California's Brownfields Initiative: The Toxic Crisis
L A Wood, California Environmental
Law Reporter, May 1996, Volume 1996 Issue 5
Federal estimates have determined that there are nearly
half a million contaminated industrial properties scattered
throughout the United States, They dot every major American city and
contribute to urban blight and sprawl. Local governments have been virtually
powerless in their attempts to break this development cycle. These toxic
sites have been slow to redevelop because of their uncertain liability
and the probable high cost of their cleanup. Most often, these properties
are either left abandoned or are simply underutilized because of land
Some eastern cities, like Chicago, have reported as many
as 2,000 of these contaminated industrial sites within a single metropolitan
area. Nationally, it is estimated that one in eight no-residential properties
has been contaminated. In an effort to combat this problem and to stimulate
economic development, the Clinton administration and the Federal Environmental
Protection Agency (EPA) have instituted an urban revitalization policy
called the Brownfields Economic Development Initiative.
Brownfields, as these contaminated properties have come
to be known, represent a broad spectrum of hazardous waste. Pollutants
often include a vast array of extremely harmful chemicals and heavy
metals. These sites have been reported to be among the most contaminated
by both state and federal standards. In the past, the EPA has referred
to these toxic industrial properties as "uncontrolled hazardous
waste sites." EPA has stated that "uncontrolled hazardous
waste sites may present some of the most serious environmental and public
health problems the nation has ever faced." 
Several months ago, the EPA announced a relaxation of
cleanup standards and the removal of 25,000 brownfield sites from its
Superfund list, The ripples from these regulatory actions have already
been felt in every state, as the active cleanups of 70 sites, nationwide,
were recently halted. Since 1993 and the federal program's first pilot
project in Cleveland, Ohio, an additional 17 EPA grants have been handed
out to municipalities wanting to participate in this brownfields study,
including California's state capitol. Within the next two years, 50
more cities will be awarded these grants, which will aid them in bringing
their petitions for brownfield status to completion.
The Comprehensive Environmental Response, Compensation,
and Liability Act [42 U.S.C. § 9601 et seq.], most commonly known
as the Superfund Act, came about as a consequence of the recognized
impacts that these hazardous sites, like the highly publicized Love
Canal, were having on public health and the environment. Now, in the
present regulatory climate, the public is being asked to forget these
toxic lessons of the past.
The Brownfields Initiative is being proposed as a new
idea. However, it is really a return to a time, not long ago, when polluters
were unregulated, sites went uncleaned, and public safety was forsaken
for economic development. Brownfield deregulation is now being accepted
by a number of states across the country. Acknowledged as having the
strongest environmental regulations in the country, even California
has been quick to jump on board. With the promise of jobs, community
empowerment, and enhanced "quality of life," this initiative
will effectively end environmental cleanups on these sites. It's no
wonder that the Brownfields Initiative is being criticized for its elements
of environmental racism. Let's examine one of California's brownfield
projects to better understand these concerns.
The City of Emeryville: the Pilot Study
The City of Emeryville is positioned at the edge of the
San Francisco Bay and encompasses approximately 1.2 square miles. Emeryville
was recently given a $200,000 EPA grant to complete its application
that would award brownfield status to the entire city. The city's redevelopment
agency, a co-applicant, will match that amount. This two-year investigation
will focus primarily on previous site investigations performed in the
In many ways, the City of Emeryville is typical of urban
cities elsewhere in its longing for economic relief and redevelopment.
It is not surprising that these same cities often blame the lengthy
bureaucratic process and the high costs of cleaning up brownfields for
their loss of tax revenues and jobs.
Emeryville's application to the EPA states, "The
economic impact of brownfields on the community is significant: over
the past five years, vacant brownfields have cost approximately 13.3
million dollars in lost property sales and business tax revenues, which
represents 20 percent of the City's operation budget over the same period."
