Sierra Club Position

Commentary (by KK)

Introduction

The Sierra Club supports restoration and revitalization of distressed communities through the use of incentives based on sound planning practices. Well designed brownfields cleanup and redevelopment can offer an adjacent community better health, family-wage jobs, and a more secure future.

What are Brownfields?

Brownfields are contaminated sites, sources of pollution in the heart of communities for which no one is taking responsibility or for which no clean up is likely in the foreseeable future. They are typically former industrial sites and may be abandoned. Although usually less polluted than federally classified Superfund (NPL) sites, parts of some brownfields sites have levels of contamination quite close to those found at NPL sites.

It is important to recognize that designation of NPL sites is highly dependent on a host of subjective judgments by both state and federal bureaucrats, so there is no assurance of consistency from state to state. These sites are often located within current urban boundaries and have many elements of the infrastructure needed for economic development--roads, utilities, water, sewer, etc. So, redevelopment of these sites may cost society less in terms of infrastructure.
 

(1)
Further, many communities have few available sites for industrial development, particularly ones that already have the infrastructure in place. Cities want brownfields to be developed, because vacant land does not contribute to the tax base. The areas provide no jobs, attract crime, cost the city in terms of police and social services, and discourage development adjacent to them. An important use of funds obtained to assist in brownfields projects is for testing to see whether a site is really contaminated or whether there is only a perception of contamination.

The Environmental Protection Agency (EPA) defines brownfields as "abandoned, idled, or under-used industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination." EPA's Brownfields Initiative strategies include funding pilot programs and research efforts, testing for contamination, clarifying liability issues, entering into partnerships, conducting outreach activities, developing job-training programs, and addressing environmental justice and lender liability concerns.
 

(2)
Brownfields differ from voluntary cleanups in that there is little funding available and in that there should be government involvement because regulatory flexibility and other incentives require increased oversight.

What is Being Proposed for the Contaminated Industrial Sites?

(3) Federal and state regulators, developers, advocacy organizations, and communities housing such sites, are proposing that they be expeditiously redeveloped for, primarily, industrial/commercial uses as an alternative to siting new development on "greenfields" (undeveloped, generally suburban sites). It is argued that the benefits of "brownfields" redevelopment include: reuse/recycling of abandoned properties with the resulting economic revitalization of the urban core, the protection of less-contaminated areas and the avoidance of suburban sprawl. Concentration of industrial activity may also facilitate and lower the costs of pollution monitoring.

The EPA's Brownfields Redevelopment Initiative provides grants for pilot projects to help communities work together to agree on redevelopment plans and create cleanup funding mechanisms. The intent is to make use of Community Empowerment Zones, Community Development Banks, and the Community Reinvestment Act, which was passed to address the lack of adequate lending in low-income areas. Congress is now proposing grants and low interest loans on the order of $45 million to help local governments clean up brownfields sites.

What are the Sierra Club's Concerns with Brownfields Proposals?

(4) Unless properly time-limited and maintained under agency control, "brownfields" programs could serve to encourage the creation of new "former" contaminated industrial sites by weakening clean-up standards, releasing responsible parties from liability and in other ways easing the consequences currently associated with sloppy management. Reading a "brownfields" legislative proposal in the present, one imagines a weedgrown, fenced tract left behind by the defunct gas station or steel fabricating plant of an unregulated yesterday. However, if passed, these laws will presumably be on the books for years, and nothing in them ensures that freshly contaminated sites won't come into existence 5, 10 or 20 years hence precisely because the "brownfields" clean-up option will be available.

A key component of "brownfields" redevelopment proposals is that the contamination at these sites need only be cleaned-up to levels commensurate with the new proposed industrial/commercial use. (5) The Sierra Club believes that lowering clean-up standards for contaminated sites threatens the health of current and future populations exposed to those sites. It also increases the possibility that unremediated contaminants will migrate off-site and cause health and environmental damage over time. At best, superficial clean-ups transfer risks and costs to future generations in order to suit the convenience of today's political constituencies -- precisely the same short-sighted, self-serving logic that got us into this mess in the first place.

