Spills, or other releases of hazardous constituents to the environment, can have many forms including emergency response situations like fuel releases to a ditch during an accident, a release of petroleum from an underground storage tank (UST) or a release associated with waste storage. Regardless of the nature of the release, once a release has been identified, the responsible party must take actions to prevent further release, investigate the nature and extent of impacts and if warranted, conduct remediation prior to achieving “closure” of the incident.

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 more general, the point of the project where no additional investigation or remediation activities are required and the regulatory agency has provided a letter to that affect. It is the point in the project all responsible parties want to achieve, and in most cases, must achieve. This article discusses the various closure documents available for remediation programs in the State of Indiana, but the closure concepts identified here also broadly apply to other states.   

The most rigorous and significant “closure” document in Indiana is associated with the Indiana Department of Environmental Management (IDEM) Voluntary Remediation Program (VRP). Closure in VRP means the responsible party receives a Certificate of Completion from the VRP and a “covenant-not-to-sue” from the governor’s office. These documents provide assurance the clean-up has been performed properly, and remediated areas will not become the subject of future IDEM enforcement action and future liability is limited. As expected, these closure documents do not cover future releases, but cover all past identified releases in the investigated area of the property specified in the Voluntary Remediation Agreement (VRA) (in some cases, the entire property may be specified in the VRA). These closure documents are significant and carry the most weight of any of the closure documents offered by the State of Indiana. However, as a result of the protections afforded by these documents, the VRP has historically been more onerous with respect to the level of investigation and remediation required to achieve closure.

For sites in Indiana’s UST Program, Leaking Underground Storage Tank (LUST) Program and the State Clean-up Program (SCP), closure means receiving a “No Further Action” (NFA) letter. As the name suggests, no additional investigation or remediation is required regarding the identified release. The NFA letter is very specific to the “incident,” and does not cover releases that were not investigated, or future releases and does not offer the same liability protections as VRP.

For sites in the Indiana Brownfields Program, the closure documents available include Comfort Letters, Site Status Letters and Bona Fide Prospective Purchaser letters. These documents are not intended to be a release from liability, but instead “serve to minimize and qualify the exposure to risk for remaining liability at a site.”  Since the Brownfields Program is geared towards quickly redeveloping properties, these projects often come to “closure” using risk-based principals and proven rapid remediation techniques (e.g., soil excavation).  

The other significant program in Indiana with respect to investigation and remediation is the Resource Conservation & Recovery Act (RCRA) Program, which covers the management of hazardous waste in Indiana. There are several closure options available, and because there are federal components to these programs, especially RCRA Corrective Action, the closure options and terminology are somewhat different than other programs, and will not be discussed further in this article.

Lastly, Indiana and most of the surrounding states will allow closure of a site with remaining contamination so long as the contamination does not present a risk to human health and the environment. The lack of risk can be demonstrated either by applying site-specific clean-up criteria, or by ensuring there are no completed exposure pathways. For the latter option, it could mean the closure is contingent upon recording an “environmental restrictive covenant” (ERC) on the property, or an engineering control (such as a concrete cover) be maintained in a specific area to prevent exposures. Typical provisions in an ERC include prohibiting the installation of potable water wells, restricting the site-use to non-residential and identifying areas requiring engineered barriers. If an ERC is used as part of closure, most states, including Indiana require the ERC to be recorded before the agency will issue the NFA letter or other closure documentation. The ERC runs with the land, and therefore, future owners of the property also must adhere to the provisions established in the ERC.