Entry by JoeDerhake
What if you are doing two Phase I Environmental Reports and run into the exact same environmental issue, one site in Mexicali and one site in Calexico? Would you treat these issues the same?
First, Mexicali is a Mexican border down about 100 miles east of San Diego; this might be most familiar to Dead Heads via the Dead song,” Mexicali Blues.” Immediately across the border is a US border town called Calexico.
A lot of people in our community advocate for treating recognized environmental conditions (RECs) similarly across all property types and instances. “A REC is a REC is a REC” is a mantra of some in our community.
The ASTM E1527’s definition of Recognized Environmental Condition focuses on the presence of petroleum products and/or hazardous materials “under conditions that indicate an existing release, a past release, or a material threat of a release of any hazardous substances or petroleum products…” and the “REC-is-a-REC” point of view is well supported–at least until you get to the de minimis condition exception. The de minimis portion of the definition of RECs applies two tests: 1) is it a human health concern? and 2) if reported to a regulator, would the regulator require action?
The human health criteria should be applied consistently on each side of the border. Right? On the California side of the border, we compare volatile organic concentrations to CHHSLs (CA Human Health Screening Levels). CHHSLs are famously conservative and many of the other states in the union are not interested in using the progressive and conservative standards of California. Hmmm? When working in a region with no standards or rules on an issue such as safe levels of volatile organic compounds in the subsurface beneath a building, I think the environmental professional is right to import a standard. Importing California rules seem to make sense in this border town hypothetical, but in the case of vapor intrusion, California is no doubt on the conservative side of the spectrum. The EP could also import the rule of another state that takes a more middle of the road stance on vapor intrusion.
The second de minimis criterion is for items that “generally would not be the subject of an enforcement action if brought to the attention of appropriate governmental agencies.” Now this element of the ASTM E1527 definition of RECs vs de minimis conditions is dependent on location. What would trigger regulatory action in California may not trigger it in Mexico. In my practice (we do some work in Mexico) I like to stay rather consistent in my classification of Recognized Environmental Conditions, but I think a technical read of the standard allows a little wiggle room here.
Recognized Environmental Condition, REC, de minimis environmental condition, de minimis condition, Phase I Environmental Report