2000 CPEO Brownfields List Archive

From: Lenny Siegel <lsiegel@cpeo.org>
Date: Mon, 26 Jun 2000 11:17:02 -0700 (PDT)
Reply: cpeo-brownfields
Subject: [CPEO-BIF] ComPACT letter on California S.B. 324
From: jancg@webtv.net (Jan Cox-Golovich)

Committee for Public Advisory Consensus on Tourtelot

June 23, 2000

Mr. Michael Endicott, Mr. Bruce Jennings,  Assembly Committee on
Environmental Safety and Toxic Materials California State Assembly

SUBJECT:  Alarm over Senate B ill 324, the California Land and
Environmental Restoration and Reuse Act

Dear Mr. Endicott and Mr. Jennings,

Representing the opinion of many residents of the Benicia community
(Solano County), I am writing as a long-time community leader on
environmental issues on behalf of ComPACT, to inform the Assembly
Committee on Environmental Safety and Toxic Materials of our serious
opposition to Senate Bill 324 as it is now written.

 We support the concept of "cleanup and reuse" of brownsfields for key
reasons that are given in Senate Bill 324, namely, the protection of
open space from sprawl, and the support for cleanup of toxic waste sites
generally and  for "infill" development in urban areas,and we support
the state funding provisions for such cleanups, and also the provision
to vest local governments with the authority to require toxic waste
cleanups. However, we are alarmed that the general thrust of SB324 seems
to be to further undermine the role of the state regulatory agencies as
disinterested guardians of public health and safety, (including the
state's regulatory authority to evaluate a site's future, potentially
serial or multiple, re-uses in reference to a proposed cleanup plan),
and most significantly, that it erodes the important role of the
community as legitimate participant in the decision-making processes of
investigations. We're very concerned that SB324 will abolish regulatory
requirements that would trigger the call for health risk assessments and
would, in effect, lower the standards for cleanup levels; and we're
highly opposed to the fact that SB324 would grant immunity to developers
for liability for  potential future complications at a site arising from
hazardous waste that might be left after a removal action. 

The potential consequences of passage of SB324 would have possibly
immediate as well as long-term effects for the people of California
living and working near or on top of existing "brownsfields". This is of
great importance to us in Benicia where we have two state-led toxic
waste cleanup projects pending, with developments planned. 

The passage of SB324 would permit future liability for such sites to be
effectively passed on to all state taxpayers and individual property
owners, including families, thus subsidizing the development industry in
its gambit to reap maximum profit from re-development of brownfields,
and encouraging vested local governments to collude further ( by design
of a project and such things as "promises of indemnification") with the
developer's interests rather than address the concerns of its own

In Benicia, we are very well acquainted over the past decade with the
myriad problems that can and do arise when residential, public,
semi-public and/or commercial development is proposed for contaminated
properties ("brownsfields"). We've had prolonged opportunity for gaining
insight into the impacts of brownsfield development and what it means to
permit a city and developer to work behind-the-scenes, in collusion,
without initial or adequate involvement of the state, without properly
informing and involving the community, to bring about expedited cleanups
and development of hazardous waste sites. 

In fact, ComPACT formed to address the need for rigorous public and
regulatory oversight on a privatized cleanup sponsored by Ford Motor
Company ("Granite Management") of a former military site that was
purchased  by the company, a site that was once leased by the Benicia
Arsenal for the testing of howitzer guns and the demolition of excess
ordnance following WWII. The Tourtelot Property was a designated FUDS
site proposed for 526  family homes to be built by Ford Motor. Because
of a complicated, and novel, privately arranged funding mechanism
through the Department of Defense--a deal struck between DoD and Ford
Motor Co.--the City assumed the position of "lead agent" on the
Tourtelot Property Cleanup Project  and the Army Corps of Engineers was
relegated to a minimal advisory role. The City began by submitting for
public review the "initial studies" and "NOPs" for environmental impact
reports on both cleanup and development--CEQA documents which the City
and developer intended to be simultaneously reviewed by the public, with
only passive review by DTSC and other regulators. Concerned community
members had to work relentlessly for five months, against the desire of
the City and up against the PR juggernaut of the developer, to get DTSC
more legitimately involved in the Tourtelot Cleanup Project. Given the
vested interests and pressure of the developer and City to expedite the
project which was indeed experimental, (that, for instance, lacked any
given standards for judging the effectiveness of ordnance removal for
residential development, or a method for handling the cleanup of
"explosive" soils contaminated with TNT,) DTSC finally had to deliver an
Order that reassigned lead agency authority to the state. As a result,
the Tourtelot Property Cleanup Project has been significantly altered to
give a greater sense of security to the community that its concerns will
be heard and addressed, the project will be conducted with appropriate
levels of oversight and enforcement by DTSC, and approval for housing
will only be granted with state sign-off.

