CASE STUDIES: REGULATORY REFORM ISSUES
Senate Select Committee on Environmental Justice
Summary Report on the hearing: Brownfields to Schools - How
Can the State Facilitate Cleanup to Build Essential Schools?
Held January 14, 2000 in Los Angeles
Environmental injustice occurs where environmental degradations
are overconcentrated in low-income and minority communities. Because
a disproportionate share of "brownfields" -- vacant
or underutilized sites that may be contaminated from prior uses
-- are located in low-income and minority communities, cleaning
up these sites and promoting their reuse helps alleviate the historical
injustices affecting these neighborhoods.
At the same time, California's school-aged population continues
to surge. School districts around the state face a dire need to
construct new facilities to meet the demand for classroom space.
However, in many communities, especially older urban areas comprised
of low-income and minority neighborhoods, there are very few parcels
of available land large enough to accommodate a school. As a result,
a district must choose between demolishing existing homes and
businesses or looking to brownfields.
Cleaning up brownfields for use as schools can bring a double
benefit by both removing an eyesore and potential source of exposure
to the community and providing the needed classroom space. The
purpose of this hearing was to provide members of the committee
with a common understanding of the current regulations and funding
sources related to brownfield cleanup for use as school sites
and to solicit and hear discussion of various proposals that would
allow the state, where necessary, to facilitate the assessment
and cleanup of contaminated sites to create safe schools.
Brief Synopsis of Speakers' Remarks
THE NEED TO CONSIDER BROWNFIELDS FOR SCHOOLS AND THE CURRENT
I. Lettie Boggs, Anaheim Unified School District and California's
Coalition for Adequate School Housing
Ms. Boggs testified that school districts often need to consider
new school sites with potential contamination because there are
no other options in their communities. Schools need to be near
the communities they serve and transportation facilities. Many
urban areas, however, are built out, meaning that building a school
on obviously clean land may require the removal of homes and businesses
which can carry a high economic and political cost. While land
is more readily available in rural areas, otherwise ideal sites
may be contaminated with pesticides or other toxics. Even when
cleanup costs are factored into the equation, a district may find
that the benefits of a contaminated site make it a superior choice
to the alternatives.
Ms. Boggs said that the challenge to school districts to cleanup
and reuse brownfield sites is increasing. The project must fulfill
the needs of the new school and the local community as well as
comply with the criteria set out by the California Department
of Education (CDE), the Department or Toxic Substances Control
(DTSC) and the California Environmental Quality Act (CEQA). Funding
for new school construction is not available until the need is
imminent which puts a high premium on the ability to quickly turn
around a project. Lastly, districts must bear the full cost of
cleanup for any portion that exceeds the final appraised value
of the property. The cost and delays of the current assessment
and cleanup process heavily constrain a district's ability to
use brownfields as school sites.
In response to Senator Alarcón's question as to how the
Anaheim Unified School District works with the community on a
proposed school site, Ms. Boggs responded that the district first
consults city staff for suggestions as to which sites may be available,
then consults the appropriate neighborhood council for input.
Anaheim USD has developed long-term relationships with councils
throughout the city. With the input of the city and the neighborhood
in mind, the district begins the formal selection process which
includes an environmental review, and the required opportunities
for public comment.
II. Bill Panos, Los Angeles Unified School District, Environmental
Health and Safety Branch
Mr. Panos testified that the Los Angeles Unified School District
(LAUSD) needs to add at least 150 new schools over the next few
years. Even these will not be enough to completely reduce overcrowding
in the district. The District is currently in the process of rebuilding
its site selection process, its relationships with the community,
and its communications process. These are part of the long road
Mr. Panos stated that the district's site selection process has
previously lacked due diligence. Furthermore, the money available
for school construction and environmental management does not
meet the need, and there is a lack of objective agency standards
for determining whether a potential site is safe for children
and staff. Compounding these difficulties is the fact the district
has over 150 projects under environmental review and a lack of
staff to handle the volume in the most timely manner.
In spite of these difficulties, the district is fully committed
to building all needed schools in needed areas and has put in
place new staff, communications and information processing systems
to proceed as quickly as possible. The Environmental Health and
Safety Branch can now list the site history of a specific property
in 30 minutes and complete a preliminary assessment in 48 hours.
The district is formalizing a process with state agencies such
as DTSC to move environmental reviews more quickly. The bottom
line is that the district now has the ability to screen sites
up front and know the cleanup costs and schedules required.
