Underground Storage Tanks

PIRI's (Partnership in RBCA Implementation) official members include representatives from the major oil companies (i.e., Amoco, BP, Chevron, Exxon, Mobil, and Shell), ASTM, EPA's OUST, and States. The paper presented here represents the points of view of the various PIRI authors and not the companies or states with which they are affiliated. This document is not an EPA document. This document will be updated as changes in technologies and policies require. It is critical that readers check with the implementing agency in their States before acting upon the policies discussed in these papers.

A primary goal of environmental regulatory programs is the protection of human health and the environment. Beyond protection of human health and the environment, a primary goal of responsible parties is to achieve in a timely and cost-effective manner "No Further Action" (NFA) status which supports some degree of certainty. NFA letters are significant in that they should:

• Represent an official regulatory affirmation that a site adequately protects human health and the environment for the intended use of the site;
• Note the end to corrective action; and
• Document any property use restrictions.

Regulators, responsible parties, landowners, investors, and lenders all benefit from NFA status. Unfortunately, the vague language often included in NFA letters (e.g., no further action at this time; no further action but case may be reopened at a future time) thwarts much of the benefit derived from NFA status for all parties involved. Responsible parties need to have reasonable confidence that a corrective action matter is resolved. Landowners also need an NFA letter that imparts reasonable certainty to the closure to avoid an unnecessary stigma on the property which may diminish property values and turn an otherwise lucrative property transaction into an unacceptable economic risk for investors and lenders.

Regulators may be concerned that the NFA status may be inappropriately viewed as an end to environmental liability. Generally, there is no end to environmental liability with the issuance of an NFA letter. The NFA letter is a notice of the end of corrective action based on reported site conditions and land use and generally does not address environmental liability. (Each regulatory entity should verify.) Because the NFA letter does not address environmental liability, "at this time" language imparts uncertainty and complicity into the NFA statement.

Clearly, the issuance of NFA letters is important, and the wording of NFA letters is critical. In developing NFA letters, several factors should be considered. The first is that environmental regulatory agencies generally have clear authority to compel corrective actions when necessary to protect human health and the environment from contamination sites regardless of any assigned NFA status. In other words, "at this time" language may be duplicative and may cause unnecessary concern as NFA status may not terminate regulatory authority. Regulatory agencies may want to investigate their authority in this regard.

Second, signed statements from responsible parties and consultants attending to the appropriateness of the site for NFA status may impart a greater regulatory confidence in assignment of NFA status in that all parties have a vested interest/responsibility in the closure decision. More confidence in the completeness and validity of site information imparts greater confidence in decision making on the part of all parties involved.

Third, specific conditions for closure may be incorporated into NFA letters when restricted land use or other conditions must be maintained for NFA status to remain in effect. Such NFA letters should clearly indicate what actions/conditions will necessitate further corrective action. For example, language such as "NFA status will be in effect so long as the site is not used for residential purposes" can be incorporated into NFA letters to indicate to all parties involved that the property is suitable for other land uses which, in fact, may represent greater economic advantage than residential land use. Using this language may not limit authority to reopen cases when needed to protect human health and the environment, but it will lay out use of the property that can be confidently exercised. In some instances, institutional controls may be necessary to ensure long term protection and notification when land-use limitations are the basis for closure.

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