Laws relating to the siting of schools are different in every state.  Each state also has its own laws regarding cleanup of hazardous waste sites.  These different laws make it difficult to draft a single piece of model legislation that could be adopted in every state.  The Child Proof our Communites Campaign has developed this model to help state policy makers in developing school siting legislation (covering both public and private primary and secondary schools) that protects children’s health.  The drafters of legislation in your state will need to check their own laws to develop timetables for completing the environmental review process that is described below.  Once those timetables are established, school officials can build the environmental review process into their school construction planning processes.

Section 1)      School Siting Committee

Usually the public body charged with siting schools is the local school board or school committee.  These local school boards shall establish a school siting committee whose job it is to recommend to the public body sites for building new schools and/or expanding existing schools.  The committee should include representatives of the public body as well as representatives from the following constituencies: parents, teachers, school health officials (nurse or health director), community members, local public health professionals, environmental advocacy groups and age appropriate students.  The committee will be involved throughout the site selection process up until final approval by the public body.   For siting private schools, there would be no separate School Siting Committee.  However, the sponsors of the private school would still have to complete the environmental review process and notify the public about plans to site a new school. 

Section 2)      Categorical Exclusions for School Sites

Under no circumstances shall a school be built on top of or within 1,000 feet of a hazardous waste disposal site, a garbage dump,or a site where construction and demolition materials were disposed of.  To determine whether the proposed school site has been used for these purposes, a series of environmental evaluations shall be undertaken: an initial Environmental Assessment and a more extensive Preliminary Endangerment Assessment (see description of these assessments in the campaign’s Poisoned Schools report - CHEJ, 2001).  If either evaluation reveals that the site has been used for these purposes, or if the site is within 1,000 feet of any property used for these purposes, the site must be abandoned. 

Section 3)      Process for Evaluating Sites

The public body shall not proceed to acquire the site or prepare the site for construction of any school, including the expansion of an existing school, until the public body completes the required environmental evaluations and the state environmental regulatory agency approves the initial Environmental Assessment, any required more extensive Preliminary Endangerment Assessment, or the Site Remediation Plan submitted by the public body.
 

A.   Environmnetal Assessment

Once a site is proposed, the school district must hire a licensed environmental assessor to conduct a three-part environmental assessment that is designed to collect information on current and past site uses and to conduct initial environmental sampling at the site. This assessment shall include:

Part I:   Conduct a site history by reviewing public and private records of current and past land uses, historical aerial    photographs, environmental databases, federal, state and local  regulatory agencies’ files; a site visit; and interviews     with persons familiar with the site’s history. 

Part II:  Conduct a small-scale grid sampling and analysis of soil, soil gases (if any) and groundwater. Air should be sampled if stationary sources of air pollution are near the proposed site, potentially exposing children to higher levels of pollution than found in their own communities.  Any surface water should also be sampled.

Part III:  Identify any environmental hazards within two miles of the site, including industrial sites, chemical storage facilities, facilities found in EPA’s Toxic Release Inventory (TRI), waste treatment plants, landfills, military sites, research facilities, and Department of Energy sites. 

The Environmental Assessment shall conclude that either 1) no recognized environmental hazards were identified; 2) the site was previously used for either hazardous or garbage waste disposal, for disposal of construction and demolition materials, or is within 1,000 feet of any property used for these purposes; or 3) a more extensive site assessment - a Preliminary Endangerment Assessment (“PEA”) - is necessary.   If no environmental hazards were identified at the property then the property is suitable for school site development.  If the site was previously used for hazardous or garbage waste disposal, or for disposal of construction and demolition materials, or if it is within 1,000 feet of any property used for these purposes, the site must be abandoned.

The state environmental regulatory agency must review the Environmental Assessment.   Depending on the thoroughness of the assessment, the state agency must either give preliminary approval to the assessment, disapprove the assessment, or request more information from the public body. 

