Policy aimed at cleaning up contaminated land is called brownfields. It is relatively new, with a distinct urban focus. It is controversial because of the displacement of current residents and reliance on market forces to rebuild some sites. Whether the site is cleaned up to a level safe for residential development, or just safe enough for another industrial use, is a community controversy.
I. Beginning of Brownfields Policy
II. Recent Developments
III. U.S. Urban Environmentalism
IV. Terms of Art
A. Brownfields Site
B. Superfund Site
V. Urban Environments
VI. How Clean Is Clean?
Beginning of Brownfields Policy
Since the disaster of Love Canal and the Hooker Chemical Company, U.S. environmental policy has developed a distinct cleanup aspect. It is very controversial. Extremely hazardous sites were prioritized as part of a National Priorities List under the Superfund program. Superfund can assess liability for the cost of a cleanup against the property owner if no other primary responsible parties are around. Huge amounts of unaccounted wastes were produced before the U.S. Environmental Protection Agency (EPA) was formed in 1970, and huge amounts have continued to be produced. As much as 80 percent of Superfund budget allocations have gone to the litigation that can surround these sites. As knowledge and public awareness increased, many more sites were located. Most states had adopted some type of landfill or waste management environmental policy by the late 1980s. Controversies that still simmer today over what is hazardous pushed the EPA into a new phase of cleanup policy. There was a need to prevent nonhazardous sites from becoming hazardous. This can happen at illegal dumps over time. Metals from refrigerators, stoves, cars, cans, and roofing can leach into the water, depending on the site. Many of these sites were in or near densely populated areas, which were not traditional areas for the EPA at this time. In some states this was legal if operated as a dump, no matter where it was located. There were many sites waiting to be verified as hazardous or not for Superfund consideration. Even if the community was successful in getting the site designated as hazardous, there was a complicated and political process of getting on the National Priorities List, a list of about 1,200 or so of the most important sites for the EPA. Getting a site designated as hazardous was not always considered the best thing for the community because it could suppress property values. Sometime local government fought against such a designation, against the community and the EPA. This is often the case in many communities seeking environmental justice. As environmental justice advocacy increased within the EPA in the early 1990s, cleanup policy changed to include more of these sites. In 1993 the EPA first began to address sites that may be contaminated by hazardous substances but that did not pose a serious enough public health risk to require consideration for cleanup under the Superfund program.
The cleanup policy that evolved was conceptualized regionally at first, partially motivated by concerns about sprawl. The idea was to save as much green space as possible by reusing, or infilling, some of these polluted sites. Infill is often proposed as a mitigating solution to sprawl. Municipal boundaries are not related to bioregions or ecosystems, and some municipalities or cities may not want infill. Municipalities have different and sometimes competing priorities. Combating sprawl or environmental protection and cleanup are generally not as important as economic development at this level of government. As a result, there are many polluted sites. When they are abandoned and foreclosed on by the municipality or city for failure to pay property taxes, the city owns them. Cities, such as Milwaukee, for example, then become liable for the cleanup of the polluted sites, and they also lose tax revenue. It is extremely difficult to sell polluted land, and all efforts are made to escape environmental liability in the process. According to the EPA,
Brownfields are abandoned, idled, or under-used industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination. They range in size from a small gas station to abandoned factories and mill sites. Estimates of the number of sites range from the tens of thousands to as high as 450,000 and they are often in economically distressed areas.
Portland, Oregon, estimates that it has about 1,000 brownfield sites. Developers avoid them because of cleanup costs, potential liability, or related reasons.
In 2001, new brownfields policy development authorized granting a liability exemption to prospective purchasers who do not cause or worsen the contamination at a site. It also gave this exemption to community-based nonprofit organizations that seek to redevelop these sites. Most states now have their own brownfields programs. There were substantial differences between some state approaches and the EPA brownfields policy. Some of this has to do with the level of cleanup required for a site to be considered clean. An industrial level is cheaper but still polluted. A residential level is very expensive but not polluted. It is still very controversial. Often no developers or nonprofits are willing to clean up the site. Unlike Superfund, brownfields policy does not attack primary responsible parties for liability. State policy approaches are given some leeway in the 2001 policy changes. The new policy stops the EPA from interfering in the state cleanups. There are three exceptions written into the law:
- A state requests assistance.
