I have been a member of ASTM for several years now. During the recent meetings held in Anaheim last month, the general consensus of the ASTM E1527 Standard Task Group is that clarification of the terms “de minimis conditions” and “HRECs” is needed to bring about consistent use in Phase I ESA Reports. The new and improved language that has been suggested (which will be sent to ballot in the near future) is intended to correct industry-wide misunderstanding and misuse of the terms de minimis and HRECs. The intent is not to change the Environmental Professional’s current practice of identifying a condition and considering its impact on the property.
Simply stated, “de minimis” is the term used for a present release that is so minor that—for lack of a better expression—it “doesn’t matter.” The Task Group as a whole favored retaining the historical definition of de minimis in the E1527 Standard, but recommended:
The definition of de minimis conditions still mirrors the definition provided in AAI; no changes to the definition were made when it was moved from its former location as part of the REC definition to a stand-alone entry. The primary objective of the Task Group in repositioning and augmenting these definitions is to clarify that de minimis conditions are not to be applied to HRECs involving continuing obligations, or for sites containing risk‑based concentrations of hazardous substances and/or petroleum products remaining in-place.
“HREC” is one of the most misused 1527 Standard terms and the source of considerable confusion. As defined in the 1527 Standard, an HREC is an environmental condition that in the past would have been considered a REC, but currently may or may not be so considered. The term has not always been included in the 1527 Standard, but eventually was developed to deal with “issues” identified on a property that have since been addressed. HREC is not to be used to describe the potential for a past release. For example, a gas station operating on a property 40 years ago would not be considered an HREC if it had not been addressed previously. An HREC would include a past release on a property that has been identified, cleaned up, and/or reported. In this instance, the Environmental Professional must provide an opinion on whether the condition is an HREC or a REC, and whether it carries continuing obligations. An HREC can also be a REC, as in the case where a site met old cleanup levels, but does not meet current levels.
Another aspect of HRECs under consideration is whether they should be included in the Conclusions section of a Phase I ESA Report. Although the current 1527 Standard does not require inclusion, the Task Group will propose retaining HRECs in the Findings/Opinions section and carrying them forward to the Conclusions section only if they are “likely” to include continuing obligations. HRECs that have been resolved to residential or unrestricted use standards would not be included in the Conclusions. The reason for this proposal is that Users tend to focus on the Conclusions, and may not read the Findings/Opinion section, when HRECs are identified. Because a Phase I ESA Report is considered a risk-management tool, HRECs—just as RECS—can help manage risk, especially when HRECs involve continuing obligations such as due care, notification requirements, and use limitations.
There is still on-going discussion between the Task Group members and changes to 1527 have NOT been finalized.