The cumulative costs of these environmental health assessments
are large and the District needs help. The District's current
experience is that Preliminary Endangerment Assessments (PEAs)
range from $100,000-$200,000 if nothing is found. Phase I assessments
cost $5000, and each initial review costs $120. Mr. Panos also
said that the State needs to set objective cleanup/health standards
for school sites that are flexible enough to deal with varying
environmental conditions and that are generally accepted.
Ms. Wendy Umino, staff to Senator Martha Escutia, asked where
the district intends to find the land for the primary centers
that have been proposed. Mr. Panos replied that small tracts are
more readily available than large tracts, that the district owns
much land that can be converted to schools, and that existing
school sites can be expanded.
Senator Alarcón requested a tally of the district's overall
financial need for environmental assessments and cleanups which
Mr. Panos promised to provide. Senator Alarcón stressed
that he wants to district to do a better job involving communities
in site selections and demanded that the district quickly adopt
a site selection policy that has been pending since May, 1999.
The Senator also requested specific recommendations as to what
cleanup standards the State should set. Mr. Panos closed by stating
that schools can provide the anchor for the redevelopment of brownfields
if the remediation is planned from the beginning.
III. Barbara Coler, Department of Toxic Substances Control
Ms. Coler laid out the process by which a new school site must
be evaluated for environmental concerns under the newly enacted
legislation (SB 162 and AB 387). In addition, she stressed that
the new authority allows the Department of Toxic Substances Control
(DTSC) to stop a project for environmental reasons.
In order to access Proposition 1A funds, a Phase I environmental
assessment must be conducted for each and every prospective school
site in the state. A Phase I review consists of a "paper
study" which details the historical uses of the property
and indicates any potential for contamination. DTSC reviews this
assessment and makes one of the following findings: 1) that no
further action is required; or 2) that concerns about contamination
exist and the district must conduct a Preliminary Endangerment
Assessment (PEA). In response to Senator Alarcon's inquiry as
to how DTSC knows the information in a Phase I assessment is accurate,
Ms. Coler responded that DTSC staff fully review the documents,
look for gaps in the information provided and frequently conduct
site visits to provide confirmation.
The PEA entails site sampling and the development of a detailed
risk assessment of any contaminants present on the proposed school
property. The calculated risks of any contaminants are weighed
against the risk ranges that are outlined in the National Contingency
Plan (the regulations for the Federal Superfund law) and considered
appropriate for residential uses (the most conservative approach).
There are no risk ranges designed specifically for school sites.
It is not necessary for a property to have zero level of risk,
but rather that the risks be within acceptable levels. For example,
cancer risks are generally such that less than 1 person in 1 million
would develop cancer from normal exposure. DTSC reviews this more
detailed assessment and makes one of three determinations:
No further action is required;
The project may proceed straight to cleanup. This determination
is possible for sites with relatively uncomplicated cleanup
needs. A Removal Action Work Plan (RAW) is prepared and once
approved by DTSC after a 30 day public comment period, the
district can then undertake the cleanup work. The whole process
generally takes 6-12 months.
The project must go through the formal cleanup process, which
includes the following steps: 1) a remedial investigation;
2) a feasibility study; 3) a full-blown risk assessment; 4)
a Remedial Action Plan with public comment; and 5) engineering
design and cleanup implementation.
Public participation and involvement activities are conducted
as part of the PEA and are more extensive for sites that undergo
the RAW or full formal cleanup process.
IV. Mr. David Zian, State Allocation Board
Mr. Zian spoke to the issue of what assessment and cleanup costs
school districts may receive reimbursement for from the State
Allocation Board (SAB). Prior to the passage of SB 162 and AB
387 in 1999, the SAB funded toxic cleanup costs if they were included
with the actual purchase cost and did not exceed the appraised
value of the site, but it was very difficult for school districts
to access these funds when they were financial hardship districts.
Districts in financial hardship could not even afford the costs
of site surveys, testing, and environmental assessment, which
are all necessary to secure California Department of Education
and SAB approval for a property.
As a result of the legislation, the SAB has proposed a new policy.
Once formally approved by the Board, the SAB will generally share
in 50% of the costs of site assessment and remediation. If a district
meets the definition of being in a financial hardship, the Board
can fund up to 100% of the assessment and cleanup costs. In both
cases, reimbursement for cleanup costs cannot be provided for
any amount that exceeds the differential between the district's
purchase price for the property and the appraised value of the
property after the cleanup is completed. Under questioning, Mr.
Zian mentioned that it appears LAUSD may have paid full market
value for some toxic school sites up front, rather than deducting
these toxic remediation costs from the appraisal value. This means
the district could be ineligible to have any cleanup costs reimbursed
on these properties.
