No further action doesn’t always mean what you think

Developers are often attracted to remediation programs, particularly voluntary ones such as brownfields programs, because they offer liability protection, tax credits, and other financial incentives. Yet the extent and duration of the requirements associated with these programs are often misunderstood.

Ask yourself: you acquire a contaminated site, remediate and redevelop it under your state’s brownfield cleanup program, and receive the equivalent of a No Further Remedial Action Planned (NFRAP) letter—once that’s all taken care of, are you really done?

While the answer depends on several factors, there are often ongoing environmental requirements and costs associated with management of residual contamination, unless a site is remediated to unrestricted use criteria with no institutional or engineering controls. Contamination is often left in place on sites where further remediation is not feasible or practical for a number of reasons, including financial or structural limitations. Ongoing requirements and related expenses vary based on the type of remedial action, the nature of contamination that remains in place, engineering controls (e.g., site cap, groundwater treatment system, soil vapor mitigation system, etc.), and institutional controls (e.g., land use restrictions, prohibition of groundwater use, etc.). These controls represent ongoing obligations to the responsible party in perpetuity (aka forever).

Ongoing remedial obligations are typically defined in a Site Management Plan (or equivalent) and recorded on the property deed. If your project has a Site Management Plan, there is still some environmental work to do. At a minimum, regular inspections and reporting are required to certify that controls are in place and the site remediation remains protective of human health and the environment.

Examples of more costly site management requirements include active sub-membrane depressurization systems, groundwater treatment systems, or soil vapor extraction systems requiring ongoing operation, maintenance, and annual media monitoring and reporting. Often these obligations can make properties less attractive to potential tenants and purchasers.

When evaluating cleanup tracks for your site, it is important to work with your environmental consultant to understand likely ongoing (e.g., post-NFRAP) obligations and expenses if contamination is left in place. Often a relatively fast and inexpensive upfront cleanup can result in long-lasting and expensive ongoing obligations.

Jennifer Armstrong is based in our New York City office and has experience working on environmental projects throughout New York.  She has experience in developing remedial investigation and remedial action work plans and managed groundwater monitoring programs.