The Phase I found a REC. Now what?

A recognized environmental condition (REC) is the standard's name for one of three things at the subject property: hazardous substances or petroleum products that a release has left there, ones likely there from a release, whether known or likely, or ones present in circumstances posing a material threat of a future environmental release (E1527-21, 3.2.73). Identifying RECs is what a Phase I sets out to do (E1527-21, 1.1.1, 7.1). What the standard says comes next: the report explains each REC. The environmental professional should give an opinion on whether more investigation is appropriate, which does not mean recommending a particular course of action. Recommendations are additional services, and the standard says they should be in the report only if the terms of engagement call for them. A buyer seeking a CERCLA liability protection also has duties after acquisition that the practice does not address (E1527-21, 1.1.3, 12.5 to 12.10).

What a REC is and is not

Likely. In the definition, likely means neither certain nor proved but what a reasonable observer would expect or believe, from the environmental professional's logic or experience or the evidence at hand, as the report states it (E1527-21, 3.2.73.1).
Not a de minimis condition. A release-related condition that would generally pose no threat to people or the environment, and on which the agencies concerned would generally take no enforcement action if they learned of it, is a de minimis condition, and is neither a REC nor a controlled REC (E1527-21, 3.2.20).
Not a historical REC. A past release addressed to the regulator's satisfaction and meeting unrestricted use criteria, with no controls, is a historical REC, which is not a REC (E1527-21, 3.2.39).
A controlled REC is still one. A REC addressed to the regulator's satisfaction with substances left in place under required controls is a controlled REC, and the Conclusions list it with the RECs (E1527-21, 3.2.17, 12.7).
At the subject property. The nonmandatory appendix on the definition says there are no off-site RECs, though a release elsewhere that has migrated to the subject property can make one (E1527-21, X4.1).

What the report says about it

The Findings identify what may point to hazardous substances or petroleum products being present or likely present (E1527-21, 12.5). The Opinions give the environmental professional's rationale for calling each finding a REC or not, with the logic and reasoning discussed; for a controlled REC they also say how it was addressed and name the controls relied on (E1527-21, 12.6, 12.6.1). The Conclusions list every REC, controlled ones included, and every significant data gap, in a statement that the assessment revealed them (E1527-21, 12.7, 12.7.2). Documentation must support the findings, opinions and conclusions (E1527-21, 12.2). The report speaks to conditions when its parts were done; it must be judged on whether its judgments were reasonable when they were made, not in hindsight, and it cannot wholly remove uncertainty (E1527-21, 4.5.1, 4.5.4, 4.5.5).

Recommendations and further inquiry

The rule says "The inquiry of the environmental professional should include an opinion regarding additional appropriate investigation, if any" (40 CFR 312.31). The standard puts it the same way, with a should: the environmental professional should give an opinion on whether any more investigation is appropriate to detect hazardous substances or petroleum products. Giving one does not make the assessment incomplete, and it does not oblige the environmental professional to recommend a Phase II (E1527-21, 12.8). A note sets that opinion apart from a recommendation, which prescribes a specific course of action (E1527-21, 12.8).

Recommendations are not required. The user should consider whether it wants them, and they are an additional service that may help its analysis of the landowner liability protections or of business environmental risk (E1527-21, 12.9). A recommendation for Phase II testing is an additional service beyond the practice and should be in the report only if the terms of engagement say so (E1527-21, 12.10). The nonmandatory legal appendix adds that courts weighing continuing obligations may read a professional's recommendations (E1527-21, X1.5.5).

How a Phase II can follow

A Phase I takes no samples (E1527-21, 7.4). The legal appendix calls all appropriate inquiries the minimum inquiry needed to support the landowner liability protections, and says more may be necessary or desirable for legal and business reasons. It says a user whose Phase I identifies RECs may want further subsurface investigation, commonly called a Phase II, and that more inquiry can also help a user work out its continuing obligations (E1527-21, X1.6.3). The handbook's Phase II pages start with what a Phase II ESA is and how one is scoped.

Obligations after acquisition

The practice does not address the duties that continue after acquisition, such as not impeding activity and use limitations, taking reasonable steps against releases, and making legally required release reports (E1527-21, 1.1.3). A user must comply with activity and use limitations to keep a protection, and whether it does is outside the practice (E1527-21, 5.1, 13.1.4).

Knowledge counts differently for each protection. For a bona fide prospective purchaser, knowledge of contamination gained through all appropriate inquiries would not generally rule the protection out. For an innocent landowner or a contiguous property owner, the inquiry must not have produced knowledge of contamination; if it did, the standard says the person is not eligible (E1527-21, 3.2.8, 3.2.16, 3.2.41).

The legal appendix lists a bona fide prospective purchaser's obligations after taking title: no disposal of hazardous substances after acquisition; the notices the law requires; reasonable steps to stop continuing releases, prevent threatened ones and limit exposure; cooperation, assistance and access for those authorized to carry out response actions or natural resource restoration; compliance with land use restrictions, without impeding institutional controls; and compliance with information requests and administrative subpoenas (E1527-21, X1.3.1.2). It sends readers to ASTM E2790 for complying with them, which the practice does not directly address (E1527-21, X1.4.3). The rule neither narrows nor widens disclosure duties under other law, and says: "It is the obligation of each person, including environmental professionals, conducting the inquiry to determine his or her respective disclosure obligations under federal, state, tribal, and local law and to comply with such disclosure requirements" (40 CFR 312.1).

This page is general reference. It does not assess any property. ASTM E1527-21 is the standard and is not reproduced here.