Done is a beautiful word. It feels good to complete things – check them off your list. In the world of environmental remediation, No Further Action, or NFA, means something is done. On the surface, receiving an NFA status from the Tennessee Department of Environment and Conservation’s Brownfield Voluntary Clean-up Oversight and Assistance Program seems fairly self-explanatory. It means that no further action is required concerning the environmental issues from previous environmental releases or activities at a property. However, what it takes to receive an NFA letter and the protection it actually conveys are sometimes poorly understood.
The protection an NFA status from the state of Tennessee offers a property owner is robust compared to that offered by other states. Total completion of the VOAP and receipt of an NFA gives liability protection to the property owner from previous environmental contamination on the property. The liability for that contamination is transferred to the state of Tennessee. If a lawsuit is filed due to environmental contamination at the property, then Tennessee is liable, not the property owner. Very few other states offer this level of protection. Because it is comprehensive, it is easy to understand why NFA letters can be time-consuming and complicated to obtain.
To obtain NFA status, all potential sources or routes of exposure that could possibly stem from contamination at a property must be proven to be either minimal or no risk to human health or safety or mitigated and remediated to the satisfaction of the state of Tennessee. This often means multiple sampling events for various media at the site, such as groundwater, soil and vapor. In most cases, deed restrictions will be required at the property. These restrictions will limit the use of groundwater, require commercial or industrial use, or other steps to help ensure that contamination at the property will not affect human health or safety on or off the property. In cases where remediation or mitigation is required to address contamination, those steps must be taken and then proven to be effective. In addition, the property owner drafts and enters into a Brownfield Voluntary Agreement with the state. This is a legal document that records the contamination identified and the steps required to safely occupy the property without risk from exposure.
An NFA letter will be issued only after all of the environmental assessment is complete, remediation or mitigation is undertaken, the BVA is drafted, deed restrictions are recorded, and the state is completely satisfied that the property is safe for occupation. After the NFA is issued, the restrictions established in the BVA must be adhered to for liability protection to remain intact. In addition, this liability protection only applies to environmental contamination at the property, which was documented prior to receipt of the NFA. Any contamination caused by the property owner after the NFA is issued is not included in the protection.
We are often asked by clients when they will receive an NFA letter. Unfortunately, the answer to that question can be elusive. The process can be as fast as six months or as long as five years or more for a complicated case. To put it plainly, the NFA will be issued once Tennessee is confident that the state will not lose in court in the event that litigation occurs due to environmental conditions at the property. Understandably, this certainty takes time and effort on the part of the property owner and the state regulators.
If you’re unsure of the status of your NFA letter or the process of obtaining one, contact Tioga’s environmental assessment team today.