Senators Solis and Alarcón expressed a need for more flexibility
to reimburse school districts for cleanup costs that may exceed
the final appraised value in the event where no feasible alternative
sites exist. Senator Alarcón also stated that districts
need an opportunity to request additional funding from the SAB
if cleanup costs end up being higher than that originally allocated
by the board. Given the complexities of toxic remediation, costs
may often exceed initial estimates. Mr. Zian stated that under
current law and regulation this opportunity does not exist and
is not provided for.
ROUNDTABLE DISCUSSION ON MAKING THE PROCESS WORK BETTER
V. Jennifer Hernandez, California Center for Land Recycling
Ms. Hernandez raised the issue that the inability to cleanup brownfields
has a disproportionate impact on minority communities. If "pristine"
is the standard to be reached, brownfields, especially those in
poor neighborhoods where the economic incentive is less strong,
will remain blights on the community.
Ms. Hernandez testified that how clean is clean is currently determined
site by site based on generally-understood but informal guidelines,
derived from scientific studies based primarily on evaluating
how mice and rats react to large doses of chemicals. As a practical
matter, this process has resulted in numerous successful brownfields
reuse projects - but it falls apart when a project becomes engulfed
in political controversy. When this happens, and the debate turns
to concerns about how clean the site needs to be, these informal
standards are ignored and the whole project can be brought to
a halt. Because school sites are always in the spotlight, the
standards applied to the cleanup of a brownfield for a school
site are always questioned.
Cities, schools, and non-profit developers seem unable to get
through the site remediation process. Informal guidelines that
disappear in the face of controversy don't work, and the process
of getting to these standards is simply not accessible or "transparent"
enough for interested parties who are not experts in the environmental
remediation fields to have confidence in the regulatory process.
Ms. Hernandez argued that it is time for open adoption of numerical,
risk-based cleanup standards for soils, such as those that have
been adopted in 27 states.
These standards, as applied to schools, could then vary based
on the configuration of the property. A higher standard could
apply to fields and landscaping than to portions of the property
that are sealed over. Having a debate over standards is only useful,
however, if something less than a "pristine cleanup standard
to bedrock levels" can be successful. Otherwise, projects
will be shut down, the dirt removal will be massive, and communities
in areas of Los Angeles and elsewhere that are located over natural
formations such as oil and gas production areas - which have safely
existed for a century or longer - will never have a new school.
VI. Tom Soto, LAUSD Environmental Safety Team
Mr. Soto testified that the creation of presumptive standards
for the cleanup of school sites will surely be a key issue top
be dealt with over the next few years. He added that LAUSD's district-wide
policy on environmental justice will also help move the brownfields
issue forward. Environmental standards that are set will be used
to determine school sites. The cooperative relationship with DTSC
that the district has developed through the Voluntary Cleanup
Approach at three sites will mature.
Mr. Soto stated that dealing with this issue really comes down
to funding. An interagency approach is needed that identifies
funds at the federal level and directs them to state and local
agencies that prioritize sites. The single largest thing that
needs to happen, however, is a collective understanding that identifying
funding, determining who is responsible for cleanup, and applying
standards to a particular site are vital to the task of turning
brownfields into an economic and social benefit for the community.
There needs to be an understanding on the part of LAUSD that there
is some economic incentive to invest in this area, and more leadership
is needed to steer the district in the right direction.
Mr. Soto went on to clarify that the LAUSD has not in fact formally
adopted a community involvement process for their site selection
efforts. Instead, there has been direction from the COO to develop
a community engagement program, but it has yet to take effect
at this time.
Senator Alarcón raised the issue that too many studies
are being done and not enough schools are being produced. Before
conducting detailed studies of every possible site, he argued,
the district should be considering environmental and political
factors, including taking community input into account. Senator
Alarcón stated that he wants the district to have a community
involvement process for site selections in place immediately,
because working with the community is key to successful school
VII. Connie Rice, English, Munger and Rice
Ms. Rice raised three issues to be address if we are to successfully
use brownfields for schools: 1) the need for cleanup standards
based on the health needs of children, not animals or adults;
2) the need for cleanup funding; and 3) the need to reverse the
State Allocation's Board disbursement of school construction funds
based on the date of request rather than need.
Ms. Rice testified that the funds that have been allocated to
date to this problem are simply inadequate. She stated that future
bond measures will be needed to make headway. Achieving such funding
will require that the community be educated on the scope of the
With regard to existing funds, Ms. Rice stated that resources
must be allocated to facilitate the participation of neighborhood
groups in the cleanup process so they have a voice. In addition,
the SAB's policies for distributing Proposition 1A funds must
be reversed. The voters approved the bond with the understanding
that funds would be allocated based on need. Instead, the SAB
uses deadlines that effectively reward speed over need. Those
districts who get their applications for funding in first get
access. For districts that have to deal with brownfield issues,
it is almost impossible to compete on speed. While the enacting
legislation for the bond contains some minor problems, this issue
could be addressed through the SAB's procedures. Pressure is needed
to assure the SAB allocates funds based on need. Ms. Rice argued
that funding should be allocated based on the eligibility assessments
which LAUSD has already submitted.
