No Further Action vs. Release of Liability

This question comes up frequently. If an environmental agency issues a No Further Action (NFA) letter, say for an underground storage tank closure, can this be considered a Historical Recognized Environmental Condition (HREC)? Or is it still a Recognized Environmental Condition (REC) because a release of liability wasn’t issued? The question is not that simple, and you have to dig deep into the closure report and data. In the case where the tank was closed and all soil samples were non-detect, it could be considered a HREC and no further action recommended. But what about situations where there was contamination, either localized or extensive, and the agency issued a NFA?

Remember that an NFA is NOT a release of liability, and environmental agencies can revisit the site at any time and possibly require additional investigation or even remediation. As Environmental Professionals, we rely on our experience in performing remediation and working with environmental agencies to communicate to the Phase I ESA user the relative risks of our ESA findings, including the likelihood of certain liability-causing events, such as 1) an agency revisiting a case, 2) future human exposure to contaminants on the property, or 3) migration of contaminants off-site resulting in third-party liability.

Regarding the question of when to consider a former UST with an NFA a REC or HREC, consider the following example.

A site had a leaking tank in the early 1990s, prior to a state’s voluntary cleanup program going into effect. Contamination was identified in soil and groundwater, and there was contamination in groundwater at the most downgradient monitoring well. The state concluded that there was not any likely threat to human health or the environment, and issued an NFA.

The site investigation reports identified BTEX contamination in groundwater. Looking at the data, we found that benzene concentrations exceeded applicable cleanup standards in the most downgradient well. As a result, off-site migration of contaminants in groundwater was a definite possibility. Although the agency concluded there was no threat to human health or the environment, the extent of contamination was never characterized, and no controls (e.g., deed restrictions) were put in place to eliminate the exposure pathway to contaminated groundwater. The absence of administrative controls and potential for off-site contamination resulted in this former UST being identified as a REC, and additional investigation of groundwater and evaluation of exposure pathways was recommended.

This example quite clearly demonstrates that an NFA does not automatically result in concluding that a former UST is a HREC.  It also demonstrates the importance of retaining an environmental consultant that has experience not only in performing Phase I ESAs, but in cleanup program knowledge, an understanding of groundwater and contaminant fate-and-transport, and experience bringing properties through state cleanup programs.

Case Study 1: The Tank that Stank

During a Phase I ESA, evidence of an underground storage tank (UST), including a fuel gauge, supply and return lines, and an apparent fill port, were identified at an office building. The consultant was hired to perform a tank tightness test on what was believed to be a UST fill port in front of the building. The test was performed and failed. Our review of the Phase I report and a brief site inspection revealed that the alleged fill port was in fact a sewer vent, a distinction that most people who are familiar with basic plumbing can make, and any assessor should be able to easily identify.

I hope that this case story, and future case stories and insights, will help readers to gain valuable industry insights. I’m always interested in hearing others’ stories, so comments are welcome!

Pictured above is an actual fill port.