrolled sites. In addition, in ten metropolitan areas, 200,000 or more African Americans reside in a community with an uncontrolled hazardous site." [8]

The environmentaI choices for so many Americans will so be further diminished as these new policies arc implemented. The failure to remove sources of contamination from these highly toxic sites can only add to lowering the health status and the quality of life of these brownfield communities. Surely, basic health and safety is a fundamental right of every person, regardless of income or race. On closer examination, it is evident who will benefit and who will pay for California's environmental deregulation.

Endnotes
[1] Confronting Environmental Racism: Voices from Grassroots,
Robert Bullard, ed., South End Press, (1993), citing U.S. EPA, "Environmental Progress and Challenges: An EPA Prospective" (June 1984).

[2] City of Emeryville, Risk Management Model For Accelerating Brownfields Redevelopment (1995).

[3 ]Bullard, Robert D., "Anatomy of Environmental Racism and the Environmental Justice Movement," in Confronting Environmental Racism: Voices from the Grassroots, Robert D. Bullard, ed., South End Press, Boston, Mass. (1993).

[4] More than two years ago the State of California began a review of its Leaking Underground Storage Tank program (LUST). The currently proposed amendment to SB 92-49 would create areas of pollution referred to as "Containment zone." The policy, thou still in draft form, is being adopted for use in the state's Brownfields program. See "California's Choice: Containment Zones or Clean Water?" by L A Wood. 1996 California Environmental Law Reporter 81 (April 1996).

[5 ]The City of Berkeley recently sent a letter to the City of Emeryville expressing its concerns over the lack of adequate safeguards in its proposed brownfields project. "Berkeley objects to the designation of a citywide containment zone in Emeryville before a site by site recovery program, adequate site investigation, site remediation and identification of pathways of migration have been undertaken" City of Berkeley Council Action CR#96-008 (March 19, 1996)

[6] "How to Guard Against Toxins," Delicious! Your Magazine of Natural Living, Vol. 12, No. 4, p. 16, citing Journal of Toxicity and Environmental Health, Vol. 37 (1992).

[7] City of Emeryville, Risk Management Model For Accelerating Brownfields Redevelopment (1995).

[8] Lee, Charles, "Beyond Toxic Waste and Racism," Confronting Environmental Racism: Voices from the Grassroots, Robert D. Bullard, ed., South End Press, Boston, Mass. (1993).

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Mr. Wood is the author of "California's Choice: Containment Zones or Clean Water?", 1996 CELR 81.