Presented by: Steven Fischbach, Esq. Rhode Island Legal Services and Sherman Ludwig

1. Creating Child-Safe Learning Zones: Avoiding the Siting of Schools on Contaminated Land or Near Sources of Pollution Presented by: Steven Fischbach, Esq. Rhode Island Legal Services and Sherman Ludwig Center for Health, Environment and Justice July 14, 2005

2. Framing the Issue • On or off site sources of pollution are an ignored factor in siting schools • Distinguished from other environmental concerns in school siting such as smart growth, safe routes to schools, high performing schools • Issue directly affects children’s health, especially low-income and non-white children who have less access to health care and have higher rates of asthma and lead poisoning

3. Why would a school ever be sited on contaminated land? • Money • Contaminated land is cheap because it is unsuitable for housing and most types of businesses • School Districts seek out cheap land due to declining school budgets and rising unfunded mandates (e.g. No Child Left Behind) • Urban school districts skimp on cleaning up contaminated sites to save more money

4. Why would a school ever be sited on contaminated land? • Availability of land • School Districts in rural areas look to site schools on cheap unused agricultural land contaminated with pesticides • Urban school districts often have few siting choices due to shortage of undeveloped land and turn to abandoned industrial sites

5. Children Are More Vulnerable to Environmental Toxins • Children’s systems are still developing • Children eat more food, drink more fluids, and breath more air per pound of body weight • Children behave like children • Children’s bodies more readily absorb toxins • Toxins accumulate in the body • Exposure at a younger age = higher levels of lifetime buildup of toxins

6. Health Effects Linked to Environmental Toxins • Lowered intelligence (IQ) • Immune dysfunction • Reproductive impairment • Various learning disabilities • Cancer

7. Hidden Expenses • Students lost earning potential • Estimated $5,000 loss of earning potential for each lost IQ point • Parents lost wages: • Medical expenses • Therapy • Missed work • School District and Taxpayers • Cost of remediation or repair after construction far exceeds precautionary action • Lawsuits against the school district from affected families

8. Types of Existing School Siting Laws • Laws that prohibit school construction on certain sites or near certain land uses such as: • Sites affected by air, motor vehicle and rail traffic • Utility transmission lines • Sites impacted by air and noise pollution • Sites where hazardous or solid waste was disposed • Natural hazards such as flooding or earthquakes

9. Types of Existing School Siting Laws • Laws that require districts to weigh presence of environmental hazards when selecting school sites • Laws that require environmental investigation of potential school sites (such as Phase I and Phase II Environmental Assessments or Environmental Impact Statements) • Laws that require public involvement in site selection process

10. Existing State of School Siting Laws • 20 states have no laws that either prohibit or restrict in any way the siting of a school on or near environmental hazards (whether man-made or naturally occurring)

11. Existing State of School Siting Laws • 24 of the states do not require local school districts to investigate potential school sites for the presence of pollutants or other environmental hazards or to assess environmental impacts associated with potential school sites

12. Existing State of School Siting Laws • Only ten (10) States have laws that prohibit the siting of a school on or near sources of pollution • CA, FL, IN, KY, MS, MT, NJ, OK, UT, and WV • Only six (6) states require preparation of environmental assessments or environmental impact statements for school projects • CA, MD, MN, NJ, NY, and WA • Only twelve (12) states require public notice or public meetings about proposed school sites • CA, CO, IL, IN, ME, MA, MA, MN, NJ, NY, NC, and PA • Eight (8) states require or authorize the creation of school siting advisory committees • CA, GA, MA, MS, NC, SC, VT, and WY

13. What’s Needed: Comprehensive School Siting Laws Siting laws should contain the following elements: 1.) Laws that restrict school siting on or near sources of environmental hazards 2.) Laws that require thorough investigation and assessment of environmental hazards on potential school sites or environmental impacts to future users of the site

14. What’s Needed: Comprehensive School Siting Laws 3.) Laws that require public contaminated sites to be properly cleaned up and monitored so as not to pose health risks to future users of the school 4.) Laws requiring public participation in school-siting decisions *Laws that fail to encompass these three points could result in poor siting decisions

15. Creating the Guidelines • Creating Safe Learning Zones report (2002) reveals that 1,100 public schools, and over 600,000 students attending public schools within ½ mile of contaminated sites • Grassroots groups voice need for set of guidelines on how to site a school on or near contaminated land when no other land is available

