An August 2010 Memorandum of Agreement (MOA) entered into by the New York City Mayor's Office and the New York State Department of Environmental Conservation (NYSDEC) further advances the city's program to return "Brownfield" sites in the city to productive reuse. The MOA, which is not a delegation of any state program to the city, is a key tool in the implementation of the New York City Local Brownfield Cleanup Program (LBCP) by the city's Office of Environmental Remediation (OER).
The MOA is applicable to persons and properties defined in the OER’s regulations as being eligible for oversight under the MOA, which are authorized by NYC local law or enrolled in the city's LBCP. The MOA does not, however, create any rights, obligations or benefits for such persons or properties.
Under the MOA, the OER is authorized to adopt and implement procedures that are designed to: (1) provide oversight to ensure that the remediation of Brownfield sites complies with federal and state environmental requirements in order to "protect human health and the environment"; (2) require remedy selection and implementation in accordance with state regulations, standards, criteria and guidance, including NYSDEC's February 2007 Presumptive/Proven Remedial Technologies guidance; (3) review and approve, and require verification of cleanup plans; (4) ensure the recording of use restrictions in county records and establish a registry of such restrictions that is easily accessible to the public; and (5) ensure the reporting of petroleum releases and inactive hazardous waste disposal sites to NYSDEC. For petroleum releases, in addition to these general requirements, the city's LBCP is geared to ensure that cleanup is performed in accordance with NYSDEC's Petroleum Spill Guidance Manual. The MOA further requires the OER, upon receipt of an application, to review federal and state databases to ensure coordination with other environmental officials already overseeing or otherwise involved in site remediation.
Under the MOA, the OER is required to communicate to NYSDEC all "suspected" sites that it becomes aware of that would be regulated under NYSDEC's hazardous waste disposal site program requirements. Sites that, in the OER's view, pose a "significant threat to public health or the environment" are ineligible for LBCP oversight.
NYSDEC does not intend to take any administrative or judicial action at sites that are being overseen by the OER as long as such sites remain in compliance with LBCP and the OER’s requirements and directives. However, the MOA is not a liability release on NYSDEC's part, and NYSDEC explicitly reserves the right to take any action it deems appropriate at any site administered by the OER.
NYSDEC will periodically audit the OER's implementation of the LBCP program, and the OER is required to submit annual status reports of its program.