I review a large number of Phase I environmental site assessments, and year in, year out, the largest number of questions I field are about Historical Recognized Environmental Conditions.
The environmental professionals who perform those assessment generally do not take heed of Eduardo Galeano’s quote, “History never really says goodbye. History says, ‘see you later.’”
By way of background, a Phase I environmental site assessment is the process of evaluating a property’s environmental conditions and assessing potential liability for contamination. And one might assume that since the EPA issued rule, for what constitutes all appropriate inquiries, provides that ASTM International Standard E1527-13 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process is consistent with the requirements of the EPA rule and can be used to satisfy the statutory requirements, there would be few, if any, questions, .. just follow ASTM E1527-13!?
However, both because of the very large number of Phase I environmental site assessments conducted each year and the huge dollar implication of the associated real estate transactions when prospective purchasers are seeking protection from potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (the Superfund law) as an innocent landowner, a contiguous property owner, or a bona fide prospective purchaser, there are questions. And the most frequently asked questions I field are about Historical Recognized Environmental Conditions.
ASTM E1527 – 13 describes an Historical Recognized Environmental Condition as ..
a past release of any hazardous substances or petroleum products that has occurred in connection with the property and has been addressed to the satisfaction of the applicable regulatory authority or meeting unrestricted use criteria established by a regulatory authority, without subjecting the property to any required controls.”
Some context is likely useful. A Recognized Environmental Condition (a REC) is “the presence or likely presence of any hazardous substances or petroleum products in, on, or at a property: (1) due to any release to the environment; (2) under conditions indicative of a release to the environment; or (3) under conditions that pose a material threat of a future release to the environment.”
And an Historical Recognized Environmental Condition is distinct from the Controlled Recognized Environmental Condition (a CREC) which applies to an environmental condition on a site that has received regulatory closure but are still subject to controls. A CREC is a subset of a REC.
Significantly, an Historical Recognized Environmental Condition is not a REC. To be clear an Historical Recognized Environmental Condition is not a recognized environmental condition for the purposes of a Phase I environmental site assessment.
It is almost that simple. For a past REC to be determined an Historical Recognized Environmental Condition, the release or other condition must have been previously cleaned up or now meet current regulatory standards without clean up.
Additionally, in the event of prior regulatory intervention related to the condition, that the final action not require use restrictions or engineering controls (restrictions on using water for drinking or a cap or the like).
A good example of an Historical Recognized Environmental Condition that is very common is when a regulatory agency issues a “no further requirements” determination as an UST is properly abandoned in place.
And to be an Historical Recognized Environmental Condition, the condition must meet current regulatory standards.
Note, some conditions identified as an Historical Recognized Environmental Condition under the prior version ASTM E1527-05 will no longer meet this determination under the revised express language of current, 2013, version ASTM E1527-13.
Again, an Historical Recognized Environmental Condition (an HREC) is not a Recognized Environmental Condition for the purposes of a prospective purchaser seeking protection from potential liability under CERCLA.