[Above: Wisconsin state seal and logo–FORWARD. This post describes how the Wisconsin Department of Health Services (DHS) is helping developers move FORWARD in digging up and building over contaminated land regardless of health risks. Kind of like Wisconsin’s early lead miners, who gave the state its Badger name?]
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This piece is a followup from “Corporate Behomoth Kraft Heinz wants to cover up its poisons with affordable housing,” which describes some of what happened on the Hartmeyer land adjacent to the Oscar Mayer factory in the past, how Kraft Heinz came to own it, and how the Wisconsin Department of Natural Resources regulations (“Remediation and Redevelopment” or NR 700) are set up to facilitate development on these contaminated lands without first cleaning them up.
[Below, 550+ units of senior and affordable housing proposed for the contaminated Hartmeyer property, next to the old Oscar Mayer factory, which isn’t actually white buildings but looks like the photograph beneath it…]
Some background: WI DHS report was born during the bus barn battles of 2020
In line with the “remediation and redevelopment” approach described in Part I, the DNR has a special Green Team process to help local governments, polluters and developers collaborate and work through the brownfield redevelopment process as easily as possible–and calm developers’ fears about liabilities– what Ellis et al refer to as “regulatory streamlining.” [See Footnote 1 for more on what this means]
Does DNR have a Green Team to help citizens in communities negatively affected by these redevelopment projects? Can we join their “collaborative process?” Well, no. Unfortunately, as Ellis and her colleagues pointed out, “the involvement of community leaders and residents is not currently an enforceable part of federal and state brownfield policies.” Indeed, in this case, though minimal, token efforts were made by the city to involve diverse residents in the OMSAP process, anyone (including us) who participated and brought up concerns about toxic chemicals on the land, utility pathways, and groundwater in the “special area” was dismissed or just ignored.
Regardless of many steep barriers to community engagement about contamination issues, including city resistance, in 2020 during the heart of the lockdowns, MEJO and other Northside residents worked hard to prevent the city from locating the Madison Metro bus barns at the highly contaminated northern part of the former Oscar Mayer plant. One reason we prevailed is that we ascertained that the city had not adequately supported its application for a “categorical exclusion” (CATEX), which excluded it from having to submit an Environmental Analysis (EA) under NEPA. We informed Region 5 Federal Transit Authority (FTA) and ultimately FTA officials agreed with us. (There’s much more to this story, but suffice it to say, we did not succeed by engaging City of Madison officials, who did not welcome our engagement, but instead resisted it)
This was a hard-won victory, but the battle was far from over. What we learned during these battles about the widespread contamination at the Oscar Mayer site–measured and unmeasured–raised huge concerns about toxic exposures to people who might live in housing there in the future, as well as exposures and risks to people living in neighborhoods near the factory site.
Sherman Neighborhood Association asks Wisconsin Department of Health Services for assistance; MEJO has reservations
In summer 2020, Sherman Neighborhood Association (SNA) leaders, also concerned about these risks, and having received little to no help from the city and/or DNR, asked the Wisconsin Department of Health Services (DHS) to do an Agency for Toxic Substances & Disease Registry (ATSDR) study to assess health risks to people who would live at the Oscar Mayer and Hartmeyer sites after they are redeveloped, and in the surrounding neighborhoods. The DHS agreed to do such a study.
MEJO was concerned about this approach because we knew from experience at other contaminated sites that the ATSDR-DHS risk assessment would be totally dependent on (and limited by) whatever contaminant data is available–which would only include reports submitted by consultants hired by the corporations responsible for the pollution (Oscar Mayer, Kraft Heinz, etc) and posted on DNR’s BRRTS. DHS does not gather its own data.
We were well aware, as we described at length in our comments to the city, that the data gathered at Oscar Mayer and Hartmeyer to date (shaped by the DNR’s problematic “remediation and redevelopment” process, as described in Part I), was not adequate to assess exposures at the site and/or in surrounding neighborhoods. Given this, relying only on this data, DHS would likely conclude that there are no exposures–not because there aren’t any, but because not enough (or the right kind of) data had been gathered to fully assess them. Then the DHS report–which coming from a large state agency would be considered authoritative–would likely be used by the city, DNR, and developers to assure the public and other officials that there are no public and/or environmental health risks.
That is exactly what happened. The summary in the draft report released by DHS in January 2022 stated that “there is no apparent public health hazard at this time” primarily because “the exposure pathway is incomplete for groundwater and soil contaminants.”
This awkward phrasing–“the exposure pathway is incomplete”–translates to the layperson as “there are no exposures” (though its meaning is somewhat more nuanced than that).