California cities have suffered the loss of nearly 600,000
jobs over the last six years. It is the relocation of businesses out-of-state,
decreased defense spending, and a nationwide recession which has had
such a severe impact on our state's growth. It is doubtful whether abandoning
regulation will alter this scenario. However, failing to clean up these
highly contaminated sites will greatly increase the health risks of
the numerous communities affected by brownfields. The American people
have been left with a legacy of environmental pollution. Like many other
states, California has reached a crossroads, wanting to support urban
revitalization, but at the high cost of dismissing this enormous toxic
Tragically, most cities, afraid to be left out of the
rush for redevelopment dollars, overlook the very real health costs
associated with brownfield development. When added to the growing industry
of consulting firms that promote speedy economic development, it is
not surprising that few have paused to consider the seriousness of this
public health issue. In the last decade, limited brownfield development
has been allowed in California under a program called Urban Enterprise
Zones. Along with its adjoining neighbor, Oakland, the City of Emeryville
has helped businesses generate approximately 6,000 jobs and 740 housing
units on contaminated property.
It is unfortunate that the nation's economy has fared
so poorly. This has made communities even more economically vulnerable
to brownfield policies, policies which promote polluting industries
and the creation of jobs that are often hazardous and low paying. "In
their desperate attempt to improve the economic conditions of their
constituents. many African-American civil rights and political leaders
have directed their energies toward bringing jobs to their communities.
In many instances, this has been achieved at great risk to the health
of workers and the surrounding communities." 
Social Justice and Inner-City Apartheid
The offering of jobs and housing to any community can
be very appealing, but what are the real health risks? Emeryville proposes
to implement a new health risk management approach which rationalizes
little or no cleanup of contaminated properties. The main provision
of the health risk management model for brownfields is derived from
a draft California regulatory policy called "Containment Zones."
This concept of Containment Zones was originally developed
to manage small toxic properties, most often fueling stations, that
have suffered contamination from leaking underground storage tanks.
A full implementation of Containment Zone policy in California will
affect nearly 90 percent of the toxic fueling sites that have not been
remediated. Contaminants will remain in place. While risk assessments
are similar for Containment Zones and brownfields, brownfield contamination
usually represents a far greater health risk.
Emeryville is a community whose residential makeup includes
a large portion of minority and low income residents. Many of the neighborhoods
in which these citizens live are located next to, or on, contaminated
industrial sites and toxic landfills. It should be noted that approximately
45 percent of Emeryville was created by the in-fill of the San Francisco
Bay from toxic soils. There is little or no written history of this
random and widespread pollution. As a consequence, these contaminants
and their toxic levels remain relatively unknown.
The brownfield application requires the City of Emeryville
to gather information from former cleanups to help create a composite
picture of the city's toxics. Emeryville will spend $400,000 to complete
this citywide investigation. This is an inadequate amount of money,
given the size of Emeryville's toxic problems. About 55 percent of Emeryville,
or 213 acres, is known to be contaminated. A similar situation can be
observed at the Ravenswoods industrial area of East Palo Alto, California.
Located near a minority, low-income district, an EPA grant allows for
a mere $75,000 to investigate its 130 acres of brownfield contamination.
Without adequate funding for site investigation and discovery,
the real health risks from brownfields will not be known until decades
of exposure have passed, if at all. Furthermore, as financial and regulatory
barriers are radically reduced, our ability to determine land uses and
related public health issues is reduced as well. It should be recognized
that the Brownfields Initiative represents a quantum leap from our understanding
of the health impacts posed by fuel contaminants from old service stations
to those presented by large areas of mixed industrial pollution.
Brownfields are a constant source of environmental poisoning.
These toxic parcels often put whose persons working or living nearby
at high risk. "The EPA currently recognizes more than four million
toxins and more are introduced every day. In 1992, the EPA undertook
a study directed at measuring chemical levels of 7,000 randomly selected
Americans. It was found that 71 percent of those persons tested had
detectable levels of environmental (toxic) chemicals in their urine."
[6 ] The simple fact is that environmental illness and cancer caused
by chemical injury are on the rise.
Artifacts of Regulation: Shifting Liability
To manage future litigation arising from brownfield revitalization,
the City of Emeryville is proposing the creation of a mitigation fund.