We have spent years trying to establish nondegradation policies for our ground water, surface waters, air, and lands. The stick that drives this policy is the knowledge that it is cheaper to prevent pollution than to clean it up.(6) If we now say that some degradation is acceptable for certain sites, the incentive to prevent pollution could be drastically undermined. Although an absolute nondegradation policy is difficult to reconcile with the economic and ongoing pollution problems associated with some already degraded sites, this is not a rationale for abandoning standards that are fully protective of public health and the environment.

Regulation of Brownfields Cleanup

All states should have comprehensive hazardous waste cleanup programs, with staff adequately funded for oversight of the cleanups.(7) Any brownfields program must be part of this and regulated under the same state and EPA program as other contaminated sites. Certification of private contractors for making major cleanup decisions such as delisting sites is not acceptable.

Some state Brownfields laws have resulted in weakening the basic framework of existing clean-up laws. Presented as redevelopment proposals that also protect greenfields, brownfields proposals have been made so appealing that many dangerous changes have slipped in unnoticed.(8) Several states have already had their health-based cleanup standards weakened by a shift to total reliance on risk assessment.

Why We Must Not Abandon Protective Cleanup Standards

(9) A state's clean up standards must be as protective as possible, preferably to nondetect or background levels, in order to maintain nondegradation policies, and more importantly, as the stick to drive pollution prevention programs in the first place. Brownfields laws must set specific criteria and contamination thresholds defining which sites may not be considered for a "brownfields" program because they represent a significant threat to public health or the environment. Sites that present a significant threat should NOT be eligible for brownfields programs.

Land use designations can be useful in restricting activities at sites but must not be used to justify lower levels of protection.(10) Cleanup levels must protect on-site workers, customers, and all users of the area. Daycare centers, small parks, and recreational areas such as jogging paths are often part of industrial sites. Many industrial areas contain small areas of residences and these citizens must be protected.

Cleanup method decisions will be determined by the nature of the redevelopment.  (11) Contamination, particularly hot spots with high levels, are generally best removed totally so that monitoring or institutional controls will not be future considerations. Containment is rarely better than removal or treatment. If a "natural recovery" approach through biodegradation is considered, the problems and costs of restrictions and monitoring must be considered.

Dealing with Proposals to Reduce Cleanup Standards

Reductions in cleanup standards or variances from requirements can only be granted:

(12)
1) to sites where the pollution releases occurred prior to the enactment of the bill AND, because many brownfields sites may be from illegal past releases, where the contaminated former industrial site is located in an economically blighted, urban neighborhood/developed area where a redevelopment area assessment has indicated that the community will directly benefit from the site's expeditious redevelopment.

(13)
2) to abandoned sites where there is no financially viable party to conduct a full clean up, a variance is the only way to get economic redevelopment of the site, and failure to act will result in avoidable risks to public health and/or the environment. Whoever pays for the clean-up, often the taxpayer, should end up having some interest in the money-making activity that occurs there.

(14) An incentive for cleaning up brownfields may be a site-specific variance process. Where a variance is granted, the contamination should be delineated and cleaned up or controlled to levels that protect human health and the environment both for any present proposed site uses and for the future. The adjacent community should be involved in this decisonmaking and support the variance. Weak containment features, such as fences, covers and landscaping, can and will fail with time and are unacceptable for brownfields site remediation. Any variances must include reopeners for: remedy failure, changes of land use or the emergence of new information about the contaminants that standard must be more stringent for public health reasons.

(15) Revolving loans, tax relief and other fiscal incentives that enable a good cleanup to take place are preferable to lowering cleanup standards. Clean-up money should not be a gift to a landowner, no matter how insolvent, who refused to do the clean-up without the program.

Brownfields Benefits Must be Limited to Past Contamination

Proper delineation of what qualifies a site for brownfields benefits is critical to any sound program.(16) It is essential to limit brownfields programs to past contamination so that the program does not encourage more pollution and the creation of NEW "former" contaminated industrial sites. Reduced clean-up standards must never be applied to viable industrial/commercial operations. If an expectation is created that anytime there is an economic "need", a variance will be granted, then every standard becomes meaningless, or at best, subject to cost-benefit analyses of industry.

