Regulatory Site Case Closures – Unrestricted versus Risk-Based Closures
Environmental consultants, often at the direction of clients’ counsel, spend the majority of their time and effort performing response activities and preparing technical deliverables with the end goal of achieving a “case closure” or “no further action (NFA)” determination status from the regulatory oversight agency. The NFA determination provides an endpoint to obligations related to a discovered/reported release of hazardous substances, and has the effect of returning liquidity to the affected property by removing the stigma and risk that would otherwise prevent the land from being used as collateral for a commercial loan.
The agencies under California-EPA, specifically, the Regional Water Quality Control Boards (RWQCB) and Department of Toxic Substances Control (DTSC), are empowered by statue to safeguard human health and the environment, and are the gatekeepers of NFA determinations. But not all site closures are created equal, and it is important to understand that responsible parties have options when it comes to resolving historical contamination.
A site can be closed without restrictions when it can be demonstrated that the concentrations of the chemicals of concern have been reduced to background levels, or to levels that are below the most conservative/most stringent human health risk criteria and statutory limits, such as Maximum Contaminant Levels (MCLs). In addition, however, Cal-EPA is also empowered to determine that no further actions are required when it can be shown that contamination has been reduced to a diminished level where risks can be effectively managed using institutional controls, such as restricting the pumping of groundwater for potable use, or limiting the use of a property to non-sensitive uses only through the use of a deed restriction.
There are important considerations for clients to understand in deciding which of these approaches is most appropriate, which should be made in consultation with counsel; for instance, restricting the use of a property may have large long-term value limitations on the property or could have little effect whatsoever, depending on the zoning and surrounding property uses. Further, the difference between a risk-based closure versus an unrestricted closure could amount to significant remediation costs and years of additional work.
Murex’s principals are available to discuss strategic approaches to site cleanup and site closure strategy. Contact us today for a free, no-obligation consultation on the approach, progress, and plan for closure of your client’s site.