When the Environmental Assessment is completed and has received preliminary approvalby the state environmental regulatory agency, the public body shall publish a notice in newspapers of general circulation (including foreign language newspapers if the school district has a sizable number of non-English speaking parents) that includes the following information: 

• A statement that an Environmental Assessment of the site has been completed; 
• A brief statement describing the results of the Environmental Assessment, such as a list of contaminants found in excess of regulatory standards, prior uses of site that might raise health and safety issues, proximity of site to environmental hazards (waste disposal sites, point sources of air pollution, etc.); 
• A brief summary of the conclusions of the Environmental Assessment; 
• The location where people can review a copy of the Environmental Assessment or an executive summary of the assessment written in the appropriate foreign language; and 
• An announcement of a thirty-day public comment period on the Environmental Assessment, including an address where public comments should be sent. 

A copy of this notice shall also be posted in a conspicuous place in every school within the public body’s jurisdiction (in multiple languages if there is a significant number of non-English speaking parents).  A copy shall also be delivered to each parent-teacher organization within the jurisdiction, each labor union covered by a collective bargaining agreement signed by the public body, and each landowner within 1,000 feet of the proposed site.

 The state environmental regulatory agency will review the Environmental Assessment and the public comments received on the assessment.  The state environmental agency will either accept or reject the conclusion of the assessment, determining whether the site can be used   without further remediation or study, whether the site is categorically excluded for use as  a school, or whether further study or remediation of the site (i.e., a Preliminary Endangerment Assessment) is required.  The state environmental agency shall explain in detail the reasons for accepting or rejecting the assessment.

 B.       Preliminary Endangerment Assessment

After the state environmental agency has approved the Environmental Assessment, the local School Siting Committee must also review the assessment and public comments received. The purpose of this review is for the School Siting Committee to make a recommendation to either abandon the site or continue evaluating the environmental hazards at the site with a PEA.  A PEA is required if environmental hazards were identified in the Environmental Assessment or: 

1. If the environmental sampling data collected as part of the Environmental Assessment indicate that contamination levels exceed regulatory safety standards such as the New York State Recommended Soil Cleanup Objectives (See Appendix A), or

2. If a proposed school site lies within 1,000 feet of one of the following potential sources of contamination: 

• A suspected hazardous, industrial waste, or municipal waste disposal site 
• Refineries, mines, scrap yards, factories, dry cleaning, chemical spills, and other contaminants 
• Agricultural land 
• Dust generators such as fertilizer,cement plants, or saw mills
• Leaked gasoline or other products from underground storage tanks 
• Concentrated electrical magnetic fields from high intensity power lines and communication towers 
• Areas of high concentrations of vehicular traffic such as freeways, highways 
• Industrial plants and facilities 
• An USEPA or state designated Brownfield site 
• A railroad bed 
• An industry listed in EPA Toxic Release Inventory (TRI) 

If a PEA is required, the School Siting Committee should recommend to the public body whether to abandon the site or proceed with a PEA.  Then, the public body must vote whether to abandon the site or proceed with a PEA. 

If a PEA is to be conducted, the public body must hire a licensed environmental assessor.   The state environmental regulatory agency shall oversee the PEA process and issue regulations that prescribe the precise contents of the PEA.  A model for such regulations can be found in California, where the PEA must meet the California Department of Toxic
Substances Control Preliminary Environmental Assessment Guidance Manual requirements (CEPA, 1994).   The PEA must also be approved by the state environmental regulatory agency.

Before any work is done on the PEA, the public body must develop a public participation plan that addresses the public participation activities that will be undertaken as part of the PEA process.  The plan shall indicate what mechanisms the public body will use to establish open lines of communication with the public about the use of the site as a school.   Activities such as public meetings, workshops or fact-sheets may be appropriate ways to notify the public about the proposed PEA investigation activities (such as the taking of soil, groundwater and air samples) and schedules.  The State Environmental Regulatory Agency must approve the public participation plan before the public body can commence other PEA-related activities.