Risk Assessments: Why Polluters are Pushing Them

(17) Legislative proposals to set-up "brownfields" programs often seek greater or exclusive use of risk assessments for establishing clean-up levels. The Sierra Club's guidance on risk assessment should be consulted for a discussion of problems with this technique because it has many limitations.

(18) "Risk assessments" are at best inadequate and imprecise estimates of actual risk. They attempt to assess only a few of the many risks associated with contaminant exposures. They almost always ignore the complex interactions among the many chemicals to which potential victims are always exposed, and the outcomes are always heavily influenced by the biases of the risk assessors. It is easy to bias an outcome by many orders of magnitude through inappropriate use of overly favorable assumptions.

(18) Site-specific risk assessments can underestimate real-world risks in that they allow the risk assessor to exclude from the calculation risks that can be "cut off" by a cap or a fence or a land use that assumes that no one ever will go there.

(19) Risk assessment procedures based on an identical set of realistic assumptions AND using laboratory data of equal quality (objectives rarely achieved in real world situations) can sometimes be of limited value in comparing a variety of clean-up alternatives, but only for those limited impacts actually assessed. They are scientifically incapable of "proving" that one particular option is "safe" or "safe enough".

Appropriate use of risk assessment techniques will be very expensive, especially for small sites. (20) Instead of basing decisions on risk assessments, the emphasis should be on eliminating or minimizing exposure. It is easier to qualitatively describe the potential consequences of known exposures than risk, and easier for the public to understand. Combining this with information about health effects can be a good argument for treatment or removal of the source of the risk.

How Deed Restrictions are Used

(21) If less than the most protective health-based cleanup standards are used, site-use restrictions based on the level of cleanup achieved must be attached as a deed restriction (or similar land title notice) so that future land uses are not unknowingly permitted that would be inappropriate to the achieved clean-up level. If the deed-restricted site is subsequently cleaned up to fully protective levels, the restrictive covenant can be removed if the public and the agency approves. Deed restrictions must be binding on all successive owners. Penalties for violating deed restrictions or using land contrary to landuse restrictions should be established. They should apply to owners, subsequent owners and realtors who do not disclose and abide by the restrictions.

Deed restrictions are sometimes placed on an adjacent neighbor's property if contamination has migrated onto it. The property owner responsible for the damage can offer an indemnity in exchange for a deed restriction preventing the property's use for inconsistent purposes.

Needs in Redevelopment Programs

(22) Brownfields projects that receive financial assistance, reduced cleanup levels or reductions in liability must be founded on a formal public and private sector commitment to a specific level of redevelopment. Taking this position puts us in the mainstream of wanting to support genuine economic development, and will highlight any industry goal of wanting reduced clean up standards without being willing to invest in redevelopment or give communities anything in return. Local government or local businessmen should demonstrate support for the redevelopment by participating in and facilitating community oversight and by establishing a redevelopment fund. The redevelopment agreement should say that if the development is successful, some of the profits should be returned to the redevelopment fund or to the community, as applicable.

Because factors other than toxic contamination limit or are barriers to redevelopment, identifying and dealing with these barriers should be a major element of the redevelopment plans.(23) Use of EPA "empowerment zones", the Community Reinvestment Act, brownfields job training at local colleges, and other government partnerships should be considered in the planning. In addition to commercial projects, programs should consider cleanup and conversion to noncommercial open space, which can also benefit quality of life in the community.

Site redevelopment plans must include the following conditions:

(24)
1) Protective buffer zones between the site and adjacent areas that might have homes, schools, or daycare centers. In order to serve as a buffer, an area would have to be as clean as residential standards.

2) Requirements for ongoing community involvement in the redevelopment, which should include toxics use reduction plans and regulations and other programs to make sure the area does not become polluted again.

3) Specification of who will pay for monitoring of air, water, and soil.

4) A financial mechanism that will guarantee funding to cover future costs associated with maintenance of the site or additional clean-up.

(25)
5) A provision that off-site testing and any needed remediation will be done concurrent with the onsite work.

