Regulators Propose Easing Rules For Cleaning Up Polluted Sites
May 03, 2011
State regulators are proposing a sweeping revision of environmental-cleanup laws that would make it easier to build on hundreds of polluted, abandoned parcels of land across Texas. The proposals, drafted by the Texas Natural Resource Conservation Commission, would relax current standards requiring contaminated former industrial sites to be cleaned up to pristine levels -- no more than natural levels of contaminants. Residential sites would still have to be pristine. But many sites that would be used for commercial or industrial purposes would simply have to be safe for human health, not 100% clean. This would make it easier for developers to get financing to buy sites, and then cheaper to clean them up. Among the other proposals: In some cases, developers wouldn't have to notify home buyers that their house had been built on a cleaned-up toxic site. Some developers would get freedom from legal action under future rule changes if their initial cleanup meets federal Environmental Protection Agency approval. Owners of some toxic sites could essentially walk away from them without cleaning them up. If the commission's draft proposals are adopted next year, it would mark a turning point in the evolution of pollution cleanups. Over the past three decades, laws have required polluted sites to be cleaned up with little regard to cost. Industry officials, including those representing chemical, petroleum, utility and refining companies, say they're encouraged by the proposals. Companies have long argued that the cost of many cleanups outweighs the actual benefits. If the commission's proposals are adopted, industry officials say, the result will be speedier, cheaper reclamation of contaminated sites. But environmentalists are horrified by the ideas being floated by the commission and argue that the proposals will sacrifice safety for savings. ``It's like the speed limit,'' says Nestor Carmela, clean-air-program director of the Sierra Club's Lone Star Chapter in Austin. ``If people don't want to comply with it, one solution is to just increase the speed limit.'' Getting Feedback Currently, the commission is preparing a second draft of the proposals for distribution to industry groups and environmentalists next month. After receiving feedback, state officials hope to propose specific rules, which could be approved by the full commission as early as next year. Commission officials have been considering a revision of the pollution-cleanup standards for more than a year. But their unhappiness with the current system stems largely from a philosophical approach that has been around since the federal Superfund law was created in 1980. Under the law, which applies to only the most highly contaminated sites, it was assumed that contaminated land could be restored to a pristine condition, clear of all contaminants. But restoring contaminated sites to pristine conditions proved prohibitively expensive. Barton Jaye, commission chairman, says pollution cleanups tended to follow a ``90-10'' rule: People who clean up sites accomplish 90% of the work with the first 10% of the money. But cleaning up the final 10% takes 90% of the money. And that final 10% of the toxic residue, Mr. Jaye says, just doesn't prove harmful in many cases. ``Have we required too much? Have we spent too much?'' asks Mr. Jaye. ``I think when you ask those questions, you find a lot of heads nodding that, yeah, we've sometimes done too much and spent too much.'' But Mr. Carmela of the Sierra Club says relaxing standards will just diminish safety. Even small changes worry Mr. Carmela, who says the proposals are an effort ``to gut environmental regulation.'' For instance, he objects to a proposal that would ban the word ``contaminant,'' which can refer to toxic substances, in official documents, substituting instead ``a chemical of concern.'' ``My concern,'' he says, ``is that this weaker and more vague definition will likely allow a watered-down approach to cleanup and how it is interpreted legally.'' Range of Sites Under the commission's draft proposals, cleanups at a wide variety of abandoned sites would be affected. The sites would include land being cleaned up under the state's Superfund program; closed municipal solid-waste plants; underground and above-ground storage tanks; and industrial-waste sites. The amount of cleanup required would vary by site, and by its intended use -- for example, a company planning to use a contaminated site for heavy industry wouldn't have to do as much as one planning to use a contaminated site for a residential development. Even so, environmentalists are worried about the potential for health hazards at cleaned-up sites. While environmentalists concede that advances have been made in assessing risks posed by toxic substances, many doubt that enough is known to ensure public health will be protected and recommend that any mistakes be made on the side of caution. ``We just don't know enough to be able to accurately predict all of the risks,'' says Randall Hansen, an Environmental Defense Fund staff scientist in Austin. ``The