VIII. David Beckman, Natural Resources Defense Council
Mr. Beckman focused on three things that would immediately facilitate
the use of brownfields for schools.
Existing cleanup standards may be imperfect but have been
well thought out and in place for a long time. Before we rush
to criticize these standards, we need to identify what is
wrong. A major problem is that implementation has been decimated
by budget cuts. Flaws in the standards are distorted by imploded
DTSC infrastructure. Providing for adequate staff levels at
DTSC will greatly improve the existing system and greatly
increase the safety of schools and how quickly they can be
The state should direct schools to categorize brownfields.
If the desire is to build quickly, we should focus our energies
and resources on sites that have less troublesome histories,
such as old warehouses rather than chrome-plating facilities.
The Legislature should revisit SB 993(Hayden) which marries
many of the concepts heard in this hearing. The bill leans
towards the establishment of look-up standards for schools
and requires that they be based on children's health needs
rather than the needs of adults. Research has shown that the
timing of the dose is equally, if not more important, than
the amount of the dose. A bill that marries these two concepts
seems to offer the broadest spectrum of stakeholders something.
In response to Senator's Alarcón's concern that the state
of research on health effects on children may not yet be adequately
advanced, Mr. Beckman said that a fair amount of child-specific
information is available already that can be built in to standards.
In addition, he argued that the state should take a lead in promoting
this research to fill in any gaps. Senator Alarcón cautioned
that we need to be careful of getting ahead of the science.
IX. John Gamboa, Greenlining Institute
In negotiating Community Reinvestment Act commitments with banks,
the Greenlining Institute has sought to make financing available
for the redevelopment of brownfields. While many banks have committed
to making such loans, the funds have not been adequately used
due to the underlying uncertainty over future liability. Another
problem Greenling has encountered is that community residents
have been left out of the whole brownfields debate. As a result,
Greenlining is organizing more than 200 organizations in the Los
Angeles area in the Brownfields Coalition.
Mr. Gamboa stated that the community has substantial knowledge
about the brownfields in their community, but a lack of confidence.
The process has no place of resident stakeholders. The solution
he proposes is twofold: 1) Provide residents with access to good,
reliable information from panel of scientific advisors so a community
does not have to rely on the advice of potentially biased experts
from the development or environmental community; and 2) Develop
stringent minimal cleanup standards that community residents can
easily look to and understand.
X. Greg Trimarche, State Bar Environmental Law Executive Committee
Mr. Trimarche said that he had heard three problems during the
course of the hearing: 1) making sure that funds are properly
allocated to needy schools; 2) setting appropriate cleanup standards
for contaminated sites; and 3) ensuring adequate initial screening
of brownfield sites to ensure resources are not wasted pursuing
studies when a site is not likely to ever pan out.
With regard to the first two problems, Mr. Trimarche believes
existing structures can address these issues. He believes that
the third issue is the most pressing and that we do not necessarily
have the right people in place to solve it. He stated that a better
process is needed to quickly screen and evaluate brownfield sites
for potential redevelopment. It is not cost effective to do PEAs
on 150 sites if only 10 are likely to be used. Instead, a huge
body of expertise in this area exists out there in the private
community. School districts may not be the right organizations
to charge with the daunting task of performing the screening function.
Mr. Trimarche proposed the establishment of an entity to help
school districts to do initial screening and determine if it makes
sense to go forward with more detailed assessments.
XI. Paul Hernandez, New Schools Better Neighborhoods
LAUSD faces a crisis that whose solution seems remote: the need
to build more than 100 new schools. In addressing this crisis,
achieving flexibility with respect to the Proposition 1A application
deadlines is of critical importance. The environmental standards
need to be defined in a way that all of us can understand them.
It is also clear that the community has been left out of the process
of school selection in Los Angeles, ultimately leading to greater
delays and costs. NSBN has been advocating more effective community
participation within LAUSD. NSBN has run a demonstration model
for community involvement in the Wilshire Corridor area, which
participants have commended. Mr. Hernandez suggested LAUSD adopt
a community engagement process that will allow community members
to become intimately involved in the siting, design, planning,
and construction of new school facilities. He argued that the
state needs to put pressure on LAUSD ensure community involvement
becomes a reality. Unless the community is involved, we are not
going to make progress on building schools in Los Angeles.
