Revised toxic-cleanup rules will increase focus on environmental justice

Support for environmental justice is being carefully woven into new toxic-cleanup rules for prioritizing and carrying out cleanups at thousands of contaminated sites across Washington state.

State officials need to become more cognizant of the people who live near contaminated sites as they address pollution problems across the state, according to members of an advisory group working to update the state’s toxic-cleanup program. Everyone has a right to a clean, safe and healthy environment, regardless of race, ethnicity, income or other social factors, they say.

That’s the essence and the challenge of environmental justice, which came into focus following a 1995 study by the Washington Department of Ecology. The study examined the demographic makeup of neighborhoods where toxic chemicals were found. Although toxic sites were located just about everywhere in the state, the study revealed that, overall, contaminated properties were disproportionally located in neighborhoods occupied by low-income residents or people of color, or both — a pattern that persists today.

Studies have shown that Duwamish residents are more likely to live in poverty, be foreign born or have no health insurance, and they are more likely to be sick than most Seattle residents.

As a result, people who live near toxic sites face a kind of double jeopardy, because these same demographic groups are more likely to suffer from health problems, such as asthma. Also, these groups typically receive less health care, according to findings from several national studies.

For those overhauling the state’s toxic-cleanup program, environmental justice has garnered much discussion. That goes for setting up a new system of ranking the hazards at each toxic site, prioritizing which sites get cleaned up first, determining cleanup levels, and deciding future uses of the land after cleanup. It’s all part of the rules and procedures under the state’s Model Toxics Control Act, known as MTCA.

 “If we are to properly address the situation, we have to pay attention to who is being impacted,” says James Rasmussen, a founder of the Duwamish River Cleanup Coalition and member of the Stakeholder and Tribal Advisory Group (STAG) working on the MTCA update. “They are the ones who can best explain how they are affected, and they need to be part of the solution.”

Rasmussen, a Native American from the Duwamish Tribe, has been helping residents of the Duwamish Valley understand their local pollution problems for more than 30 years. His goal is to engage residents and make sure their needs are addressed in the massive cleanup of Seattle’s historic industrial area south of downtown. Problems there include industrial contamination of land and water, ongoing air pollution and an overall loss of natural conditions.

Studies have shown that Duwamish residents are more likely to live in poverty, be foreign born or have no health insurance, and they are more likely to be sick than most Seattle residents. Numerous other communities across the state face their own pollution problems with accompanying health effects.

While toxic sites are often clustered in historic industrial areas, the Duwamish Valley stands as one of the most visible long-term failures when it comes to environmental equity and confronting the problems affecting people’s health. Yet, remarkably, the Duwamish story is far from over. A major turnaround is underway, thanks to community activism, government partnerships, and a renewed sense of fairness regarding those who bear the burdens of pollution.

The federal Environmental Protection Agency defines environmental justice as “the fair treatment and meaningful involvement of all people, regardless of race, color, national origin or income with respect to the development, implementation and enforcement of environmental laws, regulations, and policies.”

Ecology officials and STAG members say they are committed to incorporating a sense of fairness into the process that selects toxic sites for cleanup and ultimately restores these properties to a clean and healthy condition.

That same concern for equity is the heart of the discussion this year in the Washington Legislature, where lawmakers are fashioning new state laws and policies with guidance from an appointed Environmental Justice Task Force. The so-called HEAL Act, if passed, would require state agencies to consider racial and social justice and expand community participation in agency decisions. HEAL is short for Healthy Environment for All.

Washington’s anti-pollution law

In 1988, Washington voters approved a transformative ballot measure designed to identify and clean up toxic sites threatening people’s health and damaging the environment. Complementing the federal Superfund law, the justification for this new state law can still be found in its opening paragraph:

“Each person has a fundamental and inalienable right to a healthful environment, and each person has a responsibility to preserve and enhance that right. The beneficial stewardship of the land, air and waters of the state is a solemn obligation of the present generation for the benefit of future generations.”

When MTCA was approved by voters in 1988, state officials were aware of a few hundred toxic sites that needed attention. Now, 32 years later, the number of properties on the state’s contaminated sites list has reached 13,499.

The goals suggest that “each person” should see the benefits of toxic cleanup. Over the years, the Department of Ecology has incorporated environmental justice into many of its programs. Still, advocates hope that the current round of rulemaking will take the fair treatment of all people to a higher level.

When MTCA was approved by voters in 1988, state officials were aware of a few hundred toxic sites that needed attention. Now, 32 years later, the number of properties on the state’s contaminated sites list has reached 13,499. As of last year, a little more than half of those — 7,312 — have been cleaned up, and another 4,056 are in some state of remediation. Typically, between 200 and 300 new sites are added to the list each year, so decisions about which sites get state attention affect people’s lives in a direct way.