The primary objective of the PEA is to determine if there has been a release or if there is a potential for a release of a hazardous substance that could pose a health threat to children, staff, or community members.  As part of the PEA, full-scale grid sampling and analysis of soil, soil gases (if any) and groundwater shall be undertaken to accurately quantify the type and extent of hazardous material contamination present on the site.  The PEA will also contain an evaluation of the risks of actual or potential contamination posed to children’s health, public health, or the environment based on the contamination found.   The evaluation of risks shall include: 

• A description of health consequences of long-term exposure to any hazardous substances found on site; 
• A description of all possible pathways of exposure to those substances by children attending school on site; and 
• The identification of which pathways would more likely result in children being exposed to those substances. 

The PEA shall conclude that 1) there are no environmental hazards at the site which must be abated through a clean up plan; or 2) the site was previously used for hazardous or garbage waste disposal, for the disposal of construction and demolition materials, or is within 1,000 feet of any property used for these purposes, or 3) the site must be cleaned up if the site is to be used for a school.  If the site was previously used for hazardous or garbage waste disposal, for the disposal of construction and demolition materials, or is within 1,000 feet of any property used for these purposes, the site must be abandoned.  If the site must be cleaned up, the PEA shall identify alternatives for cleaning the site to meet the applicable safety standards. 

The state environmental regulatory agency must review the PEA.  Depending on the thoroughness of the assessment, the state agency must either give preliminary approval to the assessment, disapprove the assessment, or request more information from the public body. 

When the PEA is completed and has received preliminary approval by the state environmental regulatory agency, the public body shall publish a notice in newspapers of general circulation (including foreign language newspapers if the school district has a sizable number of non-English speaking parents) that includes the following information: 

• A statement that a PEA of the site has been completed; 
• A brief statement describing the results of the PEA, such as a list of contaminants found in excess of regulatory standards, prior uses of site that might raise health and safety issues, proximity of site to environmental hazards (waste disposal sites, point sources of air pollution, etc.); 
• A brief summary of the conclusions of the PEA, including a list of alternative clean up methods; 
• The location where people can review a copy of the PEA or an executive summary of the PEA written in the appropriate foreign language; and 
• An announcement of a thirty-day public comment period, including an address where public comments should be sent. 

A copy of this notice shall also be posted in a conspicuous place in every school within the public body’s jurisdiction (in multiple languages if there is a significant number of non-English speaking parents).  A copy shall also be delivered to each parent-teacher organization within the jurisdiction, each labor union covered by a collective bargaining agreement signed by the public body, and each landowner within 1,000 feet of the proposed site. 

The state environmental regulatory agency will review the PEA and the public comments received on the PEA.  The state environmental agency shall either accept or reject the conclusion of the PEA, determining whether the site can be used without further remediation or study, whether the site is categorically excluded for use as a school, or whether a Site Remediation Plan is required.  The state environmental agency shall explain in detail the reasons for accepting or rejecting the PEA. 

C.    Site Remediation Plan 

If the PEA indicates that the site has a significant hazardous materials contamination problem, the public body must either abandon the site or fund a cleanup plan that would reduce contaminant levels to the applicable safety standard for each contaminant.  The public body must abandon the site if the site was previously used for hazardous or garbage waste disposal, for disposal of construction and demolition materials, or is within 1,000 feet of any property used for these purposes. 

(NOTE TO DRAFTER: Regarding safety standards for exposures to contaminants, the campaign found no health-based child-sensitive standards at the federal, state, local, or any level for determining “safe” levels of contamination in soil.  Lacking such standards, parents, school districts, regulating agencies, and others are directionless as to how to evaluate contamination at new or existing sites.  As an interim measure, the campaign recommends the use of the New York State (NYS) Recommended Soil Cleanup Objectives.  Campaign members reviewed the cleanup standards or guidelines for several states and found the NYS standards to be generally stricter than all others considered.  New York’s standards consider not only human health risk, but also risk to fish and groundwater (NYDEC, 1994). However, when a state where the school is located has a standard for an individual substance that is more protective than New York State’s, the more protective standard should be used.  The NYS Soil Cleanup standards for common contaminants is included in Appendix A along with a table that briefly describes the adverse health effects associated with exposure to these substances.) 

