Avoiding Hazard Zones

What began as the lofty but simple goal of cleaning up the nation's environment has ended in a maze of statutes, regulations and case law that reaches into every sector of the nation's economy. Among the hardest hit areas are those of construction and development, which have provided fertile ground for an excess of legal premises that expose contractors, developers and design professionals to environmental damage claims.

Most recent pressures come from the demand for more affordable housing. Limited by the amount of land, inner cities are recycling themselves, reusing former industrial and commercial sites for the development of housing. At the same time, to accommodate its rapidly expanding population, the nation is hard at work overhauling its roadways, railways and waterways. The inherent problem in these well-intended recycling efforts is that much of the land underlying these sites is toxic.

Myriad regulations aimed at protecting and cleaning up the environment expose everyone involved to potential liability. There is no broad protection for developers of brownfields - abandoned industrial sites stigmatized by real or perceived environmental contamination - and the threat of liability creates huge obstacles because the costs of remediation are often uncertain. Furthermore, if future contamination is found, nothing protects the developer from additional liability. Complicating matters even more, state voluntary action statutes and programs usually set forth statewide cleanup standards that allow for higher levels of contamination if a site will be used for commercial or industrial rather than residential purposes. Given the many federal, state and common-law theories, it is all too clear that developers, contractors and design professionals must arm themselves with the necessary tools to operate in a legally constrained and ever-changing, complex market.

EPA's continuing unpredictability serves to frustrate and encumber any private sector industry that relies on consistent and uniform national guidelines.

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, the U.S. Environmental Protection Agency (EPA) has the power to seek out contaminated sites that pose a threat to public health or the environment, and take action to clean up such sites. It also has the power to file civil suits to recover its clean-up costs, or force those responsible for the contamination to perform the cleanup. These powers continue to grow and the EPA of the 21st century will be very different than that of the past. Where the political climate will take the agency is, however, vastly unknown. EPA's continuing unpredictability serves to frustrate and encumber any private sector industry that relies on consistent and uniform national guidelines.

Growth Issues

It is a given that construction projects in older urban areas with an industrial past will need some environmental restoration. Heavy agriculture, mining and logging operations and landfills usually present challenges to rural area construction projects as well. While EPA and other state and local governmental watchdogs keep an official eye out for the toxic environments of former oil refineries, automobile manufacturing plants and metal plating shops, citizen's groups concerned with the protection of green space, endangered species and water and air quality, grow in number and influence. Their cries for sound environmental action, to be taken only after costly and time-consuming studies and reports are complete and months and years of negotiations are concluded, are strident and unrelenting.

To quiet some of the clamor for affordable housing, cities are undertaking the classic overhaul of scattered, isolated pockets of commercial and light industrial properties on which developers are building a few homes. The environmental problems encountered when building on the site of a former medical building, dry cleaning shop or gas station are usually solved, but only after a significant amount of time and money have been thrown at planning strategies, community meetings and site cleanup. In suburban and rural areas, concerned citizens waste no time proposing measures aimed at closing the development of those areas surrounding their communities that could support greater numbers of affordable homes.

Owners and developer teams with experience in redeveloping brownfields know the importance of including the community and affected neighborhoods in their processes.

Pressure from these efforts is exacerbated by the explosive growth of the Internet and telecommunications industry. Knowledge-intensive companies are changing the face of whole city districts as they transform former warehouses, some with a history of housing toxic substances, into data and call centers. Barely supporting these new companies and their growing workforces is an outdated and overburdened system of highways, bridges, rail, water and wastewater. To alleviate the stress on these critical structures, governments are springing into action with projects like the Alameda Corridor project in Los Angeles, the "Big Dig" tunnel/freeway project in Boston and the proposed span to replace the Bay Bridge in San Francisco.

The Tools - Liberal Studies

Whether it's government, business or private citizens exerting influence, the system protecting the environment is being tweaked constantly. And it's all too evident that the expensive and time-consuming process of cleanup is often performed at the whim of political expediency. The problem with today's provisional approach to cleanup is the difficulty that exists in reconciling arcane legislation with the reality of cleanup. Therefore, it helps to know the tools available to maneuver the rocky shoals of environmental remediation.