MEJO wrote to DHS on March 9, 2022 expressing concerns about this conclusion, because we knew of obvious and significant gaps in testing to date. We wrote: “Factors that have not been adequately investigated at the site include the following (and more): 1. the vertical and lateral extents of the CVOC groundwater contamination on and offsite; 2. contamination migration pathways via storm and sanitary sewers on and offsite; 3. The full range of contaminants known/suspected to have been manufactured and/or used onsite, including PFAS, PCBs, and pesticides.”
We also highlighted the plan for dense “affordable” housing planned around Oscar Mayer, and asked that environmental justice be addressed in the report.
Final DHS report assesses risks as if there are no plans for housing at Oscar Mayer and Hartmeyer
The Final DHS report was released on November 29, 2022 (it still has DRAFT posted on it, but as far as we understand, this is the final version).
Perhaps in a nod to SNA’s and our letter, the report summary admitted some health risks. It noted the “potentially completed exposure pathway to trichloroethylene (TCE) above health-related screening levels” at the northern part of the site (where the city had planned the bus barn until we stopped it). It also reported “potentially elevated cancer risk due to elevated levels of benzo(a)pyrene and arsenic in the soil” at the Hartmeyer site. (Below: proposed housing at the Hartmeyer property is right over the most contaminated soils and groundwater).
As for other highly contaminated areas on the site, however, DHS found “no health hazards identified from other open sites, closed sites, or historic spills given current conditions” Even the cancer risks at Hartmeyer were minimized. “The current vegetative cap,” it said, “should effectively prevent any incidental exposures to contaminated soil, minimizing any risk in its current state.”
Throughout the report, in line with the “current conditions” assumption, industrial rather than non-industrial (residential) standards were used to assess risks--even though the Hartmeyer site is currently zoned RESIDENTIAL by the city and the plan for many areas around the site is for residential developments.
[Below, developer’s depiction of the proposed housing layout presented at a city meeting–directly on top of the most contaminated part of the property]
The report openly (though confusingly) admitted some of the limitations we outlined in our letter. It said: “No offsite sampling has occurred, and some data was old (10+ years) and potentially not reflective of current conditions at the site. This health assessment is only intended to evaluate current and potential health risks given the current state of the site; future development or disruption of barriers on the property may open exposure pathways to contaminated groundwater or soil if appropriate precautions and mitigations are not implemented during development…” (highlighted in original document)
So, in sum, the DHS report is nearly irrelevant to assessing risks to people who will live in the housing planned for the Oscar Mayer and Hartmeyer sites, and to people in surrounding neighborhoods who might be exposed to contaminants migrating off these sites. Yet assessing these risks was precisely the reason the Sherman Neighborhood Association asked for the DHS study; MEJO’s followup letter also emphasized risks related to planned developments and related environmental justice issues.
A paragraph responding to our environmental justice concerns was tacked on to the end of the summary: “Due to spills, emissions, and site use, housing near or on industrial sites has the potential to pose environmental health risks to residents, which have historically been disproportionately minority and low-income populations across the country. These preventable exposures perpetuate generation harm. Since a goal of the City of Madison’s Oscar Mayer Special Area Plan is to encourage development of affordable housing to serve historically marginalized populations, ensuring appropriate review and mitigation of contamination on the Oscar Mayer and Hartmeyer properties is crucial to ensure adequate health for future residents.” (highlighting in original document)
Community concerns blown off as part of “regulatory streamlining”?
Sadly, the DHS report didn’t actually address the concerns of the community that requested the study; in fact, it explicitly blew them off even though it added some token sentences to appear as if it was responsive.
Further, the DHS risk assessment approach is befuddling–contradictory and confusing. The report reads somewhat like doublespeak–e..g, “there are no exposures now but there might be in the future if the site is developed” while knowing full well that the plan is to develop the site, and in fact development is slated to begin in a few months assuming all approvals are granted.
This approach is nonsensical. It seems to be another element of the “regulatory streamlining”– e.g., all the relevant government agencies collaborate to collectively facilitate “remediation through redevelopment.” [1] If the DHS were to assess the site right now using residential standards, many more contaminants would exceed these standards (compared to using industrial standards) and the risk assessments would be much more damning. The DHS would have to identify and assess more potential exposures, as well as cancer other health risks.
Somewhat similarly, if the agency were to assess potential offsite migration of contaminants (or to ask DNR to ask Kraft Heinz or Reich Rabin to gather data in order to do so) and based on this, risks to nearby neighborhoods were identified, it would have to acknowledge these potential exposures and risks.
Further, if it assessed health risks in the context of people living at the sites (rather than being abandoned industrial sites), DHS would perhaps feel more compelled to advise that these risks should be addressed now rather than at some point in the future. This in turn would point to the responsible parties or polluters (Kraft Heinz, Oscar Mayer, Reich Rabin) and raise a variety of liability issues for polluters and developers. It would slow and/or halt development. This is a no-no within the “redevelop to remediate” modus operandi.
