Brownfields Remain As Does the Politics A CCLR Shakofsky Update

Two years ago, you gave thoughtful testimony to the State's Little Hoover Commission in which you noted that brownfields redevelopment was discouraged presently because of liability risks, uncertainties in the cost of clean-up, complicating and confusing regulatory requirements, the difficulty of obtaining project financing, and the lure for developers of agriculture and open land. Has anything changed in two years to remove or mitigate these obstacles to brownfields redevelopment in California?

Unfortunately, very little has changed since I gave that testimony. The only significant changes in the past two years has probably been the increasing participation of the private sector in the emerging urban market and a growing weariness among the community-based, nonprofit developers who continue to be frustrated by the status quo. Recent amendments to the federal Superfund law created some new grant programs. The federal Environmental Protection Agency has committed over the next five years about $2 billion for brownfields site assessment, clean up, and technical assistance, of which CCLR was awarded about $1 million. It is new money, and a bigger commitment for brownfields than the administration has ever made -- it's five times the amount the federal government has put towards brownfields in past years. But still, when you look at that allocation in California, we're talking about a few million dollars a year for the next five years. It is certainly a positive step forward, and a good faith effort on behalf of the federal government to focus attention on brownfields, but the backlog in California for these sites is daunting.

You indicated in that same testimony two years ago that there were 90,000 sites in California which were missed opportunities for affordable housing development, public parks, or commercial complexes. Do we still have 90,000 brownfield sites undeveloped in the State?

We estimate that there are between 90,000 and 120,000 impacted sites in California, and that number is probably growing because of the recent legislative deadline requiring gas station owners to upgrade their tanks. This has driven a lot of the mom and pop neighborhood stations out of business. As a result, we are seeing a lot more closed and abandoned gas stations, particularly in Southern California, that don't currently have a reuse plan proposal.

Elaborate on the provisions of SB 32, which the Governor signed last year. What's that brownfields legislation intended to authorize?

SB 32, which was authored by Senator Martha Escutia -- who was initially inspired by a policy paper published by CCLR -- makes some significant strides to improve brownfields redevelopment in California. There are two important pieces to SB 32. First, it gives municipalities a new tool to actually go after the recalcitrant landowners -- those landowners who were sitting on contaminated properties. This is what is known as "mothballing." Second, it requires the California EPA to create a set of screening numbers for sixty-five common contaminants that are found on brownfields sites. If the contaminants on your site are below this very conservative screening number, then you do not have a regulatory clean up. Every state in the union -- with the exception of California and the Dakotas -- have developed or adopted some set of screening numbers. So, California has been really behind the curve on this issue. SB 32 was the first attempt in California to bring some clarity to the brownfields redevelopment process, as well as to provide some new tools for municipalities.

Let's explore SB 32 a bit more and bring some clarity to the problems of clean-up. Address the schism in the environmental community over the establishment of standards. Hasn't CCLR long sought to establish clean up standards in order to benchmark both costs and time?

When the Superfund law was first passed at the federal level in 1979, and the state Superfund law in 1980, we were all sold and we all bought the idea that we are going to clean-up these sites and put them back in pristine condition. What we've learned in the subsequent 23 years is that not only is it technically impossible to put a lot of these sites back into pristine condition, but it is often economically prohibitive and from a broader environmental economic perspective attempting a pristine cleanup can be more costly to the environment. For a long time, the environmental community -- and as a young, research hydrologist working for the federal government in the late1980's I include myself -- held on to the idea that these sites should be cleaned up to background levels or pristine conditions. The environmental community, as well as the regulatory community, is beginning to understand the technological and economic impossibility of this scenario. So nowadays we are looking at how best to clean up these sites to make them safe for human health and the environment.

But how is the standards argument cast in the Capitol? How is the issue framed? Elaborate on the positions of key environmental, housing and community advocates? Is there much common ground?

When the issue is clean up, we-not only CCLR, but also the affordable housing developers, the community based organizations and the parks and open space advocates who are redeveloping these properties-have found a lot of common ground. I think that the issue of clean-up is not such a hot button issue anymore with the environmental community. We're finding now where we have major differences is on the question of liability reform. This is where there seems to be more of a line in the sand for the environmental community than for the community developers.

But let's ask you to comment on an old quote from envirnomental attorney Jennifer Hernandez: "There are basically two groups in Sacramento that have reached a comfortable paralysis with each other. One is the environmental tourist community, which is insistent on pristine standards regardless of health. The other is the industrial community, or at least portions of it, which question the need for clean-up at all." Has anything changed in two years with respect to Jennifer's two camp political analysis? Are you suggesting that SB 32 is evidence of new consensus on clean-up?