- The contamination migrates across state lines or onto federal property.
- There is an “imminent and substantial endangerment” to public health or the environment and additional work needs to be done.
U.S. Urban Environmentalism
The United States is still in the early stages of urban environmentalism, a complex subject with intricate and important histories. The potential for unintended consequences for people, places, and policy is great. Solid wastes are accumulating every day, combined with a century of relatively unchecked industrial waste that continues to pollute our land, air, and water on a bioregional basis. The wastes in our ecosystem respect no human-made boundary, and the consequences of urban environmental intervention through policy or other actions, intended or not, affect us all.
Terms of Art
According to the most recent law and policy Public Law 107–118 (H.R. 2869), “Small Business Liability Relief and Brownfields Revitalization Act,” signed into law January 11, 2002, the definition of brownfield is as follows: “With certain legal exclusions and additions, the term ‘brownfields site’ means real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.”
A Superfund site is any land in the United States that has been contaminated by hazardous waste and identified by the EPA as a candidate for cleanup because it poses a risk to human health and/or the environment. There are tens of thousands of abandoned hazardous waste sites in our nation. The implementing edge of the Superfund program is a system of identification and prioritization that allows the most dangerous sites and releases to be addressed, called the National Priorities List.
When outcomes from cleanup and revitalization projects are assessed, the EPA may have unintentionally exacerbated historical gentrification and displacement. EPA funds may have been used to continue private development at the expense of low-income residents.
Urban areas are complex. For at least a century, urban areas in the United States experienced unrestrained industrialization, with no environmental regulation and often no land-use control. U.S. environmental movements have focused on unpopulated areas, not cities. In addition, U.S. environmental movements did not consider public health as a primary focus. Rather, they emphasized conservation, preservation of nature, and biodiversity. In addition to being the dynamic melting pot for new immigrants, cities became home to three waves of African Americans migrating north after the Civil War. These groups faced substantial discrimination in housing, employment, education, and municipal services. African Americans are the only group in the United States to not have shared in equal opportunity for employment, housing, and education. In addition, people of color and low-income people faced increased exposure to the pollution that accompanied industrialization.
Citizens living in urban, poor, and people-of-color communities are currently threatened by gentrification, displacement, and equity loss on a scale unprecedented since the urban renewal movement of the 1960s. Market forces appear to be the primary drivers of this phenomenon. Spurred by local government attempts to reclaim underutilized and derelict properties for productive uses, residents and business owners who once abandoned the urban core to the poor and underemployed now seek to return from the suburbs. By taking advantage of federal policies and programs, municipalities, urban planners, and developers are accomplishing much of this largely beneficial revitalization. However, from the perspective of gentrified and otherwise displaced residents and small businesses, it appears that the revitalization of their cities is being built on the backs of the very citizens who suffered, in place, through the times of abandonment and disinvestments.
Although these citizens are anxious to see their neighborhoods revitalized, they want to be able to continue living in their neighborhoods and participating in that revitalization.
In addition to facing tremendous displacement pressure, African Americans and other people of color also face difficult challenges in obtaining new housing within the same community (or elsewhere) after displacement. For example, when these populations are displaced, they must often pay a disproportionately high percentage of their incomes for housing. Moreover, they suffer the loss of important community culture. Although it is not fair to suggest that federal reuse, redevelopment, and revitalization programs are the conscious or intentional cause of gentrification, displacement, and equity loss in these communities, it is apparent that the local implementation of these programs is having that net effect. These then become the unintended impacts of such well-intended and otherwise beneficial programs. Brownfields is a pioneering urban environmental policy and unintended consequences could easily result from it.
Community activists should have an educated perspective to decide whether brownfields programs will provide hope and opportunity to their distressed neighborhoods or whether they will exacerbate environmental contamination and/or provide little or no opportunity for their own families to benefit proportionately. Brownfields redevelopment is a big business. Profits are generally more important to brownfields entrepreneurs than community concerns about displacement or reduced cleanup standards. In fact, at the EPA’s 2004 National Brownfields Conference, developers reinforced this notion by highlighting their perspective that in order for communities to be players in the redevelopment and revitalization process, they had to be financially vested in the process. This view clearly speaks to the need for EPA intervention to ensure meaningful community involvement irrespective of financial status.
