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New Law Adds Clarity to Brownfield Redevelopment -- The California Land Reuse and Revitalization Act of 2004 doesn't go far enough to please both developers and environmentalists
Real Estate Journal - Oct 25, 2004
Joseph Sorrentino By Joseph Sorrentino
CREJ Contributing Writer
SAN FRANCISCO, Calif. California has given landowners a new tool for estimating how much time and money it will take for them to clean up brownfields.
The state Environmental Protection Agency in January released its California Human Health Screening Levels, a listing of the amount of concentrations of 54 hazardous chemicals in soil or soil gas considered by the agency to be below thresholds of concern for risks to human health. Both residential and commercial regulations were developed.
These screening values cannot be used to regulate remediations and are intended to help developers, community organizations, property owners and government officials gauge the time and money needed to clean up a site.
"It gets you the first whack at it," said Stephanie Shakofsky, executive director of the California Center for Land Recycling. " 'Yes, this project still pencils out for me,' or 'This project will be an upside-down ride, and I'll just walk away.' "
The state has no definitive set of screening numbers, splitting environmentalists on both sides of a debate on their creation and enforcement.
"What's unique about this is that both Department of Toxic Substances Controls and the regional water boards will be reading off the same sheet music," said Val Siebal, chief deputy director of the Office of Environmental Health Hazard Assessment, which is developing the numbers for the state EPA in conjunction with the Department of Toxic Substances Control, the state Water Resources Control Board and the regional water-quality control boards.
Response to the draft of the numbers, released last March, was "mostly favorable," Siebal said.
"For the most part," she said, "people will find that we listened to the comments."
The biggest criticism was that the numbers for volatile organic compounds were to be measured in parts per trillion, which was so low that they couldn't be measured by existing technology.
The agency said it has addressed the problem by using a different system of measurement.
Coming up with soil-screening values is trickier than creating values for air or water. Because scientists must anticipate the way toxins move and disintegrate in soil, it is largely guesswork.
"I'm a gas molecule. What am I going to do? Where am I going to go?" said Rick Brausch, the state EPA's assistant secretary for brownfields and toxic-substances programs.
"Sometimes, even your best approaches don't do a good job of approximating reality," Brausch said. "When you try to make assumptions for a broad variety of circumstances that drives the numbers lower. That's one reason they're so conservative."
However, if the numbers are too conservative, then they don't do anybody any good. If the numbers are so rarified that most properties will always be over the threshold, then a full investigation and cleanup will be necessary in most cases.
Historically, state environmental groups and the state EPA have resisted the creation of screening numbers. Every U.S. state, with the exception of California and North and South Dakota, has developed or adopted some set of screening numbers.
Environmentalists have opposed the adoptation of screening numbers for fear that a definitive set of numbers will embolden landowners to avoid cleanups.
"There is the potential that the numbers will take on a life of their own, that people will use then in any way they believe is useful to them," Brausch said.
Another argument against using screening numbers is that applying one set of numbers to a variety of real-world scenarios won't work.
"You need to have a site-by-site analysis because every site is different," said Bill Magavern, senior legislative representative for the Sierra Club California.
"You need to consider not just how much contamination is in the soil but who are the potential receptors, the people or wildlife that could be damaged, and the pathways in which the contamination could reach the receptors," Magavern said.
To address this concern, the agency published a user's manual to bridge the gap between the idealized numbers and their real-world application.
The agency developed the screening values in response to a mandate by the state Land Environmental Restoration and Reuse Act of 2001.
The agency will explain the screening values further at public meetings April 5 in Los Angeles at the Ronald Reagan Building; April 13 in Sacramento at the California EPA building; and April 14 in Oakland at the Regional Water Quality Control Board's offices.
- E-mail Joseph_Sorrentino@DailyJournal.com
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