Re: California Brownfields Funding

["Jennifer Hernandez" <jhernandez@bdlaw.com>]

Lenny, thanks for the update.  Some additional thoughts for general consideration:

The $1 million proposed to create a new "list" of Brownfields sites has a distinctly "been
there/done that/it doesn't work" element for those of us who have been working on Brownfields sites
for many years on behalf of community groups, cities and other public agencies, and private parties.

As background, before the Clinton administration began its major effort to encourage the cleanup and
reuse of Brownfields sites, we used to have HUGE lists, separately maintained by California EPA and
US/EPA, about suspected or potential or maybe (who knows?) contaminated sites.  In the early 1990's,
both the state and the federal government took a hard look at their lists and deleted hundreds of
improperly listed sites as part of their effort to encourage Brownfields cleanup and redevelopment.

Why?  Both California and US/EPA, as well as numerous other states, found out that the "listing"
process itself came burdened with large bureaucracies, costs, and long-lasting "stigma" effects that
kept properties from being acquired, cleaned up or redeveloped as part of a Brownfields program.  
This occurs for several reasons:

First, the listing process itself generates lots of debates about listing criteria, the accuracy of
available data, protests by communities and owners about improperly listed sites, etc.  Spending
money and agency time on a "listing" process is particularly problematic in poorer communities,
where the time and money spent on listing debates can consume what few resources are (sometimes)
made available for the actual cleanup and reuse of Brownfields.

Second, we've still got several (far more accurate) lists already maintained by both the state and
US/EPA - so we do have information about the sites we already know are problems.  At unlisted sites,
the community also learns about contamination conditions as part of the environmental review process
under the California Environmental Quality Act (CEQA).  This combined approach - a real list for
known sites, and CEQA for unknown sites - isn't a perfect system because we still know whether an
unlisted site, which isn't in a CEQA process, is contaminated or not.

Unfortunately, $1 million to come up with a new "Brownfields" list isn't going to help identify
these "mystery" sites.  There are, for example, several problems in figuring out the status of
mystery sites, such as the legal process/cost of getting owner permission (or starting an
enforcement action to force owners) to do the site testing; then there's the cost of testing (easily
$5-10 thousand dollars per property, even for basic data); then there's the process of evaluating
the test results; etc.

Even if you decide to rely only on existing data to create a new $ 1 million list of sites, it will
cost an enormous amount of money just to sort through existing data.  For example, we found out in
Emeryville (an EPA pilot grant recipient for its Brownfields program) that using existing data to
create a list is VERY difficult, because different test methods and techniques are used at different
times, tests are done for different purposes, etc.  The available test data is also available for
only a handful of potentially contaminated sites which are already in some type of enforcement,
transaction, or permit process - again, no help at all on those "mystery" sites.  However, to sort
through even this limited data for a small City like Emeryville turned out to be a major task for
several teams of experts.  To replicate any part of this experience - gathering existing
data/analyzing it/figuring out "data gaps"/etc. - on a statewide basis will require staggering sums
of money.

And at the end of the day, we still don't know anything about that "mystery" site in everyone's
community where we think there's a problem (because for example we know it was once a gas station,
after all), but there's no existing data available to tell us if its a big/small problem - or no
problem at all.

Since the Clinton Administration and other states figured out that $1 million - or 50 time $1
million - isn't going to do much if we stay focused on bureaucratic tasks like "listing" processes
rather than real cleanups, what has evolved in current Federal/State Brownfields programs is a
combination of both enforcement "sticks" and incentive "carrots" to encourage the cleanup and reuse
of these sites.  This has worked pretty well in wealthy communities where the economics of a
particular transaction work because the cleaned up property can be immediately used for expensive
new development projects.  For properties in poorer communities (and the people who live near these
properties), this hasn't worked nearly as well - with dirty sites (including "mystery" sites) which
are not being identified as cleaned up or reused.

The community groups working with Senator Escutia on her Brownfields bill (SB 324) are trying to
extend the reach of the current California "carrot" and"stick" approaches to Brownfields to make
more projects economically feasible - without compromising cleanup standards or community
participation processes.  Part of our approach is to take the "lessons learned" about how to do safe
cleanups with safe reuse projects at larger/ wealthier sites and make these solutions available for
communities throughout the state - regardless of economic status.  Another part of our approach is
to encourage more public funding of Brownfields projects - but not of "listing" approaches that have
already been tried and found to be part of the problem, rather than part of the solution.

Unfortunately we were not given any information about the latest Brownfields "listing" idea before
it appeared in the budget bill.

We obviously welcome the infusion of another $1 million into Brownfields cleanups in California, but
we know that the "listing" idea won't get us there - it's already been tried and it's failed.  If we
have an extra $ 1 million to spend, why not make the money available to communities who are trying
to clean up their sites?