If you’re a property investor, developer, or commercial real estate professional, you’ve probably heard that the new ASTM E1527-13 Standard hits the streets in November. Heres what you absolutely, positively, need to know about the new standard:
There are three principal changes in the standard:
1. The definitions of the terms “Recognized Environmental Condition”, or “REC” and “Historical REC” (HREC), have been streamlined, and a new term, “Controlled REC ” or “CREC” has been added. The term “de minimis condition” has also been clarified.
Old Definition of “REC”:
“the presence or likely presence of any hazardous substances or petroleum products on a property under conditions that indicate an existing release, a past release, or a material threat of a release of any hazardous substances or petroleum products into structures on the property, or into the ground, ground water, or surface water of the property. The term includes hazardous substances or petroleum products even under conditions in compliance with laws.”
Revised REC Definition:
“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.”
Old Historical REC (HREC) Definition:
“an environmental condition which in the past would have been considered a REC, but which may or may not be considered a REC currently.”
New HREC Definition:
“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 residential use criteria established by a regulatory authority, without subjecting the property to any required controls (e.g., property use restrictions, AULs, institutional controls, or engineering controls). Before calling the past release an HREC, the EP must determine whether the past release is a REC at the time the Phase I ESA is conducted (e.g., if there has been a change in the regulatory criteria). If the EP considers this past release to be a REC at the time the Phase I ESA is conducted, the condition shall be included in the conclusions section of the report as a REC.”
2. The term “de minimis condition” has been clarified.
The term “de minimis” has been clarified to make it clear that environmental professionals should not use this term to describe a CREC. This revision provides the prospective property owner with added assurances that the Phase I ESA will provide necessary and available information on past corrective actions conducted on the property and available information on contamination left in place. The previous definition of “de minimis” allowed environmental professionals to dismiss, or not report this information because the definition of “de minimis” merely stated that such conditions are not “subject to enforcement action.”
3. The term “migrate/migration” is now formally defined in the standard, and pertains to solids, liquids, or vapors.
A. “the term MIGRATION refers to the movement of hazardous substances or petroleum products in any form, including, for example, solid and liquid at the surface or subsurface, and vapor in the subsurface.”
B. E2600-10, the ASTM Vapor Encroachment Standard, is referenced in E1527
C. Addressed in revised “activity and use” definition
4. Changes in Regulatory File Review Requirements:
There is NO mandate to obtain regulatory agency file records, despite the rumors to the contrary. The negotiated language says that “If the property or any of the adjoining properties are identified on one or more of the STANDARD environmental record sources…pertinent regulatory files and/or records associated with the listing SHOULD (not MUST) be reviewed…to obtain sufficient information…in determining if a REC, HREC, CREC (Controlled REC) or a de minimis condition exists at the property in connection with the list. If, in the environmental professional’s opinion, such a review is NOT warranted, the rationale for that decision must be included in the report.