There is very little guidance from the TCEQ concerning the benefits achieved by a NFA letter. The NFA letter would indicate that the State has determined that a property enrolled in the DCRP has attained the applicable TRRP standards necessary for the State to confirm that adequate corrective actions have been completed. The State then states that “no further action” is required under TRRP for regulatory closure of the Site. The State has previously stated its position that the NFA determination is based on the data submitted and the TRRP rules in place at that time. State action levels change periodically and the determination that no further action is necessary may be tied to the existing property use. Accordingly, a property that receives a NFA letter might be reopened in the future based upon changed circumstances.
The Dry Cleaner Statute provides that “eligible persons” are exempt from claims under State law for: (i) cost recovery, and (ii) enforcement of corrective action (with exceptions). It is unclear whether a party who has received a NFA and no longer participating in the DCRP still qualifies as an “eligible person” so it is eligible for those protections. A NFA letter does not bar third party claims.
A NFA letter speaks to the condition of the site. While it will be addressed to the party that is the DCRP applicant, it does not appear on its face to limit its applicability only to that person.
In contrast to the DCRP NFA, a VCP Certificate of Completion (“COC”) provides a release of liability from the State in favor of “future owners and lenders.” The release of liability does not apply to a person who was an owner or operator of the property when the property was entered into the VCP, although it appears that such an owner or operator has the comfort that site conditions meet the current regulatory closure standards. A COC does not bar third party claims.
You can learn more about the Texas Dry Cleaner Remediation Program at the TCEQ’s website at: https://www.tceq.texas.gov/remediation/dry_cleaners
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