Sierra Club Does Not Support Relief from Liability

(26) A major incentive offered in some brownfields proposals is the easing of clean-up/pollution liability for "former" industrial operators or "current" developers and the shifting of the financial burden for cleanup onto taxpayers and substantially reducing one of the few effective incentives current and future operators have for preventing contamination -- liability for clean-up and for pollution-related damages.

Sierra Club does not support relief from liability as a redevelopment tool. Many other incentive strategies are now being identified, and (27) relieving parties of liability at brownfields sites opens the door to such relief for all polluters. Programs to speed cleanup should not abandon pursuit of responsible parties. Partnership in the redevelopment could be proposed as an incentive to pay their share. Establishment of "proportionate share liability" as a standard procedure makes the taxpayer responsible for contribution which cannot be assigned to polluters who can pay.

(28) The Sierra Club supports fair mechanisms for protecting truly innocent and noncontributing parties. Some states have clarified those situations in which banks and other lenders can be exempt from liability. EPA has issued guidance on its policy of not pursuing for cleanup costs those lenders that lend money to an owner or developer of private property but do not participate in the daily management of the property. Washington state and others have established by statute these protections for noncontributing parties.

"No further action letters" and other documents providing relief from liability are used to encourage those who would clean-up and redevelop these properties to do so. On any such certification, (29) there must be reopener to restore liability if fraud, or if the extent of contamination is beyond what was acknowledged in the agreement.

How to Make Sure Public Involvement is Adequate

Full involvement of affected communities in the establishment of site clean-up levels, the selection of clean-up methods, and planning for future use of the property is absolutely essential. If these projects are supposed to "revitalize" areas, the people who live and work there must be informed and involved from the start. Secrecy is unacceptable. Community values, as well as public and environmental health, must be considered and protected. (30) Legislation establishing a brownfields program must set standards for public notification, public meetings, and consideration of public input on all aspects of the proposed remedial action prior to any final approvals being granted. Use of local government processes can help make sure that the entire community, including local organizations, have input.

(31) Community stakeholders, especially the disadvantaged, must be funded from the redevelopment project's budget so that they can have meaningful participation and advice from technical experts of their own choice (lawyers, scientists, facilitators). Access to science by citizens is an issue because many scientific consultants get most of their work from polluting industries. University scientific researchers are funded heavily by industries now. Dealing with technical issues "disempowers" many citizens from the beginning. Truly helpful "green" consultants and scientists spend some of their time teaching citizens how to read documents and how to be confident of their own good judgment.

(32) Local residents are in the best position to decide what level of economic incentives are appropriate, and what level of remaining contamination they are willing to put up with. These decisions should be made by and for the benefit of the local community, not by and for the benefit of those seeking to benefit (financially or politically) from redevelopment of "brownfields" sites. Affected communities include those near the clean-up site and those affected by plans to dispose of waste transported away as a result of proposed clean-up activities.

(33) In many cases, communities which would most like to take advantage of a brownfields redevelopment program, as well as those most likely to be affected by disposal activities, may well be economically distressed communities, communities of color, and other politically disadvantaged communities. We believe that the clean-up proponents and regulators have an obligation to assure that affected citizens have access to adequate technical and legal resources of their choice to permit meaningful participation in complex legal and technical clean up debates.

(34) Full disclosure to the public of the types of pollutants found at a given site, their levels and their sources must be provided. As new information continues to emerge about the hazards of certain pollutants, so it is very important to know what specifically is to be found at a given "brownfield" site. (At one time, for example, it was not known that whenever there are PCBs in a fire, dioxins and furans are created/emitted and contaminate the site. Community Right-to-Know should in no way be limited by "brownfields" laws and regulations. Pollutants found at the site should remain discoverable and admissible in court.

Environmental Justice is an Essential Factor

Applying reduced clean-up standards to contaminated sites, and subsequently redeveloping such sites for industrial uses, may raise environmental justice issues for workers at the site and residents in the surrounding communities.

(35) The Sierra Club does not believe it is fair or wise to concentrate additional polluting industrial development in minority and/or economically-deprived inner city neighborhoods or in areas that already suffer from a disproportionate burden of polluting facilities.

