Closed leaking tank case with a no further action letter

A release from an underground storage tank on the subject property was reported years ago, and the agency closed the case with a no further action letter. The letter alone does not sort the release among a historical recognized environmental condition (HREC), a controlled recognized environmental condition (CREC), a recognized environmental condition (REC) and a de minimis condition. That depends on four things: the criteria the closure met, whether a control came with it, whether the file's data meet today's criteria, and what has changed since.

What the answer turns on

An HREC and a CREC both start from a release addressed to the regulatory authority's satisfaction (E1527-21, 3.2.17, 3.2.39). The standard lists no further action letters, and similar certifications or approvals, among the documents reviewed for a CREC (E1527-21, 3.2.17.1). So the letter fits more than one class, whatever the agency calls it.

• The criteria the closure met. An HREC needs the release to meet the authority's unrestricted use criteria with no control on the subject property (E1527-21, 3.2.39). In a CREC, contamination remains in place subject to required controls (E1527-21, 3.2.17). Establish which criteria the closure applied and whether anything was left in place.
• The control and its document. Controls include activity and use limitations (AULs), institutional or engineering, or other property use limitations (E1527-21, 3.2.2, 3.2.67). The illustrations in the standard's nonmandatory appendix include a recorded covenant and a use limit the agency stated (E1527-21, X4.3). The report must identify the document providing the control (E1527-21, 3.2.17.1).
• Today's criteria. The environmental professional reviews the reasonably ascertainable documentation and data showing unrestricted use criteria were met, and a release that once qualified as an HREC may no longer qualify if regulatory criteria have changed (E1527-21, 3.2.39.1). The appendix pairs two illustrations: in one, old closure data still satisfy current criteria; in the other, the standards changed and the data do not (E1527-21, X4.3). The final sample results matter, not only the letter.
• What has changed since. The new conditions that can end HREC status also include a migration pathway not previously known or evaluated (E1527-21, 3.2.39.1). The same two apply to a CREC, with a change in the property's use added (E1527-21, 3.2.17.1). Migration includes subsurface vapor (E1527-21, 3.2.53), so note which pathways the closure evaluated.

The records that bear on it

• The agency file. For a subject property on the leaking tank list, the file should be reviewed, or the report explains why not (E1527-21, 8.2.3.1). Read the closure document for its basis and conditions, and find the final sampling results. Closure documents go by different names (Florida names three for its low-scored sites).
• Control registries and land records. Institutional and engineering control registries are searched for the subject property (state, federal). Some states keep no reasonably ascertainable registry, and some AULs exist only in project files; the professional should determine whether AULs are reasonably ascertainable in that state (E1527-21, 5.5). Searching land title records for AULs is the user's task, and the report says whether the professional received the results (E1527-21, 6.2).
• Owner documents and site visit. The owner, key site manager and user are asked for prior assessments, cleanup reports and recorded AULs (E1527-21, 10.8). On site, look for fill pipes, vent pipes and monitoring wells, and note the current use (E1527-21, 9.4.1, 9.4.12, 9.4.27).

What the federal rule says

The rule has no HREC or CREC. For grant-funded assessments (40 CFR 312.1(b)(2)), what the inquiry must seek to identify includes:

Current and past corrective actions and response activities undertaken to address past and on-going releases of hazardous substances pollutants, contaminants, petroleum and petroleum products, and controlled substances (as defined in 21 U.S.C. 802);

40 CFR 312.20(e)(2)(iv)

For a party seeking the liability protections the matching item stops at hazardous substances (40 CFR 312.20(e)(1)(iv)); the standard includes petroleum products (E1527-21, 1.1.2).

How it is written up

Each class needs its rationale in the Findings and Opinions (E1527-21, 3.2.17.1, 3.2.39.1, 12.6).

Where the professional concludes the closure met unrestricted use criteria with no control, and the data still do, the opinion cites the letter and the data reviewed. The standard does not count an HREC as a REC, so the Conclusions need not list it (E1527-21, 3.2.39, 12.7).

Where the professional concludes contamination remains under a required control, the opinion explains how the release was addressed to the agency's satisfaction and identifies the AUL or property use limitation relied on. The CREC is listed in the Conclusions (E1527-21, 12.6.1, 12.7). A CREC finding does not vouch for the control's adequacy or effectiveness (E1527-21, 3.2.17.1).

Where the professional concludes neither definition is met, as when data exceed current unrestricted criteria with no documented control or new information means the closure no longer qualifies, the opinion says why. Unless judged a de minimis condition, the release is listed in the Conclusions as a REC, and the professional should give an opinion on additional investigation (E1527-21, 3.2.20, 12.7, 12.8).

The report summarizes the file or records reviewed and gives the professional's opinion on whether they suffice to evaluate the condition (E1527-21, 8.2.3.2).

An interview with a regulatory official, or with the key site manager, may be what cannot be had. Required information that good faith efforts could not obtain is a data gap, significant if it affects the ability to identify a REC: named in the Findings with the sources consulted, discussed in the Opinions and listed in the Conclusions (E1527-21, 3.2.19, 3.2.78, 12.5.1, 12.6.2, 12.7).

Related

• REC, CREC, HREC or de minimis condition
• Activity and use limitations
• Agency file review
• Vapor in a Phase I
• Data gap or significant data gap
• State leaking tank programs: Texas, Florida, Idaho, Oklahoma, Pennsylvania
• What is a data gap?

This page is general reference for environmental professionals. It does not classify any property. ASTM E1527-21 is the standard and is not reproduced here; the judgment of the environmental professional on the facts governs.