Open leaking tank case at a nearby property

The database report lists an open leaking tank case at a property near the subject property, not adjoining it. The case is on record; whether a release has reached the subject property is not. Whether it makes a recognized environmental condition (REC) depends on four things: what the open case actually records, where the source lies, the setting between the two properties, and what the case data show about how far the release has spread.

What the answer turns on

The REC definition asks about hazardous substances or petroleum products at the subject property (E1527-21, 3.2.73). The standard's appendixes are nonmandatory. Appendix X4 says a release known at another property leaves one judgment for the environmental professional: whether presence at the subject property is likely (E1527-21, X4.1).

What the open case records. What open covers differs by state. Pennsylvania has statuses for a suspected release and says its Inactive cases have not reached cleanup completed. In Oklahoma a report can be a suspicion. Ohio codes suspected, confirmed and disproved releases separately. Establish whether a release is confirmed, what was released, and what work has been done.
Where the source lies. Appendix X4's first factor is the location of the source relative to the subject property, adjoining or proximate (E1527-21, X4.1). Check that the listed site is not in fact adjoining: a property across a street or other public thoroughfare adjoins (E1527-21, 3.2.4). Records are often wrong (E1527-21, 8.1.3), so confirm where the listing really is (leaking tank list).
The setting between the two properties. Appendix X4's second factor is the topography, geology and hydrogeology around the source and the subject property. Its example, a source up-gradient in sandy soils over shallow groundwater, moves toward likely presence at the subject property (E1527-21, X4.1). In the body of the standard, when the site visit points to a likely release on a nearby property that could reach the subject property, the geology, groundwater, topography and other environmental information are to be evaluated for whether a REC at the subject property likely results (E1527-21, 9.4.6). Migration includes vapor in the subsurface, though nothing in the practice requires applying the separate vapor guide (E1527-21, 3.2.53, 3.2.53.1).
What the case data show. Appendix X4's third factor is other information: reports and data from the regulatory authority, the database report or prior assessments (E1527-21, X4.1). Appendix X4's illustration of an open case at an adjoining former station rests on an up-gradient position, shallow groundwater, sand and gravel, and no record of any response; the illustration is not a rule (E1527-21, X4.3). In the case file, look for where contamination was found, whether its edge was defined, and which way groundwater flows.

The records that bear on it

The listing. Leaking tank records are a standard source with a required minimum search of 0.5 mile from the subject property's nearest boundary, which the professional may reduce with reasons stated in the report (E1527-21, 8.1.2, 8.1.2.1, Table 2). Each site identified within the search distance gets the professional's judgment on its significance; one statement may cover several sites (E1527-21, 8.1.10).
The agency file. The file review step is written for the subject property and adjoining properties (E1527-21, 8.2.3.1). For a nearby site, the judgment on significance may draw on additional information from the government source (E1527-21, 8.1.10). State case records: Texas, Florida, Idaho, Oklahoma, Pennsylvania, Ohio.
Physical setting. A topographic map showing the subject property is reviewed, with any site-specific setting information obtained through an agency file review. Groundwater, geology and soil maps are sought when migration to the subject property is likely and local practice is to obtain them (E1527-21, 8.2.1).
Site visit and interviews. The surrounding area is observed from the subject property and from public thoroughfares (E1527-21, 9.2.5). Monitoring wells on the subject property are looked for (E1527-21, 9.4.27). The owner and key site manager are asked for reports on groundwater conditions at or around the subject property (E1527-21, 10.8.1).

What the federal rule says

Among the records of nearby properties the review should identify:

Records of leaking underground storage tanks (one-half mile)

40 CFR 312.26(c)(1)(iv)

And for the sites those searches identify:

A review of additional government records with regard to sites identified under paragraphs (c)(1) through (c)(3) of this section may be necessary in the judgment of the environmental professional

40 CFR 312.26(c)(4)

How it is written up

The listing becomes a finding when the professional judges it may indicate presence or likely presence at the subject property, and the opinion reasons for or against calling it a REC (E1527-21, 12.5, 12.6).

Where the professional concludes petroleum products from the case are present or likely present at the subject property, the opinion gives the grounds: the stage of the case, the position of the source, the setting, the case data. 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).

Where the professional concludes otherwise, the opinion gives its reasoning on the same four facts (E1527-21, 12.6).

Observation of part of the subject property on the site visit, or an interview with a state or local agency official, 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).

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.