If the PEA approved by the state environmental regulatory agency determines that site remediation is necessary, the School Siting Committee should recommend to the public body whether to abandon the site or proceed with the development of a remediation plan.  Then, the public body must vote whether to abandon the site or proceed with developing a remediation plan. 

If the public body chooses to prepare a Site Remediation Plan, the plan must: 

• Identify alternative methods for cleaning the site to contamination levels that meet the applicable safety standards; 
• Contain a financial analysis that estimates and compares soil cleanup costs for the identified alternative cleanup methods that will bring the site into compliance with applicable safety standards;
• Recommend a cleanup plan from the alternatives identified; 
• Explain how the recommended cleanup alternative will prevent children from being exposed to the hazardous substances found at the site; and 
• Evaluate the suitability of the site in light of recommended alternative sites and alternative cleanup plans. 

The public body shall submit the Site Remediation Plan to the state environmental regulatory agency for approval.  Before submitting the plan for approval, a draft remediation plan shall be given to the School Siting Committee for review and comment.  Once the remediation plan is submitted to the state agency for approval the public body shall publish a notice in newspapers of general circulation (including foreign language newspapers if the school district has a sizable number of non-English speaking parents) that includes the following information: 

• A statement that a site remediation plan has been submitted to the state environmental agency for approval; 
• A brief statement describing the site remediation plan, including a list of contaminants found in excess of regulatory standards and a description of how the plan will reduce the level of contamination to meet those regulatory standards; 
• The location where people can review a copy of the remediation plan or an executive summary of the remediation plan written in the appropriate foreign language; and 
• An announcement of a thirty-day public comment period and the address of the state environmental agency where public comments should be sent. 

A copy of this notice shall also be posted in a conspicuous place in every school within the public body’s jurisdiction (in multiple languages if there is a significant number of non-English speaking parents).  A copy shall also be delivered to each Parent-Teacher Organization within the jurisdiction, to each labor union covered by a collective bargaining agreement signed by the public body, and each landowner within 1,000 feet of the proposed site. 

At least thirty days after the conclusion of the public comment period the state environmental regulatory agency shall conduct a public hearing on the remediation plan in the neighborhood or jurisdiction where the proposed site is located.  The state environmental agency shall publish a notice of the hearing in newspapers of general circulation (including foreign language newspapers if the School district has a sizable number of non-English speaking parents) stating the date, time and location of the hearing.  The state environmental regulatory agency shall provide translators at the public hearing if the school district has a sizable number of non-English speaking parents.

After the public hearing and after reviewing any comments received during the public comment period the state environmental regulatory agency shall either approve the Site Remediation Plan, disapprove the Site Remediation Plan, or request additional information from the public body.  If the state agency requires additional information, a copy of the letter requesting additional information shall be sent to the School Siting Committee.   Any additional information submitted by the public body to the state environmental regulatory agency shall also be given to the School Siting Committee.  After reviewing any additional information, the state environmental regulatory agency must approve or reject the Site Remediation Plan. The state environmental agency shall explain in detail the reasons for accepting or rejecting the Site Remediation Plan. 

Once the state environmental regulatory agency approves the Site Remediation Plan, the School Siting Committee should recommend to the public body whether to abandon the site or proceed with acquiring the site and implementing the remediation plan.  Then, the public body must vote whether to abandon the site or to acquire the site and implement the remediation plan.  Only upon voting to acquire the site and implement the remediation plan may the public body take any action to acquire the site and prepare the site for construction of a school.