If a cleanup will achieve background or the most protective standards, public involvement should consist of public notice, information about the site, and the opportunity to comment. (36) A much more extensive public-involvement program is needed if there is a desire to cleanup to a weaker standard or use risk-assessment based standards and/or waivers of liability. If the issue involves a community economic development project, the entire community, not just immediately affected & neighbors, should be involved the decisions about zoning, cleanup standards, loans, the type of industry to locate there.

Funding Brownfields Programs and Cleanups

Finding funding for cleanup of sites with no viable party is potentially easier if it is part of a publicized, important and attractive redevelopment proposal. Funds might come from philanthropic investments, foundation grants, revolving loans, a tax on water users in the area, disposal fees, the lottery, hazardous substance taxes, surcharge on nonessential products, pollution fines. Other options might be government cleanup and sale of land or use for government facilities such as prisons, after the site is cleaned up.

The EPA used the following criteria for funding cooperative agreement brownfields redevelopment programs:

1. Environmental and economic impacts of brownfields on the community
2. Existing community commitment to brownfield cleanup and redevelopment
3. Proposed use of the cooperative agreement
4. National replicability of the proposed project
5. Assurance of the necessary legal authority and government support for Brownfields proposals
6. Flow of ownership plan
7. Community involvement plan
8. Environmental justice plan
9. Proposed measures of success
10. Environmental assessment plan

Things to Watch Out For in the Language of the Law

1. Does it allow major decisions, relief from liability, reduced standards, substitution of risk assessment for standards, to be made during rulemaking rather than specified in the statute?

2. Does the program eliminate incentives for pollution (contamination) prevention?

3. Does it weaken the basic cleanup law that is already in place?

4. Does it weaken the "polluter pays" principle?

(1)

True

(2)
Not true.  In most cases,
voluntary cleanup pro-
grams are the only means
available to promote
cleanup and redevelop-
ment of privately owned
brownfield sites. 

(3) All of this is true.

(4)This is an unduly pessimistic
view.  Nothing in the design
or operation of a brownfields
(or voluntary cleanup) program
is intended to let polluters off
the hook.  Rather, the thrust
of these programs is to
encourage innocent new
owners and redevelopers (who
did not cause or contribute to
a site's contamination) to come
forward voluntarily to bene-
ficially reuse a festering
brownfield site.  Responsible
parties should continue to be
actively pursued to fully clean
up the contamination they
caused.

 

(5) Brownfields cleanups are not
necessarily "superficial" and,
if properly carried out, are
designed to protect public
health and the environment
against undue risk in light of
present and future uses of the
site.  A factory site does not
need to be cleaned to daycare
center standards.
 

(6) The fallacy in this logic is that
no one is talking about relax-
ing strict liability for those who
cause or contribute to pollution
of the land.  Current owners
and operators have no incent-
ive to allow degradation.  Vol-
untary cleanup programs are
aimed at non-RPs who would
otherwise have no incentive
to come forward to carry out
voluntary cleanups.


 

(7) Exactly wrong!  This is a major
flaw in many state programs--
including New York's.  Inno-
cent volunteers cannot be
treated like responsible pollu-
ters, or they will not come
forward and brownfields will
continue to fester.  Brown-
fields programs cannot be run
as just one more remediation
or enforcement program.  The
emphasis must be on reclama-
tion and land recycling.

 

(8)All cleanup standards are
ultimately risk-based.  One-size
-fits-all cleanup standards are
wasteful and punitive and
should not be applied to
innocent volunteers.


 

(9)"Cleaner is better" only up to a
certain point.  Then the law of
diminishing returns kicks in.  Is
it better to use available
resources to clean one site to
the 99% level, or 10 sites to
the 90% level?  The Sierra Club
is correct that "significant
threat" sites should be excluded
from brownfields programs.


 

(10)Exactly.  Cleanup standards
for relatively low-risk brown-
field sites must be geared to
protecting those who will
actually use the site and its
environs.  That will differ from
site to site.


 

(11)Source removal of "hot spots"
should be a major focus of
voluntary cleanups.  "Total
removal" is a physical and
economic impossibility.  Con-
tainment is a perfectly ade-
quate and reasonable approach
for low-level and/or low-risk
contaminants with limited
exposure potential.