This component of the "risk management" based model for brownfields
will protect both industry and developers from pollution litigation.
Brownfield site investigations and cleanup, the very elements so vigorously
fought against by industrial polluters, will be given only limited monies.
Instead, the mitigation fund made up of redirected cleanup dollars will
protect those who pollute and those who own brownfields.
The expressed intent of the mitigation fund is "to
improve the environment of all citizens, including the economically
disadvantaged," and that the "remediation of the physical
environment will promote the remediation of the social environment and
benefit disadvantaged communities in all aspects of the human environment."
 In reality, this mitigation fund will only force many minority and
poor communities to shoulder a disproportionate amount of the environmental
and health costs because, indeed, little or no environmental remediation
will take place.
Today's state and federal regulations are moving towards
protecting industry from both pollution disclosure and enforcement actions.
Since 1993, 18 states have passed legislation which allows companies
to avoid reporting, to the public or regulators, the details of their
pollution practices. The State of California has also introduced several
bills of similar legislation that are currently pending. However, a
few states have rejected such legislative measures, acknowledging the
need to make polluters clean up.
As more states attempt to shield industry from the liability
of environmental pollution, the protections for the public are disappearing.
What has been a shared state and federal responsibility for pollution
control is being relinquished to industry and redevelopment, who are
hardly disinterested parties. This approach in California will clearly
exacerbate the environmental threats against poor and minority communities,
who have been, and who will remain, the victims of brownfield pollution.
"Among the fifty metropolitan areas with the greatest number of
African Americans living in a community with hazardous waste sites,
73.5 percent are near uncontrolled sites. In addition, in ten metropolitan
areas, 200,000 or more African Americans reside in a community with
an uncontrolled hazardous site." 
The environmentaI choices for so many Americans will so
be further diminished as these new policies arc implemented. The failure
to remove sources of contamination from these highly toxic sites can
only add to lowering the health status and the quality of life of these
brownfield communities. Surely, basic health and safety is a fundamental
right of every person, regardless of income or race. On closer examination,
it is evident who will benefit and who will pay for California's environmental
 Confronting Environmental Racism: Voices from Grassroots,
Robert Bullard, ed., South End Press, (1993), citing U.S. EPA, "Environmental
Progress and Challenges: An EPA Prospective" (June 1984).
 City of Emeryville, Risk Management Model For Accelerating
Brownfields Redevelopment (1995).
[3 ]Bullard, Robert D., "Anatomy of Environmental
Racism and the Environmental Justice Movement," in Confronting
Environmental Racism: Voices from the Grassroots, Robert D. Bullard,
ed., South End Press, Boston, Mass. (1993).
 More than two years ago the State of California began
a review of its Leaking Underground Storage Tank program (LUST). The
currently proposed amendment to SB 92-49 would create areas of pollution
referred to as "Containment zone." The policy, thou still
in draft form, is being adopted for use in the state's Brownfields program.
See "California's Choice: Containment Zones or Clean Water?"
by L A Wood. 1996 California Environmental Law Reporter 81 (April
[5 ]The City of Berkeley recently sent a letter to the
City of Emeryville expressing its concerns over the lack of adequate
safeguards in its proposed brownfields project. "Berkeley objects
to the designation of a citywide containment zone in Emeryville before
a site by site recovery program, adequate site investigation, site remediation
and identification of pathways of migration have been undertaken"
City of Berkeley Council Action CR#96-008 (March 19, 1996)
 "How to Guard Against Toxins," Delicious!
Your Magazine of Natural Living, Vol. 12, No. 4, p. 16, citing Journal
of Toxicity and Environmental Health, Vol. 37 (1992).
 City of Emeryville, Risk Management Model For Accelerating
Brownfields Redevelopment (1995).
 Lee, Charles, "Beyond Toxic Waste and Racism,"
Confronting Environmental Racism: Voices from the Grassroots, Robert
D. Bullard, ed., South End Press, Boston, Mass. (1993).
Mr. Wood is the author of "California's Choice:
Containment Zones or Clean Water?", 1996 CELR 81.