---

The California Environmental Protection Agency ("CalEPA") has finalized an intra-agency Memorandum of Agreement ("MOA") that establishes a process for identifying a single lead agency at brownfield sites.[1]  As enacted, this policy aims to establish more certainty as to whether the Department of Toxic Substances Control ("DTSC") or a local Regional Water Quality Control Board ("Regional Board") will be primarily responsible for overseeing the investigation and cleanup of a given brownfield site.  Under the MOA, DTSC will now typically be the lead agency at any site that poses a risk to human health, while the local Regional Board will be the lead agency if the site poses a threat to existing or potential beneficial uses of groundwater or surface water.

On March 1, 2005, CalEPA, DTSC, the State Water Resources Control Board ("State Board"), and the Regional Boards (collectively, the "Water Boards") entered into the final MOA.  Primarily, the MOA aims to avoid the duplication of efforts in the cleanup of brownfield sites by directing DTSC and the Water Boards to agree who between them will assume primary oversight responsibility at a given brownfield site.  The MOA also seeks to eliminate inconsistencies between methods and standards used by DTSC and the Regional Boards.  CalEPA hopes that this policy will make the investigation, cleanup, and reuse of brownfield sites both faster and more cost effective. 

The MOA sets forth a series of factors for DTSC and the Water Boards to evaluate when determining which agency should be in charge of oversight at a given brownfield site.  Those factors include: 

• whether one agency will likely have greater long-term involvement due to the type of contaminant or media affected;
• whether one agency has more technical expertise with regard to the risks posed, the exposure pathways, and the likely remedial measures;
• whether one agency has previous involvement with the site;
• whether the land use is "sensitive," meaning sites where human health concerns may be greater (e.g., residences, schools, day care facilities, and hospitals), in which case DTSC might be the more appropriate agency; and
• whether the site poses a threat to sensitive water resources or sensitive habitats (e.g., critical groundwater recharge zones or wetlands), in which case a Regional Board might be preferred.

DTSC and the Regional Boards may also consider whether the applicant or site has an historic relationship with one of the agencies, and whether the applicant has a preference for one agency over another. 

The biggest change brought about by the finalization of the MOA is that a person requesting oversight must submit an application to initiate the process of assigning an appropriate oversight agency.  The applicant may also specify a preference for one agency over the other.  A request for oversight may be submitted not only by a site owner, operator, local agency, prospective purchaser, or developer, but also by any other party with sufficient rights and access to the site so that he or she may carry out any and all activities that the oversight agency may require in making its regulatory decision.  

Once an oversight agency is chosen, both the oversight and the other, "support" agency must confer to ensure that the concerns, standards, and requirements of the support agency will be adequately addressed by the oversight agency.  Additionally, if the oversight agency determines that, due to certain conditions, a particular site would be more appropriately overseen by the support agency, the oversight agency is permitted to transfer its responsibility to the other agency.  In the event there is a dispute concerning either the selection of an oversight agency, or the incorporation of standards and requirements to be imposed at a site, the MOA sets forth a dispute resolution procedure whereby agency personnel attempt to resolve the matter. 

A key benefit of the new policy is that once an oversight agency is selected for a particular site, the support agency may not pursue independent regulatory action at that site, unless the oversight agency fails or refuses to ensure that the standards and requirements of the support agency are met.  Therefore, the MOA appears to provide certainty to the remedial process by ensuring that another state agency will not require additional action on the part of the applicant in the future.  However, while the MOA aims to reduce the risk of additional actions or requirements by another agency, it also requires the oversight agency to confer with the support agency and to ensure that the support agency’s standards and requirements are met.  It therefore remains to be seen whether this will actually increase the burden on applicants who previously only had to meet a single set of requirements. 

It is important to note that the MOA does not apply to existing cleanup sites, or to sites for which a statute designates a lead agency or authorizes action by one or the other agency but not both – such sites include existing or proposed schools, petroleum storage tanks, certain hazardous waste facilities, and sites listed on the federal National Priorities List.  The MOA applies to all requests for regulatory decisions at brownfield sites, including review and approval of site investigation, cleanup, and remedial action plans, as well as requests for No Further Action determinations. 

The complete text of the finalized MOA can be found at http://www.calepa.ca.gov/Brownfields/MOA/MOA3_05.pdf, and the application for requesting oversight is located at http://www.calepa.ca.gov/Brownfields/MOA/Application.pdf .