Recognition via a Footnote that Emerging Contaminants Are Currently an Issue in Many States and Perhaps Should Be Addressed in the Phase I ESA (as a Non-Scope Consideration) All of this supplemental information should facilitate more informed discussions between users and EPs to be sure that they are using the terminology of E1527 as intended and reaching consistent conclusions whether a given fact pattern constitutes a REC, HREC or CREC. These written examples are supplemented further by a REC, HREC and CREC diagram in Appendix X4. Appendix X4 also provides examples of RECs, HRECs and Controlled Recognized Environmental Conditions (CRECs) in order to try to achieve greater consistency in the use of these terms in the future. Appendix X4 explains that the past closure of a leaking underground storage tank, for example, may not constitute an Historical Recognized Environmental Condition (HREC) unless the EP has evaluated the data associated with that closed tank to be sure that the sampling data meets current regulatory standards for unrestricted use and whether there is an open vapor exposure pathway. Finally, Appendix X4 provides examples of what constitutes a material threat of a future release under the third part of the definition, including precariously stacked drums and bulging tanks. Under the second part of the definition, the likely presence of hazardous substances or petroleum products in, on, or at the subject property due to a release or likely release to the environment, an EP could conclude, based upon his or her experience and observations, that the subject property's use as a gas station or dry cleaner for a significant period of time prior to regulatory controls, or the presence of a bare-steel underground petroleum storage tank installed at the subject property decades ago without any leak detection systems, may be examples of a REC due to the likely presence of a release of hazardous substances or petroleum products to the environment. For example, under the first part of the definition, the presence of hazardous substances or petroleum products in, on, or at the subject property due to a release or likely release to the environment, an EP could not conclude that an off-site property was a REC. This revised definition is supplemented with examples in Appendix X4 that are intended to clarify what each of these three phrases in the definition means. A de minimis conditions is not a recognized environmental condition. The term recognized environmental condition means (1) the presence of hazardous substances or petroleum products in, on, or at the subject property due to a release to the environment (2) the likely presence of hazardous substances or petroleum products in, on, or at the subject property due to a release or likely release to the environment or (3) the presence of hazardous substances or petroleum products in, on, or at the subject property under conditions that pose a material threat of a future release to the environment. The new definition would read as follows: In order to try to reduce the amount of variability in REC opinions, the E50.02 Committee is proposing a nuanced change to the REC definition in order to obtain more consistent interpretations. Nuanced Changes to the Definition of RECĪnyone who reads dozens of Phase I ESAs each year knows that, historically, one could give the same fact pattern to three different Environmental Professionals (EPs) and get three completely different opinions about whether there were Recognized Environmental Conditions (RECs) on the property, and why. The voices of the development and legal communities are currently sorely underrepresented in these discussions. It behooves everyone who relies on Phase I ESAs to actively engage in this updating process. The current draft is out for ballot with results due on July 10, 2021. This Holland & Knight alert highlights what are believed to be some of the key proposed changes. Not all of the proposed changes are uniformly supported. Several of the proposed changes are very nuanced. Other changes are offered to provide greater consistency in the language of the standard. Many of the proposed changes are intended to correct what are viewed as deficiencies in implementation of the current standard. The ASTM E50.02 Task Group has been diligently reviewing the existing standard for more than a year, and has been developing a series of proposed changes to the standard. The ASTM E1527-13 Standard Practice on Phase I Environmental Site Assessments (ESAs) is required to be revised, reapproved as is or abandoned this year. Every eight years, ASTM International's standard-setting committees are required to reevaluate existing ASTM standards.
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