Under the doctrine of “the polluter pays,” the owner of a contaminated property or the operator of a polluting facility is primarily responsible for cleanup. Privately owned properties make up about 79 percent of all the contaminated sites. The other 21 percent are owned by public entities.

MTCA funding largely comes from a tax on petroleum products and other chemicals. The Hazardous Substances Tax pays for many ongoing initiatives within Ecology’s Toxic Cleanup and Solid Waste programs. For example, MTCA money can be used to help local governments clean up sites they own, fund cleanup of “orphan sites” where responsible parties cannot be found, and provide oversight for cleanups by private property owners.

The Hazardous Substances Tax is collected on the first possession of petroleum, pesticides and listed chemicals. Originally, the tax was assessed on the value of the substances being marketed, but in 2019 the tax on petroleum products was switched to an assessment on volume. The result is more stable funding during wild swings in oil prices. The tax also provides increased revenues. Compared to $151 million collected in 2019, the new formula raised $265 million in 2020.

How much of that extra revenue will be used for cleanups in neighborhoods overly burdened by pollution is something to be worked out through the budget process with legislative appropriations.

Ranking sites for cleanup

After discovery of a contaminated site, investigators attempt to characterize the nature and severity of the hazard to human health and the environment. They consider historical uses of the property, conduct preliminary tests for suspected chemicals, and consider the potential for human exposure. Under the current system, sites are ranked on a scale from 1 to 5 — with 1 being the worst. This system, which helps establish priority and influences state funding, has been largely unchanged for the past 30 years.

A new ranking system, still under development, could add new meaning to site ranking. In place of a single number, the new score would include the letters (A, B, C or D) to indicate the level of “exposure potential” along with the numbers (1, 2, 3 or 4) to indicate the level of “severity.” (Severity ties together specific chemicals and the body’s reaction to them.)

Under the proposed Site Hazard Assessment and Ranking Process (SHARP), a separate score would be given for each route of exposure. For example, groundwater might receive a score of “A1,” representing the highest level of exposure to highly toxic substances. Besides groundwater, routes of exposure that would receive scores, if applicable, are soils (both deep and shallow), surface water, sediments and air.

In addition, the proposed system would “flag” sites located in or near “highly impacted” communities where the population is considered more vulnerable to pollution due to its racial, ethnic or demographic makeup. In its existing grant programs, Ecology uses a definition of “highly impacted” to include communities with a high proportion of people in any of these categories: low-income, people of color, less than a high school education, over age 64, under age 5, or limited in English proficiency.

That definition is being debated, and it could be revised to place more emphasis on race or income, but no decisions have been made. In response to suggestions from the advisory group, Ecology officials say a flagged community could be further described with extensive demographic details. But the key, some argue, will be how the flags ultimately influence the priority for study and cleanup of contaminated sites and whether the revised system furthers the goals of environmental justice.

Michelle Chow, stormwater and toxics policy manager for the Washington Environmental Council, serves on the Stakeholder and Tribal Advisory Group. She says she is waiting to hear how Ecology officials intend to use the flags. The alpha-numerical scores certainly help to describe the hazard, she said, but the flags will not serve environmental justice if they don’t result in more cleanups where neighbors are disproportionately affected by pollution.

For example, she explained, “We would like to ensure that the flags are used to prioritize cleanups of sites located in communities of color and lower income.”

Scott O’Dowd, cleanup policy engineer for Ecology, said staffers working on the new MTCA rules tried to figure out how to incorporate community demographics into the alpha-numerical scores. Doing so could increase the priority for sites located in highly impacted communities, he said, but the result would be a confusing mix of information about community makeup along with data about chemicals and routes of exposure.

One idea, with complications of its own, is to have a separate “equity score” to reflect community makeup and the number of sites nearby. Having another score could help people keep environmental justice in mind. But quantifying community makeup and identifying exactly who is affected by pollution are among the obstacles of this approach.

Chow and other environmental advocates maintain that it is not enough to consider only the people living in direct proximity to a site. Vulnerable populations from outside the area may be equally or even more exposed to toxic chemicals, depending on their activities. Visitors to an area can be exposed if they fish, gather shellfish or even walk on a beach where environmental hazards have not been fully identified.

Members of Puget Sound tribes in particular may be exposed to toxic chemicals in many areas when they take fish and shellfish in their “usual and accustomed areas,” as guaranteed by treaty and upheld by federal courts.

Increased focus on equity

A good start in addressing environmental justice would be to conduct a study showing the distribution of toxic sites in relation to vulnerable communities, according to a joint letter from advisory group members representing community and environmental advocates. Signers were from the Washington Environmental Council, Duwamish River Cleanup Coalition, Citizens for a Healthy (Commencement) Bay, Front & Centered, RE Sources for Sustainable Communities, Toxic-Free Future, and Zero Waste Washington.