Benicia community members are also engaged with the details of on-going
DTSC-led hazardous waste site investigation of the as yet unfinished
Braito Landfill investigation, the decade-old cleanup project of the
Rose Drive residential neighborhood. Homes were built by Southampton
Co/Ford Motor Co. on the site of a former county landfill, wherein
hazardous wastes were left in place at the time of residential
development. The current fate of the cleanup of the remaining wastes
below properties on Rose Drive has been tied up, over ten years, de
facto, to the City's permitting of development of the Tourtelot
Property. In other words, the collusion of the City and developer on the
cleanup of one hazardous waste site appears to hinge on the approval of
development of another. It has been very difficult at best for state
regulators to do their job in Benicia in the face of these political
circumstances. To undermine the authority of the state to regulate on
behalf of the public health and safety would be to strip communities of
the only disinterested authority charged with oversight as its primary
professional and civil responsibility.

We are alarmed, therefore, that the goal of Senate Bill 324 would
effectively be to chisel away the responsibility of developers to do the
best job possible to clean up hazardous waste sites for reuse.  SB 324
 appears to give developers and cities "carte blanche"  to increase
their profits and revenues with relative ease, at the expense of the
community by permitting a developer, in league with a city, to: 

       selectively ignore, dismiss or downplay long-term health and
safety concerns of the community; 

        avoid state health and safety evaluations for proposed hazardous
waste removal actions;

        avoid health risk assessments;

        rely on CEQA environmental reviews to suggest "approval" for
are-use development project, when CEQA was never intended or designed to
address the complex problems of hazardous waste site cleanups;

        diminish oversight authority for hazardous waste cleanup and
project approvals from Cal-EPA; 

        increase development corporations' power over cities, to augment
the collusion and cooperation of city government officials with
developers through conferring of "leadagency" status to cities, with
project costs paid for by developers; this, despite the lack of
competency of cities to judge and administer hazardous waste
investigation and cleanup projects and the vested interest of a city in
expediting development; 

        avoid future corporate liability for contamination left on site;

        minimize and/or control the role of community involvement in
decision-making and oversight of hazardous waste cleanups, 

        limit public access to sensitive information and investigation
data via the corporate/local government claim of "attorney work
privilege" and other means of controlling information, especially where
future liability issues might be invoked;

        limit public input on a cleanup project to one-time-only
opportunities, such as review of CEQA documents.

the Assembly Committee should look at SB324  from the perspective of
cases of gross violation of environmental justice, for example, in the
way that local officials and PG&E overlooked the potential for health
problems to arise from a decision to leave hazardous waste in place at
"Midway Village", the low-income apartments that were built years ago
with local government approval on the site of a former PG&E  gas plant
in Daly City. 

The effects of SB324 might be predicted by looking at what happened in
the case of Midway Village: Families moved into apartments at the site
were neither adequately informed of the former or current condition of
the property, nor given recourse after a minimum state investigation,
with children and adults suffering health effects without benefit of
health risk assessments, or redress for living on top of hazardous
wastes that had not been adequately investigated or removed, for which
the city and PG&E took no further responsibility. The DTSC  re-opened
its "closed" investigation only by insistence of the Midway community,
only after years of persistent activism, much recent press attention and
public outcry, and the voluntary help of an experienced, professional
environmental consultant.

Further, the case of public schools being permitted to be built on top
of former hazardous waste sites in Los Angeles should give the Committee
great concern in designing legislation that would diminish rather than
reinforce Cal-EPA's oversight role and authority on brownfields cleanup
and reuse alternatives.

We fear that SB324, if passed, might have immediate effects upon
state-led hazardous waste investigation and cleanup projects currently
underway in Benicia and across the state. 

SB324 is designed to benefit the development industry and to further
lock local governments into "deals" that leave the community out of
decision-making. Respect for potential long-term  negative impacts to
future serial occupants of remediated brownfield sites must be addressed
in any brownsfield legislation, and the only agents who can uphold the
long-term concerns of a community appear to be community members
themselves, but their recourse to debatethe conduct of complex hazardous
waste investigations and cleanup plans is slim, without firm oversight
and enforcement powers of Cal-EPA.

Please do everything in your power to dispute, revise or defeat this
proposed bill SB 324 as it stands.

Thank you for your consideration of these comments. We look forward to
hearing from the Committee.


Marilyn Bardet for ComPACT 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/968-1126

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