By pretending not to know about housing currently planned at the sites, and considering only industrial standards in risk assessments, DHS can pass off responsibility to DNR to assure that when the sites are being developed in the future, the appropriate mitigation measures are taken to prevent exposures. Unfortunately, we know from extensive first-hand experience that once sites are being dug up and redeveloped, DNR and local laws (stormwater laws, construction dewatering, etc) are often minimally followed or ignored. Nobody assesses exposures or risks to workers or people living near the site. (The DHS report indicates that the agency will keep tabs on this, but we have also learned that this is very rarely done, unless the community makes a lot of noise–and even if the DHS gets involved at this point, it tends to support whatever DNR is (or isn’t) doing.)
Most critically, at that point, the redevelopment is already happening. It’s way too late to stop it. That seems to be the whole point of this kind of nonsensical, doublespeak risk assessment approach.
We also know from experience that once people are actually living in new developments, it is even more unlikely that exposures and risks to people living there will be assessed.
To be continued: Community resistance continues, gaps in DNR/DHS risk assessments at Hartmeyer, and more…
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[1] What is “regulatory streamlining” and how does it help create and worsen environmental injustices?
Placing affordable housing at the Oscar Mayer and Hartmeyer sites (especially without first cleaning them up) will further exacerbate race and class disparities in exposures to toxic pollution that have existed in this city for a long time already, as I pointed out in this Cap Times opinion piece.
Early Madison leaders’ zoning decisions, shaped by the “Madison Compromise,” were explicitly designed to prohibit heavy industry and only allow single family homes on the west side, and locate heavy industry and rental units, flats and homes for those working at these industries on the east side. Following this zoning, predominantly privileged, professional white people bought homes on the west side, while more lower income people and people of color rented or bought less expensive homes on the east side. Though the east side-west side race and class divide isn’t as clean-cut now–as the city has changed, grown and sprawled since then–in general the pattern still holds.
These past zoning and housing patterns, a type of redlining, have created disparities in exposures to toxic pollution (environmental injustices) that continue to this day. The redevelopment of the old Kraft Heinz-Oscar Mayer and adjacent Hartmeyer sites are perfect examples of this.
As Juliet Ellis and her co-authors pointed out in a paper presented at the 2002 Second National People of Color Environmental Leadership Summit:
“Strongly influenced by traditional private property rights and capitalism, most zoning has historically supported uses of land that generated profit for landowners, taxes for governments, and the land values of the more affluent. As a result many zoning decisions allowed for the siting of industries that used or produced toxic chemicals as a lucrative means of making profit. In addition, the lack of environmental standards meant that polluting activities at these sites threatened the public health and the environment of adjacent communities. In many cases, toxic chemical use and disposal went unmonitored for many years, allowing toxins to be released into the environment via the air, water, and soil…communities located near these contaminated sites suffer disproportionately from the health burdens associated with exposure to contaminants left on these pieces of land...
Supporting the points in Part I, Eliot et al also wrote: “The current environmental protection apparatus tends to focus on removing barriers to environmental liability as feared by developers, rather than on environmental justice issues in communities affected by brownfields’ existence and redevelopment…Limits to liability may also shift the burden of financial responsibility for cleanup onto the public sector, rather than holding corporations and private parties accountable for the actions that resulted in the contamination of brownfields.”
The role of regulatory streamlining in this process (from Ellis et al):
The typical policy direction taken by state and federal entities in encouraging brownfields redevelopment is driven by the desire to increase market demand through regulatory streamlining and liability relief. Regulatory streamlining focuses on reducing red tape and its associated costs for developers navigating through the remediation process. This is done by developing uniform cleanup standards and instituting interagency coordination in expediting the approval of remedial plans. Liability relief usually goes hand in hand with regulatory streamlining, in the sense that property owners or developers participating in voluntary cleanup programs are then assured that they will not be responsible for any future cleanup activities.
Regulatory streamlining and liability relief have been characterized as reinforcing old business practices that emphasize benefits for the private sector at the expense of social equity considerations for brownfields-impacted communities. The push for universal cleanup standards that is part and parcel of regulatory streamlining initiatives has led to the proliferation of “risk-based corrective action” (RBCA). RBCA bases cleanups on the proposed end use and on minimizing pathways of exposure through institutional or engineering controls, effectively supplanting the previous emphasis on the highest standard (residential use) involving physical removal or breaking down of contaminants into less harmful substances.
RBCA may result in the continued exposure of low-income communities of color to unequal environmental protection, as inner city brownfields are subjected to less stringent cleanup and development standards than greenfields in affluent, predominantly white suburbs. Limits to liability may also shift the burden of financial responsibility for cleanup onto the public sector, rather than holding corporations and private parties accountable for the actions that resulted in the contamination of brownfields.
