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By Jennifer L. Hernandez and Alfred Fraijo Jr.
Through 2004 and the beginning of 2005, there has been incredible activity promoting
brownfield reform in California. The result was a handful of brownfield-related
legislation and agency policy that has received mixed reviews regarding their
ability to facilitate cleanup and reuse.
One element of the current brownfield reform in California is the new memorandum of agreement (MOA) between Cal/EPA, the state and regional Water Quality Control Boards (SWQCB and RWQCBs) and the Department of Toxic Substances Control (DTSC) that sets forth guidelines for allocating oversight responsibility for brownfield cleanup.
Many see this new agreement as a significant shift in the state’s existing agency review and oversight process. The MOA’s major features are summarized below.
No “Grandfathering”
Provision
Except for a specified list of existing site oversight arrangements, the MOA
is not limited to new sites seeking regulatory oversight after the MOA’s
effective date. Instead, there is now an express provision that describes how
sites will be transferred from one oversight agency to another.
This transfer process is described as a unilateral agency decision, with notice to the site owner required only with regard to the decision to transfer the site to another agency. Controversial, residential reuse and solvent sites are reportedly being closely scrutinized for potential transfer from RWQCBs to DTSC.
Dual-Agency
Review
The MOA provides an enhanced opportunity for DTSC to weigh in on RWQCB sites
and vice versa. The non-lead environmental oversight agency is called the “support”
agency. The agreement calls for the support agency to inform the lead agency
of what standards, protocols and procedures must be met by the lead agency to
meet the support agency’s expectations and standards.
According to Cal/EPA’s press release, the MOA requires brownfield cleanups to meet the remedial goals of both the support and lead agencies.
Public Involvement
The MOA includes a new set of minimum criteria for participation by the public
in the project review process. The criteria apply to all “site activities”
and “major regulatory decisions.” Import-antly, the criteria appear
to apply to site investigation activities as well as site remediation activities.
The public participation requirements include translation of notices into other languages, if appropriate, a minimum 30-day public comment period prior to approval of a proposed site cleanup plan, and a public meeting in the vicinity of the site upon request.
Review Timeframes
The MOA also includes a non-binding target of 60 days for agency (lead and support
agency) review of work plans and reports for investigation or cleanup. Agencies
unable to meet this schedule are encouraged to provide timely notice of their
planned delay.
The MOA does not specify when support agencies will be provided with or expected to comment on investigation and work plans or if and how site owners will be notified of any decision to begin or implement on an ongoing basis this dual-agency review process.
Dispute Resolution
The MOA includes a formal dispute resolution procedure that applies to both
the initial selection of the lead agency as well as unspecified other disputes
(but presumably including disputes regarding site investigation, remedy selection,
institutional controls and public notice).
For disputes about the lead agency oversight selection, the dispute resolution process includes several steps to be concluded within 40 working days. For all other disputes, the process is to be concluded within 120 days.
Governing Statutes
and Sensitive Uses
The MOA is not intended to replace or be read to conflict with existing statutory
requirements. Unlike the AB 2061 statutory lead agency selection process, which
provides unambiguous procedures regarding and statutory protection from agency
reopeners, the MOA is an administrative agreement about interagency coordination
and procedures for these sites.
Finally, the MOA provides for DTSC to be the oversight agency for residential, school, day care, hospital and hospice sites. There is no provision for these sites to be addressed by DTSC under any program other than the California Superfund program.
Even before the final version was approved, the MOA has been mired in controversy, including conflicting claims as to its purpose. While some assert that it was designed to solve issues with the overlapping jurisdiction of both agencies, it lacks the legal protections from reopeners that could be created only legislatively.
Others assert that, while the RWQCBs are overseeing more sites,
they may lack expertise in evaluating public health and should be prevented
from doing this type of work.
Still others assert that the DTSC Superfund process is the only correct method
of assuring quality cleanups and adequate public participation in agency oversight.
Protocols for assuring future interagency coordination under the MOA are reportedly being developed. However, this new agreement, and the ongoing controversy over the lead agency designation, has created a new layer of uncertainty for the many brownfield projects currently overseen by the RWQCBs, with attendant delay and cost risks of a potential mid-project transfer to DTSC. BFN
Jennifer L. Hernandez chairs Beveridge & Diamond’s Project Development Practice Group. Alfred Fraijo Jr. is an associate at Beveridge & Diamond.