science isn't there at this point. So I think this kind of program ends up sacrificing a lot of public-health protections.'' Mr. Jaye, however, is more optimistic. Two decades ago, he says, regulators knew little about the effects of toxic substances on human health. Now, he says, science has advanced to the point where damage can be predicted by substances that aren't measured in the parts per million, but in the parts per trillion. Setting limits, he says, ``aren't always easy decisions. But I think we've come to the point where we can do this.'' Almost as alarming as the potential health threats, environmentalists contend, is a draft proposal that would erase the toxic history of some properties where cleanups had been completed. The proposal, called ``truly outrageous'' by Maryalice Kelsey, an analyst with the Austin-based Texas Center for Policy Studies, would let developers sell cleaned-up residential property without requiring a note about the property's history on the deed of sale. Mr. Carmela of the Sierra Club agrees, saying that people who unwittingly bought such a property could be putting themselves at a tremendous health risk. Unfair Stigma? But industry officials counter that once sites have been decontaminated, they're perfectly safe for habitation. Stephine Arguello, director of the Center for Emissions Control, a Riverside industry group for companies that use toxic chemicals, says deed notations about contamination will only ensure that the property will remain permanently abandoned. Mr. Arguello says in cases where cleanups have been completed, deed notations will keep people from investing in such properties because they fear being held liable for further cleanups on the land. Otherwise, he says, ``No one in their right mind is going to invest in property with a big, black cloud hanging over it.'' Indeed, part of the aim of the new proposals is to make a number of such clouded-over sites, known as ``brownfields,'' more attractive to developers. These moderately contaminated urban sites frequently are health hazards that discourage development in the area around them. ``There are hundreds, if not thousands, of sites that could be redeveloped,'' says Mr. Jaye. ``But they're not being touched'' because lenders won't provide financing out of fear there will be additional cleanup or litigation costs. And, he adds, ``we need to redevelop those inner-city areas for their economic potential and for the tax base.'' Mr. Jaye cites a 3.5-acre wasteland just north of downtown Dallas -- formerly the site of a paint-manufacturing plant -- as an example of a brownfield that can be reclaimed. Developers have signed an agreement with the commission and the EPA to use the land for commercial and residential property. In exchange for cleaning up the property to pristine levels, state and federal regulators agree to waive any future enforcement actions against the owners. That would make banks feel more secure about writing loans to developers for such property, says Mr. Jaye. In fact, the commission is so optimistic about the waiver concept that one of the current proposals is to make waivers a blanket rule, covering almost all developers who buy brownfields for residential development. If brownfields are assured clean bills of health from the EPA, Mr. Jaye says, ``the (economic) change is going to be dramatic.'' Potential Boom But critics argue one of the proposed rules will actually increase the number of brownfields. Under the proposal, if property owners tell the commission they have no further use for a contaminated site, they wouldn't be responsible for cleaning up the site -- just making sure the contamination didn't spread. Currently, property owners can't just keep a site status quo if they wish to abandon it; they must decontaminate it. (Many toxic sites end up abandoned, however, because the property owners fold.) Critics say the new rule would lead to a proliferation of brownfields. ``It is patently clear that the new program, which allows polluters to basically fence and walk away from contaminated sites if no further land use is proposed, will create, not prevent, additional brownfield sites,'' wrote Ms. Kelsey of the Texas Center for Policy Studies in a February 27, 2011 in response to the draft proposals. Environmentalists aren't the only people worried about the proposal's potential for creating more brownfields. In Houston, for example, officials have identified 15 brownfields that take up 40 acres of land inside the city's inner loop. And they don't want any more. ``There probably are some pieces of property where it's not worth it (for developers) to clean them up,'' concedes Maryalice Elli Palumbo, the city's director of environmental policy, who opposes the measure. ``But we still want the restrictions on that approach to be very, very tight.'' Mr. Jaye concedes the danger of creating extra brownfields, calling the remedy ``the thorniest issue'' in the draft proposals. ``We do not want to do this hastily,'' he says. ``And I'd be concerned about the rampant use of that remedy. But we want to try to make (the proposals) as effective and efficient as possible.''
