Closure: We All Strive For It, But What Does It Really Mean?

The word “closure” has many meanings in the English language, including the more general – “a condition of being closed”, and the more ethereal – “an often comforting or satisfying sense of finality, or something that provides such a sense” (Merriam-Webster).  In the environmental world, closure can have a similar meaning, but is generally, the point of the project where no additional investigation or remediation activities are required and the regulatory agency has provided a letter to that effect.  It is the point in the project that all responsible parties want to achieve, and in most cases, must achieve, preferably sooner than later. 

Spills or other releases to the environment can include emergency responses, such as  fuel releases  to surface water, a release of petroleum from an underground storage tank (UST), a release associated with a hazardous waste storage area at an industrial facility, or releases associated from an unidentified, historical sources.  Regardless of the nature of the release, once a release has been identified, and before the Site can be “closed”, the responsible party must take actions to prevent further release(s), investigate the nature and extent of impacts, and if warranted, conduct remediation and ongoing monitoring.  Once these activities are completed, then Site closure could be achieved. 

For most states and the U.S EPA, there is more than one way to achieve Site closure, and there is inherent flexibility in the process.  If a responsible party wants to achieve the most stringent, risk-based criteria (usually for residential land use), then the closure letter from the regulatory body will have few or no restrictions.  However, if contamination is left behind, then closure could still be obtained, but there will be long-term obligation (with accompanying costs and liability) for the responsible party.  We will review closure approaches for a couple states below, followed by the U.S. EPA approach under the Resources Conservation & Recovery Act (RCRA).  Additional information will be provided in the accompanying webinar.

Indiana

The Indiana Department of Environmental Management (IDEM) has multiple clean-up programs, including Leaking Underground Storage Tanks (LUST), State Cleanup Program (SCP), Voluntary Cleanup Program (VRP), and Resource Conservation and Recovery Act (RCRA) Corrective Actions.  Cleanups in these programs are conducted following the guidelines set forth in the Remediation Closure Guide, or RCG.  Per the RCG, there are two options for closure in Indiana:

  • Unconditional Closure – true “walk away” closures that leave the Site environmentally suitable for any future use. Residual concentrations are below the most-stringent, risk-based values.
  • Conditional Closure – Closure that is dependent on one or more ongoing activities or restrictions that reduce exposures to levels acceptable for a particular land use. 
    • It has been our experience, that most sites in Indiana (and other states), go through Conditional Closure. 
    • The common restrictions include, land use/deed restrictions (e.g., no residential land use in future), or a prohibition on installing potable water wells.   

For most of the cleanup programs in the State of Indiana, once closure is deemed complete by IDEM, then the responsible party will receive a “No Further Action” or an “NFA letter”. One exception to the NFA letter is for projects in the Voluntary Remediation Program (VRP), which receive a “Certificate of Completion” from IDEM, and a Covenant Not-to-Sue from the Governor’s office. VRP closure typically require additional investigative and remedial effort since the State is affording liability protection for identified past releases (NFA Letters do not provide this protection). 

Other programs in Indiana, including Emergency Response and Brownfields, are not cleanup programs, per se; however, they provide tools that could potentially serve as “closure” instruments.  For example, in the Brownfields program, a potential purchaser could obtain a Bona fide Prospective Purchaser (BFPP) letter.  The BFPP letter indicates that the BFPP did not cause or contribute to the releases; however, they will take appropriate pre-cautionary measures and restrictions (such as land use restrictions, or engineering solutions), to ensure that there are no potential exposures.  These are not NFA letters or a closure letter; rather, they facilitate a property transaction, and limit liability for the new owner so long as the conditions and restrictions identified in the BFPP letter are adhered to. 

Illinois

The Illinois Environmental Protection Agency (IEPA) has several cleanup programs that offer No Further Remediation letters (NFR letters) as closure documents. Once appropriate investigation and/or remediation are deemed complete by the IEPA (i.e., closure), the NFR Letter must be filed with the Office of the Recorder or Register of Titles within the county in which the site is located.  The NFR Letter is then part of the permanent chain of title (thus notifying future owners of the terms of the NFR letter).   The LUST section provides NFR letters to address releases at regulated UST sites, and the IEPA also has a voluntary cleanup program, referred to as the Site Remediation Program (SRP).  The closure options in Illinois’ SRP include:

  • A Comprehensive NFR Letter – closure letter that signifies that the Site does not present a significant risk to human health and the environment. This letter could include restrictions to ensure protection of human health and the environment (e.g., use of institutional and/or engineering controls).
  • A focused NFR Letter – closure letter that applies to a specific contaminant or suite of contaminants, or the closure is limited to a portion of the Site.  

US EPA – RCRA

Under RCRA, the term “closure” refers to a series of formal procedures required to minimize the need for maintenance and control, minimize or eliminate post-closure releases of hazardous waste, hazardous constituents, leachate, contaminated run-off, or hazardous waste decomposition products to the environment (IDEM RCG).  Like Indiana’s Conditional and Unconditional Closure, when closing a facility or a unit (e.g., landfill, waste pile, tank, containment, etc.), the EPA has two approaches:

  • Clean Closure – all wastes are removed and the facility or unit and surrounding soils (or other impacted media) is decontaminated. 
  • Closure with Waste In-Place – this is used for landfills or other units when responsible parties cannot remove all waste and contamination.  Similar to the approaches in the states identified above, sites that are closing with residual waste left in place will require additional long-term controls or restrictions to ensure there is no risk to human health and the environment. 

YOU MAY ALSO LIKE

We’ll Always Have Paris

At the time of writing this article, Joe Biden is projected to be the 46th President of the United States of America. On January 20, 2021 he will take the oath of office and begin his presidency. How will a Biden-Harris administration govern? Will this be a return to Obama era pen and phone legislation … more »

A 2021 Refresher on Tier IIs

The Emergency Planning and Community Right-to-Know Act (EPCRA) guides August Mack through the Tier II reporting season at the beginning of each new year. EPCRA was passed by Congress in 1986 in response to environmental concerns about the storage and handling of toxic chemicals. President Reagan signed EPCRA into law, and it has since then … more »

The Bona Fide Prospective Purchaser Defense in Ohio

The time has come for Ohio to join the list of states that have incorporated the federal Bona Fide Prospective Purchaser (BFPP) defense to CERCLA liability. In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund.  This law provided broad federal authority to respond directly to releases or … more »

SIGN UP FOR OUR NEWSLETTER

Get weekly updates including industry related articles and educational webinars.