A remaining challenge in the 30-year effort to clean up contamination involves finding the hidden sites that can still be uncovered in older, low-income neighborhoods, sometimes connected with the vestiges of racial segregation.

Chow and other advocates say Ecology officials need to make sure that vulnerable communities exposed to pollution don’t get ignored due to a lack of information about a toxic site. Often, studies come about when a developer uncovers pollution hot spots while planning to build new homes or businesses. Developers or property owners often pay for the cleanup so they can move on to construction. On the other hand, sites with less development potential may be ignored, even in places where the ongoing risk to area residents is much higher, she noted.

“Developers can jump the line by paying for cleanups that have lower hazards,” Chow said. “They will go to those places where they can get the most money. That’s often the more affluent neighborhoods.”

Ecology officials acknowledge that when a developer pays the state agency to review cleanup plans, the site may be given a higher priority for cleanup than it would have received otherwise. The goal, after all, has been to get the most sites cleaned up as quickly as possible within the existing MTCA budget. Community and environmental advocates argue that this traditional approach needs to be reconsidered in favor of a system that focuses more on the people actually affected by contamination.

“We understand that funding is a major factor for how quickly and effectively sites can be cleaned up,” states the joint letter to Ecology. “However, we are again concerned that relying on this factor will only continue the trend of focusing cleanup dollars in white, affluent communities, rather than in low-income communities or communities of color, who bear a disproportionate burden of the impacts from contaminated sites.”

Communities already overburdened with health problems should not be forced to keep enduring the effects of one or more toxic sites that area residents neither created nor supported in any way, Chow said.

One suggestion is to develop a system that recognizes when a contaminated site is “data poor.” Information would then be collected so that hazards at all sites could be examined with at least a minimum of baseline data, the advocates said. Furthermore, to better protect the health of a community, priority for cleanup should be given to a site in close proximity to other sites, all other things being equal.

Meanwhile, new toxic sites are being discovered all the time. Problems are frequently traced back to forgotten businesses, such as gas stations, machine shops, dry cleaners and printers. A remaining challenge in the 30-year effort to clean up contamination involves finding the hidden sites that can still be uncovered in older, low-income neighborhoods, sometimes connected with the vestiges of racial segregation.

Moving toward cleanup

When considering funding for cleanup projects, current MTCA rules require Ecology to consider whether a site is “located within a highly impacted community,” while also examining threats to human health and the environment plus the potential for future development. Ecology plans to broaden the rule to consider whether a site “affects a highly impacted community,” thus taking into account past and future uses of the property by people who may or may not live nearby.

During investigations into the nature and extent of pollution, the planners who conduct the studies have always been required to consider alternative ways to effectively clean up a site. Cleanup standards — the levels of various contaminants allowed to remain on site — have largely focused on future uses of a property, with somewhat higher contaminant levels allowed for business and industry and lower levels for residential housing.

In setting standards for a given site, one proposal put forth by Ecology is to take into account how a highly impacted community may be disproportionately affected by exposure to chemicals on the site. For example, some ethnic groups eat more fish than the general population. People in older homes tend to be exposed to higher levels of indoor air pollution on top of pollution from outside. Noise and overcrowding as well as housing and school conditions can increase stress, often exacerbated by environmental conditions, with harmful health effects.

As a matter of environmental justice, cleanup standards and the cleanup process itself could be required to focus on reducing exposures that cause adverse health effects for vulnerable communities.

Some members of the advisory group would like to see new rules that would require owners of property on the state’s contaminated sites list to provide information about the site to people who are living or working there.

The proposed rule requires that a site-specific feasibility study contain environmental justice considerations, including “the degree to which the benefits and burdens of the preferred cleanup action alternative are equitably distributed.” Health, social, cultural and economic burdens are to be examined.

The process of updating the MTCA rules provides an opportunity to improve communications with people affected by contaminated sites, according to Millie Piazza, environmental justice senior adviser for the Department of Ecology. Since every community is different, it could take in-depth discussions to understand how people are exposed to contamination in or near their communities.

Special efforts may be needed to help people understand the technical issues related to a site and be involved in cleanup decisions, Piazza said. MTCA funds can be used for “public participation grants,” providing financial support for community members to gather information and work together.

“Public engagement is huge,” Piazza said. “How can we get to appropriate decisions unless people are part of the process. That being said, there are many reasons why people might not be able to be involved.”

Language barriers, work obligations, childcare and many more issues provide challenges, especially for low-income populations and immigrant families. The challenge for Ecology is to work with people and overcome those barriers to get to a meaningful dialog.

“Can we translate a thousand-page technical report into Spanish, or can we tell people what it means?” Piazza asked. “How can we, as an agency, make sure that the (cleanup) decisions are right? We need to understand the nuances and explain what the data are really saying.”