XII. Robert Garcia, Environmental Defense Fund
Mr. Garcia focused much of his remarks on an example that raises
many of the themes that had been raised by the hearing. He is
working to have the 47-acre Chinatown Cornfields brownfield site
for a green and clean school and park, rather than for warehouses
like those being proposed by Majestic Realty. Mr. Garcia argued
that joint use for a school and park would meet the real needs
of the community. There are no middle schools, high schools or
parks in Chinatown. In addition, if warehouses were built, the
Mead low-income housing project would be hemmed in between the
warehouses and the men's jail. While the school district is interested
in the site, the possible presence of contaminants, the lack of
cleanup standards, and the uncertain cost of cleanup are significant
issues that must be resolved. Majestic Realty has requested federal
funds to make the deal profitable. These dollars could potentially
be used to clean the property for a green and clean school and
Mr. Garcia proposed an environmental justice framework whose goals
would be 1) to have equitable, environmentally sound and economically
vital schools and parks; 2) to have information available to assess
the impact on all communities, including (a) a readily available
list of sites that could be considered for schools and parks and
(b) standards defining how clean is clean enough for schools and
parks; 3) the equitable participation of all communities in the
decision making process; and 4) the construction of schools and
parks in a way that results in neither intentional discrimination
nor discriminatory impacts.
Senator Alarcón said there seems to be consensus about
better involving the community is the site selection process.
He would like to continue the discussions regarding additional
funding for DTSC to more quickly review environmental assessments
and even help with initial site reviews; look at how Prop 1A funds
are being allocated and ensure that need is indeed the primary
basis for awarding funds; unify our efforts in seeking federal
assistance for the cleanup of brownfields; and create a process
for establishing clear cleanup standards.
Senator Escutia's staff reminded participants that the Senator
has pending legislation, SB 324, which crafts solutions to many
of the issues raised, including the provision of environmental
restoration tools for local governments, limits on future liability,
and property screening guidelines. The Senator invites all interested
parties to work closely together on this legislation.
Experience has shown that effectively involving the community
in all aspects of decision making on new school sites, especially
those where contamination issues are at play, is vital to success.
Neighbors and parents who are not consulted may oppose a project,
often resulting in the project being delayed or abandoned. Moreover,
parents who are not comfortable with the cleanup of a contaminated
property may refuse to send their children to the new school.
All school districts need to develop and implement community involvement
strategies that allow community members to become intimately involved
in the siting, design, planning, and construction of new school
The current process of establishing cleanup standards for a specific
property suffers from a lack of clarity and certainty. This in
turn results in the waste of time and resources in the pursuit
of infeasible projects and makes it difficult for members of the
community to actively participate in decisions related to the
standards. The development of clear "look-up standards"
for all brownfield cleanups, including a standard specific to
schools, is needed. Over time, as the research on the special
susceptibility of children to toxics advances, this information
should be incorporated into the standards.
The ability of school districts to convert brownfields into safe
schoolsites is hampered by a lack of available financial resources
at various levels. Even with the state funding 50% of the assessment
and cleanup costs, many districts have insufficient funds to tackle
complex restorations of a property. In addition, the establishment
of a cap on state funding at the appraised value of a clean property
negatively impacts lower-income neighborhoods where property values
are inevitably lower. Adding to these difficulties is the fact
that DTSC has insufficient staff to review assessments and oversee
cleanups and schools must pay for these services.
The approaches that were offered all generally emanate from the
idea that although school districts need access to brownfields,
they should not be the ones to bear the societal costs of cleaning
these properties. Both the state and federal government have an
interest in seeing blighted properties restored to a productive
use beneficial to the community. The ideas to financially facilitate
the cleanup of brownfields for schools included:
Seeking additional federal funds for cleanup costs and clarifying
that these resources can be used for school sites.
Using state General Fund dollars to cover the costs of DTSC's
review of environmental assessments and oversight of cleanups.
Revising the cap on state reimbursement of school assessment
and cleanup costs to allow for cases where feasible alternative
school sites do not exist and to rectify the inequality of
funding between high-property value and low-property value
Allowing school districts to go back to the State Allocation
Board for additional cleanup funds if original cost estimates
prove to be insufficient.
Hiring additional staff at DTSC to provide a more timely
review of environmental assessments.
School districts are meant to be experts in education, not environmental
assessment. It may be helpful to establish an entity that taps
existing expertise to provide school districts with quick initial
reviews of properties for environmental contamination and help
them categorize brownfields so that energies and resources are
focused on sites that have less troublesome histories.