Contributed by Trey Hess P.E., Director of Brownfields and Economic Development, PPM Consultants
As a former state regulator for the Mississippi Department of Environmental Quality (MDEQ), I recognize the importance that potentially responsible parties (PRPs), bona fide prospective purchasers (BFPPs), lending institutions, and other interested parties place on the “No Further Action” (NFA) letter issued by the environmental agency. It’s often thought of as the holy grail of site cleanup. For potential buyers interested in acquiring contaminated properties, understanding the process of entering a brownfield into a state cleanup program and achieving an NFA designation is crucial. Brownfields, which are sites contaminated (or perceived as contaminated) by previous industrial or commercial activities, are often addressed through state “voluntary cleanup programs” (aka state response programs). Enrolling in a state response program offers several advantages. First, it provides guidance and oversight from the state, including instructions on risk-based cleanups and cleanup level requirements. Additionally, it offers guidance on implementing and monitoring institutional controls for long-term management of contamination that may be “technically impracticable” to fully clean up. Moreover, participation in these programs can grant liability protection for properties that meet program requirements, typically evidenced by an NFA decision or letter.
An NFA decision is typically issued by the state after thorough review of investigative or cleanup actions carried out either by the property owner or prospective buyer under state oversight. This decision signifies that the site, or a portion thereof, poses no unacceptable risks to human health or the environment based on current conditions. However, some NFA decisions may require compliance with institutional or engineering controls to prevent exposure to remaining contaminants. What I have found interesting is the often over-reliance of interested parties in the finality of an NFA instead of the literal reading of the entire NFA letter for context. For instance, most NFA letters issued by state regulators include something similar to one of the following statements (with added emphasis in bold and italicized):
- “DEQ requires no further action at this site at this time.”
- “If cleanup standards change or additional information becomes available for the site, DEQ will notify the appropriate parties of the need for any additional investigation or remedial actions.”
- “The corrective actions undertaken at the above referenced site have successfully achieved risk-based cleanup levels determined protective of human health and the environment for commercial use of this property….”
- “Based on the most likely future land use of this site as commercial property, no further action or corrective actions under ADEM Admin. Code R. 335-6-15-.26 through .30 are required at this time.”
- “…additional site rehabilitation is not required unless it is demonstrated that: …
- (b) New information confirms the existence of an area of previously unknown contamination which exceeds the site-specific rehabilitation levels established in accordance with Section 376.30701(2), F.S., or which otherwise poses the threat of real and substantial harm to public health, safety, or the environment…”
It’s important to note that the U.S. Environmental Protection Agency (EPA) does not directly manage brownfield or underground storage tank (UST) cleanups; and therefore, do not issue NFA letters for these sites. Instead, federal law, such as Section 128(b) of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), limits EPA’s authority to enforce or recover costs from those who conduct cleanup actions in compliance with state programs. Consequently, adhering to a state response program can offer property owners liability protection under both state and federal environmental regulations. While EPA will review and approve site sampling and analysis plans, called Quality Assurance Project Plans (QAPPs), for sites assessed or cleaned up with EPA Brownfield Grants, EPA typically defers to the State Response Programs for Brownfield NFAs. For some Brownfield grant-funded cleanups, the certification of a Qualified Environmental Professional (QEP) is necessary.
I have seen some instances where environmental “contractors” do not understand the difference between a State NFA letter and a “No Further Remedial Action Planned (NFRAP)” letter. These two letters are distinctly different. The State NFA letter and its purpose were described in the paragraphs above. The NFRAP letter lays out the decision made as part of the Superfund remedial site evaluation process to denote that further remedial assessment activities are not required and that the facility/site does not pose a threat to public health or the environment sufficient to qualify for placement on the National Priorities List (NPL) based on currently available information. These facilities/sites may be re-evaluated if EPA receives new information or learns that site conditions have changed. A NFRAP decision does not mean the facility/site is free of contamination and does not preclude the facility/site from being addressed under another federal, state or Tribal cleanup program. EPA will archive a facility/site if no further federal Superfund interest exists, such that no Superfund site assessment, remedial, removal, enforcement, cost recovery, or oversight activities are planned or being conducted. Simply put, an NFA letter differs from an NFRAP letter. This crucial difference may not be fully grasped by all contractors conducting Phase I Environmental Site Assessments (ESAs), and the implications of each letter might not be fully understood.
Achieving an NFA designation is a significant milestone for any environmentally compromised site. Engaging a Qualified Environmental Professional (QEP) early in your quest for that holy grail is essential. You certainly don’t want to rely on contractors akin to being led by The Knights Who Say “Ni!” Instead, you need a consultant, like PPM Consultants, who will provide comprehensive support beyond just avoiding “the shrubbery.”