Almost every piece of environmental litigation over construction in urban areas stems from inadequate preconstruction studies. Owners, eager to see where their money is being spent, recognize the value of marble columns and bronze statues. The benefits of an environmental study are not as readily apparent - until the digging begins and workers, materials and equipment have to be demobilized because toxics are found.

The profound and costly effects of discovering contamination after construction starts are never worth the few saved nickels and dimes. Nowhere is this more evident than in the construction of Belmont Learning Complex, dubbed the most expensive high school in the United States, in Los Angeles. A 200-page investigative report found, among other things, construction on the 35-acre site was approved despite the fact probable cause existed showing hazardous waste had been disposed of at the site. What was the cost to the school district for a structure that will never be completed because it sits atop a site containing explosive methane gas? Between $200 million and $300 million. That number does not include the costs of litigation that is sure to plague the project's contractors, subcontractors and consultants.

Building Relationships

Offsetting such high-profile fiascos are the thousands of out-of-the-limelight sites that are being returned to productive use. Much of their success is due to good relationships with authorities who have jurisdiction over a project. Meeting with them well before cleanup begins, determining how they interpret findings, cooperating and finding out their history of enforcement and checking with others who have been in similar situations, go a long way in expediting the cleanup process. Owners and developer teams with experience in redeveloping brownfields know the importance of including the community and affected neighborhoods in their processes.

The cleanup of former industrial areas for the expansion of roads and transit systems differs greatly than sites for human habitation.

In the limelight is a $1 billion, 12-million-square-foot Atlantic Steel project in Atlanta, Ga., rising on the site of an old steel mill. EPA and the developer signed a pact to utilize EPA's Project XL (eXcellence in Leadership), which gives companies flexibility with environmental rules if the end result is better air, water or land quality. Remediation on the lead-contaminated site will pave the way for the transformation of the former 138-acre steel mill into 2,400 residential units - 4.8 million square feet of office, 1 million square feet of retail, 400,000 square feet of entertainment space and 800 hotel rooms. Cleanup includes groundwater treatment and removal of about 30,000 cubic yards of contaminated soil.

Community Support Systems

The cleanup of former industrial areas for the expansion of roads and transit systems differs greatly than sites for human habitation. Those cities with decaying industrial sites usually welcome the increased revenues that redevelopment brings, but their citizens are not always as happy. Any owner who hires a contractor to build on a site that is known to be contaminated is well served to do a thorough and exhaustive study of the site.

After more than two decades of lawsuits, the 21-mile, $2.4 billion Alameda Corridor Project in the San Gabriel Valley of Los Angeles, which will link the ports of Los Angeles and Long Beach with high-speed, high-capacity rail, is well under way. Work on the three-phase project, which runs through cities created specifically for industry, will consolidate three railroads, eliminate at-grade crossings and alleviate traffic congestion. Begun in 1997 and planned for completion in 2002, the project has been the object of scrutiny by environmental groups, which have accused the project of fouling the air and dumping toxics into the water during construction.

Early last year, the Los Angeles Water Quality Control Board granted the project a waiver from new rules limiting the amount of pollutants the project dumps into the water. It voted to allow the discharge of as many as 18 million gallons each day of possibly contaminated groundwater into a nearby creek. The project may not be without its political wrangles and lawsuits, but it is happening because of the number of people who think it is a good idea. The wild card is the young immigrant families that are the area's primary residents. The issues of contamination, immigration and the potential for political repercussions here remain great.

As EPA implements its promised reforms to provide cleanup guidance, set clear objectives, foster program flexibility and practical approaches to cleanup, and enhance community involvement and access to its programs, it would be wise for those involved in environmental cleanup to take advantage of existing tools while going beyond the letter of the law to protect themselves from costly litigation.

This article appeared in the March 2001 issue of Environmental Protection, Vol. 12, No. 3, on page 70.

This article originally appeared in the 03/01/2001 issue of Environmental Protection.