Staining on pavement or soil

The site visit finds a stain on pavement or bare soil. Whether it is a de minimis condition, a recognized environmental condition (REC) or neither depends on four things: what the stain is, how far it reaches, the two tests in the de minimis definition, and what the source and the records show.

What the answer turns on

Both a de minimis condition and the first two parts of the REC definition turn on a release of hazardous substances or petroleum products, known or, for a REC, likely (E1527-21, 3.2.20, 3.2.73).

What the stain is. Only hazardous substances and petroleum products count (E1527-21, 3.2.73), and the site visit item for stains on floors, walls and ceilings leaves out staining from water (E1527-21, 9.4.20). The practice includes no sampling (E1527-21, 7.4), so identity rests on appearance, odor, what was done at the spot and interviews. The standard's appendixes are nonmandatory. In one illustration in the appendix on the REC definition, a parking lot stain that appears to be oil is taken as presumed petroleum (E1527-21, X4.3).
How far it reaches. The definition needs a release to the environment (E1527-21, 3.2.73). In the parking lot illustration the presumed oil on the ground surface is treated as one (E1527-21, X4.3). The two staining illustrations differ in extent: the parking lot stain is small and localized; in the other, at a dealership, staining runs off pavement onto grass, with blackened soil and stressed vegetation (E1527-21, X4.3). Establish the stain's size, whether it stays on pavement or reaches soil or a drain, and whether vegetation is stressed (E1527-21, 9.4.21, 9.4.23, 9.4.24).
The two tests. A de minimis condition generally poses no threat to human health or the environment, and generally would not draw an enforcement action if the agencies knew of it; one judged de minimis is neither a REC nor a controlled REC (E1527-21, 3.2.20). In both illustrations the enforcement test is answered from the environmental professional's experience of the regulators concerned; at the dealership, the professional expected enforcement of a state spill response rule (E1527-21, X4.3). A footnote in the legal background appendix adds that a spill may not qualify as a REC where contamination does not exceed applicable cleanup levels (E1527-21, X1.5.4, footnote 188). The standard names no reporting threshold for either test; state rules differ: Texas publishes reportable quantities (Texas), and Florida's list of incidents to report to its watch office includes spills greater than 25 gallons (Florida).
The source and the records. In the dealership illustration, the stain lay where drums of waste oil and degreasers had been kept, and a generator record showed chlorinated solvent waste (E1527-21, X4.3). Establish what stands or stood at the stain, whether a leak is still going, and whether a spill was reported or cleaned up.

The records that bear on it

Site visit. Stained soil or pavement, and stained or corroded floors, walls or ceilings, are features the site visit must look for and the report must describe, found or not (E1527-21, 9.4, 9.4.20, 9.4.23). The report includes photographs of what indicates a REC or a de minimis condition (E1527-21, 12.3).
Records and documents. The required minimum search for federal release reports covers the subject property, and state spill records can be additional records (E1527-21, 8.2.2, Table 2, 8.2.4). Before the site visit the owner, key site manager and user are asked for cleanup reports and for agency correspondence on violations (E1527-21, 10.8.1).

What the federal rule says

The rule has no de minimis condition. On reporting it says:

Releases and threatened releases identified as part of the all appropriate inquiries should be noted in the report of the inquiries.

40 CFR 312.20(h)

It adds that its standards are not intended to require the report to identify quantities or amounts of hazardous substances, and of the other substances it names,

that because of said quantities and amounts, generally would not pose a threat to human health or the environment.

40 CFR 312.20(h)

How it is written up

A stain is a finding when the professional judges it may indicate hazardous substances or petroleum products present or likely present at the subject property, and the opinion gives the reasons why a finding does or does not fall in each class it pertains to (E1527-21, 12.5, 12.6).

Where the professional judges both tests met, the opinion says why: what the stain is taken to be, its extent, its source, and why neither a threat nor enforcement is expected. The Conclusions list RECs, controlled RECs and significant data gaps, so a de minimis condition need not appear in them (E1527-21, 3.2.20, 12.7).

Where the professional finds a release and judges a test not met, the opinion gives the same facts. Unless a past cleanup makes it a historical REC, it is listed in the Conclusions as a REC or a controlled REC, and the professional should give an opinion on additional investigation (E1527-21, 3.2.17, 3.2.39, 12.6, 12.7, 12.8).

Where the professional concludes the stain is not a hazardous substance or petroleum product, or not a release to the environment, the report still describes what was seen (E1527-21, 9.4).

Observation of ground hidden under snow or stored material 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.