Jennifer's quote at the time was a reaction to a lot of heated discussions we were having about establishing the screening numbers for California. If you read SB 32-and realize that that bill had the support of the Sierra Club and the Planning and Conservation League-you will see that the bill lays out how numbers will be set both for residential and for industrial.

As a result of years of studying the issue and listening to the concerns of the community, there has been some positive movement. I am not suggesting that we are all in 100-percent agreement on how to move forward on all these sites. But, we have moved off the idea that you've got to have pristine clean-up, or that it is perfectly allowable from an industrial perspective to leave heavy contaminated or dangerous sites in communities. So the conversation has advanced, but we still have a ways to go.

With SB 32 passed, what still needs to be legislated?

There are several areas wherein we need state leadership and attention from the Legislature. A significant issue is the liability question. Everyday we see properties being turned away from because developers are not willing to accept the risk involved with the very onerous liability scheme that accompanies the purchase of these sites. On a more personal note, what is really painful is when CCLR has to counsel community developers to drop their redevelopment plan for a park or affordable housing development because of the organization's inability to deal with the long-term liability issue. We need liability reform for those developers who did not create nor contribute to the contamination and who want to bring their talent and resources to bear on a site that is now a community eyesore. In their brownfields amendments to Superfund law last year, the federal government attempted to basically carve redevelopers out of the liability scheme. We would like to see California adopt that same liability reform.

SB 493 is a liability reform bill that attempts to mirror California law with the recent amendments made at the federal level. Authored by Senator Gil Cedillo, it would provide liability relief to new prospective purchasers of contaminated property who meet certain safeguard criteria on the site. In essence, it carves them out of the strict, joint and several liability loop.

It got out of the Senate judiciary committee back in April, but it's being held in the Environmental Quality Committee because of some fundamental differences with the committee staff who argue that the current liability scheme and existing law in California is working.

So, this is another example of the purist schism in the environmental community?

Yes, and for us it was a completely perplexing argument since we have understood for a long time that the liability scheme is excessive and a significant barrier. It has been beyond dispute for many years that providing relief from excessive and uncertain risks is essential to promoting the redevelopment of an environmentally challenged property.

At CCLR, we spend most of our time working with organizations like Habitat for Humanity and Concerned Citizens of South Central LA, park groups, and municipalities with limited resources who struggle everyday with these laws and regulations while trying to redevelop their communities. The reality is that there is tremendous community-based support for change and there is an emerging popular movement seeking reform. SB 493 has the support of over 40 community-based organizations.

Who are the legislative leaders CCLR look to in order to overcome such opposition?

We have gotten huge support for our policy reform at the state level from the Latino Caucus, and Senator Escutia and Senator Cedillo have authored major bills. I think the Latino members, particularly from Los Angeles, understand the issue of brownfields redevelopment from the neighborhood perspective. They see these sites every day in their communities, and that is a very different reality than say a senator who represents a community like Palo Alto. Another state leader who we have found to be very progressive in this policy arena is State Treasurer Phil Angelides. He has promoted thoughtful and intelligent growth policies and has created several state investment funds geared towards promoting urban revitalization and brownfields redevelopment.

In the conclusion of your testimony to the Little Hoover Commission, you opined: "At CCLR, we have witnessed first hand how economic engines can breathe new life into old properties, rebuild local economies, and lift community spirits. Our work at the community level affirms the desperate community need with the costs, liabilities, and uncertainties that accompany clean-up responsibilities." This argument seems like a powerful set of reasons for having your agenda at the top of the State's legislative and civic agenda. But it no longer is. What has changed politically? Why has the issue lost it's salience?

What we are suffering from in California is a lack of leadership on these issues. The California Center for Land Recycling has been the only organization in California that has shown, and continues to show, leadership on the issues of brownfields redevelopment and urban revitalization. The term limits in California have created a climate in Sacramento where it is very difficult to get any traction on these issues or ideas. The brownfields arena is a very complicated area of law and incorporates a lot of science and engineering, so it requires a certain amount of time, energy, and diligence to get your arms wrapped around the multi-layered complexity of dealing with these sites. The term limits for California have been nothing short of a disaster. Term limits may be appropriate, but in California, they definitely are too short.

CCLR has made a study of other states that have progressive and aggressive brownfields programs and we can tell you that in every one of those states, that agenda has come out of the governor's office. Until we can create the same leadership out of the governor's office in California, our issues are going to continue to hang on the bottom of the state's agenda.