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Brownfields Remain As Does
the Politics
A CCLR Shakofsky Update
The Planning Report, July, 2003
Obstacles to brownfields redevelopment remain a significant
impediment to urban infill in California. Last year, Governor
Davis signed Senate Bill 32, which eliminates some barriers
to developing these sites. However, there are still many obstacles
to redevelopment of contaminated sites. TPR is pleased
to present this interview with Stephanie Shakofsky, Executive
Director of the California Center for Land Recycling,
in which she discusses the significance of SB32, and steps
that still need to be taken to encourage brownfields redevelopment.
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 late 1980'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.
Copyright © 2003 The Planning
Report
David Abel, Publisher, ABL, Inc.
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