The new definition of Recognized Environmental Condition

Recognized Environmental Condition per the new ASTM standard

The ASTM E1527 standard provides commercial and customary guidelines for conducting ESAs concerning contaminants covered by the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The previous standard, E1527-13, defined a Recognized Environmental Condition as the presence or likely presence of petroleum products, hazardous substances or conditions that:

• Release to the environment.
• Indicate a release to the environment.
• Pose a potential threat of future release to the environment.

However, determining the likely release of petroleum products or hazardous substances to the environment was confusing and ambiguous.

E1527-21 clarifies when consultants must look for the likely presence of petroleum products and hazardous substances. According to the revised standard, they must only look for the likely presence of conditions indicative of a release to the environment. For hazardous substances or conditions that release to the environment or pose a potential threat, the ESA evaluates their presence, not their likely presence. The standard also clarifies what constitutes a likely presence. It is based on environmental professionals' conclusions from logic, experience and evidence. An appendix includes examples to resolve ambiguities.

The new ASTM standard emphasizes information about the site's prior use and standardizes required historical sources. Per E1527-21, Phase I ESAs should include historical:

• Aerial photographs.
• City directories.
• Topographic maps.
• Sanborn Fire Insurance maps.

In addition, a Phase I ESA should include as much information about the site's history as possible. For example, a site that previously housed a dry cleaner requires more investigation than a standard retail property.

Clarifying HREC and CREC definitions

The new standard redefines an HREC as a subject property where a previous release of petroleum products or hazardous substances has been properly addressed and meets the approval of the applicable regulatory authority. For example, after an owner removes an underground storage tank and cleans up a site, a regulatory authority must issue a letter stating no further action is required. Also, the property cannot be subject to any controls, such as activity and use limitations. The ESA must investigate past closures and associated data to confirm the site meets standards for unrestricted use.

E1527-21 defines a CREC as a subject property that has been addressed to the satisfaction of the concerned regulatory authorities. The authority confirms the site has instituted controls that allow for the presence of petroleum products or hazardous substances.

The new standard also includes a flowchart in the appendix to help consultants differentiate between RECs, HRECs and CRECs. This guidance aims to improve certainty and consistency.

Updated ESA report shelf life

Municipal leaders and developers working on contaminated land remediation projects need to be aware of the new standard's limited Phase I ESA report shelf life. Under E1527-21, a Phase I ESA report generally must be completed no more than 180 days before the acquisition date. However, ESA reports can be valid for up to a year if these five elements have been completed within 180 days of the acquisition.

1. Interviews.
2. Review of government records.
3. Environmental Professional Declaration.
4. Searches for recorded environmental cleanup liens.
5. Site reconnaissance.

The updated standard requires the report to include completion dates for each component and clarifies that the 180-day and 1-year periods begin when the first component is completed. Therefore, an ESA report's publication date is not a reliable indicator of the report's shelf life.

Conducting Phase I ESAs to ASTM standards

Municipal leaders and developers often find it challenging to keep up with the definitions and types of RECs and emerging contaminants of concern in Phase I ESAs. Although the EPA has not yet adopted the new ASTM standard for Phase I ESAs, you should prepare for its implementation. To ensure your Phase I ESA responds to the changing standards, partner with an experienced environmental consultant.

The dedicated environmental consultants at Fehr Graham are well-versed in industry standards and have decades of experience helping communities with contaminated land remediation projects. From redeveloping brownfields and conducting land surveys to addressing regulatory issues and redevelopment needs, we provide end-to-end assistance with environmental projects. Our highly customized ESAs empower you to make informed decisions on land transactions and avoid costly delays or surprises.