 

(12)Cleanup standards should never
be reduced for those who
caused or contributed to the
contamination--except in limi-
ted cases (akin to an amnesty
program) where a limited time-
window is provided for respon-
sible parties (at all but the
MOST dangerous sites) to
participate in a voluntary clean-
up program.

(13) Where public money is
spent to support a brownfield cleanup, those funds should be recouped wherever possible
through cost-recovery actions against responsible polluters.


 

(14) Variances are not appropriate
because standards should not
be relaxed for responsible
parties.  Rather, liability
releases (subject to specific
reopeners) should be issued to
individual cleanup volunteers
and their (non-RP) successors
and assigns.

(15) Risk-based cleanup stds.
that facilitate cost-effective
cleanups are an important tool
that should not be abandoned.
Financial incentives can also be
helpful, but should not be
available to those who caused
or contributed to contamination.




 

(16)
This problem doesn't arise if
liability releases and risk-based
cleanups are limited to innocent
volunteers who played no role
in contaminating the site.





 

(17)
Brownfield programs typically
use a tiered approach, where
the volunteer has the choice
of several methodologies for
setting cleanup goals.  Site-
specific risk assessments, while
often most generous to the
volunteer, generally require
more rigorous documentation
and may be subject to more
limited liability releases.

(18)
Zero risk is an unattainable
objective.  Society can no
longer afford overly conserva-
tive cleanup standards that
combine layer upon layer of
worst-case assumptions.  Bias
works both ways.  It is even
easier to bias an outcome by
treating a low-risk brownfield
site as though it were a high-
risk Superfund site.

(19)
Total "safety" against highly
implausible or improbable risks
is not an attainable (or desir-
able) objective.  It is always
easier to say "No" and maintain
the status quo than to take a
chance on beneficial site reuse.



 

(20) Minimizing exposure is, in fact,
a major emphasis of many
brownfields programs.








 

(21) Agreed.

























 

(22)
Brownfield projects that receive
public funding should be
required to demonstrate that
they will yield a significant
public benefit.  The requirement
should be less for a privately-
funded project.
















 

(23) Agreed.

(24)
Cleanup to residential standards
is appropriate where there is a
risk of impacts on downgradient
homes, schools, or daycare
centers.















 

(25)
Innocent volunteers should not
be responsible for off-site
testing or remediation.  These
should be the responsibility of
RPs or, if no viable RPs can be
found, the State.

 

(26)
Liability relief should be provided
only to innocent new owners
and developers--except for
certain short-term amnesty
programs (which should still
exclude the most contaminated
sites).  Liability relief is an
essential element of voluntary
cleanup programs.

 

(27)
Proportionate share liability is a
feature of only a handful of
state programs.  Accelerated
cleanup programs for innocent
brownfield volunteers should
not (and need not) abandon
pursuit of responsible parties.





 

(28)
Subsequent owners and
redevelopers are as "truly
innocent" as banks and other
lenders who do not participate
in daily management.










 

(29) Agreed.








 

(30)
Public involvement is important,
but a one-size-fits-all public
involvement program is no
more defensible than a one-
size-fits-all approach to
cleanup standards.  The level
of public involvement at a given
site should be geared to the
extent of the public health
risk presented and the level of
public interest expressed.
 

(31)
Technical assistance grants are
useful and appropriate, but they
must not be funded by
innocent cleanup volunteers.
Volunteers must be given
every possible incentive to
come forward.  They cannot
be burdened with red tape,
added costs, and endless
delays--or they will head for
the nearest "greenfield" site.




 

(32)
This is true as far as it goes,
but lay people are singularly
ill-equipped to make or
evaluate complex risk assess-
ment and risk management
decisions.








 

(33)
Yes, but disadvantaged
communities will also realize
disproportionate benefits
from brownfields redevelop-
ment programs.

(34)
No less important than the nature,
levels and sources of pollutants
at a site, is information about
environmental exposure pathways
and sensitive receptors that may
be impacted.




















 

(35)
Even if the disadvantaged
residents moved there AFTER
industrial development
initially occurred?





 

(36)
The level of public involvement
should not be arbitrarily
dictated in advance.  It should
be geared to the extent of
public interest in the site and the nature and extent of the risks
presented by the site.