16. Prohibited Sites • Sites that are located on top of, or within 1,000 feet of land where hazardous or household garbage waste was landfilled, or where disposal of incinerator ash or construction and demolition materials occurred • Sites where the groundwater discharges at the surface of a site or where the groundwater rises to a level that is above any barrier or other underground remedial measure installed at the site

17. Prohibited Sites • Hazardous substance release sites where the release of contaminants exceeds strictest residential exposure guidelines (such as those adopted by State of New York) unless no other site is available (the site of “Last Resort”) *The New York State guidelines are contamination levels for specific media

18. Thorough Investigation and Assessment of Environmental Hazards and Impacts • Conduct ASTM Phase I assessment to determine whether there is likelihood of contamination at a proposed school site • Review the history of the site as well as nearby land uses (i.e. what previously existed at the site) • Identify any environmental hazards within 2 miles of the site, for example: • Landfills • Hazardous waste sites • Air pollution sources • Industrial sites • Military sites • Gasoline tanks

19. Thorough Investigation and Assessment of Environmental Hazards and Impacts • If within 1,000 feet of a landfill: Exclude • If within 1,000 ft. of an environmental hazard other than a landfill: • Conduct a Preliminary Endangerment Assessment (PEA): involves thorough testing of soil, soil gases, groundwater, surface water and air to accurately assess the nature and severity of contamination existing at the site. • If PEA reveals that contaminants do not exceed NY State guidelines, the site is useable with no further cleanup

20. Thorough Investigation and Assessment of Environmental Hazards and Impacts • If site is between 1,000 ft and 2 miles of an environmental hazard: • Conduct a PEA if in the professional opinion of the preparer of the ASTM Phase I assessment those hazards may have caused site to be contaminated • If PEA reveals that contaminants not in excess of the NYS guidelines, the site is useable without further clean up

21. Thorough Investigation and Assessment of Environmental Hazards and Impacts • PEA’s that reveal contaminants in excess of the NY State guidelines have two options: 1.) Abandon the site 2.) Take “Last Resort” measures before using the site *Must include: - Child-protective cleanup plan - Certification that there are no other available sites

23. Proper Clean Up and Monitoring of Contaminated (“Last Resort”) School Sites • Identify all existing and potential exposure pathways • Identify all areas that exceed the New York State cleanup guidelines • Soil with contamination levels that exceed the NY State cleanup guidelines completely removed to a depth below which there is no anticipated excavation • Design clean up plan that eliminates all exposure pathways • No exposure = no risk of injury

24. Proper Clean Up and Monitoring of Contaminated (“Last Resort”) School Sites • Clean up must prevent mixing of clean and contaminated soil • Build as much redundancy as possible into the clean up plan • Maximizes risk reduction • Increases public confidence in the safety of the site *A list of remediation steps will be released in our fall report (research is currently ongoing)

25. Proper Clean Up and Monitoring of Contaminated (“Last Resort”) School Sites • Put in place institutional controls and long term monitoring of school site to ensure ongoing safety of school • Controls and monitoring should include notice of where residual contamination is located, what contaminants are present and how to monitor the integrity of the barriers or other exposure prevention steps taken at the site

26. Involve the public in School Site Selection Process • Local school boards or school committees are typically the public body in charge of school siting • The public body shall establish a school siting committee whose job it is to recommend possible building/expansion sites to the local body • A facilities planning committee (which may already exist in your district) could act as the school siting committee

27. Involve the public in School Site Selection Process • The committee should be broadly composed of a range of stakeholders: e.g. parents, teachers, school health officials, community members, local public health professionals, environmental advocacy groups and age appropriate students • School Siting Committee must give good faith consideration to at least three sites, and recommend best site to the public body

28. Involve the public in School Site Selection Process • Public body may only choose a contaminated site (i.e., a site where levels of contaminants exceed NYS standards) if body certifies there is no other site available (a “last resort” site)

29. Recap • Due to overcrowding and budget cuts, an increasing number of schools are being sited on contaminated land • Low-income communities and communities of color are disproportionately affected • Children’s developing bodies are especially vulnerable to the damaging effects of environmental toxins

30. Recap • School siting laws are needed to address siting on contaminated land • If a school must be sited on contaminated land (a last resort) it must be properly characterized, remediated and monitored

31. Resources Available on School Siting • www.childproofing.org • Creating Safe Learning Zones (2002) • Fifty State Survey of School Siting Laws, Regulations and policies (2005) • School Location Matters – Preventing School Siting Disasters (2005)