CalEPA SWRCB NFA Issuance Rate Down Significantly Since Release of Vapor Intrusion Guidance

Winefield & Associates, Inc. (W&A) has analyzed the contaminated property No Further Action (NFA) letter issuance rate for 2021, and the results are discouraging. The State Water Resources Control Board (SWRCB) closure rate is 30% less than before the California Environmental Protection Agency's Draft Vapor Intrusion Guidance Document (DVIG) was published in February 2020. California environmental agencies have always issued significantly fewer NFAs than other states, and the DVIG has made matters worse.

The SWRCB Site Cleanup Division has two primary responsibilities:

• Protect the soil and groundwater impacted by contaminant releases; and
• Work diligently to clean up these properties and issue No Further Action (NFA) letters.

SWRCB has a mandate to swiftly and efficiently clean up and close sites. Issuing NFAs is their responsibility and the responsibility of their nine Regional Water Quality Control Boards (Regional Boards).

In 2021, the Regional Boards issued only 488 NFAs. This is a 30% drop from the 3-year average prior to CalEPA’s DVIG issuance. 488 NFAs is an abysmal number when you compare with a state like, say, New Jersey, which has a quarter of California’s population but issues at least 10 times as many NFAs annually. (We have assumed that SWRCB issues about half the state’s NFA letters, while the Department of Toxic Substances Control and health agencies are responsible for the rest.)

Of course, many stakeholders are dependent on receiving the coveted NFA letters. Brownfield investors such as Winefield & Associates must analyze the ability to obtain NFAs before committing resources. Banks will only consider providing debt for contaminated sites if there is a path to an NFA and a remediation cost estimate can be developed. Other stakeholders include the responsible parties, those folks inhabiting buildings above contaminated sites, downgradient impacted parties, and many others. Absent cleanup standards that use best science (yes, I’m talking to you, DVIG) and an efficient report review process, the regulated community shouldn’t expect speedy cleanups any time soon from SWRCB. And absent NFAs, blighted sites cannot be converted to beneficial uses such as affordable housing.

Winefield & Associates routinely invests in brownfields outside of California, and we can unequivocally state that California is not at the forefront of assessment and remediation oversight (as CalEPA would like us to believe). When it takes six months to receive approval for Remediation Action Plans in California but three to four weeks in other states, it’s time to admit we have a problem. As SWRCB falls behind other states in its understanding of vapor mitigation risks, the pace of NFA issuance will not accelerate in the next year or two or three.

W&A would be remiss without noting that there are some sensible regulators within the CalEPA universe. The Department of Toxic Substances Control (DTSC) is actually examining and interpreting the DVIG with appropriate rigor. As of this writing, W&A is averse to acquiring California brownfields under Regional Boards’ oversight, but we are amenable to negotiating with DTSC or health agencies that are open-minded and pragmatic.

Click the link below to download and see the results of our SWRCB 2021 NFA analysis:

SWRCB 2021 NFA Analysis
File Size:	488 kb
File Type:	pdf

Download File

---