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Proposed Brownfield Regulation Takes Away Tool to Fight California’s Housing Crisis

In the Golden State, the term ‘housing crisis’ has been uttered so often, by so many, it’s practically lost all meaning. Politician after politician promises some new fix year after year. But still the crisis persists. The state is home to roughly 150,000 homeless, with another 7.1 million Californians living in poverty when housing costs are taken into account. A stringent new regulation proposed by CalEPA would take away one of the states’ best tools for affordable housing development. 

A brownfield is an underused, often blighted site, that has some level of contamination. Think of gas stations, dry cleaners, industrial properties, essentially anywhere a chemical has been used, transported or stored. California has about 200,000 of these sites, often located in desirable infill locations. Developing them into a higher use isn’t easy, but it can be done. A proposed regulation would make redevelopment next to impossible, taking away a key weapon in Governor Newsom’s ambitious plan to solve his state’s housing crisis. 

CalEPA released a draft of its supplemental guidance on vapor intrusion regarding brownfield sites. Vapor intrusion is when chemicals in the soil and groundwater migrate into buildings, impacting the health of building occupants. A site’s attenuation factor measures the concentration of harmful chemicals that could enter the structure, that’s what CalEPA wants to change. The draft sets attenuation factors at brownfield sites to 0.03 for sub-slab and soil vapor and .001 for groundwater. That’s 30 times the current threshold set by California’s Department of Toxic Substances Control (DTSC). The change would make redeveloping the state’s estimated 200,000 brownfield sites commercially unviable. 

“The only thing keeping people away from these sites is the fact there’s toxin in the groundwater or soil,” Matt Winefield, founder of Winefield & Associates said. Winefield is putting his dual degrees in civil and environmental engineering to use redeveloping blighted properties. “Many of these sites are already upside down, where the cost of remediation exceeds the value of the property.” 

The new regulation would make practically every brownfield site even less valuable. Remediation is a years-long process, involving, for example, installing slotted wells connected to a vacuum that extracts and then scrubs the vapor. Cost varies depending on the site, a typical dry cleaner remediation can range from $800,000 to over $1 million. The proposed change to the attenuation factor would involve a host of unnecessary new indoor air testing and active vapor extraction barriers that would need to be kept running for a decade or more to achieve the necessary attenuation factor levels. Spending millions on a site for a decade before it can be redeveloped is a non-starter for most commercial operations. Without commercial or residential developers taking on blighted brownfield sites, most will stay that way. 

“I’m never suggesting risking human health, safety or the environment,” Winefield said. “That’s not the business I’m in. I got into this to do some good. The extra cost of remediation, the cost, the barrier, the exhaust, the monitoring, running it for years? It’s just not necessary.” 

If the proposed regulations are turned into law, California would be the only state in the country with such stringent brownfield site regulations. Winfield says he’ll take his development business elsewhere. 

“Home prices are absolutely staggering, the homeless crisis is abysmal. Everyone acknowledges these are problems,” Winfield said. “We think CalEPA should acknowledge many of these brownfield sites can be mixed-use and affordable housing. Investors have successfully converted these blighted sites to commercial or residential facilities with little to no repercussions. The efficiency of cleanup has been wonderful. Why CalEPA is putting a solution where there’s no problem is beyond me.” 

CalEPA says addressing vapor intrusion is critical to protect people from exposures that may pose a risk of adverse health effects. The urgency to protect building occupants from the short-term exposure effects of trichloroethylene (TCE) at relatively low concentrations was part of the impetus that led to the workgroup that formulated the proposed regulations. Problem is, CalEPA and DTSC aren’t in agreement on this particular issue of attenuation factors. It may come down to the data each is using. 

CalEPA is basing its recommendations on a federal EPA study and vapor intrusion database. Only 4 sites in California were included, representing less than 3 percent of the data points. The attenuation factor varies state by state due to soil conditions, weather, and building construction. The federal EPA study had an average construction date of 1938. It’s fair to say California’s average construction date is at least a couple of decades younger. California’s climate and soil also differ from large parts of the nation the study was based on. DTSC’s own study used 4,900 sites from 52 cities in California. While the DTSC study has yet to be as extensively peer-reviewed as the federal EPA study, the stark difference in data sets and conclusions raises concerns. 

Scientific research on the issue is in agreement with DTSC’s findings. A technical paper published by The Groundwater Association found, “based on available studies it is not reasonable to conclude that 0.001 could be used to cover cases involving inaccurate source characterization or potential pathways, both of which may induce attenuation from groundwater to indoor air even lower than 0.001.” A lower attenuation factor means there is less of a chance vapors would migrate into a building. The EPA database that CalEPA is basing its proposed regulation on “shows that the attenuation factors vary over many orders of magnitude and that no simple statistical fluctuation around any typical mean value exists,” according to a paper published by the American Chemical Society. 

When dealing with environmental safety regulations, health always comes first. Stopping the proposed regulation isn’t some malicious narrative about endangering occupants for higher profits. Developers in California want to clean up brownfield sites, in most cases, it’s the only way they’ll ever be cleaned. Without commercial interests attached, whatever environmental issues are associated with these contaminated sites will continue to fester. Harnessing private interests to redevelop the sites doesn’t work when it’s not financially possible. It comes down to a choice between blight or reasonable regulations. More stringent regulations won’t make the sites or the environment any safer, in fact, it’s more likely to do the opposite by preventing remediation efforts. 

“Brownfield redevelopment is incredibly effective, it should be embraced. It’s done significant good for California and the United States, anything that blocks these efforts is a shame,” Winefield said. “If this guidance goes from draft to final version, we’re in big trouble. I’m not one for hyperbole. It doesn’t impact me at all, I’ll just go do business in another state.” 

Governor Newsom claims to want to solve his state’s housing and homeless crisis. His most recent budget proposal includes $1.75 billion for housing, building on the billions he’s put towards the issue in previous budgets. The harsh reality is there’s little Newsom can do, if the problem was easily solvable, it would have been solved by now. There are only so many levers to pull. Excluding 200,000 brownfield infill sites from redevelopment takes away one of the rare tools the state government has to incentivize housing development. California should be making it easier to redevelop these blighted sites safely, not harder. 

The good news is that nothing has been done yet. The draft Supplemental Guidance has been available for public review since mid-February, collecting public comment on the draft through June first. CalEPA will take the comments into consideration and release a revised Supplemental Guidance expected late this year. 

Housing and the environment are both important issues to Californians. They don’t have to be mutually exclusive. But, environmental law can often have the negative effect of prohibiting needed development. While even the most ardent housing activists would not want to put their health at risk, many think that the proposed legislation might do more harm than good.

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