The EPA provides some funding for brownfields to state and local government and to some tribes. As of July 2007, about $2.2 million was awarded to brownfields revolving loan fund recipients. The EPA claims that since 1997 they have awarded about $55 million for about 114 loans and 13 subgrants. The EPA states these loan funds have leveraged more than $780 million in other public and private cleanup and redevelopment investments. Some criticize the program as being underfunded and underresourced. They say the need for cleanup of the places where we live, work, and learn is paramount for any environmental cleanup policy.
How Clean Is Clean?
Cumulative impacts concern the EPA because they erode environmental protection and threaten public health, safety, and welfare. They cross all media—land, air, and water. Independently, media-specific impacts have been the focus of the EPA’s work for years. However, if the combined, accumulating impacts of industrial, commercial, and municipal development continue to be ignored, the synergistic problems will only get worse. The cleanup of past industrial practices must be thorough and safe for all vulnerable populations—so say most communities. Another community concern is that long-term industrial use of a given site may decrease the overall value of property in the area, resulting in a loss of wealth over time. However, to clean up the site to a level safe enough for residential development is much more expensive. It is also fraught with uncertainty, which translates into risk for most real estate financial institutions. The state of the law of brownfields cleanup is also very uncertain and dynamic. One thing is certain though: the United States is dotted with contaminated sites generally concentrated in urban areas and multimodal transit nodules (e.g., ports, depots).
By far, the populations most impacted by brownfields decisions are those who live, work, play, or worship near a contaminated site. These people are already in areas with a high pollutant load, with generally higher rates of asthma.
Vulnerable populations such as pregnant women, the elderly, children, and individuals with pre-existing health problems are at increased risk. In many environmental justice communities, a brownfields site may be the only park-like setting available, so it can attract some of the most vulnerable populations.
To the extent members of the community are forced to leave because of increased housing costs, the community loses a piece of its fabric, and sometimes knowledge of its history and culture. This adverse impact must be addressed as part of a cumulative assessment. The sense of identity common to many communities concerned with environmental justice is threatened when communities are displaced.
As part of the first and very necessary wave of urban environmentalism, brownfields unearths many deep-seated environmental and political controversies. U.S. environmental policy and the U.S. environmental movement have ignored cities, where most of the pollution and most of the immigrants and people of color reside. The environment, urban or not, is difficult to ignore as population expands and concepts of sustainability are developed. Citizen monitoring of the environment, environmental lawsuits, and the need to enforce environmental laws equally have driven environmental policy to urban neighborhoods. Cleanup of the environmentally devastated landscape is usually an early priority for any governmental intervention in environmental decision making.
A hard uncertainty underscores the current methods of holding private property owners liable for waste cleanup. What if they cannot afford it? What if they manipulate bankruptcy or legitimately cannot afford it? What if the contamination is so extensive that no one stakeholder alone can afford to clean it up? Ecosystem risk assessment, now mandated at Superfund sites, will unearth only more contamination. The levels of contamination themselves are highly controversial because some believe that as these levels stand now, they do not protect the public enough. How much real estate corporations and banks should be supported by government in developing market-based cleanup strategies is a big policy controversy.
Yet without any intervention these sites accumulate wastes that can spread to water and land. They do not go away but generally get worse. Over time there will be no hiding any of them. With the new and rapidly developing global consensus on sustainability, cleanup of contaminated sites is a natural and necessary first step. This step takes place in a political context of race, class, and awkward histories of human oppression. The immigrants and migrants always lived in the tenements or on the other side of the tracks. (Train toilets dumped directly on the tracks until the late 1990s.) Success was defined as leaving the city for a house in the suburbs, with a better school district. Many but not all immigrant and migrant groups came through polluted and unhealthy urban neighborhoods.
This political step is also a necessary step and one that remains very controversial in the U.S. context. Currently, brownfields is the policy face of that step forward.
Robert William Collin
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