New EPA Digest: Cleaning Up Brownfields and Getting to “No Further Action” in all 50 States
Go-to digest from U.S. EPA centralizes requirements for entering a brownfield into each state’s response program to get to “NFA” and get your property back into productive use
To mark the 20th anniversary of the Brownfields Program last year, the U.S. Environmental Protection Agency (EPA) launched its Next Generation Brownfields initiatives to continue to promote improved approaches for supporting communities in their revitalization efforts in the coming years and decades. After a generation of successes and lessons learned, the future of brownfield redevelopment is shifting into a higher gear.
Real estate fundamentals and consumer preferences are pivoting at the same time new technologies are developing innovative remediation solutions and opening new development opportunities. Solar energy, or brightfield development, is just one new end use reaching critical mass and promising to repurpose thousands of contaminated parcels, brownfields and oddlots around the country in the coming years.
At Brownfield Listings, we call it Brownfields 2.0–a redevelopment renaissance raising more interest in brownfields and returning more brownfield and legacy sites to productive use than ever before.
As new entrants rush into the redevelopment space, the demand to cram the learning curve is high. Understanding the reuse roadmap, and the risks, regulatory requirements and roadblocks along the way, is essential for developers, brokers, lenders or any stakeholder. The volume of applicable acronyms can seem daunting because redevelopment is a crossroads of so many credentialed professions.
One of the first, and most important acronyms to learn is “NFA” for No Further Action–a protection against future regulatory liability and a key threshold to surpass on the way to site reuse.
Obtaining a “no further action” decision generally means that the state will not require additional remedial action, based on the state agency’s knowledge of site conditions at the time it issues the NFA. Some NFA decisions are conditioned on compliance with institutional or engineering controls that are designed to prevent future exposure to contaminants left in place following risk based cleanup activities.
States are cogs in the NFA process because the U.S. EPA does not oversee the cleanup of brownfields. Section 128(b) of the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA, or the federal Superfund law) limits U.S. EPA’s authority to take enforcement or cost recovery actions against persons who conduct a response action at a brownfield site in compliance with a state response program. Therefore, cleaning up brownfields in accordance with a state response program may afford a property owner liability protection under both state and federal environmental statutes.
As a result, brownfield sites are often cleaned up in accordance with and under the oversight of state “voluntary cleanup programs,” or state response programs. The benefits of enrolling in a state response program include the guidance and oversight provided by the state program, including guidance related to risk-based cleanups and constituent-based cleanup levels, as well as guidance on the use and long-term monitoring of institutional controls. State response programs also provide certain protections from environmental liability for sites cleaned up in accordance with program requirements. Liability protection often is documented as a NFA decision or NFA letter (some states use other terms to refer to these NFA decisions or NFA letters, such as NFR (No Further Remediation) letters).
Generally, states make a “no further action” decision after determining that a brownfield site (or part of a brownfield site) that is enrolled in the state response program, poses no unacceptable risks to human health or the environment. This usually follows investigative or cleanup activities taken by the property owner or prospective purchaser under state program oversight or following a state’s comprehensive review of the cleanup actions taken at a particular site.
Now a new report published by U.S. EPA, Cleaning Up Brownfields Under State Response Programs–Getting to “No Further Action,” provides a general summary of the eligibility requirements for entering a brownfield into each state’s response program and the required process to apply for and obtain a NFA determination or equivalent.
This comprehensive go-to digest centralizes information regarding the process for attaining a state decision or certification for NFA and summarizes information gathered from state response program contacts and state response program websites. While some basic information about state voluntary cleanup programs is provided for context, the report focuses primarily on the processes used in various states to provide no further action decisions or certifications. The entry for each state should be viewed as a starting point for additional research.
Users referencing the report will benefit from the links in the “Additional Resources” sections in order to consult with the state contacts who will always have complete and up-to-date information regarding the process for attaining a state decision or certification of the need for “no further action” for each state program.
Download EPA’s report Cleaning Up Brownfields Under State Response Programs–Getting to “No Further Action" now.
Discover more information on state voluntary cleanup programs on EPA's website.
What is an NFA?
A No Further Action (NFA) letter is an official notice issued by the jurisdictionally relevant environmental regulatory agency stating that identified contaminants present at a particular property, or at any other location to which a discharge originating at the property has migrated, have been investigated and remediated in accordance with applicable remediation statutes, rules and guidance, to a standard appropriate for the intended use of the property and/or offsite locations affected by migrating contamination. Once obtained an NFA often clears the way for development, though NFA's can be limited in scope. NFA's are sometimes referred to as No Further Remediation (NFR) letters in some jurisdictions.
Use the NFA tag on BL as one of the many tags in our handy Taxonomy whenever your site has received an official notice it is in environmental compliance or it is relevant to aRFP, RFQ or RFI or other planning effort being posted on BL.