Barrow Logo Barrow EP Handbook

Old closure and today's cleanup criteria

A release on the subject property was cleaned up and the agency closed it under the criteria of its day. The agency's criteria may have been revised since. The closure 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: which criteria the closure met, whether a control came with it, whether the closure's own data meet the criteria in force now, and what else has changed since.

What the answer turns on

  • Which criteria the closure met. An HREC is a release addressed to the regulatory authority's satisfaction and meeting that authority's unrestricted use criteria, without any control on the subject property (E1527-21, 3.2.39). A CREC is a release addressed to the authority's satisfaction with contamination allowed to remain in place subject to required controls (E1527-21, 3.2.17). The standard lists no further action letters among the documents reviewed for a CREC (E1527-21, 3.2.17.1), so the name of the closure document does not say which. Establish what the document and the cleanup report say they applied. The branches left open: unrestricted use criteria, restricted use criteria (a term of the standard's nonmandatory appendix; E1527-21, X4.3), risk-based criteria for a self-directed action (E1527-21, 3.2.17.1), and criteria the file does not state.
  • Whether a control came with it. Controls include activity and use limitations (AULs), which cover institutional and engineering controls, and property use limitations (E1527-21, 3.2.2, 3.2.26, 3.2.67). Where a control is relied on, the report identifies the document providing it, and a CREC finding does not vouch for the control's adequacy or effectiveness (E1527-21, 3.2.17.1).
  • Whether the closure's data meet today's criteria. The professional reviews the reasonably ascertainable documents and data that show unrestricted use criteria were met, and a release once counted as an HREC may lose that standing where regulatory criteria have changed (E1527-21, 3.2.39.1). A CREC can lose its status for the same reason (E1527-21, 3.2.17.1). The standard's nonmandatory appendix illustrates both outcomes: in one example the old closure data satisfy current unrestricted use criteria, and in another the data exceed the current levels and no control is documented (E1527-21, X4.3, Examples 6 and 7). The appendix says its examples are illustrations and not to be applied universally. In both examples what is set against the current criteria is the data in the file, not the letter.
  • What else has changed since. The list of new conditions or information is open-ended. It includes a migration pathway not previously known or evaluated (E1527-21, 3.2.39.1), and for a CREC a change of use of the subject property (E1527-21, 3.2.17.1). Migration includes vapor in the subsurface (E1527-21, 3.2.53), so note which pathways the closure evaluated.

The records that bear on it

  • The closure file. Where the subject property is on a standard government record source, the pertinent file should be reviewed, or the report explains why not (E1527-21, 8.2.3.1). Read the closure document for its basis and any conditions, the final sampling results, and the criteria cited. The agency file review page covers when the file is called for and what may stand in for it.
  • Where the criteria are found. Both sets come from the regulatory authority: the criteria in force at closure and the criteria in force now. The state pages on old closures in Related say what each agency's own pages give on the two sets, and the cleanup level indexes in Related carry the current tables.
  • Control registries and land records. Institutional and engineering control registries are reviewed, but some states keep no reasonably ascertainable registry and some AULs exist only in project files (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 interviews. The owner, key site manager and user are asked about prior assessments and cleanup reports (E1527-21, 10.8).

What the federal rule says

The inquiry rule has no HREC or CREC. Its government records review of the subject property should include:

Records of reported releases or threatened releases, including site investigation reports for the subject property;

40 CFR 312.26(b)(1), edition revised as of July 1, 2025

For a party seeking the liability protections (40 CFR 312.1(b)(1)), 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;

40 CFR 312.20(e)(1)(iv), edition revised as of July 1, 2025

That item names hazardous substances only. The standard's scope also includes petroleum products (E1527-21, 1.1.2).

How it is written up

Each finding 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 meet today's criteria, the opinion cites the closure document and the data compared (E1527-21, 3.2.39.1). A historical REC is not a REC (E1527-21, 3.2.39), and the Conclusions list RECs, CRECs and significant data gaps (E1527-21, 12.7).

Where the professional concludes contamination remains under a required control, the opinion discusses how the release was addressed to the authority's satisfaction and identifies the AUL or property use limitation relied on (E1527-21, 12.6.1). The CREC is listed in the Conclusions (E1527-21, 12.7). Where criteria or use have changed, the opinion says whether it still qualifies (E1527-21, 3.2.17.1).

Where the professional concludes the release is a REC, for example because the closure data exceed today's unrestricted use criteria and no control is documented, the opinion says why. Unless judged a de minimis condition or a historical REC, the REC is listed in the Conclusions, and the professional should give an opinion on additional investigation (E1527-21, 3.2.20, 3.2.39, 12.7, 12.8). The appendix's Example 7 reaches that result on its stated facts.

Where the closure file is not reasonably ascertainable, the professional may use another source and attempts to get the information by the practice's other means. The report documents the sources checked, summarizes what was reviewed and gives the professional's opinion on whether it suffices (E1527-21, 8.1.6, 8.1.7, 8.1.9, 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

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.

Maintained by Barrow. General reference only, not legal or professional advice. Barrow is not affiliated with or endorsed by any government agency. See how Barrow drafts the report